Browne v King et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Wooding, C.J.
• Judgment Date: 09 June 1964
• Neutral Citation: TT 1964 CA 38
• Docket Number: No. 261 of 1964
• Date: 09 June 1964

Court of Appeal

Wooding C.J, McShine, J.A.; Phillips J.A

No. 261 of 1964

Browne

and

King et al

Appearances:

Mr. W. Agimudie appeared for the appellant.

Mr. F. Rigsby appeared for the respondent.

Real Property - Landlord and Tenant — Ejectment — Alleged breach of tenancy agreement — Alleged parting of possession without landlord's consent

Facts: Magistrate refused to make an order for the ejectment of the respondent from the premises which he held as a tenant of the appellant. On appeal, appellant claimed that there was an alleged breach of the tenancy agreement, there was an alleged parting with the possession of the premises without obtaining the landlord's consent

Held: Although it may have been contemplated by the parties that the premisses would be used for a particular purpose there was no restrictive covenant prohibiting its users for any other commercial purpose. Therefore fact that it had been used differently from the way it was contemplated to be used, does not constitute a breach of any term of the agreement — There can be no parting with possession once it is found, as it has been justifiably found, that the operating of the club on the appellant's promise was a partnership business in which the respondent participated as one of the partner propie tous. Appeal dismissed with costs.

Wooding, C.J.

1 In this matter the magistrate refused to make an order for the ejectment of the respondent from the premises which he held as a tenant of the appellant. Three grounds were put forward before the magistrate for obtaining an ejectment order. The first related to rent being in arrear for mare than thirty days, but the rent so due was paid during the coarse of the ejectment proceedings. There had been in fact some dispute between the parties as to whether the rent was tendered and refused or whether it had simply not been paid. However, by the acceptance of the rent in the course of the proceedings that ground ceased to be available to the appellant as a ground for ejecting the respondent.

2 There were two grounds left: (1) that there was an alleged breach of the tenancy agreement, and (2) that there eras an alleged parting with the possession of the premises, the subject-matter of the tenancy, without the consent of the landlord having been obtained.

3 To deal first with the question of the alleged breach of the tenancy agreement, it must be borne in mind that while it was alleged and accepted to be a stipulation of the tenancy agreement that the premises would in fact be used in part for the purpose of carrying on the business of a restaurant and in part as a dwelling-house, nevertheless there was no prohibition against its user for any other purpose. We have been pressed by counsel for the appellant to hold that, because it had been the intention that the premises should be used for the purpose of a restaurant in so far as it was used for business, that would necessarily import a prohibition against its user for any other commercial purpose. The same contention was raised before this court on at least three previous occasions. It was first raised in Solomon v. Khan, 5 W.I.R. 132. There we quoted from the decision of Evershed L.J., as he then was, in Wolfe v. Hogan [1949] 1 ALL E.R. 570 at p.572, as follows:–

“No doubt these lettings are very informal and it is legitimate to try to extract from the simple and informal transaction what the real intention was, but I think it would need more than we have here to justify a conclusion that there was an implied covenant of which the tenant could be said to be in breach. On the other hand, from the terms of the contract, as I have stated it, it seems to me plain that, at the time of the letting, the user contemplated by the language that was employed was a user as a shop and not as a dwelling-house”.

4 And the conclusion at which we arrived in Solomon v. Khan was that the user there contemplated by the parties was the user of the premises the subject-matter of that tenancy as a dwelling-house, but that there was no prohibition in the rent agreement against its user for some other purpose.

5 The question came up again in Gittens v. Bernard. 5 W.I.R. 256. There again the premises were let for use as a dwelling-house, but they had progressively been used in fact for commercial purposes. Once again we referred to Wolfe v. Hogan, and we also referred to our decision in Solomon v. Khan, and we said this see at page 257 of the report:–

“The distinction between a user which is in breach of a restrictive term of the tenancy and one which, although different from the user contemplated at the time of the letting, is not in breach of any obligation arising thereout (for the reason that there was no restrictive term prohibiting it) was, as we pointed out in Solomon v. Khan, clearly recognised by the draftsman of the Rent Restriction Ordinance”

6 We had the question come up yet again in Duverney v. Dass: Appeal No. 407/1963. And we repeated once more the conclusions at which we arrived in the two previous cases, so it is unnecessary...