HIGH COURT, ACCRA.
Date: 30 JANUARY 1975
ABBAN J
CASES REFERRED TO
(1) Morrison v. Jacobs [1945] K.B. 577; [1945] 2 All E.R. 430; 115 L.J.K.B. 81; 173 L.T. 170; 61 T.L.R. 550; 90 S.J. 68, C.A.
(2) Malm v. Lutterodt [1963] 1 G.L.R. 1, S.C.
(3) Wilkinson v. Edusei [1963] 1 G.L.R. 393, S.C.
(4) Appiah v. Akers Trading Company [1972] 1 G.LR. 28.
(5) Application Des Gaz S.A v. Falks Veritas, Ltd. [1974] Ch.381; [1974] 3 W.L.R. 235; [1974] 3 All E.R.51; 118 S.J. 363; [1974] C.M.L.R. 75, C.A.
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(6) Artizans, Labourers and General Dwellings Co., Ltd. v. Whitaker [1919] 2 K. B. 301; 88 L.J.K.B. 859; 121 L.T. 243; 35 T.LR 521.
(7) Tideway Investment and Property Holdings, Ltd. v. Wellwood [1952] Ch. 791; [1952] 2 All E.R. 514; [1952] 2 T.L.R 365; 96 S.J. 579, C.A.
(8) Karam & Sons v. Traboulsi & Co. [1964] G.L.R 513.
(9) Lam Kee Ying Sdn. Bhd. v. Lam Shes Tong [1974] 2 W.LR. 784; [1974] 3 All E.R.137, P.C.
(10) Brewer v. Jacobs [1923] 1 K.B. 528; 92 L.J.K.B 359; 128 L.T. 687; 67 S.J. 458; 21 L.G.R. 230 D.C.
NATURE OF PROCEEDINGS
ACTION for recovery of possession of premises, damages for breach of covenant and mesne profits. The facts are fully set out in the judgment.
COUNSEL
K. Frimpong-Boadu for the plaintiffs H.V.A. Franklin for the defendants.
JUDGMENT OF ABBAN J.
The plaintiffs are claiming from the defendants the recovery of possession of a store numbered as D.825/4 Boundary Road (now Kojo Thompson Rd.), Knutsford Avenue, Accra. They are also claiming damages for breach of covenant and mesne profits of 0150.00 a year from 1 December, 1969 up to the date on which possession will be delivered.
By a sub-lease dated 28 January 1961, the plaintiffs, as sub-lessors demised to the first defendant a store with a room attached for a term of five years and ten months, commencing on 28 January 1961, at a yearly rent of 0150.00. There was an option to renew for a further term of ten years at the end of the first term. The case of the plaintiffs was that the first defendant at the expiration of the first term, did not give notice, written or otherwise, of his intention to exercise the option of renewal, consequently, several notice in writing were given to the first defendant to quit the premises. In those notices the plaintiffs’ informed the first defendant that the plaintiffs’ needed the premises for their business, but the first defendant refused to quit and remained in possession of the premises.
The secretary of the plaintiffs who gave evidence for and on behalf of the plaintiffs said the first defendant, while holding over after the expiration of the sub-lease, under-let the premises to the second defendant without the knowledge of the plaintiffs, contrary to the terms of the sub-lease, and the second defendant took possession of the premises and was in occupation thereof at the time the writ of summons herein was issued.
The defendants did not give evidence and by their statement of defence (paragraph (8), (11) and (13)) the first defendant appeared to have conceded that he failed to give actual notice of his intention to exercise the option of renewal. But he contended that the plaintiffs condoned the said failure and continued to recognise the first defendant as a tenant under the sub-lease and accepted regular payments of rents from the first defendant as if the first defendant had in fact exercised the option of renewal. he defendants therefore averred that the plaintiffs were estopped by conduct from contending that the first defendant never exercised the said
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option. Paragraph (8) of the statement of defence reads:
“The first defendant admits that there was a proviso in paragraph 4 (c) [i.e. clause 4 (c)] of the deed of 28 January 1961, for renewal as suggested in paragraph (3) of the plaintiffs’ statement of claim, by the exercise of an option stated in the head-lease for a further ten years and says that even if the first defendant failed to exercise the said option for renewal, the plaintiffs condoned and allowed the first defendant to hold over and remain in possession, without eviction or interruption of any sort or kind, since the time such option was due to be exercised, and continued to receive regular payments of rents thereafter, until now, and hence the plaintiffs in law, are estopped by conduct from pleading that notice of such option was never in fact given or such option exercised, and as such, cannot now be heard to plead that such option was never exercised.
