DIVISION: IN THE HIGH COURT, ACCRA
DATE: 24TH MAY, 1961
BEFORE: ADUMUA-BOSSMAN, J.
CASES REFERRED TO
(1) Beardman v. Wilson (1868) L.R. 4 C.P. 57; 19 L.T. 282
(2) West v. Dobb (1870) L.R. 5 Q.B. 460; 23 L.T. 76
(3) Arnsby v. Woodward (1827) 6 B. & C. 597; 108 E.R. 542
(4) Baylis v. Le Gross (1858) 4 C.B. (N.S.) 537; 140 E.R. 1201
(5) Barton v. Fincham [1921] 2 K.B. 291, C.A.
(6) Bell London & Provincial Properties Ltd. v. Reuben [1947] K.B.157; [1947] 2 All E.R. 547; 176 L.T. 92, C.A.
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(7) Barnard v. Goodscall (1612) Cro. Jac. 309; 79 E.R. 264
(8) Parker v. Jones [1910] 2 K.B. 32
(9) Baynton v. Morgan (1889) 21 Q.B.D. 74
(10) Commissioners of Works v. Hull [1922] 1 K.B. 205
(11) Solomon v. Orwell [1954] 1 W.L.R. 629; [1954] 1 All E.R. 874, C.A.
(12) Foster v. Robinson [1951] 1 K.B. 149; [1950] 2 All E.R. 342, C.A.
(13) Lavender v. Betts [1942] 2 All E.R. 72
(14) Cohen v. Tannar [1900] 2 Q.B. 609
(15) Remon v. City of London Real Property Co. [1921] 1 K.B. 49.
NATURE OF PROCEEDINGS
ACTION by sub-lessee against head-lessor for damages for breach of the covenant for quiet enjoyment.
COUNSEL
Bannerman for the plaintiff. I. Amoo-Lamptey for the defendant.
JUDGMENT OF ADUMUA-BOSSMAN,
By his writ of summons the plaintiff claims £G11,105 damages, as per particulars set out in his writ, against the defendant for the latter’s alleged breach of the covenant for quiet enjoyment contained in an indenture of lease dated the 7th May, 1949, made between the defendant as lessor of the one part, and one James Oppong of Accra as lessee of the other part. By the said lease one large store situate at
the junction of Boundary Road and Derby Avenue, Accra, and numbered D.988/3, was demised by the defendant as lessor to the said James Oppong as lessee for the term of twelve years certain starting as from the 1st November, 1949, at the yearly rental of £G250 payable by equal quarterly instalments in advance of £G1,00 per quarter, commencing from the 1st November, 1949.
The statement of claim filed in support of the writ sets out and explains in paragraphs 1,2, and 3 thereof how the plaintiff comes to claim the benefit of a covenant contained in an instrument to which, on the face of it, he was not a party, as follows:
“(1) By an Indenture of Assignment made the 28th day of December, 1951, the said James Oppong assigned his entire interest in the said premises unto one Osei Kojo of Accra for the remainder ofnthe term created by the original Lease dated 7th May 1949, i.e. for 10 years certain commencing
from 1st November, 1951.
(2) By an Indenture of Assignment made the 27th day of May, 1952, the said Osei Kojo assigned his entire interest in the said premises unto one Amin Homaidan of Accra for the remainder of thenterm created by the Indenture of Assignment dated 28th December, 1951.
(3) By an Indenture of Assignment dated 30th October, 1952, the said Amin Homaidan assigned his entire interest in the said premises unto the plaintiff for the residue of the term of 10 years created by the Indenture of Assignment dated 27th May, 1952. (See paragraph 1 of Statement of Claim).
