Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 NAHUM v. O. WOLLEY & CO. AND K. WOLLEY & SONS | GhanaLegal - Resources for the legal brains

NAHUM v. O. WOLLEY & CO. AND K. WOLLEY & SONS


  • New
  • 1961-05-17
  • HIGH COURT
  • GLR 241-250
  • Print

ADUMUA-BOSSMAN, J.


Summary

Landlord and tenant?-Whether statutory tenant can grant a valid sub-tenancy ?-Ejectment by head landlord for purposes of remodelling?-Whether statutory tenant entitled to a tenancy of whole remodelled premises.Practice ?-Amendment of pleadings by court?-Supreme [High] Court (Civil Procedure) Rules, 1954, Order 28, r. 12.

Headnotes

In 1947 the first defendants. O. Wolley & Co., owners of premises on plot No. D.832/4, Boundary Road, Accra, let to the plaintiff one large store having three doors. In 1956 when, as admitted, the plaintiff was occupying and holding the said store merely as a statutory tenant, i.e. the period of his original contractual tenancy had expired and he was only protected in his holding by virtue of the Rent Control Ordinance, No. 2 of 1952, the said plaintiff partitioned the store, retained the bigger portion having two doors for himself, and transferred the smaller portion having one door to another merchant called Akill at the rent of G4 per month. The plaintiff?'s transfer of a portion of the store in this manner was not challenged or questioned by the first defendants, his landlords, and Akill occupied it for some time paying rent to the plaintiff until he, Akill, in turn transferred it to the second defendants, K. Wolley & Sons.The plaintiff refused to recognise the second defendants as his tenants. He instituted an action against them, claiming recovery of possession of the store transferred to them by Akill. Judgment was delivered against the plaintiff in favour of the said second defendants, in effect acknowledging and declaring Akill?'s transfer to them to be lawful and valid. The second defendants therefore became sub-tenants to the plaintiff, and paid rents to him through his solicitor for a period of about three to four years.In the latter part of 1957, the first defendants, as landlords of the whole premises, instituted an action against the plaintiff and the second defendants to recover the whole store of three doors, on the ground that they had arranged to remodel the premises and had served the necessary notice requiring possession pursuant to section 11 of the Rent Control Ordinance, No. 2 of 1952. The first defendants had to bring in the second defendants as defendants in that action, because of the provisions of section 11(5) of the Ordinance which says that:?"An order or judgment against a tenant for the recovery of possession of any premises or ejectment therefrom made or given under the provisions of this section or under the provisions of subsection (2) of section 12 of this Ordinance, shall not affect the right of any sub-tenant, to whom the premises or any party thereof were lawfully sub-let before proceedings for recovery of possession or ejectment were commenced, to retain possession under this section; and every such order or judgment shall declare whether it shall be enforced against a sub-tenant or not?".The first defendants obtained judgment against the plaintiff and the second defendants. They vacated the premises in February, 1958, to enable the first defendants to remodel. Sometimes afterwards, the plaintiff, complaining of unnecessary delay in completing the remodelling instituted an action against the first defendants to compel them to expedite the work so that he could re-occupy the remodelled store as early as possible. That action was later settled on the following terms: [p.242]?"1. The defendants will put a wall in exactly the same place as the original partition between M. Nahum and K. Wolley & Sons so that plaintiff has in the end exactly the same store as before, except that the back wall of the store of K. Wolley & Sons will be shifted back on one side only from the pillar to which it has hitherto been joined to a point 3 feet therefrom along the common wall with Messrs. P. Z. & Co., Limited.?"2. That the defendants will complete the repairs and all the work connected with the portion of the premises the subject-matter of dispute within six (6) weeks from date hereof, the plaintiff agreeing that he will not take exception to any excess of time over this period up to 2 weeks there-after and the defendants agreeing that if they complete the work before the time limited the plaintiff can thereupon re-enter into possession at a rental to be fixed by the Rent Assessment Committee?".On completion of the remodelling, the first defendants, instead of delivering the three keys to the three doors of the partitioned store to the plaintiff and thereby putting him into possession of the two portions of the store, in compliance with the terms of the settlement, gave two keys to the plaintiff and one key to the second defendants, and requested the second defendants to regard themselves as tenants directly of the first defendants and pay rents accordingly. The second defendants obeyed. The plaintiff took exception to this arrangement and sued for an injunction against the first defendants, recovery of possession, arrears of rent and mesne profits against the second defendants.