It is the usual practice for a defendant to put his case to the plaintiff in cross-examination; but in the case herein, no question was asked of the plaintiffs’ secretary to suggest that the plaintiffs were guilty of condonation of some kind. What is more, neither defendant ever gave evidence. In a case like this, one would have expected at least the first defendant, or some one on his behalf, to give evidence to prove those acts of the plaintiffs which the defendants contended amounted to estoppel by conduct and condonation. I find that the first defendant’s allegations in the paragraphs (8), (11) and (13) of the statement of defence, apart from his payment of rents, were not true. I accept the evidence of the plaintiffs secretary and I hold that the sub-lease, exhibit A, expired on 1 December 1966, and the first defendant did not in fact exercise his right of renewal for a further term of ten years or for any less period or at all. I further find that after it had become apparent that the first defendant did not intend to renew the sub-lease, the plaintiffs gave several written notices to the first defendant asking him to vacate the premises as the plaintiffs required the store for their own business. The first defendant was made aware that in case he refused to quit court action would be resorted to for his ejectment.
The plaintiffs until they finally issued their writ in March 1970, had threatened the first defendant with court proceedings for nearly three years, but the first defendant continued to remain in possession of the premises in defiance of the plaintiffs’ said notices. Of course it is a fact that the plaintiffs accepted rents from the first defendant after 1 December 1966, as averred by the defendants; but that fact alone could not be conclusive evidence that the first defendant did exercise the option of renewal.
Merely accepting the rents after the expiration of the sub-lease, in the circumstances as stated above, could not justify any inference that the said option of renewal was exercised and that a new contractual tenancy came into existence between the parties: see Morrison v. Jacobs [1945] 2 All E.R. 430, C.A In that case Scott L.J. at p. 431 said:
“The one question in the case is whether the mere fact of receiving the weekly rent when he did receive it afforded any evidence that he
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was entering into a new contractual arrangement to take the place of what I will call the four years’ lease that had run out. In my view, they afford no evidence at all to justify that inference. I think the true view of it is that he took the rent and was willing to take it and believed that his right to regain possession depended entirely on satisfying the terms of the Acts.”
At p.432 of the report MacKinnon L.J. also expressed himself as follows:
“This was a claim by the owner of a house to recover possession of it from a man who was in occupation. The defence of the man who was in occupation is: ‘I am a tenant of yours pursuant to a lease granted by you to me for a yearly tenancy. Such a lease you can only put an end to by a six months’ notice to quit. You have given no such notice and, therefore, you have no enforceable claim for possession.’ To that contention the landlord answered: ‘The only contract of demise between us was one for four years, which expired by effluxion of time some time ago. Since the expiration of that demise you have remained in possession, not by reason of any new demise from me, but because the Rent and Mortgage Restriction Act deprived me of the power to turn you out.’ The tenant seeks to reply to that proposition of the landlord by saying: ‘I agree that my original contractual lease was ended as you say, but I stayed on and paid the rent and you have accepted the rent and by that conduct you have granted me a new contractual demise.’
I am quite satisfied that that last contention of the tenant is entirely without foundation and that it is so is sufficiently shown by the principle of the decision of Davies v. Bristow ([1920]) 3 K.B. 428).”
There was therefore no waiver of the notices to quit which were served on the first defendant by the plaintiffs and the plaintiffs could not be estopped in any way from contending that the sub-lease, exhibit A, was never renewed.
The first defendant, having continued to occupy the premises after the expiration of his sub-lease and against the will of the plaintiffs, could only be protected by the Rent Act, 1963 (Act 220). Thus the first defendant after 1 December 1966, the date on which the sub-lease expired, became a statutory tenant within the meaning of section 36 of the said Rent Act.
