[1952] EACA 111

### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAYERS, J. (Kenya)

### DHAMJI MAWJI BAKRANIA, Appellant (Original Defendant)

v.

# GHORDAN GOPAL PANARA, Respondent (Original Plaintiff) Civil Appeal No. 50 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya, de Lestang, J.) Landlord and Tenant-Trespass whether of landlord or of tenant who vacated.

The appellant was the original owner of Panara Building. On going to India his two sons-in-law each took over a living room formerly occupied by him, and a carpenter's shop was occupied by them in partnership under the name of Ramji & Co. in the same building. The appellant later sold Panara Building to two men, from whom the respondent purchased it. The partnership of Ramji & Co. was dissolved and one son-in-law continued to carry on the business and to live in the building. On the appellant's return from India his son-in-law refused to re-transfer the carpentry business to him. The appellant contended that even if the appellant were a trespasser, the respondent's action was misconceived since on that date there had been no surrender of the tenancy to the respondent landlord. The appellant ousted his son-in-law and got into possession of the premises.

Held (11-7-52).—(i) On the vacation of the premises by the son-in-law the tenancy with the respondent came to an end and the respondent became entitled to possession of the premises.

(ii) The appellant's trespass against his son-in-law prevented a physical handing over of possession by the son-in-law and the appellant therefore became a trespasser of the respondent landlord.

(iii) On the expiration of the term the landlord's physical re-entry was prevented by the continuing trespass of the appellant.

Cases cited: Oastler v. Henderson (1877) 2 Q. B. D. 575; Ngara Hotel, Ltd. v. Raja-<br>bally Kassam Suleman and others, 19 E. A. C. A. (1952); Phene v. Popplewell, 142 E. R.<br>p. 1175; Coleman v. Foster, 156 E. R., p. 1109.

Appeal allowed but exemplary damages disallowed.

### D. N. Khanna for appellant.

### Mackie Robertson for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal from a judgment of the Supreme Court of Kenya which granted the plaintiffrespondent inter alia an order for possession against the appellant in respect of a portion of premises known as Panara Building in Stewart Street, Nairobi. The facts are fully set out in the judgment appealed against but to understand the background of this litigation it is necessary to refer to some of them again.

The appellant, Dhamji Mawji Bakrania, was the original owner of the premises now known as Panara Building. He seems to have been blessed with numerous daughters, two of whom were married and living with their husbands in Nairobi, when in 1941 the appellant left for India to attend the marriage of another daughter. Before leaving he came to an arrangement with his two sonsin-law, Ramji Bhovan and Kalidas Tulsidas, by which each of them was to take over one of the two living rooms formerly occupied by the appellant in Panara Building and a carpenter's shop in the same building, which they were to work in partnership under the name of Ramii & Company. This company also hired, for Sh. 50 per month, certain carpentry tools and equipment left behind in the shop by the appellant. For one reason or another the appellant's visit to India turned out to be a protracted one for he did not return to Kenva until December. 1948. During this long interval a great deal happened in Nairobi. In 1943 the appellant sold Panara Building without reserve to Savii Jetha and Lalii Mulii. In October, 1943, the respondent purchased the premises from these two men. In 1944 the two sons-in-law fell out and the partnership known as Ramij & Company was dissolved. Ramji however continued to carry on the business by himself and remained living in Panara Building, paying rent first to Jetha and Lalji Mulji and then to the respondent. In December, 1948, on the appellant's return to Kenya the trouble began. Instead of finding a tractable son-in-law to re-transfer to him the carpentry business Ramii Bhovan refused to do anything of the sort. The learned Judge considered, and I expect he was right, for the correspondence supports the supposition, that there was some undertaking by the sons-in-law that they would hand the shop back to the appellant on his return from India; that might well be a natural family arrangement. Nevertheless, in my opinion, the learned trial Judge was fully justified on the evidence before him in finding that Ramji & Company took the shop from the appellant as a tenant and not as a mere licensee. He was equally justified, I consider, in finding that Ramji Bhovan was a tenant of the respondent's in his own right and not as agent of or trustee for the appellant.

This brings me to the material issue in this appeal. It is contended on behalf of the appellant that even if it be accepted that the appellant was a trespasser on the material date, the action was misconceived since on that date there had been no surrender of the tenancy to the respondent landlord. If the appellant was a trespasser at all the cause of action against him lay with the tenant Ramji Bhovan and not with the appellant who until there had been an effective handing over of possession had no interest in the estate other than that of reversioner. In order to test the strength of this submission it is necessary to look at the facts again. The appellant managed to get into the premises on or about 13th March, 1948, and after that date Ramji Bhovan was ousted from possession. On or about 15th March he wrote a letter to the respondent dating it 1st March, in these terms: $-$

"Received your letter dated 25.2.49. I agree with what you write I will leave possession of the shop at the end of March. Come and have possession of your shop."

After 13th March, Ramji Bhovan never paid rent to the respondent and was never again in possession of the premises.