Judgement

ACTION by statutory tenant for recovery of possession of premises after remodelling by statutory tenant for recovery of possession of premises after remodelling.

[His lordship recounted the facts and continued:] In their statement of defence both defendants denied the allegation contained in paragraph 1 of the plaintiff?'s statement of claim that:

?"The 2nd Defendants are sub-tenants of the Plaintiff occupying a one (1) door store in House No. D.832/4 Boundary Road, Accra, which had been carved out of a three (3) door store of which Plaintiff is tenant?".

I am satisfied, however, that factually and legally the defendants?' denial is groundless and unwarranted, and that the second defendants are subtenants to the plaintiff following Akill?'s transfer to them of his interest in that portion of the store having one door which Akill had derived from the plaintiff. It seems to me that the second defendants are legally estopped per rem judicatam by the judgment which was given in their favour in the plaintiff?'s action to eject them, from denying the subsistence of the sub-tenancy. The first defendants are also similarly estopped per rem judicatam by their own action against the plaintiff and the second defendants for recovery of the store for remodelling, as well as the compromise, exhibit C, from denying the subsistence of such sub-tenancy between the plaintiff and the second defendants. That the plaintiff as statutory tenant to the first defendants was entitled to create such sub-tenancy appears clearly, [p.244] firstly, from the definition in section 3 of the Rent Control Ordinance1 under which appears the following material definitions:

?" ?'let?' includes ?'sub-let?'; and ?'letting?' includes ?'subletting?';

principal tenant?' means a tenant of premises who has or shall sub-let any part thereof as a separate holding but shall not include a tenant hereinafter referred to as a ?'derivative landlord?' who has or shall sub-let the whole of such premises as one holding; . . .

?'tenancy?' includes a sub-tenancy;

?'tenant?' means any person who leases premises from another person in consideration of the payment of rent, and includes any person deriving title under the original tenant, a sub-tenant . . .?"

secondly, from the provisions of section 11, subsection (5), [reproduced in the headnote supra], as well as subsection (6) which says:

?"Any sub-tenant against whom an order or judgment is not enforceable shall, if he remains in possession after notice of the judgment, cease to be a sub-tenant of the tenant and become a tenant of the landlord?"

and thirdly, from the provisions of section 16(1)(c) that a tenant:

?"who is a tenant by virtue of the provisions of subsection (5) of section 11 of this Ordinance, shall be a statutory tenant.?"

So in the case of Roe v. Russell,2 Scrutton, L.J. after an exhaustive examination of the relevant provisions of the English Rent Restrictions Acts in pari materia with the provisions of our Rent Control Ordinance,3 and earlier authorities, stated as follows:

?"in my view the continual references throughout the Acts to partial sub-letting and sub-tenancies must be treated as an indication that in the opinion of Parliament a statutory tenant remaining in possession might sub-let part of his demised premises. The references are sometimes to sub-tenants, sometimes to tenants to whom the premises are lawfully let; I find it impossible to explain them by limiting them to sub-tenants created by a contractual and not by a statutory tenant . . . I have come to the conclusion that the Rent Restrictions Acts contemplate that the statutory tenant remaining in possession, might sub-let part of his premises, subject to apportionment of the standard rent of the tenant?'s premises, so as to prevent the sub-tenant from paying an extortionate rent. He cannot, however, assign his tenancy of the whole of the premises, whether for value or not. Nor can he by a series of sub-lettings part with the whole of the premises which he holds as statutory tenant:?"4

