Read the full judgment text of CACV 000198/1995 on BabelCite. This Court of Appeal judgment was delivered on 19 January 1996 before Godfrey JA, Liu JA, Ching JA.
Landlord and tenant – possession – Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap.7 – post-war domestic premises – tenant in occupation before 10 June 1983 – monthly tenancy brought to an end – landlord's claim for possession based on non-payment of rent – tenant's submission of no case to answer – whether Lands Tribunal erred in accepting submission on incorrect premise – whether tenant can raise jus tertii to deny landlord's title – whether matter should be remitted for fresh hearing. Landlord and tenant – jus tertii – tenant not permitted to deny landlord's title – periodic tenant who denies landlord's title waives right to notice to quit. Civil procedure – appeal from Lands Tribunal – Tribunal's erroneous acceptance of submission of no case to answer – duty to put defendant to his election – proper course is remittal. Held: the Tribunal erred in accepting the tenant's submission of no case to answer on the basis that Part II of the Ordinance did not apply. A tenant cannot set up a jus tertii defence to deny the landlord's title; following Wisbech St. Mary Parish Council v. Lilley [1956] 1 WLR 121, a periodic tenant who denies his landlord's title is treated as having waived the right to a notice to quit. The correct course was to refer the matter back to the Tribunal for a fresh hearing, at which the Tribunal should take the ordinary course of putting the tenant to his election on any renewed submission of no case to answer. Appeal allowed; new trial ordered before the Lands Tribunal. Landlord's costs of the appeal taxed and paid by the tenant in any event; costs below to be costs in the new trial.
Legal issues: Whether the Lands Tribunal erred in accepting a submission of no case to answer · Whether a tenant can raise a jus tertii defence to deny the landlord's title · Whether the matter should be remitted to the Lands Tribunal for a fresh hearing
Outcome: Appeal allowed; the order of the Lands Tribunal was set aside and the matter was remitted to the Lands Tribunal for a new trial of the application.