That section defines a statutory tenant to include a tenant who “remains in possession of premises after the determination by means of his tenancy and cannot by reason of the provisions of this Act be deprived of such possession by his landlord” But before I discuss the position of the first defendant under the Rent Act, I think it would be better, at this stage, to dispose of the two submissions which learned counsel for the defendants put forward in the course of his address.
The first submission was in connection with alleged failure of the plaintiffs to renew the head-lease itself. The plaintiffs came by the premises in dispute by means of a lease dated 9 December 1936. Under that lease, which was described as the head-lease in exhibit A, the premises were
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demised to the plaintiffs for 30 years, commencing from the said 9 December, and expiring in December 1966, with an option of renewal for a further period of ten years from December 1966.
In the head-lease the plaintiffs also had a right to sub-let the whole premises or part thereof. It was after the head-lease had run for about 24 years that the plaintiffs sub-let the premises to the first defendant for the residue of five years and ten months to run from 28 January 1961, to December 1996, as evidenced by the sub-lease, exhibit A. Even though clause 4 (c) of the sub-lease gave the first defendant the right of renewing the sub-lease after the expiration of the five years and ten months for another term of ten years, the said clause made it abundantly clear that the first defendant could exercise the said right “ if and only if’ the plaintiffs themselves exercised their option of renewal given to them under the head-lease. The said clause 4 (c) of the sub-lease reads as follows:
“That the sub-lessee, if and only if the sub-lessor shall have exercised the option its favour contained in the head-lease, shall have the option to be exercised by notice in writing at any time before the commencement of the last six (6) calendar months of the demised term to renew the term hereby granted for a further term of ten (10) years less the last day thereof upon the same terms and conditions as herein contained with the exception of the present clause.”
(The emphasis is mine)
Learned counsel for the defendants contended that there was no evidence to show that the plaintiffs exercised their option of renewal under the head-lease because if the plaintiffs did in fact exercise the said option, they would have given written notification to the first defendant, and since there was no such notification to the first defendant, the possibility was that the plaintiffs never renewed their head-lease. Consequently, the first defendant, by clause 4 (c) of the sub-lease as stated above, could not be expected to exercise his option of renewal under the said sub-lease. So that submitted counsel, both the head-lease and the sub-lease expired as far back as December 1966, and the plaintiffs could not take advantage of their own default and enforce the terms of the sublease which were no longer binding.
If the argument of learned counsel is valid it will mean that the action against the defendants is totally misconceived. However, with great respect to learned counsel, I think the contention could not avail the first defendant. It was not part of the first defendants case that he did not renew the sub-lease after December 1966 because the plaintiffs failed to renew the head-lease. Whether or not the plaintiffs renewed the head-lease, was a question of fact, and the first defendant did not plead that fact. Neither was the secretary of the plaintiffs cross-examined on that aspect of the matter. The plaintiffs did not themselves give evidence or tender any documents to show that they renewed the head-lease. But that was understandable the head-lease. It was, in the circumstances, not necessary for the plaintiffs to lead evidence to prove that which had not been disputed.
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It will therefore be seen that the submission of learned counsel for the defendants was not based on the evidence before the court, nor on the pleadings in the case and it ought to be rejected as misconceived.
The other submission of learned counsel for the defendants was that the premises were sub-let to the first defendant solely for the retail trade. But since the first defendant, as an alien, was prohibited from engaging in retail by legislation – the Ghanaian Enterprises Decree, 1968 (N.L.C.D. 323), now repealed by the Ghanaian Business (Promotion) Act, 1970 (Act 334) – the main object for sub-letting the premises, the subject-matter of the sub-lease, had failed, and since it had become illegal for the first defendant to continue using the premises in terms as agreed upon in the sub-lease, it followed that frustration had occurred. Thus, submitted counsel, the first defendant was discharged from observing further the covenants and the terms as contained in the sub-lease, and the first defendant could not therefore be held to have committed a breach of covenant.
