Tang Chi Ho v. Wong Yuk Ha and Others

IN THE COURT OF APPEAL

1995, No. 198
(Civil)

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Coram : Hon. Godfrey, Liu, and Ching, JJ.A.

Date of hearing : 19 January 1996

Date of judgment : 19 January 1996

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J U D G M E N T

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Godfrey, J.A. (giving the judgment of the court):

1. This is an appeal from an order of the Lands Tribunal made on 5 September 1995. By its order the Tribunal dismissed an application by Tang Chi Ho ("the landlord") for review of the Tribunal's order dismissing the landlord's claim against Leung Woon Ling ("the tenant") for an order for possession of a stone house in Yuen Long on the ground that Part II of the Landlord and Tenant (Consolidation) Ordinance, Cap.7 ("the Ordinance") did not apply to the premises.

2. Before us, it was accepted by both parties (in our view, rightly) that the Tribunal had proceeded upon an incorrect premise in accepting a submission by the tenant to that effect and finding, on the basis of that submission, that the tenant had no case to answer. It follows that we have to approach the matter afresh.

3. The appellant claims to be the landlord of the tenant, but the tenant denies that that is so. The tenant asserts that in fact he is the tenant of one Tang Chun Hung, to whom, says the tenant, he has in fact been paying rent.

4. The case of the landlord before the Tribunal was this. The premises were built post-war. They were domestic premises. The tenant began to occupy them before 10 June 1983. The tenancy, a monthly tenancy, had been brought to an end. In those circumstances, says the landlord, the tenant is entitled to the benefit and protection of Part II of the Ordinance. Accordingly the landlord accepts that he cannot obtain an order for possession except on one of the grounds specified in the Ordinance. One of the grounds specified in the Ordinance is the failure of the tenant to pay his rent, and, says the landlord, the tenant has not paid his rent. That does establish a prima facie case, within the jurisdiction of the Lands Tribunal, to make an order for possession in favour of the landlord and against the tenant. Of course, it would be a good defence to this case for the tenant to prove that the landlord was not in fact his landlord at all. That issue, however, has not yet been the subject of any hearing before the Lands Tribunal.

5. In addition, it is submitted on behalf of the tenant that the landlord himself has no interest in the property and therefore cannot accordingly institute any proceedings against the tenant. This assertion of a jus tertii is not open to the tenant. A tenant is not permitted to deny his landlord's title. If then the present landlord is the landlord of the tenant, this allegation that the landlord has himself no interest in the property would afford the tenant no defence. Indeed, a periodic tenant who denies his landlord's title is treated as having waived his right to a notice to quit, entitling his landlord to claim possession at once (see, e.g. Wisbech St. Mary Parish Council v. Lilley [1956] 1 WLR 121).

6. In the circumstances, the Tribunal having erred in accepting the tenant's submission of no case to answer, the correct course for this court to take now is to refer the whole matter back to the Tribunal, so that it can look at the matter afresh, and decide whatever issues are properly placed before it at the fresh hearing.

7. If it is thought right by those who advise the tenant to make a fresh submission of no case to answer, no doubt they will do so. If they do, it is to be hoped that the Tribunal will then take the ordinary course of putting the tenant to his election (something it failed to do at the original hearing), so that his case will stand or fall on that submission.

8. We will then order a new trial of this application before the Lands Tribunal. The landlord's costs of this appeal must be taxed and paid by the tenant to the landlord in any event; the costs below will be costs in the new trial.

Representation:

Mr. Erik Shum (M/s. Lau & Leung) for Appellant/Applicant

Mr. Raymond Tsui (M/s. George Y.C. Mok & Co.) for 2nd Respondent