The defendant thereby covenanted with the said James Oppong the original lessee, that the lessee his executors administrators and assigns performing and observing the covenants therein contained in the original Lease by him and them to be performed and observed, should peaceably and quietly hold use and occupy the said premises for the said term without any lawful denial, let,
hindrance, molestation from or by the Lessor or any person or persons rightfully claiming through him (see paragraph 2 of Statement of Claim). The plaintiff enjoys the benefits of the above (mentioned) covenant as an assignee under the original lease and has been carrying on business as a general merchant on the premises the subject-matter of the original Lease. (See paragraph 3 of Statement of Claim)”.
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The material documents or instruments pleaded as above have been produced and are before the court, the original lease dated the 7th may, 1949, from the defendant’s custody and admitted as exhibit 2.
The other three instruments, however, have come from the plaintiff’s custody, and they have been admitted, the indenture of assignment dated the 28th December, 1951, as exhibit C, the indenture of assignment dated the 27th May, 1952 as exhibit B, and the indenture of assignment dated the 30th October 1957, as exhibit A. With regard to these documents produced from the plaintiff’s custody, it shoud be pointed out that they do not relate to the whole store comprised in and forming the subject-matter of the original lease, exhibit 2, but only to a partitioned or severed portion thereof
forming a smaller store carved out of the larger store, and it is this smaller store which the original lessee James Oppong purported to transfer by the instrument exhibit C to Osei Kojo. It seems to be further necessary to point out that although that instrument exhibit C purported, and was expressly declared to be an under-lease, nevertheless as the effect of it was to transfer the whole of the residue of the period or term of twelve years under the original lease, namely a period or term of ten years
remaining outstanding as from the 1st November, 1951, the document therefore undoubtedly constituted a legal assignment of that smaller store carved out of the larger store. Thus in Beardman v. Wilson 1(1) where the assignee of the reversion sued the assignee of the lease who had, however, executed a deed in form expressed to be an under-lease but expiring at the same date as the original term, to have him held liable on a covenant to repair containded in the original lease, Bovill, C.J., explained the legal position as follows:
“As far back as the year 1818, it was held in Parmenter v. Webber (8 Taunt 593) that where a lessee underlets for the whole residue of the term, it amounts to an assignment, and it was there treated as established law. In a note to Shepherd’s Touchstone p.266, 8th edition, the law is stated in the same way, and it is in accordance with the usual practice of conveyancers. In Wollaston v. Hakewill (3 Man. & G.
297) the same question again arose, the underlease in that case being for a term exceeding that of the original lease; and after taking time to consider, Tindal, C.J., delivering the judgment of the court said `the only question therefore is whether, if a lessee for ninety-nine years demises for a longer term, such demise operates in law as an assignment; and we entertain no doubt but that for a very long period the law has been held that it has such operation, and may be so treated in pleading’ I think, therefore, the matter must be considered to be settled.”2(2)
Beyond question, therefore, the instrument of transfer to Osei Kojo exhibit C was an assignment. The
original lease exhibit 2 did not expressly prohibit transfer of the demised premises or any portion
thereof by assignment or sub-letting, but on the contrary expressly permitted such transfer, and only
required that notice of any transfer should be given to the lessor, the material clause in the lease being
that “The lessee may assign sub-let or part with the possession of the demised premises; but notice of
such assignment or sub-letting shall be given by the lessee to the lessor”. Assignment or sub-letting therefore not having been expressly prohibited
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but on the contrary expressly permitted, it is clear that the original lessee, James Oppong, and not only
he but “his executors, administrators and assigns”, may properly and lawfully assign or sub-let. Prima
facie therefore, the documents exhibits 2,C, B and A appear to operate to confer upon the plaintiff the rights of a lawful assignee of the lease in respect of or insofar as it affects the samller store which formed the subject-matter of those instruments. To this prima facie case of the plaintiff, however, the following were some of the material pleas of the defendant as contained in his statement of defence:
“13. Paragraph 1 of the Statement of Claim is completely denied.