Sargant, L.J. followed and observed as follows:

?"the appellant can point to the clear recognition by s. 4, sub-s. 1 (h), of the Act of 1923, of the right of statutory tenants to sub-let part of their premises without incurring forfeiture; and can also point to the words of s. 4 sub-s. 5, of the Act of 1923, which prevent the recovery of possession against a tenant being operative against a sub-tenant.?"5

Eve, J. concurring, stated:

?"I agree with the other members of the Court that an examination of the Acts, and in particular of those provisions to which counsel for the appellant directed our attention .... leads to the conclusion that the right of subletting is not restricted to subletting during the currency of the tenancy agreement, but it is contemplated and intended to be exercisable by the statutory tenant. [p.245]

Reliance was naturally placed by respondent on the expression ?'lawfully sub-let?', which occurs in both Acts, but the presence of the qualifying word is, I think, explained by this, that there are at least two forms of sub-letting which are not lawful under the Acts; one, a sub-letting which sub-lets the whole of the dwelling house, or sub-lets a part the remainder being already sub-let, and the other a sub-letting made after commencement of proceedings for recovery of possession or ejectment?"6

The right to sub-let being clear, and the first defendants not having at any time challenged the exercise thereof, but on the contrary having acquiesced in such exercise, and by their conduct prior to, as well as by their action to recover the premises for remodelling having acknowledged the subsistence of the sub-tenancy of the second defendants to the plaintiff as ?"principal tenant?", it is difficult to understand the denial of the subsistence of the sub-tenancy contained in paragraph 1 of the statement of defence.

In paragraph 2 of the statement of defence, however, the defendants admit the allegations contained in paragraph 4 of the statement of claim, inter alia that:

?"The Plaintiff was forced . . . to bring an action in April, 1958, against first Defendants to assert his right to re-entry of the said three (3) door store, and to force them to expedite the restoration thereof to him?".

(the emphasis on the concluding portion of the sentence is mine for purposes of drawing attention to their importance and significance).

Although counsel for the plaintiff somewhat carelessly did not see fit to tender in evidence the writ of summons in that action, No.41/58, in order to make better and clearer disclosure of the nature and details of the claim which the plaintiff made against the first defendants by that writ, it seems to appear reasonably and sufficiently clearly that possession of the whole store of three doors as remodelled was claimed by the plaintiff against the first defendants. Then by clause 2 of the terms of the compromise the first defendants agreed ?"that if they complete the work plaintiff can thereupon re-enter into possession at a rental to be fixed by the Rent Assessment Committee?". It appears to me therefore that the first defendants at any rate are clearly estopped by that settlement from now alleging that the plaintiff is not entitled to have possession of that portion of the store having one door, even though as made clear in clause 1 of the terms, that portion was intended for occupation by the second defendants. They, the first defendants, are further clearly estopped from maintaining that the relationship which subsisted between the plaintiff and the second defendants had terminated and a fresh relationship of landlord and tenant newly established between themselves, the first defendants and the second defendants.

Counsel for the defendants has argued, firstly, that the nature of the relationship between the plaintiff and the second defendants before the action and judgment for recovery of possession to enable remodelling to be carried out, was not such as to make the second defendants legally [p.246] liable to pay rent to the plaintiff, and reliance is placed by him on the case of Cox v. Bishop,7 the headnote of which states that:

?"An Agreement to take an assignment of a lease followed by possession on the part of the equitable assignee are not sufficient to give the lessor any right to sue the equitable assignee in equity on the covenants in the lease?".