I should emphasize that those two enactments, N.L.C.D. 323 and Act 334 of 1970, did not affect every alien in retail business. For example, paragraph 11 (a) of N.L.C.D 323, which came into operation on 1 July 1968, made it clear that the affected aliens were those in retail trade like the first defendant but whose annual sales volume did not exceed 0500,000; and even under paragraph 12 of that Decree, those affected could still be exempted if they were able to fulfill the conditions laid down in paragraphs 13 to 17 of the Decree. N.L.C.D. 323 remained in force until it was repealed by the Ghanaian Business (Promotion) Act, 1970 (Act 334) which came into effect on 1 August 1970; and like N.L.C.D 323, the said Act 334 never affected every alien retail trader. That is, Act 334 affected those aliens whose annual sales of retail or wholesale trade “as reflected in the income tax returns of that enterprise for the tax year 1967-68 do not exceed five hundred thousand cedis.” See section 11 (1), of Act 334.
So that whether or not the first defendant was one of those alien retail traders who was effected by those two pieces of legislation was, again a question of fact which ought to have been pleaded and proved by evidence. But, as usual, the defendants never pleaded that fact nor adduced evidence in respect thereof. That is to say, the first defendant did not even aver in the statement of defence that he was discharged from his obligations under the sub-lease by reason of frustration; neither did he aver that he could not further observe the covenants in the sub-lease in view of the provisions of those two pieces of legislation. It is trite learning that a party is bound by his pleadings and cannot at the trial set up a case different from that which he has pleaded. If therefore I accept the submission of learned counsel for the defendants that there was frustration, It would not only mean that would be accepting in favour of the first defendant a case different from and inconsistent with that which the first defendant himself put forward by his pleading, but would also amount to deciding the case on a point which was never a triable issue on the pleadings; and that would be fundamentally wrong: see Malm v. Lutterodt [1963] 1 G.L.R 1, S.C. and Wilkinson v. Edusei [1963] 1 G.L.R 393 at
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p. 396, S.C. See also Appiah v. Akers Trading Company [1972] 1 G.L.R 28 at p. 33.
In any case, it would appear from paragraph (15) of an affidavit sworn to by the first defendant, in opposition to an application for an interim injunction, that N.L.C.D. 323 did not affect the first defendant. The said paragraph (15) of the affidavit reads:
“That I am not running away to my country until I have put all my affairs in order, although I am compelled to close down my business by 1 August 1970 in compliance with the recent bill, namely the Ghanaian Business (Promotion) Bill 1970.”
(The emphasis is mine)
The affidavit was sworn to on 9 July 1970, and filed in this court on 15 July 1970. It is reasonable to infer from the portion of the affidavit which has been quoted above, that the first defendant continued to operate his retail business, despite the Ghanaian Enterprises Decree, 1968 (N.L.C.D 323), until 1 August 1970, when the Ghanaian Business (Promotion) Act, 1970 (Act 334), came into force. In other words, the first defendant, on his own showing, was not in fact affected by the former enactment (N.L.C.D 323) and he continued to run his retail business until 1 August 1970. It was therefore not right to contend that N.L.C.D. 323 frustrated the object of the sub-lease.
As regards the Ghanaian Business (Promotion) Act, 1970 (Act 334), even if it is accepted that it affected the first defendant (as the portion of the affidavit referred to above seemed to suggest) that will not make any difference; because at the time the cause of action arose and on 25 March 1970, the date on which the writ of summons herein was issued, there was in fact no Act 334; and there could therefore be no frustration of the sub-lease. The said Act 334 came into existence while the case was pending; and since the Act was not made retrospective, it could not have affected the rights and obligations of the first defendant under the sub-lease as at the beginning of the action. Normally, when the law changes during an action the rights of the parties are decided according to the law at the start of the action:
see Application Des Gaz S. A. v. Falks Veritas, Ltd. [1974] 3 W.L.R 235, C.A. (coram Lord Denning M.R., Stamp and Roskill L.JJ). I therefore hold that the rights of the parties, as well as the question as to whether or not the sub-lease became frustrated, must all be decided in accordance with the law existing at the start of the case; and according to the existing law at that relevant period, the sub-lease had not become frustrated. Thus, the argument of learned counsel as to frustration was also untenable.
