Esther Ramona Wright v. Emily Low

DCMP000022/1947

SUMMARY JURISDICTION

TENANCY TRIBUNAL APPEAL

ACTION No. 22 of 1947

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Coram: Mr. Justice E.H. Williams, Puisne Judge.

Date of Judgment: 23 October 1947

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Reasons for Judgment

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1. At the hearing of this appeal, I dismissed the appeal and confirmed the order of the Tribunal for reasons which I then briefly stated. I now set out in greater detail the reasons for my decision.

2. The appeal was on two grounds:

1. That the Appellant is an occupier of the premises in respect of which the Tribunal made the order in the above Application on the 9th day of September, 1947, and is a person affected thereby. She was neither served with a copy of the Application nor could she be heard at the hearing thereof and in the alternative:

2. That the Appellant is a tenant of the said premises within the meaning of the Landlord & Tenant Ordinance, 1947, and is a person affected by the said order. She was neither served with a copy of the said Application nor could she be heard at the hearing thereof.

3. Solicitors for the appellant agreed that the word 'affected' should more properly read 'aggrieved'. By section 26(1) of the Ordinance, a right of appeal (with one exception which is irrelevant nere) is given to any person aggrieved by an order of a Tribunal.

4. The facts as agreed were that the opponent, who is husband of the appellant, became tenant of the premises in December, 1945. Some time later, the opponent and other members of the family arrived from India and joined him in residence at the premises. Two days after their arrival, the opponent, who is employed in the Chinese Maritimes Customs, left the premises for Sham Chun where he was stationed. He continued to pay the rent and maintain his family but there were marital differences. He was recently transferred to Amoy. Appellant and other members of the family continued in occupation of the premises. At the relevant time, the respondent who was the owner of the premises and her husband were absent in New Zealand and, desiring to return here where he had employment, she gave instructions to her solicitor to get possession of the premises for their occupation. A notice to quit was sent to the opponent in December requesting him to vacate the premises at the end of January. The letter containing the notice was brought by a member of appellant's family to the solicitor of opponent. The appellant became aware of the contents but did not give any instructions to the solicitor. However, letters passed between solicitor for respondent and this solicitor in consequence of which respondent made application to a Tenancy Tribunal under the Proclamation on 5th March asking for an order for recovery on the grounds that the premises were required for use as a family residence. The address of the opponent was given as c/6 Chinese Maritime Customs, this address being used as the opponent had told solicitor for respondent that he was rarely to be found at the premises which are subject-matter of the dispute.

5. Difficulty was found in serving the application on the opponent but finally he was served. He was shortly to be transferred to Amoy. In consequence, he called on solicitor for respondent and told him that he did not oppose the application. At the request of the solicitor, he wrote a letter to the solicitor dated 25th August, 1947, as follows:

6. 'With reference to the application served on me in reference to the above premises, I beg to inform you that I am not opposing the application. I would also inform you that I am not living in the premises anymore, and I have not sub-let any part of the premises or assign or transferred my tenency in any way.'

7. Efforts were made to have the case heard before his departure for Amoy. It was known to the respondent at this time that opponent's wife (appellant) would be unwilling to give up possession. The case was heard by the Tribunal on the 9th September by which time opponent had apparently left for Amoy. The appellant now claims she was unaware that the proceedings for recovery of possession were being taken before the Tribunal. At the hearing, opponent did not appear. The letter of August 25th written by opponent was brought to the notice of the Tribunal and after hearing the respondent the Tribunal, considering from the contents of the letter that the opponent was the sole tenant, gave order for the eviction of the opponent and all other occupiers within 14 days. Solicitor for the respondent had in fact, asked for the order to be made to include eviction of all other occupants as well as the opponent.

8. When this order was served on the occupants, the appellant became aware of the position and this appeal followed.

9. The arguments for solicitor for appellant may be summarised as follows:- A person aggrieved by the order made by the Tribunal includes a licensee of the opponent and appellant is such licensee. See Brown v. Draper (1944) 1 A.E.R. 246, where the facts were somewhat similar to this case. The order should not have included her without an opportunity being given her of appearing and of being heard on the wall-known principle of 'audi aleram partam'. As to the second ground of appeal, applicant was a tenant within the definition of tenant contained in section 2(n) (i) or (ii) of the Landlord & Tenant Ordinance 1947, and similarly no order should have been made affecting her without giving her an opportunity of being heard.

