clr/1988/1988_1_571.pdf

(1)— Jurisdiction of Rent Control Court—Ambit of—«Incidental or supplementary matter» — Thephrasereferstothemaintheme of the law—Analysis of such main theme —No question of concurrent 5 jurisdiction withDistrictCourt arises—Any matter outside ambitof s.4(l) falls withinthejurisdictionofDistrictCourt—Claimagainsta tenant by the landlady for trespassonyard of buildingof which the shop inthe occupation of the tenant ispartand forprivate nuisance fapanating from the alleged act of trespass—Claim not based on 10 anyallegedbreachofany termofthetenancy —Evictionnot among theremedies applied for—Notwithstanding adefence thattheyard isincluded in the tenancy, the actioniswithinthejurisdictionof the DistrictCourt. 15 Wordsandphrases: 'Including anyincidentalorsupplementary matter»in section 4

(1)oftheRent ControlLaw 1983 (Law 23/83). The appellant isa statutory tenant ofa shopjatAyios Dhometios. The shop is part of a two storey building.The tenancy·agreement provided that the appellant shall not cause nuisance to his neighbours. 20 25 The claim ofthe respondent-plaintiff (landlady)in the action isfor trespasstolandand private nuisance.The remediesclaimed are:(

1. a)Injunction prohibiting the appellant defendant from trespassing on theyardofthebuildingofwhichtheshopforms apart, (
2. b)Injunction ordering the appellant-defendant to vacate the said yard, and (
3. c)Injunction ordering the appellant-defendant to abate the nuisance created bythe actsdescribed under (a)and (b)above. 571 Pap«e*ofghiouv.Kuayluini·^ {££?*&9)Γ In his defence thedefendant denies trespassing or causing any nuisance and alleges that the areas of the yard where hestoreshis goods are included in thedemised premises though they are not specifically mentioned in the agreement, Exh 1 Theappellant-defendant objected tothejunsdicbon oftheDistnct Court to try the action Theobjection was dismissed Hence this appeal 5 The outcomeofthiscase depends ontheinterpretationofsection 4

(1)oftheRentControlLaw, 1983 (Law23/83)andinparticularthe phrase «including every incidental or supplementary matter», 10 («συμπεριλαμβανομένου παντός παρεμπίπτοντος ήσυμπλη­ ρωματικού θέματος»). Held, dismissing theappeal

(1)There isnoquestion oftheDistnct Court and the RentControl Courthaving concurrentjurisdiction on thesame dispute Ifthe dispute refers toany matterwhich either- (

1. a)15 anses dunng the application ofthe RentControl Law of 1983 or (
2. b)concerns any incidental or supplementary matter,the RentControl Court has exclusive jurisdiction to determine such dispute under section 4

(1)ofthe Law

(2)The difficulty, which sometimes anses, concerns cases falling 2 0 under category (b)above Itis notalways clear whether a matter upon which a dispute hasansen is «incidental or supplementary» within theambitofsection 4

(1)Thewords clearly refer toand should notberead independently ofthemainthemes ofthe Law

(3)The question whether amatterisincidental or supplementary 2 5 tothe main theme ofthe law or notwilldepend on thenatureofthe claim inconjunction with therelief sought Iftheclaim isfashioned in a manner that would necessitate forits determination consideration and enforcement of the provisions of the Rent Control Lawor examination ofthetermsofthestatutorytenancyassuch,junsdicbon 3 0 rests solely with theRent Control Court Inapplying this testone should bear inmindsection 27ofthe Law

(4)Inthis case theessence of theacbon is trespass tolandand nuisance associated with the use ofthe land trespassed upon which adjoins the demised controlledpremises Thelandlady isnotrelying 3 5 on anyalleged breach of the terms of the statutory tenancy ιe the term asto nuisance andisnotpraying foran ordertoevict thetenant on accountofsuch breach oronany otheraccount

