State (Davidson), The v Farrell

• Jurisdiction: Ireland
• Judgment Date: 21 December 1960
• Date: 21 December 1960
• Court: Supreme Court

High Court.

Supreme Court.

The State (Davidson) v. Farrell and Another.

THE STATE (at the Prosecution of JANE DAVIDSON)

and

DISTRICT JUSTICE JOHN FARRELL and CIRCUIT JUDGE JOHN C. CONROY and In the Matter of the Courts of Justice Acts, 1924 to 1953

Landlord and tenant - Rent Restrictions Act - Basic rent - Lawful additions - - Certiorari - Sole use of two rooms by tenant - Joint use of sanitary accommodation with other tenants - Sanitary accommodation situate in annexe built by landlords to replace similar building which had become dangerous - Application by landlords to determine basic rent (with lawful additions) of rooms occupied by tenant - Order of District Justice purporting to make an addition of 5s. 6d. per week to basic rent in respect of expenditure by landlords on annexe - Order of District Justice confirmed on appeal to Circuit Court - Jurisdiction - Meaning of "premises" - Rent Restrictions Act, 1946 (No. 4 of 1946), s. 9, s. 11, sub-s. 2 (g).

Certiorari.

Jane Davidson was a weekly tenant under an oral agreement made at some time prior to 1938 of two front rooms, nos. 17 and 18, of the second floor in a tenement house, no. 32 Lower Kevin Street in the City of Dublin. No evidence was available as to the terms of the tenancy other than what was deduced from the rent which had been paid and the incidents which had prevailed during the period of the tenancy. The house, no. 32 Lower Kevin Street, contained four storeys with a shop on the ground floor and three storeys above it, the rooms in which were let to various tenants. There was an annexe or return building to the main building consisting of three storeys and which was borne on pillars. The sanitary accommodation for the tenants, consisting of two toilets and washing facilities, was provided in the annexe or return building, each floor of which corresponded and communicated with a floor of the residential portion of the main building, and the tenants were entitled to use the sanitary accommodation provided on his or her floor. The annexe or return building was built by the landlords, Fielding Gerard Vance Scovell, Eustace Cleveland Heathcote, Desmond William Beamish and Geoffrey Beamish, in the years 1948 and 1949, to replace a similar building which had become dangerous, at a cost of £1,397. The landlords retained no control over the annexe and it was the responsibility of the tenants to keep the sanitary accommodation on their respective floors clean. The landlords initiated proceedings in the District Court, pursuant to the Rent Restrictions Act, 1946, for the determination of the basic rent and lawful additions thereto of "the premises nos. 17/18 two front rooms on the second floor right of the dwelling-house and premises known as no. 32 Lower Kevin Street, Dublin, which Jane Davidson holds as tenant to the landlords."District Justice Farrell, by order dated the 30th October, 1956, determined, inter alia, that the sum of £3, part of the rateable valuation of the property in which the said premises are comprised, should be apportioned to the said premises let to the tenant and fixed the basic rent, in pursuance of s. 9 of the Rent Restrictions Act, 1946, at 3s. 6d. per week, allowing certain lawful additions thereto, under s. 11 of the Act, in respect of rates and the landlords' liability for repairs. The District Justice also determined that the landlords were entitled to a weekly addition of 5s. 6d., by virtue of the provisions of s. 11, sub-s. 2 (g), of the said Act, as amended and extended, in respect of the landlords' expenditure in rebuilding the annexe or return building. On appeal by the tenant to the Circuit Court, the Circuit Court Judge (Judge Conroy), by order dated the 9th May, 1957, affirmed the order of the District Justice in all respects.

