Karimjee Jivanjee and Co. v McDiarmid (C.A. 9/1936.) [1936] EACA 94 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); DALTON, C. J. and HEARNE, J. (both of Tanganyika).

## KARIMJEE JIVANJEE & CO., Appellants (Original) $Defendants)$

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## THE OFFICIAL RECEIVER OF THE GOVERNMENT OF TANGANYIKA the Trustee of the Property of GORDON McDIARMID (deceased) the Bankrupt, Respondent (Original Plaintiff).

## C. A. $9/1936$ .

Landlord's right to distrain for rent through an agent—Application of Law of Distress Amendment Act, 1888, and the Lord Chancellor's Rules made thereunder to Tanganyika-Certified Bailiff-Limitation-Indian Limitation Act, Schedule, Article 28.

The appellants through an agent with the acquiescence of their tenant seized and sold property of the tenant in execution. of distress for rent. The said agent was not a certified bailiff under section 7 of the Law of Distress Amendment Act, 1888. Over a year after the date of the said seizure the respondent, the trustee of the property of the deceased tenant, brought an. action against the appellants for the recovery of the proceeds of the said sale on the ground that the seizure and sale were not legally effected and that the appellants had wrongfully converted. the said property to their own use.

Held (14-11-36).—That the Law of Distress Amendment Act, 1888, isa statute of general application in force in Tanganyika Territory by virtue of article 17 (2) of the Tanganyika Order in Council,<br>1920, and section 2 of the Law of Property and Conveyancing: Ordinance (Cap. 67) of the Revised Laws (Tanganyika).

Held Further.-That the Lord Chancellor's Rules made under the said statute are not in force in Tanganyika, and that no such. person as a certified bailiff exists in Tanganyika in the absenceof local rules.

- Held Further.-That under the common law as varied by the statutelaw applicable in Tanganyika, a landlord can distrain for rentand sell the property distrained through an agent who is not an. infant. - Held Further.—That acquiescence by the tenant to the distress and. sale is immaterial so long as the distress was according to law. - Held Further.—That a suit merely to recover the value of the property. wrongfully attached with no claims for consequential damages is<br>governed as to limitation by article 61 or alternatively by article<br>49 of the Indian Limitation Act, 1908 (schedule) and not by article 28 of the said schedule.

Master (with W. Vellani) for the Appellants.

A. Morrison (with A. F. Morrison) for the Respondent.

The respondent was the Trustee in bankruptcy of one Gordon McDiarmid, since deceased, who was a tenant of the appellants.

One Cassam Satchu, as agent of the appellants, seized furniture equipment and other chattels on the property leased in execution of a distress for rent and sold the said chattels. The said Cassam Satchu was not a certified bailiff under section 7 of the Law of Distress Amendment Act, 1888.

The respondent sued the appellants in the High Court of Tanganyika for the proceeds of the said sale on the ground of wrongful conversion.

BATES, J. in deciding two preliminary issues as to whether the plaint disclosed a cause of action and as to whether the suit was barred by limitation: -

$Held.$ (1) That the Law of Distress Amendment Act, 1888, is applicable to Tanganyika Territory with such modifications as may be necessary and proper to adapt it to the circumstances of the territory.

(2) That the Lord Chancellor's Rules made under section 8 of the Act do not apply.

(3) That section 7 of the Act applies but that until rules under Cap. 67, appropriate to the territory have been made, a landlord must distrain in peron.

(4) That the suit was not governed by Art. 28 (schedule) of the Indian Limitation Act and the period of limitation applicable was one of three years.

At the trial of the action O'GRADY, Ag. J., held:-

(1) That Cassam Satchu seized and sold the chattels under a distress warrant issued to him by the appellants and that he did so with the consent of the tenant given in a belief that the distress was legal.

(2) That the distress was not legal.

(3) That the consent of the tenant was given under a mistake as to a law not in force in Tanganyika.

(4) That as such a mistake vitiated the consent of the tenant, the appellants had wrongfully converted the chattels to their own use.

Judgment was given against the appellants for Sh. 7,216/10 and costs.

The grounds of appeal were:-

1. That the learned Judge erred in holding on the preliminary issues that (a) the plaint disclosed a cause of action, (b) the suit was not barred by limitation.