(5)Themere fact thatthetenantallegesthattherelevant partof the plaintiff s yard was included in the onginal tenancy though not 4 0 specifically mentionedintheagreement,Exh 1,doesnotchangethe 572 1 CX.R. 5 IPapagcorghlou v.Karaytannla complexionof theaction; nordoesitmakeitamatterrelevanttothe application of Law 23/83. The claim can still be examined and determinedsolelyby reference toandbyapplicationof the general principles of the law pertaining to the aforesaid civil wrongs of trespass andnuisance. Appealdismissedwithcosts. Casesreferredto: Petsa v. Pavlides

(1980)1C.L.R. 158; Efthymiadouv. Zoudrosandothers

(1986)1C.L.R. 341; 10 Re Fahy'sWillTrusts McKnight and anotherv. Fahyandothers {1962] 1All E.R. 73 Appeal. Appeal by defendant against the ruling of the District Courtof Nicosia (Korfiotis, D.J.) dated the 14th March, 1988 (ActionNo. 15 1708/86) whereby his objection to the jurisdiction of the District Court totry hisclaim for trespass tolandandprivate nuisance was dismissed. A. Dikigoropoulos, for the appellant. C. Hadjioannou, for the respondent. 20 Cur. adv.-'u'·' DEMETRIADESJ.:Thejudgmentwillbedelivered by Boy?.d!isJ . BOYADJIS J.:Thisisan appeal against the ruling of theDistrict Court of Nicosiagiven on March 14,1988 inaction No. 1708/86 . whereby the objection of the appellant-defendant in the action 25 below - to the jurisdiction of!the.District Court to try the claim against him raised in the writ of summons issued in the aforesaid civilaction,was dismissed. Itis commonground thattheappellant-defendant is a statutory tenantof theshop,theproperty of therespondent-plaintiff, which 30 is situated at Gregoris Afxentiou street, No. 58B, Ayios Dhometios, and which forms part of a two-storey building. The tenancy owes its origin to the tenancy agreement Exh. 1, signed between the parties on 30/9/1980. It was, inter alia, agreed thereby that the shop was to be used by the tenantas a popular 35 market (λαϊκήαγορά) insuch a manneras nottocause nuisance tohisneighbours.Thetenancywas from itsformation regulated by the provisions of the RentControlLaw (Law 36/75). From April 22,1983 onwards when Law 36/75 was repealed and substituted 573 Boy*4P*J. ^IJvageorghiou v.Karavfuu£i

(1988)bytheRentControl Lawof 1983(Law23/83)thetenancyisbeing regulated bytheprovisions ofthe latter enactment. The claim of the appellant-plaintiff against the respondentdefendant is for trespass to land and private nuisance and the remediessought are -(A)an injunction prohibitingthe defendant 5 from trespassing into the yard of the building of the plaintiff of which the leased shop forms part, (B) a mandatory injunction orderingthedefendant tovacatetheaforesaid yard ofthe plaintiff by removing hisgoods whichhe unlawfully storestherein andby demolishing all temporary buildings which he built thereon, and 10 (C) a mandatory injunction ordering the defendant to abate the nuisancecreatedbytheillegalactsdescribedin(A)and(B)above. InhisDefence, the defendant deniestrespassingorcausingany nuisanceand allegesthattheareasoftheyardwherehestoreshis goods are included in the demised premises though they are not 15 specifically mentioned in the agreement, Exh. 1; that he constructed certain temporary buildings inthe adjoining building site of the plaintiff with the permission of the plaintiff s late husband; and that by her acquiescence for many years the plaintiff has waived any right which she might have to complain 20 againsttheaforesaid actsof the defendant. Learned counsel for the appellant maintained that the District Court has no jurisdiction to entertain thepresent dispute whichis within the exclusive jurisdiction of the Court established under section 4

(1)of the Rent Control Law (Law23/83) inasmuch asit 25 concerns matters which are incidental and/or supplementary to themattersarisingfrom theapplication ofthe aforesaid Law. Learned counsel for the respondent has, on the other hand, argued thatthe dispute asdisclosed inthegeneral indorsementof thewritofsummonsand intheStatementofClaimdoesnotarise 30 and is not in any way connected with or incidental or supplementary to any matter arising from the application of the RentControl Law. Thedetermination of the question involves: (a)theinterpretation oftheprovisionsofsection4