I have already found that the first defendant having held over the premises after his sub-lease had expired, despite the written notices to quit, became a statutory tenant and was only protected in his possession of the premises by the Rent Act, 1963, (Act 220), so long as he complied with the provisions of the said Act. In Artizans, Labourers and General Dwellings Co., Ltd. v. Whitaker [1919] 2 K.B. 301 at p. 304, Astbury J. made the position clear when he said:
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“As such he was, I think, a ‘tenant’ within s. 1, sub-s. 3, of the 1915 Act, and except in the cases therein referred to no order for recovery of possession can be made against him so long as he continues to pay rent at the agreed rate, and so long as he performs the other conditions of the tenancy.
See also Tideway Investment and Property Holdings Ltd. v. Wellwood [1952] Ch. 791 at p. 820, C.A.
Section 29 (1) (a) of the Rent Act, 1963, (Act 220), lays down the conditions under which a statutory tenant can continue to hold on to the demised premises after his lease has expired. It provides, that:
“A statutory tenant shall, so long as he retains possession, hold the premises of the landlord upon the following terms and conditions namely –
(a) he shall hold as a tenant from month to month, and, subject thereto, shall observe and be entitled to the benefit of all the terms and conditions of his original tenancy, as the case may be, so far as the same are consistent with the provisions of this Act”
(The emphasis is mine).
The words ‘the terms and conditions of his original tenancy in this section refer to the terms and conditions in the contractual tenancy under which the tenant was holding immediately before he became a statutory tenant. It therefore follows that the covenants or conditions and all other obligations stipulated in that contractual tenancy and which “ are consistent with the provisions of the Act are carried forward into the statutory tenancy.
In the present case, the original tenancy of the first defendant was the sub-lease, exhibit A. So that apart from occupying the premises as a tenant from month to month, the first defendant was entitled not only to take the benefit of the rights and privileges conferred on him by the sub-lease, but was also under a statutory duty to observe all those covenants of the sub-lease which were “consistent with the provisions” of the Act; and if he committed a breach of any of the said covenants, an order for possession could be sought against him under section 17 (1) (b) of the Rent Act. I should make it clear that a statutory tenant, like the first defendant, cannot be evicted except by an order of the court and only where any of the circumstances laid down in section 17 of the Rent Act has been established to the satisfaction of the court: see the dicta of Archer J. (as he then was) in Karam & Sons v. Traboulsi & Co. [1964].G.L.R 513 at pp. 518-519. I may observe that in the latter case, the court was dealing with the Rent Control Ordinance, 1952 (No. 2 of 1952). But the circumstances, which have been listed in section 17 of the present Rent Act and with which the present case is concerned, are almost the same as those set out under section 11 of the said 1952 Ordinance.
Thus, a landlord, seeking possession of his premises which are in the occupation of a statutory tenant, must first and foremost satisfy the court that the ground on which he is asking for an order of possession is recognised by section 17 of the Act. The grounds on which the plaintiffs herein
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are seeking to evict the defendants are two-fold, namely: (1) that the first defendant committed a breach of covenant by parting with possession or by sub-letting the premises to the second defendant without the knowledge of the plaintiffs and (2) that in any case, the plaintiffs needed the premises for their own business. Those two grounds fell within the ambit of section 17 (1) (b) and (h). The section provides:
“17 (1) Subject to the provisions of subsection (2) of section 25 and of section 28, no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, or any other Judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstances:—
(a) where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due;
(b) where any obligation of the tenancy, other than that specified in paragraph (a), so far as such obligation is consistent with the provisions of this Act, has been broken or not performed;.
(h) where the lease has expired and the premises are reasonably required by the land lord to be used by him for his own business purposes, such premises being constructed to be used as such, if the landlord has given not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises.”
(The emphasis is mine)
Considering first the plaintiffs’ ground (1) which is covered by section 17 (1) (b) the questions to be answered are whether that ground—the covenant not to sub-let without the plaintiffs’ consent—was consistent with the provisions of the Rent Act, and if so, whether the first defendant in fact breached that covenant. I have examined closely the sub-lease and in my view, all the covenants, conditions and the terms therein contained were consistent with the provisions of the Act; and the first defendant, as a statutory tenant, was bound to observe them. On the evidence of the secretary of the plaintiffs, I find that the first defendant, after he had become a statutory tenant, under-let the premises in dispute and parted with possession thereof to the second defendant without the prior knowledge, consent or permission of the plaintiffs. I also find that the first defendant was aware of the fact that the said covenant was an unconditional prohibition on him, and that a breach thereof would entitle the plaintiffs to re-enter. The first defendant conceded to this fact by paragraph (11) of the statement of defence where it was stated: the first defendant admits the allegation made by the plaintiffs in paragraph (5) of their
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statement of claim, as to their right to re-entry on the breach of any covenant in the said deed.
