Division: IN THE SUPREME COURT
Date: 4 MAY 1964
Before: SARKODEE-ADOO CJ, ACOLATSE AND APALOO JJSC
JUDGMENT OF APALOO JSC
Apaloo JSC delivered the judgment of the court. In order to appreciate the legal argument which was addressed to us on this appeal, it is necessary to state the facts which were found by the learned trial judge and which, as I understand it, are not in issue on this appeal.
The plaintiff is the owner of house No. 152/7, Kokomlemle, Accra. The evidence shows that the house is a storey building containing two self-contained flats and an outhouse. The plaintiff let the whole of the premises to a Mr. Quaidoo prior to October 1959. In October 1959, Mr. Quaidoo sublet the ground floor flat to the second defendant. It would seem that about that time, he also sublet the outhouse to one Adjei; accordingly, Mr. Quaidoo himself occupied the top floor. The evidence shows that this subletting was known to the plaintiff or at least her husband Mr. B. A. Darko who acted at all times as her agent. The plaintiff at no time made any issue of that and it is reasonable to conclude that there was no agreement by Quaidoo not to sublet.
It appears that Mr. Quaidoo in the meantime erected a house of his own and moved into it at the end of December 1959. Accordingly, the top floor became vacant. The first defendant was desirous of becoming a tenant of the vacant flat. The plaintiff for her part, was willing to accept him as a monthly tenant on condition that he became head tenant and paid by banker’s order direct to her account, the monthly rent of £G60. The first defendant said, that as he was hard pressed for accommodation, he had no alternative but to agree. He thus became the head tenant of the whole premises from March 1960. The second defendant and Mr. Adjei became his sub-tenants and paid rents to him. This state of affairs continued until the end of March 1961. In February 1961, the first defendant was allocated a government bungalow. He therefore
gave the plaintiff notice of his intention to quit at the end of March. He did so on that day, and the court accepted his evidence that he duly delivered the keys to the plaintiff’s husband and agent at the determination of the tenancy. Accordingly, the learned trial judge held that the first defendant effectively gave up possession of his portion of the premises at the close of March and was not liable for rent accruing thereafter. She also found that the second defendant paid his rent regularly to the plaintiff’s account and was not in arrears at the date of the issue of the writ. She therefore concluded that the case failed against both defendants and proceeded to dismiss it.
Counsel for the plaintiff relying on the cases of Henderson v. Squire1 and Guthrie v. McCrindle,2 submitted in the court below, that as the first defendant was the head tenant of the whole of the premises, he was under an implied contractual obligation to restore possession of the whole of the premises to the plaintiff at the determination of the tenancy. It was said he failed to do so as the sub-tenants still remained in possession. Accordingly, it was submitted, that the first defendant was liable to pay rent for the period in which the sub-tenants remained in the premises. It is that sum that the plaintiff sought by this action to recover.
Whether or not this contention commended itself to the learned trial judge, it is difficult to say. She did not pronounce on the validity or otherwise of this argument and made no reference to either of the cases cited to her in her judgment. That seems to be the basis of the plaintiff’s grievance and the gravamen of her complaint to this court.
No less than six grounds of appeal were filed but the same complaint is made in all these grounds in varying language. In the main, the legal argument addressed to the court below was reiterated before us and the same cases were cited before us as in the court below. The ground of appeal which seems to me to embody the sum total of the legal argument advanced to us is ground (1). It reads:
“That since first defendant stepped into the shoes of P. K. K. Quaidoo, former principal tenant of the whole premises, first defendant thereby became a principal tenant of the whole premises and upon vacating the premises ought to have given vacant possession of the whole of the premises to the plaintiff. The learned trial judge erred in holding otherwise.”
