PETER DE SILVA
COURT OF APPEAL.
G. P. S. DE SILVA. J. (PRESIDENT. C/A) AND GOONEWARDENA. J.
A. No. 925/75 (F) (S.C.).
C. GALLE No. 7442/L.,
AUGUST 29. 1986.
Landlord and tenant – Lease of bare land – Termination of lease – Can vindicatory suitbe maintained?
Where the tie of landlord and tenant has been severed and the lessee has lost.his rightof occupation and there is no legal basis justifying the tenant's continued occupation, asuit in vindicatory form to recover possession on the basis of title would lie. The owneris not confined to his remedy in contract and not bound to proceed as if against anoverholding lessee.
Cases referred to:
Attorney-General v. Herath – (1960) 62 N.L.R. 145.'
Graham v. Ridley – S.A.L.R. 1931 T.D.P. 476.
Leesh v. Crowther – S.A.L.R. 1947(2)956.
Beshop v. Union Government – S.A.L.R. 1932 T.D.P. 345.
Myaka v. Havemann and Another – S.A.L.R. 1948(3)457.
Winter v. South African Railways and Harbour – 1929 AD 100.
Karim v. Baccus – 1946 N.P.D^ 721, 726.
Thomas v. Guirguis – S.A.L.R. 1953 (2) 36.
Mensina v. Joslin – 1 Sriskantha's Law Reports 76.
Fernandes v. Perera – (1974) 77 N.L.R. 220.
Subramanian v. Pathmanathan – (1984) 1 SLR 252.
Pathirana v. Jayasundera – (1955) 58 N.L.R. 169.
APPEAL from Judgment of the District Court of Galle.
N. R. M. Daluwatte. P.C. with Miss K. Gabadage for substituted defendant-appellant.M. S. A. Hassan with Miss S. JayatiUeke and /. Waffa for plaintiff-respondent.
Cur. adv. vult.
October 16. 1986.
The plaintiff-respondent brought this action against the deceaseddefendant in the District Court on the following basis. Under a finaldecree for partition entered in D.C. Galle case No. 261 22 (P1 A) Lot Bof the defined portion of Kekiribokkewatta depicted on plan 2425A(P2) was allotted to one Y. B. Arlis de Silva his father who upon P1 of1956 gifted the property to him. Prior to his death in 1963, Arlis deSilva upon an informal writing dated 12th June 1951 (PI 9) permittedthe defendant to erect temporary buildings on a portion of this land inextent about a quarter of an acre (now bearing separate assessmentNo. 121 A) adjoining Galle-Wakwella Road on payment monthly of aground rent, in pursuance of which the defendant constructed atemporary wooden building wherein he carried on the business ofrunning a timber depot. The defendant paid the ground rent to Arlis deSilva during his life time and after his death to the plaintiff. On or about31st May 1966 the plaintiff revoked the permission granted to thedefendant and noticed him to quit this portion of land on or before31st August 1966 and remove the temporary buildings erected byhim. Notwithstanding this, the defendant in violation of the plaintiff'srights of ownership, in the exercise of a purported right, unlawfully putup new buildings and in the exercise of a pretended right of retentioncontinued in occupation of the land. In consequence, as relief theplaintiff asked that he as owner be declared entitled to the full rights ofdominion over this area of land, that the defendant be ordered toremove the buildings, that the defendant be ejected and he berestored to possession and awarded damages.
The defendant in his amended answer (and answer) did not admitthat the plaintiff had title to the area in question and called upon him toprove the same, although subsequently at the trial he admitted suchtitle. .He also claimed that on the right granted to him by Arlis de Silvahe filled up with earth at his expense this extent of land and put upthree sheds and that he paid a monthly rental to Arlis de Silva and afterhim to the plaintiff. The defendant also denied that there was arevocation of the permission granted and the right of the plaintiff toeffect the same and that he at any time acted in violation of theplaintiff's rights. His principal defence however was that he wasentitled to the protection of the Rent Restriction Act and not liable tobe ejected. While asking for a dismissal of the plaintiff's action, hemade a claim for compensation for improvements.
At the conclusion of the trial the learned District Judge held with theplaintiff but ordered the payment by him of Rs. 1,000 ascompensation on account of the filling up operation. It is against thisjudgment that this appeal was taken by the defendant.