14. With regard to paragraph 2 of the Statement of Claim it is admitted that the defendant leased to the said James Oppong the premises the subject of this suit, but the defendant avers that the Deed of Surrender dated 11th April, 1953, extinguished any right which the said James Oppong had in
the said premises.
15. With regard to paragraph 3 of the Statement of Claim it is denied that the plaintiff herein is an Assignee of the original lease, and the defendant avers that the plaintiff was never more than a statutory tenant . . .
17. With regard to paragraphs 4 and 5 of the Statement of Claim, it is denied that the plaintiff had any right whatsoever to the premises since a date 6 months after notice was given in December, 1955. 18. Defendant further says that any work of demolition carried out by the defendant was in pursuance of a lawful order given by the Court in relation to a summons by the Accra Municipal Council. 19. There was neither privity of contract or privity of estate between Plaintiff and the Defendant.”
The main plea in defence that there was no effective or valid assignment, with its consequential privity of contract and/or estate subsisting between the parties, was supported by evidence from the defendant to the effect that the original term granted to James Oppong was subject to a proviso for re-entry to determine the lease upon non-payment of the rent or other breach of any of the other covenants contained in the lease; that prior to June, 1952, James Oppong was in breach of the covenant for payment of the rent and had become liable to have his lease forfeited and/or determined; that thereupon he arranged and executed a formal deed of surrender dated the 11th April, 1953, whereby he surrendered the residue of the term as from the 30th June, 1952, and gave up possession of the larger portion of the demised store which he had retained. It falls, therefore, firstly to consider and determine as a question of fact, how far that case of the defendant succeeds or fails to be established, bearing in mind that the rule is that it must be clearly and positively shown or established that a breach of covenant had actually been committed. In the case of West v. Dobb,3(3) an appeal to
the Court of Exchequer against a decision of the Court of Queen’s Bench which had non-suited the plaintiff on a claim in ejectment for forfeiture for breach of covenant not to assign, underlet or otherwise part with possession of the demised premises without the written consent of the lessor, Kelly, C.B. observed:
“As it is an action of ejectment for a forfeiture, we must clearly see that there has been a breach of covenant on which an action might have been maintained, and that the forfeiture of the term has ensued upon the breach of covenant”.
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Considering then whether or not James Oppong was in breach of covenant to pay the rent for the whole store and thereby became liable to suffer forfeiture of the residue of the term, the defendant’s oral testimony was that James Oppong “paid for 2 years only, then he stopped payment – with the result that he owed me over £700”. That evidence was not only unchallenged but it was further
supported by exhibit 4, the letter dated the 19th November, 1954, addressed by the Commissioner of Income Tax to him in respect of his income tax for the year of assessement 1953-54, by paragraph 2 of which the Commissioner appears to have been satisfied with the position that: “The amount of rents £712: 10s. due from James Oppong as at 31st March, 1953, is now irrecoverable…” and he
advised the defendant that for purposes of tax due and payable by him, that amount “can be claimed
as a bad debt in next year’s statement for rents, i.e. deducted from rents for the year to 31st march, 1955”. If, therefore, by the 31st march, 1953, James Oppong was in arrears to the extent of £712 10s., then he would appear definitely to have been in arrears at any rate by the 30th October, 1952, when the assignment to the plaintiff, exhibit A, was made. As a question of fact then, it is beyond doubt that James oppong was in breach of his covenant for the payment of rent in respect of the demised premises and had incurred forfeiture under the espress proviso for re-entry contained in the original
lease exhibit 2, by the date the 30th October, 1952, when the assignment exhibit A was executed for the plaintiff. Nevertheless, it is not enough that the original lessee was in arrears with his rent and therefore in breach and liable to have his lease forfeited. The original lessor or landlord was by law required to take some definite step to determine, such as actual re-entry or some other step indicating
his intention of terminating the original tenancy. In one of the leading cases in which there was a breach of a covenant not to underlet without the landlord’s licence rendering the tenant liable to re-entry and the landlord did not exercise his right to re-entry but on the contrary received some rent from the underlessee, the case of Arnsby v. Woodward,4(4) Littledale, J., pointed out that: “The lease was not void but voidable, and the landlord was bound to re-enter to take advantage of the forfeiture”.5(5) See also Baylis v. Le Gros6(6) where the lessor on finding in possession an
underlessee put in breach of covenant, prevailed on the latter who accepted a tenancy from year to year from him, the original lessor, and that was held a sufficient act of forfeiture of the original lease.
