Virdee v Braganza and Others (Civil Appeal No. 882 of 1951) [1952] EACA 299 (1 January 1952)

## APPELLATE CIVIL

## Before DE LESTANG, J.

#### MRS. ARJAN SINGH VIRDEE, Appellant (Original Claimant)

$\nu$ .

# 1. A. T. BRAGANZA, 2. F. C. SEQUEIRA, 3. F. S. TAVARES, Respondents (Original Respondents)

# Civil Appeal No. 882 of 1951

(Appeal from decision of Rent Control Board, Nairobi)

Landlord and Tenant—Abandonment of possession—What constitutes possession.

The Rent Control Board having dismissed the landlords application for possession of certain premises on the ground, inter alia, of the tenants abandonment of possession, the landlord appealed. It was contended there was no evidence to support the Board's finding of fact and as such this was a question of law. The respondent was a tenant and occupied the premises with his wife and daughter. He was transferred to Mombasa and left his son and daughter to look after the premises and his two lodgers. He instructed his son to pay the rent monthly, which he did by tendering a cheque drawn by one of the lodgers. The landlord refused to accept the cheques. It appeared that the respondent desired to retain the premises for his eventual return to Nairobi and had left all his furniture in the premises.

Held (15-4-52).—There was evidence on which the Board could hold that the respondent did not cease to occupy the premises when he left for Mombasa. Appeal dismissed.

Cases referred to: (Note.-Decision reversed in Court of Appeal for Eastern Africa.) Hemns v. Wheeler, (1948) 2 K. B. 61, Skinner v. Geary (1931) 2. K. B. 546, Brown v. Brash, (1948) 1. A. E. R. 922.

D. N. Khanna for appellant.

Carvalho for respondent.

JUDGMENT.—This is an appeal from the decision of the Rent Control Board dismissing a landlord's application for possession of certain premises from the respondent and two other persons. The landlord sought to obtain possession on the ground of sub-letting without consent, abandonment of possession and nonpayment of rent. Nothing turns on the question of sub-letting and non-payment of rent. As regards abandonment the Board held in effect that the respondent was in personal occupation of the premises. This is a question of fact from which no appeal lies. It is, however, contended that there was no evidence here to support this finding of fact and that this is a question of law. I entirely agree with this submission and if any authority is required for it it is to be found in Hemns v. Wheeler, (1948) 2 K. B. 61. It was held in that case that: $-$

"it was for the county court judge to find the facts and draw inferences from them, although whether there was evidence to support his findings of fact and whether the inferences which he had drawn were possible inferences from the facts as found were questions of law for the Court of Appeal."

The short point therefore for decision in this appeal is whether there was any evidence upon which the Rent Control Board could reasonably infer that the respondent was in occupation of the premises at the material times so as to be entitled to the protection of the Increase of Rent (Restrictions) Ordinance.

The evidence shows that the respondent rented the premises in 1939 from a predecessor in title of the appellant, who only purchased them in 1948. He occupied them with his wife and daughter. It is not quite clear on the evidence whether his son lived with him as well. In 1942 the respondent took Mr. F. C. Sequeira as lodger and about three years ago he took another lodger, Mr. F. S. Tavares. In February or March, 1951, the respondent was on his own application transferred to Mombasa and left his son and daughter to look after the premises and his two lodgers, Sequeira and Tavares. He instructed his son to pay the rent each month which he did by cheque drawn by Sequeira, but the appellant would not accept them and returned them to the drawer. The respondent did not testify at the hearing before the Board, but it appears from the correspondence that the respondent desired to retain the premises for his eventual return to Nairobi and that meanwhile they were being occupied by his children and lodgers. It was also stated in argument and not contradicted that the respondent had left all his furniture in the premises.

It is well settled since the decision in Skinner v. Geary (1931) 2 K. B. 546, that rent restriction legislation will not apply to protect a tenant who is not in occupation of a house in the sense that the house is his house and to which. although he may be absent for a time, he intends to return. Difficulties have, however, arisen from time to time over the application of this principle to particular cases. When is a tenant not in occupation? This question was discussed in Brown v. Brash (1948) 1 A. E. R. 922 where at page 925 this passage occurs:

"We are of opinion that a non-occupying tenant prima facie forfeits his status as a statutory tenant. But what is meant by 'non-occupying'? The term clearly cannot cover every tenant who for however short a time, or however necessary a purpose, or with whatever intention as regards returning, absents himself from the demised premises. To retain possession or occupation for the purpose of retaining protection the tenant cannot be compelled to spend 24 hours in all weathers under his own roof for 365 days in the year. Clearly, for instance, the tenant of a London house, who spends his week-ends in the country, or his long vacation in Scotland, does not necessarily cease to be in occupation. Nevertheless, absence may be sufficiently prolonged or unintermittent to compel the inference, prima facie, of a cesser of possession or, occupation. The question is one of fact and of degree. Assume an absence sufficiently prolonged to have this effect. The legal result seems to us to be as follows: (1) The onus is then on the tenant to repel the presumption that his possession has ceased. (2) To repel it he must, at all events, establish a *de facto* intention on his part to return after his absence. (3) But we are of opinion that neither in principle nor on the authorities can this be enough. To suppose that he can absent himself for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts as affirmed in Keeves v. Dean and Skinner v. Geary. (4) Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if he couples and clothes his inward intention with some formal, outward, and visible sign of it, i.e., instals in the premises some caretaker or representative, be it a relative or not, with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming. There will then, at all events, be someone to profit by the housing accommodation involved which will not stand empty. It may be that the same result can be secured by leaving on the premises, as deliberate symbols of continued occupation, furniture, though we are not clear that this was necessary to the decision in *Brown*, v. *Draper*. Apart from authority, in principle possession in fact (for it is with possession in fact and not with possession in law that we are here concerned) requires not merely an animus possidendi but a corpus possessionis, viz. some visible state of affairs in which the animus possidendi finds expression."

Applying these general principles to the facts of this case I am of opinion that there was evidence here on which the Board could come to the conclusion that the respondent did not cease to occupy the premises when he left for Mombasa.

That being so the appeal is dismissed with costs.