At the hearing before us learned President's Counsel appearing forthe substituted defendant appellant.(who figures in this appeal in roomof the defendant now deceased) did not seek to canvass the DistrictJudge's finding that the Rent Restriction Act did not apply to thesepremises but contended that as the evidence and the judge s findingclearly indicated that there was a contract of tenancy in respect of thepremises, the notice to quit was bad in law. According to the plaint theperiod of the notice spanned three months and this appears to besupported by the original of the notice which was produced accordingto the proceedings from the custody of the defendant and marked atthe trial by his counsel as D3. Be that as it may, whether it ispermissible at this stage in appeal to canvass the adequacy of thenotice to sever the contractual relationship of landlord and tenant isanother matter. Counsel contended that since the defendant had putin issue at the trial the question whether the plaintiff had terminatedthe tenancy, upon the material in the record this Court could come tothe finding that the notice was bad in law. In my view it would bewrong to go into this question for the first time now. If the defendantintended to challenge the effectiveness of the notice that should have,and having regard to the averments in the plaint, could have beendone in a clear and precise manner upon a specific issue framed forthat purpose,- so that the attention of the District Judge could havebeen focussed upon this question, where we would then have had thebenefit of his finding. Not having done so at the trial I am of the viewthat this cannot be gone into now. Questions of fact are involved here,inter alia, that one of the original contracting parties (the father of theplaintiff) went out of the picture and the plaintiff took his place and alsothat the gift to the plaintiff of these premises by his father upon P1 wasprior to his death. As such, without, there being a finding on thisquestion by the District Judge I am not disposed to consider this- submission and refrain from doing so.
The principal argument of counsel for the substituted defendanthowever lay elsewhere. Stated briefly, he contended that since there;had been a tenancy between the parties (at the very least in respect ofthe" bare land) the action against the defendant should have been
constituted as one against an over-holding lessee. He argued that theaction instead, taking the form rei vindicatio and being thereforemisconceived, the defendant is not liable to be ejected. Learnedcounsel for the plaintiff-respondent on the other hand argued that theacts complained of against the defendant which the evidence hadclearly established, were in derogation of the plaintiffs rights as ownerof the land and resulted in a diminution of such rights andconsequently the relief asked for was a declaration that the plaintiff asowner had full rights of dominium. He contended that it wascompetent for the plaintiff in the circumstance of this case, to maintainthe action in this form and to get the relief he asked for including arestoration to possession.
I understood the argument of learned President's Counsel for theappellant to be to the effect that a overholding tenant whose contractof tenancy has been terminated by a valid notice to quit, can beejected only in an action brought on the basis of the terminatedcontract of tenancy and that such over-holding tenant is not liable tobe ejected in an action rei vindicatio.
I think it would simplify matters to express my view at the outsetitself, that in circumstances such as those present here, where thetenancy stands terminated and the tie of landlord and tenant issevered and there is no legal basis justifying the tenant's continuedoccupation, there can be no objection to a landlord, on the basis of histitle successfully recovering possession of the property leased.
Maarsdorf (Volume 2. p. 27) says that the rights of an owner arecomprised under three heads namely:
the right of possession and the right to recover possession;
the right of use and enjoyment; and
the right of disposition,
and he goes on to say that these three factors are all essential to theidea of ownership. That this statement is applicable to this countrywas recognised by the Privy Council in the case of Attorney General v.Herath (1).
The jus vindicandi or the right to recover possession of one'sproperty is thus considered an important attribute of ownership in theRoman-Dutch Law. Voet (6.1.2) states that from the right ofdominium or ownership strictly so called arises the action called rei
vindicatio, the action in rem by which we sue for the recovery of athing that is ours which is in the possession of another. The question-then is whether a jus vindicandi is enforceable in an action reivindicatio against an over-holding tenant.
In the case of Graham v. Ridley (2) Greenberg. J. (at p. 479) statedwith respect to the unreported case of Gordon v. Kamaludeen decidedby the Transvaal Provincial Division on 220.127.116.11 as follows: .
"The pleadings and the facts showed that the plaintiff was theowner of the premises, and the Court held that even though he hadinvoked this lease in his pleadings as the ground for ejectment hehad a prima facie right to succeed because of his ownership".