10. Solicitor for respondent referred to C.58  r.1. of the Rules of the Supreme Court of England and the notes thereon (p.1240 in the 1939 edition) where it is stated that a person not a party to proceedings cannot appeal from an order except by leave of the Court. Such leave would only be granted where the applicant could by possibility be made a party to the action and this was not so in this case. If the appellant was entitled to be given leave to appeal, then any member of the family resident there or even a domestic servant of hers resident there should be given leave to appeal. It was not incumbent on the respondent to serve notice of the application on the appellant, even if he had knowledge of matrimonial troubles. The Tribunal was right in making the order to include all occupiers in view of the statement in opponent's letter that he had not sub-let any part or assigned or transferred his tenancy in any way.

11. On the second ground of appeal, he submitted that appellant did not come within the definition of tenant under section 2(n) (i) or (ii). The legislature had by section 2(n) (iii) provided for the case of the widow of a tenant by including widow within the definition of tenant. It had not provided for the case where a wife desired to continue in occupation though the husband was willing to give up the tenancy.

12. Dealing with the submissions made by each party, I should remark that the Tribunal, under r.35 of the Rules of Procedure made under the Landlord & Tenant Ordinance, 1947, were acting within their province in hearing the application in the absence of the opponent.

13. As regards the first ground of appeal, the relevant sections of the Landlord & Tenant Ordinance are Nos.19, 20 & 23. The order the Tribunal can make under section 19 is one for 'the recovery of possession of premises or ejectment of the tenant'. Under section 20, the Tribunal may make an order for the recovery of possession or ejectment of any occupier where sub-letting takes place by the tenant without the landlord's consent. By section 23, it is provided that an order for eviction of the principal tenant does not operate against sub-tenants unless the Tribunal so directs. It would not be right for the Tribunal, in making an order for eviction of a principal tenant, to include in it, ejectment of a sub-tenant (see section 23) without giving the sub-tenant an opportunity of being heard. An order for the ejectment of a tenant under section 19 would include ejectment of the tenant's family unless there had been a sub-letting to such members with the landlord's consent. Ordinarily the members of a tenant's family residing with him are mere licensees: the tenant may, in some cases, sub-let to others including members of his family.

But here it is not suggested the landlord, respondent, had given any permission to sub-let and there was the opponent's statement, which is not challenged, that he had never assigned or sub-let to anyone. The facts being as they were, was there any requirement in law that the application should have been served on the appellant as well as on her husband (the opponent)? If such is the case, then as solicitor for the respondent says, every wife of a tenant or even domestic servant of the family resident on the premises should be served with a copy of the application. Every licensee on the premises would have to be served. It has not been suggested to me on what grounds the appellant had a right to be heard - apart from the principle 'audi alteram partem'. Clearly every such order against a tenant affects the members of the family but is it to be suggested that merely because they are so affected each member has a right to be heard. If so, then every licensee of the tenant has such right.

14. Regarding the second ground of appeal, I hold appellant is not a tenant within the meaning of tenant in section 2(n) (i) or (ii). She has not retained possession of the premises by virtue of any provisions in the Proclamation on this Ordinance: she is a mere licensee and not the tenant - it is not suggested she is a sub-tenant or has any other legal interest in the premises.

15. The case is a very unfortunate one - in the vast majority of cases, the wife of an opponent would be fully aware of such proceedings being taken against the husband but assuming for the sake of argument that a husband does not disclose such proceedings, are they rendered invalid because the wife was not informed by the applicant and did not therefore appear at the hearing to oppose it? Even should the wife have appeared, it is difficult to see what successful defence she could have raised in view of the admitted facts. The tenant had expressly stated in his letter that he did not oppose the application i.e. he waived his right to claim the protection of the Ordinance.

16. The facts in Brown v. Draper do not assist appellant. There the landlord took proceedings under the R.R.A. for the eviction of the wife of the tenant. It was held that no order could be made for possession unless the tenant was a party. The ratio decidendi there was that the Acts protected a licensee (the wife) of the tenant, not because the licensee could claim the protection of the Acts in her own right but because the tenant was a necessary party to the proceedings and no order could be made against his licensee in his absence. That is quite different from holding that every licensee of the tenant must be given an opportunity of being heard at the time when the tenant is heard before the order can include such licensee. I consider that it is really unnecessary for the Tribunal in their order to add 'or other occupiers' where the other occupiers are more licensees. The right of such licensee to remain lasts only as long as the grantor of the licence, the tenant, has such right and no longer.