2. That the learned Judge erred in considering whether Mr. McDiarmid was under any mistake whatsoever in giving his authority, consent or acquiescence to the seizure and sale of his furniture.

3. That the learned Judge erred in deciding that the authority, consent and acquiescence of Mr. McDiarmid to the seizure and sale of his furniture were given under a mistake of fact as being a mistake as to a law not in force in Tanganyika Territory.

4: That the learned Judge should have held that the authority, consent and acquiescence of Mr. McDiarmid to the seizure and sale of his furniture constituted an effective estoppel against the respondent.

5. In the alternative to grounds 2, 3 and 4 the learned Judge having held that the part of the English Law of Distress Amendment Act, 1888, as to granting certificates cannot be said to be in force in Tanganyika Territory should have held that the appellants could and did levy distress by an agent.

6. That the learned Judge erred in holding that the appellants converted the chattels to their own use and deprived the respondent of the same.

7. That the judgment of the Court below is against the weight of evidence, law, equity and good conscience.

Master.—The law of distress applicable to Tanganyika is the same as that in Kenya and a landlord can distrain through an agent: Abdulhusein Rahemanji v. Entertainments Ltd. (15 K. L. R. 72). The distress was legal and Mr. McDiarmid made no mistake. If he did make a mistake, it was a mistake as to the law applicable in Tanganyika. In any case a mistake as to whether the distress was legal cannot vitiate Mr. McDiarmid's consent and as a result of that consent there can have been no conversion, see Sumner v. Ferry (88 E. R. 989), Skeate v. Beale (113 E. R. 688), Brewer and Gregory v. Sparrow (108 E. R. 739), Atlee v. Backhouse (150 E. R. 1298) and Waller v. Drakeford (118 E. R. 616). Once the distress and sale were concurred in by McDiarmid no tort could arise.

Vellani.—The claim is barred by limitation, see Articles 28 and 29, Indian Limitation Act (Schedule): Narasimha Rao v. Ganguraju (31 Mad. 431) at 433, Yellammal v. Ayyappa Naick (38 Mad. 972) at 983, and Granger v. George (108 E. R. 156). Time began to run from the time of the distress.

Morrison $A$ .—The distress was illegal because Cassam Satchu The Lord Chancellor's Rules are made had no certificate. applicable under section 2 of Cap. 67, Laws of Tanganyika. Cassam convinced McDiarmid that the proceedings were valid.

McDiarmid did not know that Cassam Satchu had no certificate. Acquiescence of McDarmid unless with full knowledge of the facts does not bind him.

The suit is only for the proceeds of the sale of furniture belonging to the estate. It is not an action for damages for conversion. Article 28 of the Indian Limitation Act does not apply.

Morrison, A. F.—Article 49 of the Indian Limitation Act applies and the suit is in time.

Master replied.

SIR JOSEPH SHERIDAN, C. J.-It has been argued for the respondent in this appeal that the Law of Distress Amendment Act, 1888, is a statute of general application in force in Tanganyika by virtue of Article 17 (2) of the Tanganyika Order in Council. 1920, and that this is made additionally clear by section 2 of the Law of Property and Conveyancing Ordinance (Cap. 67 of the Revised Laws). It has been further argued that the Lord Chancellor's Rules made under the Statute are in force in Tanganyika by virtue of section 2 of Cap. 67. The English Act has been held applicable to Kenya in C. C. 329 B/1932 Abdulhusen Rahemanji v. Entertainments Limited and Others (15 K. L. R. 72) on a construction of an Article of an Order in Council identical with Article 17 (2) of the Tanganyika Order in Council and with the additional authority of Cap. 67, its application to Tanganyika is not open to doubt. It has been held to be applicable by Mr. Justice BATES and Mr. Justice O'GRADY in the case under appeal. Both Judges have however held that the Lord Chancellor's Rules are not applicable. Mr. Justice BATES in his judgment says: "The 1888 Act, I regard as an Act which I should hold to be applicable to the Territory subject to its being construed with such modifications (I now quote from section 3 of Cap. 67), 'not affecting the substance as may be necessary or proper to adopt the same to the circumstances of the Territory...'. Section 7 of the 1888 Act is manifestly a most important section dealing with a matter of such substance as the levying of a distress for rent; an instance of recognition by the Legislature of the Territory of a landlord's power of distress is to be found in section 37 of the Bankruptcy Ordinance The fact that no Rules in relation to the issue of certifi-1930 cates to bailiffs have been made locally or the fact that the English Rules made by the Lord Chancellor under section 8 of the 1888 Act cannot appropriately be applied here does not, I hold, make section 7 of the 1888 Act impossible of application to the Territory. By the specified provision made in section $9$ of Cap. 67 of the Laws, the words 'County Court Judge' in section 7 of the 1888 Act are to be read for local purposes as 'Judge of a Subordinate Court of the First Class'. There is