It was in support of this ground that the cases of Henderson v. Squire (supra) and Guthrie v. McCrindle (supra) were cited. The headnote in Henderson v. Squire (supra) reads as follows:
“A tenant, under a parol agreement, without any stipulation that he shall deliver up possession of the premises at the end of the term, is nevertheless bound at law to deliver up complete possession. Where, therefore, a tenant, under such an agreement, has underlet a part of the premises, and at the determination of both tenancies the under-tenant holds over against the will of the tenant, the landlord can recover against the tenant as damages the value of the whole premises for the time he is kept out of possession, and costs of ejecting the under-tenant.”
Henderson’s case (supra) was decided by the Queen’s Bench Division of the High Court and Cockburn C.J. said he founded himself on the law as laid down by Lord Kenyon in Harding v. Crethorn.3 It was stated that: “When a lease is expired, the tenant’s responsibility is not at an end; for if the premises are in possession of an under-tenant, the landlord may refuse to accept the possession, and hold the original lessee liable; for the lessor is entitled to receive the absolute possession at the end of the term.”4 Henderson’s case (supra) was decided in 1869 and was followed by Morris J. in 1949 in the McCrindle case (supra).
The reason underlying the decision in Harding’s case (supra) and Henderson’s case (supra) seems to be that as the head tenant by his own voluntary act put the sub-tenant in possession of part of the premises and thereby enabled him to hold over, he rather than the landlord, should be responsible for his default. These two cases therefore presuppose that the sub-tenancy was granted by the head tenant who is thus held vicariously liable for his under-tenant’s default. In so far as counsel for the plaintiff relies on the two named cases as authority for affixing responsibility on the first defendant of the sub-tenants’ continued possession of the premises in question, he must fail. This is because the facts of this case are plainly distinguishable from Henderson’s case (supra). In the instant case, the sub-tenancy was not granted by the first defendant. It was in fact granted by a former head tenant with the full knowledge of the landlord. At the time the first defendant took up occupation, he did not have at his disposal, the entire premises. Parts of it were in the exclusive possession of two sub-tenants whom he was powerless to eject. He became a head tenant only as a matter of convenience for the landlord who made it a condition of his tenancy. In these circumstances, to say that his liability to pay rent continued after he has effectively given up possession of his part of the premises on the sole ground that sub-tenants whom he did not put there continued to remain in the premises, would be wrong and unjust. At pages 704-705 of Volume 23 of Halsbury’s Laws of England (3rd ed.) the law was stated as follows: “In the absence of such covenant or of any express stipulation, the tenant is under an implied contract to restore possession to the landlord.”
The possession which the tenant is obliged to restore to the landlord, can only be such possession as he himself acquired by the tenancy. In this case, the only possession of the premises the first defendant acquired was the top floor. This, the learned trial judge found, the first defendant effectively gave up at the end of March and which was thereafter assumed by the plaintiff. I hold therefore that the principles of law enunciated in Henderson’s case (supra) and followed in McCrindle’s case (supra) are inapplicable to the facts of this case. I hold further that the first defendant was not obliged, as was contended by counsel for the plaintiff, to give up possession of the whole of the premises to the plaintiff.
Had the facts of this case been on all fours with Henderson’s case (supra), the plaintiff should still have failed as a matter of law since Henderson’s case (supra) was distinguished on grounds which appear to us to be germane to this case in Reynolds v. Bannerman.5 It was held in that case that if the tenant gave notice to the landlord of his intention to quit and also gave notice to quit to his sub-tenant, and the latter held over and could not be turned out by reason of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920,6 the tenant could not be liable to the landlord for use and occupation for the period during which the landlord was kept out of possession. Swift J. said7:
“The defendant did everything he could do to give vacant possession on March 25; it was not at his wish but against it that Mrs. Baldwin remained on, and she could in no sense be said to be his agent for the purpose of occupying the premises. She had gone into occupation lawfully as the defendant’s sub-tenant, but remained in possession only by virtue of the Rent (Restrictions) Acts then in force which prevented her from being turned out. The case is different from that of a tenant who, having sublet to another, on the expiration of his tenancy leaves the sub-tenant in possession, either willingly, or as having assented by taking no steps to turn him out. Such a case as that of Henderson v. Squire is, to my mind, entirely different from that of a person who, after the tenant has gone out, remains in occupation by virtue of a statutory right which the tenant cannot in any way interfere with.”
