Lamusse Sek Sum & Co v Late Bai Rehmatbai Waqf (Mauritius)

The date from which a statutory rent increase becomes payable is determined by the applicable statutory formula. Under the amended Second Schedule to the Landlord and Tenant Act 1999, an increase in business-premises rent becomes payable from the date of agreement or, where the market rent is disputed, from the date on which the market rent is determined. The statutory rule requiring payment of rent claimed during a Fair Rent Tribunal application applies to applications concerning fair rent, not to the distinct determination of market rent under the amended scheme. Legislative debates may be consulted under Mauritian law where legislation is ambiguous or self-contradictory, but only with utmost circumspection.

The tenant occupied business premises in Mauritius. The landlord sought an increased rent under the 2005 amendments to the Landlord and Tenant Act 1999, but the parties disagreed about the market rent and the issue was referred to the Fair Rent Tribunal.

While that determination was pending, the landlord sued for arrears and repossession. The District Court ordered possession, treating the increased rent as payable from the landlord’s request. The Supreme Court dismissed the tenant’s appeal on the rent issue, although it allowed an opportunity to pay the arrears. The central question before the Board was whether the increase was payable from the request for it or from the agreement or determination of market rent.

1. Appeal allowed. The Supreme Court’s order was set aside and the landlord’s action was dismissed. The respondent was ordered to pay the costs in the courts below and before the Board.
2. Paragraph 3 of the amended Second Schedule provides that rent may be increased each year starting from the date of agreement on, or determination of, the market rent. Its natural meaning is that the increase becomes payable from that date. Before then, the tenant is not required to pay an increase on the previously payable rent.
3. The amended statutory scheme distinguishes fair rent from market rent. Fair rent is determined under section 11 by applying section 13. Market rent is determined for the purposes of the Second Schedule, and section 13’s principles do not govern that separate exercise, although the Tribunal may choose to use them.
4. Sections 11(4) and 11(5) operate together only where the Tribunal is determining fair rent. Section 11(4) requires payment of the rent claimed pending that determination, while section 11(5) provides a refund or credit if more than the fair rent was paid. They do not require interim payment of a market-rent increase under the Second Schedule.
5. The Board considered legislative debates under the approach recognised in Madelen Clothing Co Ltd v Termination of Contracts of Service Board [1981] MR 284. That approach applies where the law is ambiguous or self-contradictory and must be used with utmost circumspection. The Board also noted that the Mauritian approach is more flexible than the English rules in Pepper v Hart [1993] AC 593.
6. The practical difficulty caused to landlords by delay in Tribunal determinations was a matter for legislative or administrative action, not a reason to depart from the statutory language.

• Privy Council: Appeal allowed; the Supreme Court’s order was set aside and the landlord’s action dismissed.
• Supreme Court of Mauritius: On 15 July 2010, Chui Yew Cheong and Beesoondoyal JJ dismissed the tenant’s appeal, holding that the increase was payable from the landlord’s request, but varied the possession order to allow payment of arrears.
• District Court of Port Louis: On 4 December 2009, the magistrate held that the increased rent was payable from the landlord’s claim and ordered possession for non-payment.