nothing I hold to prevent steps being taken under Cap. 67 to apply Rules appropriate to the circumstances in the Territory. In the meantime until a person obtains a certificate to act as a bailiff to levy a distress who can be employed by a landlord the landlord must be left to distrain in person". I understand by this passage the learned judge to hold that the English Statute applies, that the Lord Chancellor's Rules are not applicable, that there is no such officer as a certificated bailiff in the absenceof Rules which can be made and that a landlord must distrain in person. I find myself in agreement wth this finding except that, in my opinion, a landlord in Tanganyka may distrain and sell through an agent, provided the latter is not an infant, under the Common Law as varied by the Statute Law applicable to Tanganyka: the result is that the respondent's case in so far as it rests upon the bankrupt having allowed the distraint and sale to proceed under a mistake of fact must fail. The bankrupt is presumed to have known the English law applicable, that law does not provide for a certified bailiff in the absence of Rules, so the alleged mistake of fact as to whether Cassam Satchu was a certificated bailiff when he seized and sold the property is There is no evidence as to what the bankrupt's. irrelevant. belief on the point was, but it is not necessary to pursue the matter further once it is found that there are no Rules in. existence in Tanganyika making provision for a certificated bailiff. So that the position was that the bankrupt knew that a person not his landlord proposed on behalf of his landlord to seize and sell his furniture and to apply the proceeds in payment of rent due; in other words that something was being done which was in accordance with law.

He applied to Cassam Satchu for time, hoping that a settlement would be arrived at, and that hope having failed Cassam Satchu seized and sold the furniture. At the time of the seizure and sale the bankrupt had left Tanganyika but before leaving he had authorized the sale and his advocates. handed over the keys to Cassam Satchu for the purpose of obtaining the furniture. This Mr. Justice O'GRADY found, but he also found that the bankrupt had acted under a mistake of He said: "Now in the present case it is quite clear that fact. McDiarmid acted under a mistake of law. According to section 21. Indian Contract Act. a contract is not voidable because it was caused by a mistake as to any law in force in British India (in this case Tanganyika Territory); but a mistake as to a law not in force in British India has the same effect as a mistake of fact".

The bankrupt, as I have said, must be presumed to have known the law applicable to Tanganyika, which permitted the landlord to distrain and sell through his agent Cassam Satchu and the learned Judge's finding to the contrary was in error in my opinion. I do not understand the reasoning of the learned

Judge, for the English law whether common law or statute provided it is applicable under the Order in Council or Cap. 67 cannot be classed as foreign law and a person is deemed to have knowledge of it just as much as if it were an Ordinance. Shortly put there was no mistake of fact, the bankrupt is presumed to know the law applicable, the proceedings were in accordance with law and the question as to whether the seizure and sale took place with or without the authority, consent and acquiescence of the bankrupt is immaterial. I would allow the appeal with costs in this Court and the Court below.

I agree with what my brother HEARNE has said on the issue of limitation.

Regarding the costs Counsel agree that there should be no costs of the appearance before Mr. Justice BATES on the issues of cause of action and limitation and that in this Court Mr. Morrison should have the costs of one day's hearing and I would so order.

DALTON, C. J.-I have had the advantage of reading the judgment of the President, with which I concur, and I have mothing further to add.

HEARNE, J.—The appellants in this appeal were the defendants in a case tried by the High Court of Tanganvika. The respondent who was the trustee in bankruptcy of one McDiarmid successfully sued them for the recovery of the sale proceeds of certain movable property belonging to the said McDiarmid which was seized and sold by Cassam Satchu under a distress of the landlords (the appellants).