This decision was approved by the Court of Appeal in England in the case of Watson v. Saunders-Roe Ltd.8
In this case, even if it is assumed in favour of the plaintiff that the sub-tenancy to the second defendant was granted by the first defendant, the evidence shows that the latter gave notice of his intention to quit not only to the landlord but also to the sub-tenant, that is, the second defendant. The second defendant could obviously not be turned out by reason of the Rent Control Ordinance, 1952.9 He himself seemed to have been aware of this position and refused to quit. He said in evidence: “I was a tenant before the first defendant came and if he was leaving his premises, I saw no justification why I should be asked to leave my part of the building.” As the decisions in Reynolds v. Bannerman (supra) and Watson v. Saunders-Roe Ltd. (supra) seem to us to be a complete answer to the contention based on Henderson’s
case (supra), we drew counsel’s attention to them in the course of the argument.
In order to distinguish these two cases, counsel for the plaintiff put forward and developed an argument, which is remarkable for its novelty. It was submitted that the decisions in Reynold’s case (supra) and Watson’s case (supra) were made possible by reason of the provisions of section 15 (3) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (supra), inasmuch as that section entitles a sub-tenant to continue in occupation of the premises after the determination of the tenancy of the head tenant, and enables him to become the tenant of the landlord. It was said that no such provision was made by our Rent Control Ordinance, 1952. It was submitted that the section of our Rent Control Ordinance which was analogus to section 15 (3) of the English Act was section 16 (1). On a true construction of that subsection, counsel submitted, a tenant who remains in possession after the determination of the contractual tenancy became a statutory sub-tenant of the landlord. When he was asked who then became
the tenant whose sub-tenant the tenant in possession became, counsel said it was the tenant whose tenancy had determined. When counsel was further asked if on his argument, a tenant who gave up the premises after the determination of his tenancy nevertheless remained a tenant, he would be liable to pay rent in perpetuity, counsel said he could not say. That plainly is the reductio ad absurdum of this submission. In my judgment it is wholly untenable.
In my opinion, although subsection (3) of section 15 of the English Act is in wording different from subsections (1) and (2) of section 16 of our Rent Control Ordinance both in conjunction with subsections (5) and (6) of section 11, achieve the same result. The subsection of the English Act provides that if the interest of the tenant determines, a sub-tenant to whom the premises were lawfully sublet shall be deemed to become the tenant of the landlord. Subsection (5) of section 11 of our Ordinance provides that where the tenant is ejected by an order of the court, such ejectment shall not affect a sub-tenant to whom the premises were lawfully sublet. Subsection (6) provides that if such sub-tenant remains in possession, he shall cease to be a sub-tenant but become a tenant of the landlord. Subsection (1) (c) of section 16 says a tenant shall become a statutory tenant and shall by force of subsection (2) of section 16 hold the premises of the landlord on stated terms. The result of these provisions, as it seems to me, is that if either by reason of a court order of ejectment or by effluxion of time, the tenancy determines, he drops out and a tenancy is created statutorily between the landlord and the sub-tenant who thereafter becomes a statutory tenant. That plainly is what the second defendant became after the first defendant brought the head tenancy to an end by a valid notice to quit. It follows that even if the sub-tenancy between the first and second defendants was originally granted by the voluntary act of the first defendant the authorities of Reynolds v. Bannerman (supra) and Watson v. Saunders- Roe Ltd. (supra) preclude the plaintiff from holding the first defendant liable from use and occupation of the premises by the second defendant.
It is obvious that the decision of the trial court cannot be successfully assailed. The only way in which the judgment is open to criticism is that the learned trial judge dealt with somewhat complex questions of law as if they were questions of fact. But inasmuch as she held that the action failed against both defendants, she was plainly right. I would therefore not disturb her conclusions but would dismiss this appeal with costs.
DECISION
Appeal dismissed.
T. G. K.