Summary re-entry, however, had been made illegal and impossible by the operation of the Rent Control Ordinance7(7) in force at the time, which had given the tenancy the character or status of a “protected” tenancy, so that despite the proviso for re-entry contained in the lease, the landlord could not unceremoniously enter and take possession against the will of the tenant, for, as pointed out by Scrutton, L.J. in Barton v. Fincham8(8), the tenant “can leave of his own free will, surrendering his
[p.264] of [1961] GLR 258 tenancy . . . But if he is in possession and unwilling to give it up, possession can only be obtained by order of a Court”.9(9) See also Bell London & Provincial Properties Ltd. v. Reuben10(10) in which despite the breach of a condition not to keep a dog in the premises, the landlords could not even get a court order for possession.
Whether by reason of this difficulty it was impossible to make a summary re-entry or not it is difficult to say; but certain it is that by the 30th October, 1952, the date of the instrument of assignment from the Homaidan to the plaintiff, exhibit A, although it is established as a fact that James Oppong, the original lessee, was in breach in respect of his covenant for rent and had rendered his lease liable to forfeiture, the lease had not factually and legally been forfeited but was still subsisting on that date. It
follows that the instrument of assignment of that date, exhibit A, operated to make a valid transfer of
the small store to the plaintiff for the residue of the term of the original lease.
Nonetheless, the continued subsistence of the original lease and the subsidiary assignment, exhibit A
relating to the small store, was still contingent and/or dependent upon the continued observance and performance by James Oppong, the original lessee, of the conditions and covenants of the original lease, since, even if he had assigned the whole, (and a fortiori on the assignment of only a portion) of the premises to Osei Kojo, he James Oppong still remained liable on his covenants in the original
lease. In the old case of Barnard v. Goodscall11(11) it was adjudged that: “Covenant will lie against anlessee on an express covenant, [in this case to repair] notwithstanding he has assigned the term, and the lessor has [even] accepted rent from the assignee. In the much later case of Baynton v.nMorgan12(12) Lopes, L.J. also stated the rule in the following terms “The rule of law is that a lessee remains liable upon his express covenants, notwithstanding an
assignment and acceptance by the landlord of rent from the assignee, and there is an implied promise on
the part of each successive assignee to indemnify the lessee against breaches of the covenants of thenlease in his own time”.
Being then liable for the rent for the whole premises including the small store in respect of which he had executed assignment, and being in breach of covenant for non-payment of same, James Oppong executed an instrument of surrender, exhibit 2X, by which he purported to surrender the residue of the term in respect of the whole store as from the 30th June, 1952, and the question arises as to the legal effect of that surrender.
Counsel for the plaintiff contends that it has no effect on a prior assignment and relies on the case of Parker v. Jones13(13) in which Darling, J. dealt with two earlier authorities concerning surrender, and said as follows:14(14)
“The cases bearing on this matter are Mellor v. Watkins ((1874) L.R. 9 Q.B. 400) and Great Western Ry. Co. v. Smith ((1876) 2 Ch. D 235). In the former case
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a lessee of a house sublet the cellars to the defendant and some time afterwards surrendered his lessee to
his lessor. The lessor, without giving the defendant notice to quit, relet the house to the plaintiff, who sued the defendant for keeping him out of possession of the cellars. Cockburn, C. J. said:
`It is clear that when a person voluntarily surrenders his lease, he cannot by so doing put an end to an
under-tenancy created by himself; and therefore there must be judgment for the defendant…On thenground that an underlessee’s rights cannot be put an end to by a voluntary surrender of the lessors interest.’ In Great Western Ry. Co. v. Smith, Mellish, L. J. said:
‘It is a rule of law that if there is a lessee and he has created an under-lease, or any other legal interest, if
the lease is forfeited, then the under-lessee, or the person who claims under the lessee, loses his estate as
well as the lessee himself; but if the lessee surrenders he cannot, by his own voluntary act in surrendering, prejudice the estate of the under-lessee or the person who claims under him”.