On the authority of that case, it is argued, if I understand aright, that there was no formal assignment by deed, i.e. a legal assignment, from Akill to the second defendants, but merely an agreement followed by possession, so as to make the second defendants only equitable assignees in possession pending formal legal assignment; and that in those circumstances the plaintiff as landlord or lessor to Akill cannot sue the second defendants who are in occupation by virtue of the agreement with Akill, for rent or on the other covenants running with the land. But, in the first place, Cox v. Bishop8 was concerned with the transfer of an estate in land which had necessarily to have regard to the fundamental distinction between legal and equitable estate with all its significant consequences. It is clearly distinguishable from this case of the transfer of a bare personal right, as the interest of a statutory tenant has been described or designated. Thus in Solomon v. Orwell,9 Evershed M.R. speaks of:

?"a statutory tenant, a person who has been said time and time again to have no estate or interest in the land of the kind understood by the common law. [The] right was one which was exclusively derived from the Acts ... and was a right to remain (subject to conditions) in occupation.?"10

In the second place, and perhaps more important, it does not seem to me that that argument is now open to the second defendants who resisted the plaintiff ?'s action successfully relying on the contrary contention that a lawful and valid relationship of landlord and tenant had been created and was subsisting between them; nor to the first defendants who had all along acquiesced in the subsistence of a state of affairs just the opposite to that for which the defendants?' counsel now contends, and who sued to recover possession from the second defendants in the action No.41/58 on the basis that the second defendants were lawful sub-tenants of the plaintiff. Moreover, it seems to me in the matter of a statutory tenant parting with possession of a part or portion of the premises which he occupies, the technical distinction between transfer by assignment, that is to say parting with an estate for the whole of the residue of the period or term of the lease, and by sub-letting, that is to say for only some part of the residue of the period or term of the lease, does not arise at all. All that there is to it, it appears to me, is that the statutory tenant who is in occupation continuing from month to month indefinitely, is precluded from parting with the whole premises (see Keeves v. Dean11); but on the contrary he is permitted to make a lawful transfer of a part or portion of the premises which he is holding. The latter is the position [p.247] here, and the argument against it seems incapable of being sustained. See also Oak Property Co. Ltd. v. Chapman12 where Somervell, L.J. reading the judgment prepared by Evershed, L.J. (as he then was) for the court of Appeal constituted with Wynn-Parry, J. stated as follows:

?"The effect of sub-lettings by a statutory tenant of parts of a dwelling-house within the scope of the Rent Restrictions Acts had to be considered by this court in the two cases of Roe v. Russel [1928] 2 K.B. 117 and Haskins v. Lewis [1931] 2 K.B.1 . . . In these cases, and particularly in the former, the court had to consider, in the light of the earlier decisions relating to assignment and devolution, whether as a matter of principle a sub-letting of part of the premises by a statutory tenant could have any force or validity. In Roe v. Russell the Divisional Court had been faithful to logic and decided adversely to the sub-tenant. The Court of Appeal, reversing the Divisional Court, resolved the difficulty by concluding that a statutory tenant who had sub-let only part of the premises had not, quoad the premises as a whole, so renounced his personal right irremovability as to disqualify him from retaining any interest in the premises and so from effectually conferring on his sub-tenant a valid right. It must, therefore be taken as established by decision of this court that a sub-letting by a statutory tenant of part of his premises will be effectual to confer upon the sub-tenant the rights specified in s. 15, subs. 3 of the Act of 1920, if, at whatever be the material date or dates, the statutory tenant retained a sufficient possession of or interest in the remainder of the premises to preserve his own rights as statutory tenant?".13

The sub-letting by the plaintiff to Akill was therefore beyond question quite unimpeachable, and the transfer by him to the second defendants, whatever defects there may have been concerning it, has been validated by the judgment of the court in the action by the plaintiff to eject the second defendants which denied the plaintiff the right of ejectment of the second defendants but on the contrary held the second defendants to be lawful sub-tenants in place of Akill. Counsel for the defendants has argued, secondly, that the option exercisable by a tenant to be reinstated in remodelled premises relates only to premises physically occupied by the tenant before the remodelling, and reliance was placed on certain interpretations of the word ?"occupation?" as contained in Vol. 4 of Roland Burrow?'s Words and Phrases Judicially Interpreted and the interpretation given to the word in certain cases. But here again, it does not seem to me that the present argument or contention is open to either defendants, particularly the first defendants, and that, as already pointed out, he is bound and estopped by the terms of the compromise by which he expressly agreed that on completion of the remodelling, the plaintiff shall re-enter into possession of the whole store the subject-matter of the action, remodelled and partitioned as provided in clause 1 of the compromise.

