State (Litzouw) v Johnson & Dublin Corporation

JurisdictionIreland
CourtHigh Court
JudgeGannon J.
Judgment Date01 January 1981
Neutral Citation1981 WJSC-HC 831
Date01 January 1981
Docket Number1977/573 S.S.

1981 WJSC-HC 831

THE HIGH COURT

1977/573 S.S.
State, Litzouw v Johnson & Dublin Corporation

BETWEEN:

THE STATE (AT THE PROSECUTION OF KATHLEEN LITZOUW)
Prosecutrix

and

DISTRICT JUSTICE JOHNSON AND THE DUBLIN CORPORATION
Respondents

LANDLORD & TENANT

Ejectment

1

Judgment of Gannon J. delivered the 16th day of December 1980

2

This is an application by the Prosecutrix to make absolute a Conditional Order of Certiorari granted to her on the 19th of January 1979 directing the Respondent, the District Justice, to send forward for the purpose of being quashed his Order of the 17th of June 1977 unless cause be shown to the contrary. Notice showing cause was delivered on behalf of the Respondents, the Dublin Corporation but not by the District Justice. The Order of the District Justice dated the 17th of June 1977 is also the subject of an appeal to the Dublin Circuit Court which is still unheard and pending.

3

The Prosecutrix, a married woman separated from her husband and having custody of her two children, is in occupation of a premises provided for her by Dublin Corporation. She is a disabled person and the premises, a flat at No. 4 Verschoyle Court is one deemed to be suitable for such a person, but it is not, apparently, adequate to cater for the children as well as their mother and they are living elsewhere. She has applied, so far unsuccessfully, to the Dublin Corporation for a larger flat. She went into occupation in July 1971 and since then has paid all rent due and abided by the terms and conditions of her tenancy agreement with the Corporation. She received a notice to quit purporting to terminate her tenancy on the 27th of October 1975 out no explanation was given nor complaint by the Corporation brought to her attention and no steps were taken on foot of that notice to quit. On the 27th of April 1977 she was served with a notice headed "Notice to Quit and demand for possession" requiring her to vacate the flat and to deliver possession thereof to the Corporation on the 2nd of May 1977. In relation to the service of this notice she received no previous warning nor were her requests, made through her Solicitor, for an explanation answered. In due course she received a pink form District Court summons requiring her to attend in the District Court on the 27th of May 1977 to show cause why a warrant under Section 62 of the Housing Act, 1966should not issue for delivery to the Corporation of possession of the premises occupied by her. At the District Court on that day she attended and was represented by Solicitor and Counsel. Evidence was offered on behalf of the Dublin Corporation in relation to the execution of the notice and the service thereof on the 27th of April 1977 and legal submissions were offered to the District Justice on behalf of both the Prosecutrix and the Corporation. Without giving his decision the District Justice adjourned the matter for consideration and on the 17th of June 1977 he gave his ruling and made an order for possession. The Order made by the District Justice recites as follows

"Upon the hearing of a complaint that the above named Defendant neglected and refused on demand being made to quit and deliver up possession to the complainants or their agents of certain premises occupied by the Defendant consisting of the dwelling 4 Verschoyle Court situate within said district, being a dwelling formerly let to the Defendant as tenant from week to week by the said complainants, a housing authority under the Housing Act, 1966, said letting having been duly determined by a legal notice to quit and demand for possession having been made in accordance with the provisions of Section 62 (1 of the said Act."

4

The Prosecutrix now applies to this court for an order making absolute notwithstanding cause shown by the Dublin Corporation the Conditional Order of Certiorari.

5

The foregoing facts are deposed to by the Prosecutrix in her affidavit grounding the application for the Conditional Order of Certiorari and are not contested. In her affidavit she further avers that at the hearing in the District Court on the 27th of May 1977 one of the witnesses for the Corporation swore that he had received complaints about her but he did not state the nature of such complaints. She also avers that the Solicitor for the Corporation informed the District Justice that "this was a case of breach of the tenancy agreement", but no evidence of that nature was offered, and Counsel for the Prosecutrix applied to the district Justice to dismiss the case on the grounds of the absence of proof of breach of the tenancy agreement. According to the Prosecutrix the District Justice stated on the 17th of June 1977

"that he had considered the matter and that it was his view that once the complainants had proved service of the notice to quit in the form prescribed by the Housing Act, 1966(No. 21 of 1966), then unless some technical objection could be made to the notice to quit or service thereof there was no defence to the action and he, as District Justice, was bound to make the order sought. He further stated that no useful purpose would be served by my giving evidence."

6

At paragraph 15 of her affidavit the Prosecutrix deposes as follows

"I say that I am unable to provide myself with a home from my own resources and that if the said Order of the said District Justice is affirmed on appeal I will have nowhere to go. I further say that I was never given an opportunity of defending myself against whatever allegations or complaints may have been made against me, or of presenting my version of the facts either to Dublin Corporation or to the District Court. I still do not know what complaints or allegations were made against me or on what basis Dublin Corporation decided to evict me.""

7

The grounds upon which the Conditional Order of Certiorari was granted are five in number and are set out in the Order of the 19th of January 1979 as follows

8

2 "1. That her rights under Article 40 of the Constitution of Ireland and in particular under Article 40.3.1° and 40.3.2° thereof have been infringed or not adequately protected or protected or vindicated at all.

9

2. That the principles of natural Justice were infringed or disregarded or not adequately applied by reason of a decision having been made which affected her personal and property rights on the basis of facts or allegations which she was not called on to explain or controvert or in reference to which she was not given an opportunity of making such representations or taking such steps...

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