It is to be observed, however,that although Parker v. Jones15(15) decided that a voluntary surrender did not per se have the operation of destroying or extinguishing a prior assignment or under-lease, nevertheless it acknowledged the legal position that the surrender might be followed by other steps such as notice to quit or re-entry which would have the effect of effectually extinguishing the residue of the period or term of the lease, from the point of view of an assignee or under-lessee. As appears from the headnotes of the report, the decision of Darling, J. proceeded on the ground that surrender did not preclude re-entry, where the term had been rendered liable to forfeiture but that the steps taken in that particular case did not amount to re-entry. The learned judge discussing that aspect of the matter in the course of his judgment said as follows:
“Mr. Montgomery [for the under-lessee] has contended that no right of re-entry could be exercised after the term has been surrendered. I do not think it necessary to go that length. If the question in this case had arisen between Mr. Assheton Smith [the lessor] and the plaintiff [the under-lessee], it may be that the defendant’s contention would be right, and that the landlord would have been entitled,
notwithstanding his, [lessee’s] surrender, to treat the plaintiff as a trespasser. The question however does
not arise between the landlord and the plaintiff but between the plaintiff and the person to whom the landlord has relet the premises and that to my mind makes all the difference”.16(16)
In his expression of view as above set out he was at variance with Bucknill, J. (who together with him constituted the Divisional Court of the King’s Bench Division which was hearing an appeal from the decision of the county court) the latter taking the view that the acceptance of the surrender by the
lessor, precluded him from subsequently forfeiting the interest of the assignee or under-lessee, even
though that interest had been created in breach of covenant, for he (Bucknill, J.) observed as follows:
“As between himself [the lessor] and the plaintiff [the under-lessee] the lessee allowed the plaintiff by an act which was not illegal to take possession; and the lessor did not treat that as a ground of forfeiture. He
accepted a surrender from his tenant. Can he after that treat the under-lessee as a trespasser? I think not”.17(17)
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Of the opposing views, however, those of Darling, J. have subsequently come to find support in the expression of identical views in the case of Commissioners of Works v. Hull,18(18) by both Shearman and Salter JJ. Who constituted a Divisional Court of the King’s Bench Division which dealt
with an appeal relating to forfeiture which came from a county court. The case of Parker v. Jones19(19) had formed the basis of the judgment of the judge of the county court, and was therefore necessarily relied on by counsel for the respondent at the hearing of the appeal. Accordingly both justices had found it necessary to express their respective views concerning the Parker v. Jones
decision and its scope. Shearman, J. first observed as follows:
“The case of Parker v. Jones was cited to the county court judge who thought that it governed the present casae. All that it decided was that where the immediate lessee of the landlord surrendered his tenancy, that did not put an end to the sub-tenancy. A person who surrenders is like a person who assigns; he must assign subject to any equities or tenancies created by himself. The present case is launched entirely on forfeiture . . . It is well decided since Serjeant v. Nash, Field & Co. ([1903] 2 K. B.304) that the best and most irrevocable indication of an intention to claim a forfeiture is the issue of a writ. I think it follows from the judgment in that case that the issue of a writ against the person claiming to be the lawful sub-tenant is also a sufficient indication”.20(20)
Salter, J., followed, and after discussing the facts in Parker v. Jones, observed: “If the lessor [to whom
surrender had been made] had learned what was done and had chosen to derermine the lease, then no
doubt the interest of the plaintiff would have come to end at the same time; but that was not what happened”.21(21)