Referring further to that judgment, Greenberg, J. stated withapproval thus:
"An extract from the judgment reads:
'One of the rights arising out of ownership is the right ofpossession; Indeed Grotious (Introd. 2, 3, 4) says that ownershipconsists in the right to recover lost possession. Prima facie,therefore, proof that the appellant is the owner and thatrespondent is in possession entitles the appellant to an ordergiving him possession, i.e. to an order for ejectment. When anowner sues in ejectment an allegation in his declaration that hehas granted the defendant a lease which is terminated is anunnecessary allegation and is merely a convenient way ofanticipating the defendant's plea that the latter is in possession byvirtue of a lease, which plea would call for a replication that thelease is terminated'".
With respect to the case before him Greenberg, J. (at p. 479)stated thus:
",but the cause of action arises out of the fact that she is the
owner and is therefore entitled to possession, and whether amonthly lease is alleged, which has been lawfully terminated orwhether it is alleged that there is a long lease which has beenlawfully terminated, it does not affect her real ground of the right ofpossession".
In the case of Leesh v. Crowther (3) Fisher, J.P. (at p. 961)expressing his agreement therewith, cited this passage as reflectingthe true position.
In Boshoffv. Union Government (4) Greenberg. J. once again stated(at p. 351) thus:
'I do not think that any court would be entitled to decree an orderfor ejectment, when a plaintiff comes to court and says:
I am the owner of ground; I let that ground to the defendant ona lease which covers the present period, without some allegationthat the lease is no longer in force or no longer gives thedefendant the right of occupation. It may be that the cause ofaction in such a case, is the ownership of the ground, but wherethe plaintiff's own allegations in his declaration or what isequivalent to his declaration, show that he is not entitled toejectment, it does not appear to me that any court would beentitled to decree ejectment in his favour. The court would requiresomething to show that notwithstanding the right that he hasgiven to the defendant, the defendant no longer has a right toremain in possession'”.
The case of Myaka v. Havemann and Another (5) was one where ina claim for ejectment and damages the plaintiffs who sued ascessionaries of the right of action of the owners of a farm, afteralleging their right as cessionaries from the owners, set out anagreement with the defendant, under which he was lawfully inoccupation, and its termination by due notice. Davies, A.J.A. (at p.465) stated thus:
"The plaintiffs were the cessionaries from the owners. They couldconsequently have relied solely on that fact, and, after stating thatthe defendant was in wrongful occupation, have claimed ejectment,as was done in the case of Winter v. South African Railways and
Harbours (6) But in Karim v. Baccus (7) Hathorn, J.P, while
recognising that this preposition is sound, said:
'when a plaintiff is the owner of land and he seeks to recoverpossession he is free to choose his cause of action and when,having made his choice, he pleads that he is the owner, that he letthe land and the lease is at an end, he has placed on record thathe parted with his right of possession and. for the purposes of thecase, he is bound by that statement. It is clear, in my opinion, thathaving made his bed he must lie upon it. He, of his own free will,has placed upon himself by his own act the onus of proving thatthe right of possession, with which by his own admission he hasparted, is once more his'".
This view was echoed in Thomas v. Guirguis (8) where Clayden, J.(at p. 37) stated thus:
"The applicant’s claim to relief is founded on Graham v. Ridley -1931 T.P.D. which lays down that an owner, seeking ejectment,can base his claim on his ownership. It would then be for theoccupier to set up, and prove, a right of occupation against theowner. If the owner so sets out his cause of action as to travelbeyond the allegation of ownership and to allege that he has partedwith possession but cancelled that right to possession then he maytake upon himself the onus of proving that the right to possessionwhich he gave is at ah end".
These authorities, it will be seen, go so far as to hold that it issufficient for an owner in these circumstances to make an assertion ofownership to the property, without further statement that thedefendant's right of occupation is at an end (if that be the case) andupon the proof of such title to obtain recovery of possession. Indeed,they then demonstrate beyond any manner of doubt, that it iscompetent for an owner who has leased his land, upon showing thatthe lessee has lost the right of occupation, to eject him on the strengthof his title and that an action so framed is not misconceived nor thatthe action should be constituted as one against an overholding lesseebased upon the lawful termination of the contract of lease, before■ possession can be recovered.
Learned counsel for the appellant relied upon certain authorities assupporting his preposition, which I will make reference to now.
