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Chan Wai v. Shim Tet Thong Co Ltd

Read the full judgment text of DCMP 3/1945 on BabelCite. This District Court judgment was delivered on 22 January 1946.

Case No.DCMP 3/1945
Court
District Court
Date22 Jan 1946
Judge—
Case Document
100%Judiciary

DCMP000003/1945

BRITISH MILITARY ADMINISTRATION

GENERAL MILITARY COURT

TENANCY TRIBUNAL APPEAL No.3 of 1945

(Application No.14 of 1945)

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Between
Chan Wai Appellant
(Opponent)

AND
Shim Tet Thong Co. Ltd. Respondents
(Applicants)

Coram: Leo D'Almada, President

Date of Judgment: 22 January 1946

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JUDGMENT

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1.           On nearly every question of fact before the Tribunal there was direct conflict of evidence in this case. On every such question the Tribunal found for the Applicants, and, from the Findings, it is clear that it did so because it believed the evidence adduced on their behalf and disbelieved that of the Opponent.
2. To quote from the Findings :
"........ it seemed to the Tribunal that the Opponent was trying all along to provide an answer for every point raised by the Applicants whether that point was material or not. When it came to deciding whom to believe, or more specifically, whom not to believe, the Tribunal, without much hesitation, decided against the Opponent."
3.           In the circumstances it cannot be said that this Court is in as good a position as that of first instance, and, both on the authorities and on a careful examination of the evidence, I am satisfied that these findings should not be disturbed.
4.           Mr. Kan argues that the Tribunal based its decision on four points, and that they were wrong on every one. These points are (a) the failure to pay rent from 11.10.41. to 16.1.42., (b) the findings of fact that the partnership had been dissolved in 1942 and the machinery moved out of the premises by the firm, (c) the finding of fact that the Opponent was the occupier of the premises personally and not as representative of the firm, paying no rent, (d) the sub-letting of part of the premises.
5.           I agree with him that points (a) and (d) would not in this case be ground for an order for eviction.
6.           I agree also that there was not sufficient evidence for a finding that the partnership had been dissolved, this being a question of mixed law and fact, wherefore if point (c), the finding of personal instead of representative occupation were based on such finding of dissolution, there would be an end of the case and the order would have to be reversed.
7.           How, did the Tribunal base its decision on the dissolution of the partnership? A careful reading of the Findings leads me to the conclusion that it did not.
8. The all important part of the Findings is this :
"The Tribunal felt that the most reasonable interpretation to put on the evidence was that Man Nga had ceased to function, had sold its machinery in consequence and that Chan Wai had then occupied the premises of his own accord and for his own purpose."
9.           Here, then is the clearest finding that whether or not the partnership had been dissolved, it had certainly suspended business and had removed its machinery from the premises. (It must be noted, too, that the firm's signboard had also been removed). Coupling this with the finding that the occupation by Chan Wai was personal and not as agent or representative of the partnership, it is clear that the Tribunal found that the firm was not in occupation of the premises.
10.           This alone was sufficient ground for the order for eviction, under Article 5(c) of Proclamation No.15, and justifies the order made.
11.           However, there is further ground as mentioned by Mr. Brooks, in that the Man Nga who claim to be tenants in occupation through Chan Wai, are in arrears with their rent for October and November, which in fact was not tendered until 3rd December. On this ground, too, the Applicants must succeed under Article 5(e).
12.           The decision of the Tribunal is therefore affirmed.
13.           There will be an order (1) that the Opponent vacate the premises and give up possession thereof to the Applicants before Tuesday, 10th February, 1946, Subject to the costs being paid as ordered hereunder, failing which opponents will vacate the premises on 1st February (2) that the Appellants pay to the Respondents the sum of $200.00 as and for the costs of this Appeal, the same to be paid before 1st February, 1946.

Sd. Leo D'Almada
President
OENERAL MILITARY COURT

22nd January, 1946.