Again, on these facts, I think the learned trial Judge was right in holding that the tenancy between Ramji Bhovan and the respondent came to an end on 31st March and that thereafter the respondent was entitled to possession of the premises. The letter written on 13th March by Ramji Bhovan was a clear notice of an intention to surrender, a notice which was accepted by the respondent. It was the appellant's trespass against Ramji Bhovan that prevented a physical handing over of possession at the expiration of the term but thereafter the appellant became not the trespasser of Ramji Bhovan whose interest in the lease had ceased, but the trespasser of the respondent landlord. In Oastler v. Henderson, (1877) 2 Q. B. D. 575, a tenant abandoned possession of certain premises and went abroad leaving the keys with an estate agent with instructions to sub-let the premises if possible. Subsequently the landlord granted a lease to another party. This was held to be an acceptance of possession from the tenant although up to the grant of a new lease there had been no surrender by operation of law. So here in the instant case it seems to me the landlord's action in seeking the consent of the Rent Control Board to bring an action for ejectment against the appellant constitutes an acceptance of possession and of Ramji Bhovan's offer of surrender and on that date the appellant was still continuing trespasser on the premises.

In my opinion therefore this action against the appellant was not misconceived for it was brought not by a reversioner but by the landlord after the expiration of the term and whose physical re-entry had been prevented by the continuing trespass on the part of the appellant. To constitute a surrender by operation of law there must be a taking of possession, but not necessarily a physical taking of possession, if there is something amounting to a virtual taking of possession. (Oastler v. Henderson supra.)

In one respect only would I vary the judgment of the Court below. The learned Judge granted to the respondent exemplary damages because he took a very strong view of the appellant's conduct which he has characterized as "abominable". It may be so but I cannot help feeling that the Judge may have forgotten that the chief sufferer was Ramji Bhovan who was forcibly dispossessed of his possession by the appellant.

I see no reason why the respondent should be compensated for an injury to another. Mr. Robertson has informed us that his client does not press for heavy damages but wants early possession. I would reduce the general damages awarded by the learned trial Judge to Sh. 500, but, except for that variation, the judgment of the Court below should be affirmed. I see no reason to make any special order as regards costs, which, this appeal being dismissed, must go to the respondent.

SIR NEWNHAM WORLEY (Vice-President).—I concur; and only wish to add a few observations on the question debated at length during the argument as to whether there had been an acceptance of the surrender by the landlordrespondent. The question whether there has been such acceptance or not is one of fact: constructive possession is enough and may be evidenced by any unequivocal act showing the landlord's assent to the surrender. Mr. Khanna did at one stage contend that to constitute an effective surrender there must be an actual physical handing over of the premises; that the tenant must be in a position to give effective physical possession and the landlord in a position to receive it and that this was impossible while a third person was in occupation whether rightfully or wrongfully. I think however that he later conceded that there could be a constructive taking of possession provided it is evidenced by an overt act.

In the instant case, the landlord was prevented from taking physical possession of the premises by the presence of the appellant therein, and the latter's conduct in seizing the premises may well have caused the landlord to fear a breach of peace if he went upon the premises and attempted to effect even a symbolical resumption of possession. What the landlord did was to instruct his advocates to write to the appellant's advocates protesting against the appellant's forcible seizure of the property and requiring him to vacate, failing which action would be taken for his ejectment (Ex. 1 N). When the appellant failed to comply the landlord applied to the Rent Control Board on 5th April, 1949, for sanction to bring an action for ejectment (Ex. 10). I think it is immaterial that, at that time, his legal advisers appear to have thought it would be necessary to join the tenant as a party to the proceedings: what is material is that these two letters show unequivocally, a demand that the appellant should give up possession and, when this was not complied with, an intention to recover possession by process of law.

Mr Khanna has contended that this is not enough: that the landlord must possess a complete cause of action before he institutes proceedings: there must be something different and earlier showing an acceptance of the surrender, not simultaneous with and in part constituted by the filing of the plaint: and institution of the action cannot itself be relied on as perfecting the cause of action by showing an intention to accept the surrender.

In Privy Court Appeal No. 11 of 1950, Ngara Hotel Ltd. y. Rajabally Kassam Suleman and others, which was an appeal from this Court, the Judicial Committee had to consider a similar argument in relation to the provision in section 111 (e) of the Indian Transfer of Property Act that before a landlord can re-enter on the ground of forfeiture he must "do some act showing his intention to determine the lease". Their Lordships considered a number of Indian decisions on section 111 $(g)$ some of which supported the proposition put forward by Mr. Khanna in the appeal before us and some of which negatived it, and they said that if it were necessary to choose between the two views they would prefer the latter. But their Lordships concluded:-

"However on the facts of the present case the same result can be reached by a simpler route: for it would seem that the act of applying to the Rent Control Board for leave to take proceedings for possession was clearly an act showing the landlord's intention to determine the lease."

I can see no good reason why the same result should not follow in the instant case: the tenant had gone out of possession and had offered to surrender: the landlord had clearly indicated his refusal to accept the usurper as his tenant and when he refused to leave, took a step which indicated as clearly as anything could that he had accepted the surrender.

HENRY MAYERS, J. (Kenya).—I concur with the judgment delivered by the learned President, but without again rehearsing the facts, desire to add something thereto.