The case of IVIensina v. Joslin (9) was one where the premisesoccupied by the defendant as tenant was sold by the landlord to theplaintiff who brought an action rei vindicatio in respect of the premiseson the basis that the defendant failed to attorn to her though called!upon. Rodrigo, J. was there strongly influenced by the decision inFernandes v. Perera (10) which was a case where the Rent RestrictionAct applied and it was held that upon a change of ownership of thepremises, the tenant by operation of law became a tenant of the newowner and entitled to the protection of the Act and could be ejectedfrom the premises, not in an action rei vindicatio, but only in a properlyconstituted tenancy action if there was a breach of any of theconditions laid down in that Act. Rodrigo, J. stating that the casebefore him was on all fours with the case of Fernandes v. Perera
(supra) went on to hold that as the plaintiff there had not brought theaction on the contract of tenancy that had arisen in favour of the Jdefendant by operation of law, he could not in an action for declarationof title seek the ejectment of the defendant as a trespasser. It is to beobserved that in both these cases the tenant was shown to have aright to remain in occupation and as such they have no application tothe question before us.
The case of Subramaniam v. Pathmanathan (11) was also relied onby counsel for the appellant. In this case there was no relief by way ofa declaration of title to the premises sought, as Samarakoon. C.J.observes in the course of his judgment. I am of the view therefore thatthis too has no application to the question before us and the followingstatement of Samarakoon, C.J. (at p. 256) shows why "The Court ofAppeal has held that this was an action of a tenancy and I am of theopinion that it was correct in so holding."
Of more relevance to the question is the case of Pathirana v.Jayasundera (12). It was held there that a lessor of property whoinstitutes action on the basis of a cause of action arising from a breachby the defendant of his contractual obligations as-lessee is not entitledto amend his plaint subsequently so as to alter the nature of theproceeding to an action rei vindicatio if such a course would prevent orprejudice the setting up by the defendant of a plea of prescriptive title.The decision here, it is to be noted, touched the question whether theproposed amendment would be prejudicial- to a possible plea ofprescription available to the defendant. Fernando, J. there howeversaid (at p. 171):
"I have no doubt that it is opened to a lessor in an action forejectment to ask for a'declaration of title, but the question ofdifficulty which arises is''whether the action thereby becomes a reividicatio for which strict proof of the plaintiff's title would berequired, or else is merely one for a declaration (without strict proof)of a title which the tenant is by law precluded from denying. If theessential element of a rei vindicatio is that the right of ownershipmust be strictly proved, it is difficult to accept the proposition thatan action in which the plaintiff can automatically obtain a declarationof title, through the operation of a rule of estoppel should beregarded as a vindicatory action. The fact that the person inpossession of property originally held as lessee, would not precludethe lessor-owner from choosing to proceed against him by a reivindicatio."
Gratiaen, J. in the same case (at p. 1 73) stated:
"A decree for a declaration of title may, of course, be obtained by’ way of additional relief either in a rei vindicatio action proper-(whichis in truth an action in rem) or in a lessor's action against hisoverholding tenant (which -is an action in personam). But in theformer case, the declaration is based on proof of ownership; in thelatter, on proof of the contractual relationship which forbids a denialthat the lessor is the true owner."
Learned President's Counsel for the appellant in my opinion hasfailed to hold up his contention upon any authoritative basis, while theSouth African cases which I referred to earlier uniformly support thecontrary view. The effect of these authorities which I have referred toshow that ajalaintiff on the strength of his title can seek to eject adefendant who though at one time his tenant has had such tenancyterminated and cannot show any right to justify his continuedoccupation'of the leased premises.
In the view I take that it was competent for the plaintiff to seek the. relief of recovery of possession in an action rei vindicatio, it is all tooclear that he is entitled to the relief he asks of a declaration of full rightsof dominium and restoration of possession based upon a claim that heis the owner (without seeking a full declaration to that effect). Indeedthe argument of learned counsel for the appellant was that the entirestructure of the plaintiff's case suggested an action rei vindicatio.
I am of the view that the learned District Judge addressed his mindproperly to the questions before him and came to a correctconclusion. His judgment and decree-are affirmed and the appeal isdismissed with costs.
G. P. S. DE SILVA, J. – I agree.
2-SENANAYAKE v. PETER DE SILVA