(1)ofLaw23/ B5 83, and (b)the examination of the nature of the plaintiff s claim in the form inwhich she chose to fashion itinherpleadings. 574 icj-Β. Τ>Γ| inirSf-'" κ^τ*—•- η»Μ<Ρ"*> Section 4

(1)of Law 23/83 readsas follows: 5 10 15 «4.-

(1)Καθιδρύονται Δικαστήρια ΕλέγχουΕνοικιάσεων ο αριθμόςτ ω ν ο π ο ί ω ν δεν θ α υπερβαίνη τ α τρία επί σ κ ο π ώ επιλύσεως, μεθ' όλης της λογικής ταχύτητος, των εις α υ τ ά αναφερομένων διαφορών των αναφυομένων επί οιουδήποτε θέματος εγειρομένου κατά την εφαρμογήν τ ο υ π α ρ ό ν τ ο ς Νόμου συμπεριλαμβανομένου π α ν τ ό ς π α ρ ε μ π ί π τ ο ν τ ο ς ή συμπληρωματικούθέματος». (<4-{1) Rent Control Courts are being established whose numbershall notexceed threefor thepurposeof determining with all reasonable speed, the disputes referred to them, which concernanymatterraisedduringtheapplicationof the present Law including every incidental or supplementary matter»). Section 4

(1)of Law 23/83 as far as thejurisdiction of the Rent Control Courts is connected is similar though not identical to section4

(1)ofLaw36/75*whichitsuperceded.The1975version ofsection4

(1)wasthesubjectofjudicialinterpretationinGregorisK. 20 Petsasv. Pavlos Pavlides

(1980)1 C.L.R. 158, where thequestion whethertheRentControl Courtestablished therebyhadjurisdiction todetenninedisputestouchingevictionaswellasrecovery ofarrears of rent, was answered in the affirmative, the latter claim being treated as a matterincidentalto theformer. Mr.Justice Sawides 25 said inthisrespectthefollowing atpp. 173,174 of thereport: 30 «The issue as to whetherthere isjurisdiction todetermine disputes touchingeviction and recovery of arrears of rentis one which can be determined without any difficulty by reference totheprovisions of the RentControl Law.Section 4 of suchLaw makes unambiguousprovision thatany matter * *4.

(1)ToΑνώτστον Δικαοτήριον, τηρουμένων των διατάξεων του Συντάγματος, διόριζα εν σχέαει προς εχάστην εττσρχίαν, μέλος ή μέλη του επαρχιακού δικαστηρίου της τοιαύτης επαρχίας επί σκονω ακροάσεως κ& εκδόσεως αποφάσεως επί οιασδήποτε διαφοράς αναφυόμενης κατά την εφαρμογήν του ββρρόντος Νόμου και παντός παρεμππτιυνιυ»;ίγβαρΊτληρ(θματιχοό προς τοκχύτην διαφοράν θέματος. • * (*4 -

(1)TheSupreme CourtshaB, subjectto theprovisions of'the Conshtuoon,appomt with tpspect to eachdistnct. a member or members of the DistnctCourt of such distnctfor the purpose of bearingand determiningany disputeansmg duringthe applicationof the Law and any matter tnddentaJor supplementary thereof.') 575 B^SNKIHSJ. Peou<?«ot?hlon v. KarayiannJ*

(1988)incidental to the recovery of possession can be dealt with by the same Court in the same proceedings. The object of the legislator in inserting this provision was to avoid duplicity of proceedings on the same issues one underthe Rent Control Lawfor eviction onthegroundofarrearsofrentundersection 5 16(l)(a), andanotheroneundertheCivil ProcedureRules for the recovery of such arrears of rent.Asummary procedureis contemplated by the Rent Control Law to secure a speedy and lessexpensive procedureandtherefore theCourt dealing with the determination of a dispute concerning recovery of 10 possession is authorizedtodeal inthesameproceedings with any mattersincidentalIthereto such as therecovery of arrears of rent.» The last case in which section 4

(1)of Law 36 of 1975 was considered by this Court was that of Poly E. Efthymiadou v. 15 Georghios Zoudros and others