The first defendant did not merely permit the second defendant to have the use of the store, but he gave the second defendant the legal possession thereof and before the writ of summons herein was issued, the second defendant had taken actual possession of the store and had at that time displayed his own signboard with his name and business address boldly painted on it, indicating to the general public that he was the new occupier of the said store. By paragraphs (9) and (10) of the statement of defence the first defendant contended that he never in fact ‘assigned under-let or mortgaged or parted with the possession of the demised premises or any part thereof,” and that he received “no rent from the second defendant in respect of the alleged sub-letting.” But from the unchallenged evidence of the secretary of the plaintiffs, coupled with the second defendant’s conduct of displaying boldly his own signboard in front of the store, it is reasonable to infer that the first defendant did actually part with possession.
In Lam Kee Ying Sdn. Bhd. V. Lam Shes Tong [1974] 3 All E.R. 137, P.C. L. leased to T. for 25 years the ground floor of a building in Kuala Lumpur. T. covenanted not to assign, under-let or part with possession of the premises without first obtaining the written consent of L., such consent not to be used by T. for carrying on business as general merchants whether trading as a sole proprietor or in partnership. There was a right of re-entry for breach of covenant. T. carried on business in the premises in partnership with two others. Subsequently, the partners formed a company in which T. held a majority of the shares, to take over the business as a going concern. A sign board with the new company’s name was put outside the premises. The electricity and water supply and telephone arrangements were put in the new company’s name; and a cheque drawn by the company was tendered in payment of rent. The Privy Council held, inter alia, that there had been a breach of the covenant not to part with possession. It was explained that while there had in fact been no assignment of the lease to the new company, and a lessee who retains legal possession does not commit a breach of covenant against parting with possession merely by allowing other people to use the premises, the proper conclusion to be drawn from the whole of the evidence was that T. did part with possession of the premises.
I am therefore of the opinion that in the instant case, the first defendant on breaching the said covenant lost his protection under the Act and the plaintiffs are entitled to recover possession of the premises under section 17 (1) (b) of the Rent Act, 1963 (Act 220). In Brewer v. Jacobs [1923] 1. K.B. 528, D.C. where a statutory tenant committed a breach of covenant, Bailhache J. at p. 531 said:
“But for the Increase of Rent, &c. (Restriction), Act, he would not be a tenant at all, and he is only in possession as long as he complies with the provisions of that Act. One of those provisions is that he shall pay
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his rent, and another is that he shall observe the covenants in his lease. He must find his protection, if any, within the Act, and other Acts do no apply at all.
(The emphasis is mine). In the same case McCardie J. in the course of his judgement at p. 532 also stated.
“Consequently one must look to the provisions of the increase of Rent, & c. (Restrictions), Act, 1920, to see what is the position of a statutory tenant. Sect. 15, sub-s 1, says that he shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy.’ The next relevant section is s. 5, which limits the power of the landlord to get possession as against the tenant, but gives him the right to do so in the various cases set out, among which is the one in sub-s. 1 (a), where rent has not been paid or any other obligation of the tenancy has been broken. Taking these sections together, it is clear that the tenancy here had broken the obligations of his tenancy, and that the statutory tenancy which he possessed under s. 15 was liable to be taken away under the provisions of s. 5.”
(The emphasis is mine.)
