Duverney v Dass et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Wooding, C.J.
• Judgment Date: 12 November 1963
• Neutral Citation: TT 1963 CA 70
• Docket Number: No. 407 of 1963
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 12 November 1963

Court of Appeal

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

No. 407 of 1963

Duverney

and

Dass et al

Appearances:

Mr. Karl Hudson Phillips holding for Mr. Selby Wooding for the appellant

Mr. Tajmool Hosein with Mr. S.G. Maharaj for respondent Laurie Cassiram

Respondent Jerry Dass does not appear and unrepresented.

Rent restriction - Recovery of possession — Parting of possession by statutory tenant without landlord's consent — Acceptance of rent — Whether waiver of sub-letting

Facts: One of the respondents Dass who was the tenant of controlled premises parted possession thereof to the other respondent Cassiram, without the consent of the landlord who was the appellant. Appellant protested but received rent nevertheless from Dass. Ejectment proceedings brought by the appellant were rejected on the ground that the acceptance of rent as aforesaid amounted to a “waiver” of the subletting. Appellant appealed

Held: No question of waiver arose since it was not shown that there was any breach of a term of the tenancy agreement. As parting with possession without the consent of the landlord was a statutory ground for ejectment the real question for determination was whether the landlord by the acceptance of rent had impliedly consented to the parting with possession of the premises to Cassiram. The evidence established no such consent as the landlord had not only protested against what Dass had done but made it clear that his receipt of rent did not imply the acceptance of Cassiram as his tenant.

Wooding, C.J.

1 The appellant is the landlord's agent of the premises No. 155 Coffee Street, San Fernando, of which the respondent Jerry Dass became the tenant in or about the year 1954. The premises comprised a two-storeyed building the upper floor of which was sublet with the knowledge of the appellant. The record does not disclose whether the landlord's consent to this subletting had been previously obtained, but no question turns on this upon this appeal. The bottom floor was used for carrying on the business of a spirit retail shop.

2 Because he later became embarrassed financially, Dass sold his spirit retailer's business on 30th January, 1958 to the respondent Cassiram. The sale included the whole of the stock-in-trade, goodwill, furniture and fixtures, and it was a term of the agreement that the rent for the premises would continue to be paid in Dass' name “until such time as it would be convenient to have same transferred” to Cassiram's.

3 The appellant's case was that he was never notified of the intended sale or asked to consent either to a transfer of the tenancy or to any parting with possession of the bottom floor so as to effecutate the agreement. He first became aware about the end of March 1958 of what had occurred because, after seeing the shop closed from 30th January to some time in February, he observed at the end of following month that the shop was being painted and, in reply to his inquiry, Cassiram informed him of his purchase of the business from Dass who, he said, had transferred the tenancy to him. The appellant promptly objected, set out to find Dass and, failing despite repeated attempts, wrote on 10th May 1958 threatening to take steps for his ejectment on the ground that neither he nor his principal had consented to the transfer. After some further correspondence passed between them without the issue being resolved, he posted a notice to Dass, dated 28th June, determining the tenancy on 31st July 1958.

4 The respondent's case was that before completing their agreement they informed the appellant of their proposals and he consented to the contemplated transfer of the tenancy. Cassiram also alleged that on completing his purchase he secured the appellant's further consent to repair and paint the shop at his own expense, after doing which he commenced business on 7th February 1958. Then, to his astonishment, in March 1958 the appellant approached him saying that his principal, Mrs. Rupert, was giving trouble and would have to be paid for her consent to accept him as tenant. But he refused to entertain the suggestion.

5 The rent for the entire premises was paid in cash for the months of March, April and May. Each month it was sent by Cassiram but as coming from Dass. Following the correspondence which began with the letter of 10th May, Cassiram sent the appellant a banker's cheque for the rent due for the months of June and July, but the appellant returned it as he refused to recognise Cassiram as his tenant. Thereafter, all rent becoming...