Amos Brothers And Co. Ltd. V. British West African Corporation Ltd. (1952)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Landlord and Tenant—Verbal lease prohibiting sub-letting—Sub-letting—Lease later reduced to writing—Sub-lease not known to Landlord—Ejection of tenant—Position of sub-tenant—Increase of Rent (Restriction) Ordinance
(Cap. 93), sec/tons 4, 12, 19.

Appeals in Civil cases—Protection under Increase of Rent (Restriction) Ordinance invoked on appeal forfirst time—Section 19—Disallowing costs on point not taken below.

Execution—Liability ofjudgment creditor for seizure of goods not belonging to judgment debtor—Order II, rule 29 (2), Rules made under the Sheriffs and Enforcement of Judgments and Orders Ordinance.

Practice and Procedure—Claim ofspecial damages—No particulars in pleading and no evidence on which to assess.

Facts

Section 4 of the above Ordinance (Cap. 93) provides that “ When a landlord has let. . . any premises and his tenant, not being expressly prohibited in writing from sub-letting, sub-lets such premises or any part thereof the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Ordinance to be tenants of the landlord ”.

Section 12 of Cap. 93 provides that “No tenant or sub-tenant of any premises to which this Ordinance applies shall be ejected therefrom save in pursuance of an order of the court obtained under the provisions of the Recovery of Premises
Ordinance, 1945″.

And section 19 of Cap. 93 provides that “Every Court . . . shall . . . conform to this Ordinance in all . . . cases between landlords and tenants and such landlords and tenants or sub-tenants, etc.”

The respondents (who will be referred to in this note as the landlords) gave a lease to a company (who will be referred to as the tenants) at first orally, later reduced to writing, which expressly prohibited sub-letting.

From the very start of the oral lease the lessees sub-let part of the premises in their lease to the appellants (who will be referred to as the sub-tenants). The landlords obtained judgment against the tenants for ejectment and arrears of rent and under the writs of ejectment and fi.fa. issued against the tenants, the sub-tenants were
ejected and some goods of theirs seized in execution.

The sub-tenants brought the present action against the landlords claiming damages for trespass to goods and for unlawful ejectment. The trial Judge held that the sub-tenants had no right to possession and that the landlords were not liable for the attachment of goods of a third party occupying the premises through his tenants unknown to them, and dismissed the action. The sub-tenants appealed.

In the appeal, for the first time, the sub-tenants invoked sections 4 and 12 of the Increase of Rent (Restriction) Ordinance (Cap. 93), by virtue of section 19, which enjoins every Court to conform to the Ordinance: at the time of the sub-letting to them there was no lease in writing prohibiting the tenants from sub-letting; the sub-tenants ranked as tenants of the landlord under section 4; there was no Court order for the ejectment of the sub-tenants as required by section 12.

The argument for the landlords was that the sub-tenants knew of the prohibition in the oral lease at the time of the sub-letting and could not avail themselves of the Ordinance on the ground that at the time of the sub-letting the prohibition was not expressed in writing.

As regards the sub-tenants’ claim for damages, special and general: Just before the ejectment and the seizure of their goods, their solicitor claimed that they were sub-tenants before the Deputy Sheriff and the Bailiff, in the presence of the landlords’ solicitor.

This ought to have put the landlords on their guard; it neutralised their argument that not knowing of’the sub-lease, they were led to think that goods on the premises belonged to the tenants, the judgment debtors.

The sub-tenants invoked rule 29 (2) in Order II of the Rules under the Sheriffs and Enforcement of Judgments Ordinance, to the effect that a judgment creditor is liable for damage arising from any irregular or illegal proceeding taken at his instance. But no particulars of special damages were pleaded, nor was there any evidence on which special damages could be assessed.

Held

The words of section 4 of the Increase of Rent (Restriction) Ordinance were clear and unambiguous and effect ought to be given to them. At the time of the sub-letting there being no express prohibition in writing, the sub-tenants, now appellants, became entitled to be deemed tenants of the landlords, now respondents, for the purposes of the Ordinance and entitled to the protection afforded thereby.

That statutory relationship between them and the protection it afforded to the appellants was not affected by the prohibition in the subsequent lease in writing entered into between the landlords and their tenants.

The appellants could not, in view of section 12, have been ejected without an order of Court, and as there was no such order against them, the ejectment of the appellants was an unlawful act from which damages should flow.

Held also: The appellants were entitled in the circumstances to special
damages for seizure of their goods under the writ against the tenants, but there being no particulars of special damages in their pleading or evidence on which special damages could be assessed, they could not be granted any special damages.

Appeal allowed: judgment for plaintiffs.