(1986)1 C.L.R. 341, where appellant' s action filed on4.1.83 in the DistrictCourtof Nicosia againstthe respondent,claiming (a)recovery ofarrears of rentand charges dueinconnectionwiththeoccupationof premises subject totheprovisions ofthe RentControlLaw (Law36 of 1975),which 20 were vacated by the respondent in May or June 1982 and (b) compensationfor damage causedtosuchpremises,was dismissed for lack of jurisdiction, the Court' s ruling being that the matters aforesaid fell within the exclusive jurisdiction of the Court established by section 4

(1)of Law 36/75. Dismissing this ground 25 of appeal, Mr.Justice Pikissaid atpp.344,345 of thereport: «On a literal construction of the provisions of s.4(

1. l)- Law 36/75, the Rent Control Court, established under this provision of thelaw, was vested withjurisdictionto adjudicate upon any dispute arising from (αναφυόμενης) the 30 enforcement of the law including matters incidental to the main themeof thelaw, such as recovery of rentandloss from damage caused to rent controlled premises. To the same conclusion we arrive onapurposive interpretation of the law, too. On a considerationof thelaw as a whole, andtheobject 35 it aimed to achieve, mainly to cope with the scarcity of accommodation intheaftermath of theTurkish invasion, itis fairly clear to us thelegislature intendedtorefer every matter relevant tothetermsofoccupationof controlledpremisesand liability arising thereunder to the Court set up under the 40 576 4AKL.R. *«paecorshio«v.l6i7eyiaiini· <&*v«4|I»J. provisionsofs.4(l).Thatrentwasdirectlyregulatedbythelaw is manifest from the provisions of s.7(
2. l)assigning the determination of rent payable for controlled premises to the Court established under s.4(l). The law superceded 5 contractual provisions with regard to rent relegating their importance to mere relevance to what may constitute 'reasonable rent'fortheoccupationofcontrolled premises,as the Supreme Court decided in EMG. Meitz and Others v. Andreas Pelengaris

(1977)1C.L.R.226». 10 The question whether in exercise of its general jurisdiction in civil disputes vested in it by virtue of section 22 of the Courtsof JusticeLawof 1960aslateramended, theDistrictCourtofNicosia hasjurisdiction totrythepresent claim ofthe respondent-plaintiff orwhetherithasbeen deprivedofsuchjurisdictioninfavour ofthe 15 Rent Control Court by virtue of section 4

(1)of the Rent Control Lawof 1983(Law23/83)mayonlybedetermined byreference to the provisions ofthe latter enactment. There isno question of the District Court and the Rent Control Court having concurrent jurisdiction on thesamedispute.Ifthedisputereferstoany matter 20 which either -(a)arisesduringthe application ofthe Rent Control Law of 1983, or (b) concerns any incidental or supplementary matter, the Rent Control Court has exclusive jurisdiction to determine such dispute under section 4

(1)of the Law.Inall other casesthejurisdiction restswith the District Court. 25 Nodifficulty arisesincaseswhich fallunder category (a)above. The main theme of the Rent Control Lawis: (i) the restriction of the power of the Court to make eviction orderstothecasesexhaustivelyenumerated insection 11

(1)ofthe Law, 30 00theregulation undersection8oftheLawoftherent payable inrespect of premisesto which the Lawapplies, (iii)the granting of compensation tothe tenant incertain cases under theprovisions of sections 12,13and 15of the Law and, (iv) the granting of a new tenancy to the tenant under the 35 provisionsof section 14of the Law. If any dispute arises concerning any of the last-mentioned matters, it is a dispute concerning a matter raised during the application of the Law, clearly falling withinthejurisdiction of the Rent Control Court under section 4

(1). 577 Boymd&mJ. PfflWOTlhioM v. K a n y l a n n l ·

(1988)The difficulty which sometimes arises concerns cases falling under category (b) above. It is not always clear whether a matter upon which a dispute has arisen is «incidental or supplementary» within the ambit of section 4

(1). The words «συμπεριλαμβανομένου π α ν τ ό ς π α ρ ε μ π ί π τ ο ν τ ο ς ή 5 συμπληρωματικού θέματος» («including every incidental or supplementary matter») in thecontextof section 4