It appears clearly therefore from the above expression of views concerning Parker v. Jones, that Shearman and Salter, JJ. share the views expressed by Darling, J. that notwithstanding the surrender by the original lessee to the lessor in Parker v. Jones, had the lessor known of the sub-tenancy created
in breach of covenant and elected to treat the sub-tenant as a trespasser by making re-entry to determine his lease, he could quite legally and validly have done so. The same legal question came to be considered by Evershed, M. R. in the case of Solomon v. Orwell,22(22) when he examined and expressed views on it as follows:
“Counsel for the sub-tenant . . . observed that, if a tenant has his interest determined as on forfeiture, it follows that… an interest derived out of the tenant’s estate will fall with the tenancy, but there is, he said, a well-established exception to that principle, namely, the case of a voluntary surrender. The matter is stated in Foa’s General Law of Landlord & Tenant, 7th ed., p. 627, plainly and (as far as I can see from looking at the cases) accurately, thus:
`Hence, where the lessee underlets a portion of the demised premises, and afterwards surrenders his lease
to the lessor, the latter cannot dispossess the under-lessee without determining his interest in a regular
manner, notwithstanding that the under-lessee has notice of the surrender, or that the lease itself was at the time of surrender liable to forfeiture’.
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“. . . A reference to the cases seems to me to indicate plainly…on the proposition that, for the protection
of a sub-tenant who has been granted a subsidiary interest, the estate which otherwise would be surrendered and would disappear persists so as to permit the continued existence, until proper determination, of the subsidiary interest”.23(23)
I would stress the last few words of the learned Master of the Rolls, viz. “until proper determination of the subsidiary interest”.
It is clear, therefore, that surrender can be followed by proper or regular steps to determine, and that the defendant in this instant case was capable of enforcing his right of forfeiture of the original lease and the dependent subsidiary assignment of the small store, after the deed of surrender dated the 11th April, 1953, exhibit 2X. This, I think, he did when the original lessee, James Oppong, having himself voluntarily vacated the portion of the demised premises which he retained and thereby taken the whole demised premises out of the protection of the Rent Control Ordinance,24(24) the defendant
re-entered. (See Foster v. Robinson25(25) and Solomon v. Orwell.26(26) From the date of that re-entry shortly after execution of exhibit 2X therefore, the residue of the term
of twelve years granted by the original lease, exhibit 2, as well as the residue remaining outstanding of the same term under the deed of assignment dated the 30th October, 1952, exhibit A, were both extinguished, and the instruments ceased to have any further effect or operation.
But it would be a gross and stupendous misapprehension to think that with the cessation of the contractual tenancy, the rights and obligations of the parties also came to an end. They did not, and were preserved by the Rent Control Ordinance,27(27) and the plaintiff became a statutory tenant in his occupation of the small store, when his contractual tenancy under the instrument of assignment came to an end. By the operation of section 16(2) (a) of the said Ordinance, the plaintiff held: “As antenant 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”. The plaintiff therefore by operation of the section of the Ordinance to which we have made reference, was entitled to the benefit of the covenant for quiet
enjoyment which was expressly contained in his tenancy under his instrument of assignment. The position appears to be the same as in the case of Lavender v. Betts28(28) on which counsel for the plaintiff expressed reliance. The decision in that case turned on the provisions of the English Rent Act, 1920,29(29) section 15 (1) of which is almost identical with the provisions of our Rent Control Ordinance,30(30) and is as follows:
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“A tenant who by virtue of the provisions of this Act retains possession of any dwelling-house to which this Act applies 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”.