It was argued that as Cassam Satchu was not a certificated bailiff both he and the landlords were trespassers by reason of the provisions of section 7 of the Law of Distress Amendment Act 1888 and that by the sale of the property seized, the appellants converted it to their own use and wrongfully deprived the respondent, as trustee of McDiarmid, of the same.

The Law of Distress Amendment Act 1888 is part of the law of England which section 2 Cap. 67 of the Tanganyika Laws purports to apply to Tanganyika but in my opinion section 7 of the Act is incapable of application in the Territory. That section places limitation upon the choice of a person who employs another to levy any distress for rent on his behalf by enacting that a person so employed must be authorized to act by a certificate under the hand of a County Court Judge in accordance with rules made by the Lord Chancellor. Section 9 Cap. 67 provides that references in English law to any County Court shall be construed as references to a Subordinate Court of the first class, and a Subordinate Court of the first class could therefore exercise the power of granting a certificate if there were in the Territory rules corresponding with the Lord Chancellor's. Rules. Under section 3 Cap. 67 rules appropriate to the circumstances of Tanganyika could be made. No person, however, has. been authorized under this section to exercise jurisdiction. incident to the operation of the Act, no rules have therefore been. made and, in my opinion, till they are made the provisions of section 7 of the 1888 Act not having been implemented in the Territory are ineffectual.

In his judgment the learned Judge who disposed of the preliminary issues held that "the English Rules made by the. Lord Chancellor under section 8 of the 1888 Act cannot appropriately be applied here", and added that "until a person obtains. a certificate to act as a bailiff to levy a distress who can be employed by a landlord, the landlord must be left to distrain. in person". With respect to the learned Judge he did not in my opinion go far enough. The landlord is entitled to distrain in person and also, as the limitations imposed by section 7 of the Distress Amendment Act do not apply, by any agent. The right to distrain for rent in England is a common law right asvaried by statutes which is expressly recognized in the Territory, vide par. 17 (2) of the Tanganyika Order in Council 1920. Originally under the common law the landlord could do no more. than hold the chattels distrained as a pledge but by 2 W. & M. Sess. 1, C. 5, in the case of distress for rent the distrainer was empowered to sell the property distrained. The Statute of Westminster the Second, 13 Edw. 1 Stat. Cap. 37, required thatdistress shall be levied only "by bailiffs sworn and known", but the Statute, it was decided in Begbie v. Hayne (1835) 2 Bing. N. C. 124), did not affect distress for rent, and till the passing of the 1888 Act, the landlord was unrestricted in hischoice of a bailiff except that, it would appear, he could not employ an infant, Cuckson v. Winter (1928, 2 Man & Ry. 313).

In my view, therefore, the seizure and sale of McDiarmid's. property were in the existing circumstances of the Territory lawful and the appeal must succeed.

It is to be noted that I have arrived at this conclusion: independently of the learned trial Judge's finding that McDiarmid. authorized Cassam Satchu to remove and sell his property. The reasoning of the Judge appears to have been that there was a contract under which McDiarmid agreed to the sale of hisproperty by Cassam Satchu and as McDiarmid was "under a mistake of foreign law", in believing that the Lord Chancellor's. Rules applied, this vitiated the contract and the appellants. through their agent were therefore liable for conversion. But, even if conversion may be said to be a consequence in law of the sale of property which the person who sold the property wasauthorized by the owner to do merely because the latter was: under a misapprehension of the former's right to sell apart from.

express authority, and of this I have grave doubts-in no circumstances can it be said that the owner in the present case' (McDiarmid) was acting under a mistake of foreign law. If he thought the Lord Chancellor's Rules did not apply he was making no mistake at all. If he thought they did he was making a mistake in regard to the applicability of those Rules to the Territory, a matter which is governed not by foreign law but by the law of Tanganyika.

The defence raised in the lower court that the suit was barred by limitation was, I hold, correctly decided as having no merit. In the view I take of Article 28 (schedule) of the Indian Limitation Act 1908 which was pleaded by the appellants, a suit by a plaintiff merely to recover the value of property wrongfully attached coupled with no claim for consequential damages is not a suit for compensation under Article 28 but is governed by Article 61 or alternatively Article 49.

I would allow the appeal and reverse the decree of the High Court of Tanganyika. I agree with the order as to costs proposed by the learned President.