The primary contention for the appellant was that even if his present occupation of the relevant premises is that of a trespasser, the respondent is not entitled to maintain these proceedings, as an action for trespass will only lie at the suit of a person who is in possession of the land the subject of the alleged trespass, and Ramii Bhovan—not the respondent—is the person entitled to immediate possession as his tenancy has never been validly surrendered.

Before considering the substance of this argument, it should be observed that the prayer for relief seeks, *inter alia*, the ejectment of the appellant and the delivery to the respondent of possession of the relevant premises—remedies which are characteristic of an action for ejectment, or, to use the terminology of the Common Law Procedure Act, 1852, an action for the possession of land which, unlike trespass, has always lain at the suit of a party entitled to although out of possession of land. This comment, however, does not affect the substance of the appellant's argument, as in ejectment, unlike trespass, the defendant may rely upon the subsistence in someone other than himself, or a person through or under whom he claims, of a better title to the land than that of the plaintiff.

The authorities cited on behalf of the appellant need not be examined in detail, as they were illustrative either of the principle that an agreement to surrender in futuro is not per se an effective surrender, or of particular acts which have been held not to amount to a surrender by operation of law. In Phene v. Popplewell, 142 E. R. at page 1175, Keatinge, J. said: -

"Any agreement between the landlord and tenant which results in a change of the possession-whether the former acts upon the agreement by reletting, or by taking possession himself, or by some unequivocal acts showing his assent thereto—will amount to a surrender by act and operation of law."

In accordance with this principle, it was held in *Oastler v. Henderson*, (1877) 2 Q. B. D., page 575, that where a tenant abandoned possession of certain premises and went abroad, although the receipt by the landlord from an estate agent of the keys did not amount to acceptance of possession by him, yet his subsequent act in granting to another party a lease of those premises did amount to such an acceptance. In the instant case there was a clear relinquishment of possession by Ramii Bhovan, evidence by his invitation to the respondent in the letter dated 13th March, to come and take possession of the carpenter's shop. In my view, the respondent, by instituting these proceedings which have as their object the ejectment of a trespasser, has indicated his acceptance of Ramji Bhovan's offer to surrender the term as unequivocally as if he had granted a lease of those premises.

The second contention for the plaintiff was that in reality he is not a trespasser inasmuch as the true relationship between himself and Ramji Bhovan was that of a licensor and licensee, rather than that of landlord and tenant, and it was arranged between them prior to his departure for India that upon his return Ramii Bhovan would deliver up the carpenter's shop to him.

There was clearly evidence to support the finding of the learned trial Judge that the relationship between the appellant and Ramji Bhovan was of landlord and tenant, but even if the learned trial Judge were wrong in this, in my view this contention of the plaintiff must also fail. It is trite law that where a lesser estate becomes vested for the same interest in the same person in whom is vested a greater estate, the lesser estate will, in the absence of the subsistence of an intervening estate, merge in the greater estate. By analogy, a similar principle would appear to apply to the concurrence of a leasehold interest and a licence in the same person. Prior to the appellant's departure for India, he was in possession of the carpenter's shop by reason of his position as lessee of the entire premises in which it is comprised. At that time, so far as appears from the evidence, it was not in the contemplation of the parties that he would sell his lease of those premises. The legal effect, therefore, of any arrangement of the nature alleged by the appellant must have been to create a licence terminable upon his return from India, rather than one which, upon such return, would vest in him contemporaneously with, but independent of, his possession of the premises in his capacity at lessee. In Coleman v. Foster, 156 E. R., at page 1109, Chief Baron Pollock said: "If a man gives a licence and then parts with the property over which the privilege is to be exercised, the licence is gone". So, too, it is stated in Woodfall's Law of Landlord and Tenant, 24th edition, at page 10, that a licence which is revocable is determined by an assignment of the property to which it relates. From this it follows that the assignment by the appellant, when in India, of the premises in which the carpenter's shop is situate determined any licence in relation to that shop which he may have granted to Ramji Bhovan, and therefore Ramji Bhovan's occupation of that shop at the time of the appellant's entry was pursuant not to a licence granted to him by the appellant, but pursuant to a tenancy created in his favour by the appellant's successor in title.

It was also contended for the appellant that by reason of the fact that Ramji Bhovan held a power of attorney from the appellant, the tenancy of the carpenter's shop taken by Ramji Bhovan from the new landlords must have been taken as agent or trustee for the appellant. Upon examination of the power of attorney, it appears that that power was given by the appellant in his capacity as owner of the head lease of the relevant premises and authorized Ramji Bhovan to do all acts which could lawfully be done by the appellant in that capacity; and that it does not contemplate the doing by Ramji Bhovan in relation to those premises of any acts other than acts capable of being done by or on behalf of the appellant

as such owner. I therefore consider that upon the sale of the appellant's interest in the Panara Building the power of attorney became spent and thenceforward it was competent for Ramji Bhovan to take a tenancy of the whole or any portion of that building in his own name and for his own benefit.

It remains only to consider the question of damages. In my view, vindictive damages cannot be awarded in an action for possession, as distinct from an action for trespass. I therefore would dismiss this appeal, but would reduce the damages to the sum proposed by the learned President.