In that case the learned judge who dealt with the case pointed out that:
“The statutory tenant has the same rights and is subject to the same obligations as prevailed during the
tenancy. Therefore a landlord has no conceivable right to interfere with their possession or to trespass upon the premises occupied by them, unless he obtains an order giving him possession of the premises.”31(31)
The question which finally arises therefore is whether the act proved against the defendant constituted
a breach of his covenant for quiet enjoyment. It appears so. The facts are that by a deliberate demolition of a part of the premises he left the store, the subject-matter of the action, in such a dangerous and/or unsafe condition (see letter, exhibit F) as to make it necessary for the municipal
authorities to insist on its demolition, whereby the plaintiff had to be deprived of his occupation and
enjoyment of the said store. Counsel for the defendant has contended that the premises were demolished pursuant to an order of the court for its demolition. But then, going through the process of having a court order made against the defendant was a mere ruse and a complete sham. The
defendant’s wrongful act was that when he was under contract to leave the premises in a condition that the plaintiff might or can occupy it as provided by the Rent Control Ordinance, he demolished part of the premises so as to leave the store in a condition in which it became dangerous for human occupation. Thereafter he went and applied to the court for an order for possession for the purpose of complying with the requirements of the municipal authority. An order for possession was then made (see exhibits G1 and G2). But it is clear that his act in demolishing a portion of the premises whereby that part in dispute was left in a dangerous and unsafe condition, was really that act which forced the
plaintiff out of possession. In a similar case, Cohen v. Tannar,32(32) where the conduct of a lessee led to the making of a court order for possession under which his sub-tenant, to whom he had given a covenant for quiet possession, was ejected and the sub-tenant sued him for breach of the covenant for quiet enjoyment, Rigby J. held that there was an interruption of the plaintiff’s enjoyment of the
premises by the act of the defendant, namely, by his actively consenting to a judgment for which he must have known, if he had considered the matter for a moment, that there ws no foundation. The Court of Appeal (A. L. Smith, Vaughan Williams, and Romer, L.JJ.) affirmed this decision, Romer, L.
J. observing in the course of his judgment as follows:
“by an order which acquired its validity solely from the voluntary act of the defendant, the plaintiff lost the possession; and that amounts to an interruption by the defendant of his [plaintiff’s] quiet enjoyment of the premises. Upon that ground the plaintiff is entitled to succeed in this action”.33(33)
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What, then, about damages? £G10,000 general damages are claimed, and in addition special damages as follows, namely, £G1,000 for the value of the term lost, and 100 guineas for expenses incurred in defending the action for recovery of possession, exhibits G1 and G2. Dealing first with the claim for special damages, as I have held, the plaintiff had no residue of term under and by virtue of the
instrument of assignment exhibit A under which he went into occupation originally, but was holding as a statutory tenant by November, 1959, at the date of the action and judgment, (exhibits G1 and G2) which led to his eviction from the premises or store. The plaintiff was at the material time, to use the description which Bankes, L. J. in the case of Remon v. City of London Real Property Co. Ltd.34(34)
gave to a person in an identical position to himself:
“a person who might be described as an ex-tenant, some-one whose occupation had commenced as tenant and who had continued in occupation without any legal right to do so except possibly such as the [Rent] Acts themselves conferred upon him.”35(35) It follows he cannot claim the value of a term lost. He is, however, entitled to recover for the loss of his right of occupation from month to month until determination or eviction by an order of the court.
This, I assess at £180. As regards the sum of 100 guineas paid to resist the action for recovery of possession, I allow 60 guineas as amply reasonable for such a case in the district magistrate’s court.
That brings up the amount awarded for special damages to £243. There is lastly the claim for general damages, including loss of business, supported by plaintiff’s profit and loss account sheets for the years 1957-58, 1958-59 and 1959-60, exhibits H1, H2 and H3. I allow £1,000 for general damages,
making a total of £1,243 damages.
I also award costs of 120 guineas, inclusive of counsel’s fee.
DECISION
Judgment for plaintiff.