(1)clearly refer to and should not be read independently of the main matters referred to hereinbefore upon which a dispute may arise during the application of the Law. 10 In support of his argument that the present dispute concerns matters which are «incidental or supplementary» within the meaning of section 4

(1)of Law 23/83, learned counsel for the appellant referred the Courttothe English decision in Re Fahy's WillTrustsMcKnight and another v. Fahy and others [1962] 1All 15 E.R. 73,a case which concernedreviewof taxation of costs which were taxed in accordance with an order for taxation which included the expression «costs of and incidental to the negotiations» and thequestion which had arisen was whether the ordercovered costsincurredbefore thenegotiationshadbegun. It 20 was held that the expression aforesaid meant costs of and consequent on the negotiations and did not cover costs incurred before thenegotiations began. The question whether the dispute inany given case concernsa matter which is incidentalorsupplementary tothemaintheme of 25 thelaw ornotwilldependonthenatureoftheclaiminconjunction with the relief sought. If the claim is fashioned in a mannerthat would necessitate for its determination consideration and enforcement of the provisions of the Rent Control Law or examination of the terms of the statutory tenancy as such, 30 jurisdiction rests solely with the Rent Control Court. In applying this test one should bear in mindsection 27 of the Law whereby it is provided that a tenant who continues in possession of any dwelling house or shop undertheprovisions of thelaw isbound by allthetermsandconditionsofthe original tenancyagreementtothe 35 extentthatthey are notinconsistentwith theprovisions of the Law. In its ruling the trial Judge expressed the view that the present claim of theplaintiff isnotcovered by theprovisions andthescope of section 4

(1)of Law 36/75 because itisnotbased onanybreach of thetenancyagreement, Exh. 1;thecause of action,thelearned 40 578 1 C.L.R. Papageorghiou v. Karaylannls B o y a d j l .J . Judge added, is for trespass and nuisance. Reference in the Judge's rulingtoLaw36/75instead ofLaw23/83isobviously the resultofamistake.Evenif, however, thetrialjudgebaseditsruling upon a consideration of the provisions of section 4

(1)of Law36/ 5 75 instead of the conesponding provisions ofsection 4

(1)of Law 23/83, the similarity in the wording and the identity inthe object ofthetwosections,towhichwehaveearlierreferred, hasledusto the conclusion that the Judge would inevitably reach the same result byinterpretingsection 4

(1)of Law 23/

1. 10 From a careful examination of the present claim of the plaintiff itisobvious that the essence of the action istrespass to land and nuisance associated with the use of the land trespassed upon which adjoins the demised controlled premises. Though, under the terns of the tenancy agteemen*. Exh 1, which survived the 15 conversion of the tenancy intoastatutory one byvirtue of section 27 of Law 23/83, which terms the tenant must continue to observe, the use of the demised premises in a manner causing nuisance to the neighbours, gives the landlady the right to terminate the tenancy and recover vacant possession of the 20 premises, the landlady isnot relying on any alleged breach of the terms of the statutory tenancy and is not praying for an order to evict the tenant on account of such breach or on any other account. The determination of the plaintiff sclaim inthe manner shechosetofashion itinthepresentactiondoesnotinvolvedirectly 25 or indirectly theapplication of the RentControl Law(Law23/83) nor does itrequire consideration of anyof the termsor conditions ofthestatutory tenancy assuch. The mere fact that inhis Defence the tenant alleges, inter alia, that the part of the plaintiff s yard where he is alleged to have committed the trespass and the 30 nuisance was included in the original, tenancy though not specifically mentioned inthe agreement, Exh. 1,does not change the complexion ofthe action:nordoes itmake itamatter relevant to the application of Law 23/
2. The claim can still be examined and determined solely by reference to and by application of the 35 general principles of the law pertaining to the aforesaid civil wrongs of trespass and nuisance. It follows from the above that the words «including every incidental or supplementary matter» inthe context ofsection 4

(1)of Law 23/83 do not cover the present claim of the respondent- 579 BovadjbJ . Papafictorghlou v. K a r a y i a n n i ·

(1988)plaintiff, so as to bring it within the exclusive jurisdiction of the Rent Control Court established thereby. Intheresult the appeal isdismissedwith costs. Appeal dismissedwithcosts. 580