The first defendants?' conduct in failing to restore possession to the plaintiff contrary to the express terms of the agreement appears to me to be quite indefensible, and not only against the whole spirit of the Rent Control Ordinance, section 11 of which expressly prohibits recovery of possession except under and by virtue of an order of court, but also against the authorities which have given judicial interpretation to the relevant identical provisions of the English Rent Restrictions Acts. Of such [p.248] authorities the strongest is Berkeley v. Papadoyannis,14 in which Somervell, L.J. reading the judgment of the Court of Appeal (himself, Denning, Jenkins, Birkett and Romer, L.JJ.) stated that:

?"The mere fact that a part of the premises has been sub-let does not raise an implication that the Skinner v. Geary ([1931] 2 K.B. 546) principle is applicable to that part. [i.e. that the tenant has abandoned and no longer has any intention of occupying that part and therefore loses the protection of the Act in respect of that part]. The tenant is fully entitled to suspend any decision as to whether if any sub-tenant should go, he would or would not re-occupy the whole or any part of the premises sublet. The tenant, while remaining in the rest of the premises, has done no more here than sub-let parts of the dwelling-house. This plainly does not in itself forfeit the protection of the Acts.?"15

Equally indefensible appears to be the attitude or conduct of the second defendants in refusing to acknowledge the plaintiff as their landlord and in acknowledging rather the first defendants and paying to them the rent assessed by the assessment committee in respect of the store with one door. I am satisfied that both defendants have infringed the plaintiff?'s rights in respect of the store with one door the subject-matter of the action.

The question arises, however, whether the plaintiff?'s counsel has claimed the appropriate reliefs in his writ and statement of claim against the defendants, and this it appears to me he has not done.

As against the first defendants the relief claimed against them set out in the statement of claim is for an injunction restraining them from interfering with the plaintiff?'s occupation and enjoyment of the said three-door store. But the evidence establishes that since the completion of the remodelling he has not had the occupation which he is entitled to under the terms of the compromise, and that in fact is the cause of this action. The second defendant?'s factual occupation is not the plaintiff?'s but adverse to him. Therefore a claim for an injunction to restrain the first defendants from interfering with the plaintiff?'s occupation and enjoyment seems palpably inappropriate. It is like a person entitled to possession who has not yet made entry to obtain that possession, claiming a relief appropriate for the protection of possession. That is definitely contrary to law as is pointed out by Chitty, J. in Wallis v. Hands16 when he said ?"It is settled law that person having a mere interessee termini [a right to have possession which is not yet implemented] cannot bring an action of trespass?".17 It seems to me therefore that while the plaintiff who is entitled to possession has not yet obtained that possession, he cannot maintain a claim for injunction to restrain interference with an alleged possession. His proper remedy or relief should have been:

(1) declaration that he is entitled to possession of the store the subject-matter of the action as against the first defendants,

(2) order for possession, and

(3) mesne profits calculated at G12 10s. per month as from August, 1958, up to date the 17th May, 1961, amounting to G419 7s. 1d. [p.249]

Equally the reliefs of: (1) recovery of possession, (2) arrears of rent and (3) mesne profits claimed against the second defendants seem palpably inappropriate, because, firstly, the second defendants are entitled to occupation, although not as tenants of the first defendants but rather of the plaintiff; secondly, their occupation in the avowed right of the first defendants but not of the plaintiff does not render them legally liable to pay arrears of rent to the plaintiff. The appropriate reliefs claimable against the second defendants on the evidence before the court are:

(1) an order upon the second defendants to attorn tenants to the plaintiff in respect of their occupation of the store the subject-matter of the action; and

(2) an order in default of such attornment within two months from the date of this judgment to be ejected from the said store; and

(3) an order upon such attornment to pay the standard rent fixed in respect of the said store to the plaintiff.