I must observe that after the case had been pending for some time, the second defendant, for unknown reasons, left the store; and the first defendant, despite the interim injunction order restraining him from letting out the store to any third person until the result of the case was known, gave the store to a certain Madam Addy: see the plaintiffs’ affidavit filed on 17 September 1970. The first defendant’s conduct was brought to the attention of the court by the plaintiffs. The first defendant did not deny putting that Madam Addy in possession after the second defendant had vacated the premises. Consequently, on 12 October 1970, the court committed the first defendant for contempt of court. I have referred to this incident to show that the first defendant, by his conduct, did not only prove that he had little or no respect for the court, but also made it clear that he personally had no need of the store anymore, and that was why he was bent on parting with it, by all means, to other people. I am therefore convinced that the ommission of the first defendant to obtain the prior consent of the plaintiffs before sub-letting the premises to the second defendant was not due to a mere mistake or forgetfulness of the covenant, but that he wilfully and deliberately committed the said breach. Conduct such as this can hardly deserve equitable consideration. The plaintiffs’ ground (2)—that they require the premises for their own use—as I have already pointed out, fell within the provisions of section 17 (1) (h) of the Act. The plaintiffs themselves are engaged in the business of buying and selling and they are in fact doing retail business, the very business for which the premises were sub-let to the first defendant. The evidence of the plaintiffs’ secretary that the plaintiffs urgently require the premises was not shaken during cross-examination; and the defendants never gave evidence to contradict the secretary’s said evidence. It was not
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also disputed that the plaintiffs, before they issued their writ, furnished the appropriate rent officer with a statutory declaration in the form as prescribed in Form 14 of the First Schedule to the Rent Regulations, 1964 (L.I. 369). In other words, the plaintiffs fulfilled the conditions imposed by regulation 18 of the Rent Regulations, 1964 (L.I 369) : see exhibit Dated 20 March 1970.
Furthermore, the plaintiffs gave the first defendant several written notices of their intention to apply to court for the recovery of possession of the premises. On or about 14 August 1969, the first defendant was served with the last written notice calling upon him to “quit the said premises and deliver up possession to the plaintiffs. The first defendant, by paragraph (13) of the statement of defence, admitted receiving the notice in question. The writ of summons was issued on 25 March 1970. It can therefore be seen that the writ was issued more than seven months after the said last written notice had been served on the first defendant. In the circumstances, I am of the view that the plaintiffs complied with all the prerequisites laid down in section 178 (1) (h) of the Rent Act; and I am also satisfied that they genuinely and reasonably need the premises for their own business. I therefore hold that an ejectment order can also be made against the defendants under section 17 (1) (h) of the Rent Act.
It will be recalled that clause 2 (c) of the sub-lease, exhibit, A provided that the first defendant should use the demised premises for the purpose of retail trade only”; and I have already held that in the particular circumstances of this case such a covenant was not inconsistent with the provisions of the Act. But it is quite clear from the letter, exhibit C, which the first defendant wrote to the plaintiffs during the pendency of this case, that if the first defendant was allowed to retain possession, he would “open the store as a restaurant” in contravention of the said clause 2 (c) of the sub-lease. This obviously is not the conduct of a statutory tenant who is prepared to observe the terms and conditions of his original tenancy.
In all the circumstances, I think the first defendant is a most undesirable tenant and the plaintiffs are entitled to all the reliefs sought, except the general damages; the reason being that no evidence was led as to the financial loss incurred by the plaintiffs as a result of the breach of the covenant or as a result of the first defendant’s refusal to give up possession after the sub-lease had expired in December 1966.
The plaintiffs asked for mesne profits of 0150.00 a year as from 1 December 1969. From 1 December 1969 to date is a period of exactly five years and two months. They must therefore recover the sum of 0750.00 from both defendants. The fact that the second defendant left the premises before the end of this case is immaterial; because the right of the plaintiffs to re-enter goes back to the date on which the first defendant committed the breach by putting the second defendant in possession without the prior consent and knowledge of the plaintiffs, which conduct was one of the causes of the action. So that the plaintiffs’ right to recover possession and their right to claim the mesne profits were rights which
[p.225] of [1975] 1 GLR 212
had accrued to them, as against the two defendants, at the time the writ of summons was issued. That being the case, I hold that the plaintiffs became entitled to all those reliefs, as against both defendants, long before the second defendant vacated the premises. The second defendant could not therefore escape liability by merely leaving the premises after the proceedings had begun.
Consequently, judgement will be entered for the plaintiffs, and against both defendants, jointly and severally, for the recovery of possession of the premises in dispute, and for mesne profits of 0750.00, with costs fixed at 0700.00, inclusive of a fee to counsel.
DECISION
Judgement for the plaintiffs.
S.Y.B.B.