In the High Court (Murnaghan J.) the tenant applied for, and obtained, a conditional order of certiorari directed to the said District Justice and the said Circuit Court Judge to bring before the Court the said orders of the 30th October, 1956, and the 9th May, 1957, and all other documents and records relating thereto for the purpose of having quashed that part of the order of the District Justice as affirmed by the order of the Circuit Court Judge which made or purported to make an addition of 5s. 6d. per week to the basic rent of the premises on the grounds (1) that the premises in relation to which the expenditure by the landlords of £1,397 6s. 9d., in demolishing the sanitary annexe and erecting another in substitution therefor, did not come within the meaning of the word, "premises," contained in s. 11, sub-s. 2 (g), of the Rent Restrictions Act, 1946, the prosecutrix in conjunction with her tenancy in the said two rooms having had at all times the right in common with tenants of other portions of no. 32 Lower Kevin Street to make use of the toilet and washing facilities in the annexe presently in existence and also in the one for which it was a substitute; and (2) that, even if the said expenditure did as to any part thereof constitute the putting of the premises let to the prosecutrix (i.e., the said two rooms) into a reasonable state of repair, neither the said District Justice nor the said Circuit Court Judge had any power or authority vested in them on the facts proved to impose an addition of 15 per cent per annum on the excess of the said amount expended over two-thirds of the basic rent.

Cause was shown and the matter came before the President of the High Court on the 28th January, 1958.

From the above judgment the landlords appealed to the Supreme Court (1) on the grounds, inter alia, that the learned President of the High Court misdirected himself in fact and law in not holding that the prosecutrix was not entitled to apply for and obtain an order of certiorari and in not holding that it was not competent for the prosecutrix to seek relief in the nature of certiorari, the prosecutrix having already pursued the remedy available to her by an appeal to the Circuit Court, whose decision was final and conclusive. Alternatively, the learned President misdirected himself in fact and in law in not holding that the prosecutrix having exhausted the remedy open to her and obtained an adverse decision was seeking to re-open the matter and attempting to challenge such decision by way of certiorari.

The notice of appeal further provided that if, and in so far as, contrary to the grounds set forth above, proceedings by way of certiorari lay, the appellants relied upon the following additional grounds, that is to say, inter alia, that the learned President misdirected himself in fact and in law in holding that if the District Court and Circuit Court had jurisdiction to determine the lawful addition to the basic rent of the premises held by the prosecutrix as tenant to

the appellants in respect of expenditure by the appellants on putting the premises into a reasonable state of repair pursuant to s. 11, sub-s. 2, para. (g), of the Rent Restrictions Act, 1946, and the Acts amending and extending the same and did so determine such addition, it was open to the prosecutrix to have that determination reviewed and determined by the High Court in proceedings by way of certiorari;that it was a condition precedent to the exercise of the jurisdiction that the District Court and the Circuit Court on appeal must have found correctly, and not erroneously, that there had been such expenditure as aforesaid; that if (as is the case) the said respective Courts had jurisdiction to determine the matter of the said expenditure and did so they could not lose that jurisdiction merely because they were guilty of an error in the exercise of that jurisdiction and such error was not capable of being reviewed on certiorari; that the learned President misdirected himself in law in holding that a mistake of fact or of law by the said respective Courts in arriving at their decisions on the said expenditure ousted their jurisdiction and entitled the prosecutrix to the remedy of certiorari and thereby to have a further determination of the matter within the jurisdiction of the said Courts though erroneously exercised.

The appellants also relied on the following additional grounds: that the learned President misdirected himself in fact and in law in holding 1, that the word, "premises,"in s. 11, sub-s. 2 (g), of the said Act was limited to that portion of what was comprised in the said tenancy which consists of the two rooms in the main building of the messuage no. 32 Lower Kevin Street, in the exclusive occupation of the prosecutrix; 2, that no part of the physical structure of the return building (the sanitary annexe) of the said messuage could be rightly considered as portion of the premises of the prosecutrix; 3, that the word, "premises," as used in s. 11, sub-s. 2 (g), of the said Act comprised only the said two rooms in the main building and did not include any part of the said return building (the sanitary annexe); 3, that the District Court and the Circuit Court were in error in finding that there had been expenditure upon putting the premises of the prosecutrix into a reasonable state of repair; 4, that neither of the said Courts had any jurisdiction to determine that the increase of 5s. 6d. per week awarded by the said Courts was a lawful addition to the said basic rent; 5, that if and in so far as the said increase of 5s. 6d. per week was awarded erroneously and was within the jurisdiction of the said Courts the learned President misdirected himself in law in questioning the award and in holding that the same was capable of being reviewed on certiorari; that the learned President misdirected himself in law in holding that the wording of s. 11, sub-s. 2 (g), was intractable and precluded any interpretation which would give the appellants the right to the said increase.

D. was a weekly tenant of two rooms in a tenement house under an oral agreement made some time prior to 1938. The house...