Is there power in the court proprio motu to amend the statement of claim and award the plaintiff the reliefs to which on the evidence before the court he is entitled? Order 28, rule 12,18 providing that:

?"The Court or a Judge may at any time, and on such terms as to costs or otherwise as the Court or Judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings?"

appears to give the power. And as Coussey, J.A., (as he then was) points out in England v. Palmer19

?"Their Lordships of the Privy Council laid down in Ababio IV v. Quartey and Another (P.C. Judgments 1874-1928 p.40) that ?'the Court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that had been obtained for the purpose of settling the real controversy between the parties?'. And in Seklin v. Little (6 T.L.R. 366) on a motion for a new trial, the Court, Denman, Charles and Vaughan-Williams, JJ., amended the statement of claim in an action for slander to conform with the words proved at the trial, which were not those set out in the statement of claim, although the Judge at the trial had offered plaintiff?'s counsel an amendment of the pleadings and it had been refused.?"

The court therefore in exercise of its powers under the order and rule quoted supra doth hereby formally amend the form of the reliefs claimed against the two defendants by deleting the original reliefs set out in the statement of claim and substituting the appropriate reliefs mentioned supra, to wit:

(1) An order upon the second defendants to attorn tenants to the plaintiff in respect of their occupation of the store the subject-matter of the action, and

(2) an order in default of such attornment within two months from the date of this judgment to be ejected from the said store; and

(3) an order upon such attornment to pay the standard rent fixed in respect of the said store to the plaintiff. [p.250]

On those amended claims for relief there will be judgment in favour of The plaintiff, as against the first defendants for the following:

(1) declaration that he is entitled to possession of the store the subject-matter of the action,

(2) order for possession, and

(3) mesne profits calculated at G12 10s. per month as from August, 1958 up to date the17th May, 1961, amounting to G419 7s. 1d; as against the second defendants for the following:

(1) an order upon the second defendants to attorn tenants to the plaintiff in respect of their occupation of the store the subject-matter of the action; and

(2) an order in default of such attornment within two months from the date of this judgment to be ejected from the said store; and

(3) an order upon such attornment to pay the standard rent fixed in respect of the said store to the plaintiff.

In all the circumstances the plaintiff is allowed his out of pocket expenses, G10 9s., and plaintiff?'s attendance, G12, but deprived of counsel?'s costs. The costs awarded to be borne in equal shares by the two defendants.

Decision

<P>Judgment for plaintiff.</P>

Plaintiff / Appellant

Plange

Defendant / Respondent

R. E. Bannerman

Referals

(1) Roe v. Russell [1928] 2 K.B. 117

(2) Cox v. Bishop [1857] 8 De G.M. & G. 815; 40 E.R. 604

(3) Solomon v. Orwell [1954] 1 W.L.R. 629; [1954] 1 All E.R. 874

(4) Keeves v. Dean [1924] 1 K.B. 685, C.A.

(5) Oak Property Co. Ltd. .v. Chapman [1947] K.B  886; [1947] 2 All  E.R. 1, C.A.

(6) Berkeley v Papadoyannis [1954] 2 Q.B. 149; [1954] 3 W.L.R. 23; [1954] 2 All E.R. 409,  C.A.

(7) Wallis v. Hands [1893] 2 Ch. 75

(8) England v. Palmer (1955) 14 W.A.C.A. 659

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/f47dd835b3f9818e3d7d300c7ebe32af): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48