Zebedayo Naftali v. Telezea Mamlya. Civ. App. 5-A-68; 23/4/69; Platt J.

Zebedayo Naftali v. Telezea Mamlya. Civ. App. 5-A-68; 23/4/69; Platt J.

            The plaintiff had leased a suite of rooms from the defendant, in which he ran a bar. A deposit of 1000/- was held by a third party (Robinson) against damage done to the property while in the plaintiff’s possession. In February, 1966 the defendant locked the bar containing certain articles belonging to the plaintiff. The plaintiff instituted proceedings in the District Court for Shs. 6335/- damages, being partly the loss of profits during the period before he opened up another bar, and partly being the value of the property converted by the defendant to her use. The issues before the District Court were whether the closure of the suit premises by the defendant was illegal, and if so to what extent the plaintiff was entitled to damages. It was held by the trial court that the defendant had been entitled to distrain and to enter and close the plaintiff’s premises, as the plaintiff had not paid rent for three months. Secondly, as the defendant had been entitled to distrain on plaintiff’s goods and as she had given him every opportunity of taking his goods, he was not entitled to claim for loss of earnings nor for the value of the goods. On appeal to the High Court, it was argued that there had been an illegal forfeiture of the lease, as well as distraint of goods; and that the deposit could have been used to offset the arrears in rent, instead of the method used.

                        Held: “The deposit was admittedly paid against damage to the premises. It was a reasonable stipulation having in mind that the premises were to be used as a bar and it is notorious that people who gather at bars are likely to do damage….. The deposit money concerned a matter outside the rent and was not available to be set off against the rent as the plaintiff hoped.” (2) “As far as non-payment of rent is concerned, the distraint was lawful. The argument on the first ground however concerned the manner in which the defendant had acted. It was said that the defendant having no right of entry had improperly relied on forfeiture of the lease, with the result that the distress levied on the goods was void abinitio. It was further argued that the learned Magistrate had

come to a wrong conclusion on the facts”. (3) “The law relating to the relationship of a landlord to his tenant is as section 2(1) of the Land (Law of Property and Conveyancing) Ordinance Cap 114 recites the law in force in England on the 1^st day of January 1922, subject to the qualifications in sub-sections (2) and (3) of the section. The qualifications in section 2(2) are not, I think, relevant, although the defendant could hardly have known of the technicalities of English law with which she was involving herself. At any rate, this has been the position at least since the decision in KARIMJEE JIVANJEE & CO. vs. THE OFFICIAL RECEIVER OF THE GOVERNMENT OF TANGANYIKA. THE TRUSTEE OF THE TRUSTEE OF THE PROPERTY OF GOLDON McKIAHMID (1936) 3 E.A.C.A.94 which applied the common law and statutes of general application concerning distress to Tanganyika and presumed knowledge of such laws to the parties. The position is still the same.” (4) “On that basis I turn to consider the argument concerning forfeiture. A lease may be determined by entry or ejectment for a forfeiture incurred either by breach of a condition in the lease or breach of any covenant if the lease contained a condition or proviso for an entry for a breach of such covenant in the instant case there was no such condition or proviso in the oral agreement between the parties as to re-entry for non-payment of rent. I agree that none of the formal rules concerning a prior demand were complied with, as pointed out by learned Counsel for the plaintiff. But where forfeiture has been incurred for breach of any covenant or condition, the lessor must do some act evidencing his intention to enter for the forfeiture and determine the lease. The act must be final and positive which cannot be retracted, treating a breach of covenant by the lessee as constituting forfeiture. (See Woodfall page 938). Although the plaintiff’s servant Roymond indicated that the defendant had said that she no longer wanted the premises used as a bar, it is clear from all the circumstances that the defendant wanted her rents paid. As the learned Magistrate appears to have accepted her statement of the facts, it seems that he defendant offered to open the premises and continue if the rents were paid. Ii see no evidence in the defendant’s account of what happened that she intended to enter for the forfeiture and determine the lease …… As the learned Magistrate held, she was interested in payment of rent and although she debarred the plaintiff from access to the premises that by itself would not necessarily constitute a determination. A similar course of action took place in KANTI NARAN PATEL vs. NOOR ESSA (1965) E.A. 484. There goods were locked in a shop. It was taken as a case of illegal distress forfeiture not being considered at all. I am not prepared to hold therefore that the defendant did finally and positively indicate that she wished to determine the lease, (Cf. Eastern Radio Service v. R. J. Pate;.( 1962) E.A. 818.)” (5) “There is then the question of distress. There was no doubt a relationship of landlord and tenant between the defendant and the plaintiff respectively, and the plaintiff was in arrears of two months’ rent. As I have said the plaintiff as tenant could not set off a sum due to him arising out of the deposit and certainly not so as to affect he defendant’s right of distress. (See Woodfall page 374 Para 901). The bar being open at the time the defendant was entitled to enter and levey distress, the rent being due from those premises. I cannot see that the articles taken in distress were privileged ….. The plaintiff seems quite deliberately to have left his goods in the premises and at no time wished to retrieve them. I cannot see, therefore, that he had any ground of complaint as to the manner in which distress was taken or impounded. But there were irregularities thereafter.

It is true that the defendant did not cause an inventory to be made out of the goods taken in distress nor did she serve a notice of distress so that the plaintiff could replevy the goods. The defendant ought to have had the goods appraised, and within a reasonable time removed them from the premises. She took no such action according to the plaintiff, within the 21 days which elapsed before the plaintiff had taken up other premises and relinquished the suit premises. On the other hand, according to the defendant, he took up other premises on the 10^th February 1966, that is two days after she had locked the premise. Moreover, the plaintiff never wanted the goods at any time. If that was so, then the defendant could not be accused of trespass by remaining for an unreasonable time on the premises in possession of the goods. The learned Magistrate made no comment, as far as I can see, as to whether he thought the plaintiff had taken up new premises and had relinquished the lease and its goods with the defendant within two days or within 21 days. The evidence was equally divided and I presume that the burden of proof being upon the plaintiff to prove his case for damages, he would have failed to discharge that burden of proof. Moreover, generally speaking the learned Magistrate favoured the evidence of the defendant. I am left in doubt therefore whether the plaintiff had established a case of trespass, in that the defendant remained in possession of the goods without proceeding to sale. (Woodfall page 375 Para 903)”. (6) “It was argued however that the defendant was liable for goods lost while in her possession. On this point, the learned Magistrate was satisfied with the defendant’s evidence that when the inventory was eventually take, the goods then in the premises were all the goods that had remained on the premises. The plaintiff had alleged that many more goods than were eventually found in the premise had been distrained upon by the defendant. But the learned Magistrate did not believe that. His view seems reasonable on the evidence. There was no evidence then of any actual loss, and as I have said when sold by the Court Broker, the value of the goods was only one third of the rent outstanding. There was no case then for excessive distress as argued.” (7) “It seems to me that the distress levied in this case was lawful in origin, but that after it was made, there were irregularities. A distinction must be made between an illegal distress and one which is wrongful by reason of some irregularity subsequent to the levy. So where distress is made for rent justly due, and any irregularity or unlawful act is afterwards done by the party distraining, the distress itself shall not be to the right deemed unlawful, nor the party making it be deemed a trespasser ab initio, but the party aggrieved may recover full satisfaction for the special damage he has sustained there by with costs and no more. He cannot sue the person in possession of the goods for conversion. (See Woodfall Para 1167). In instant case, the action was brought on the ground of illegal distress and therefore the action fails because no illegal distress was proved. Damages for an irregular distress are a different cause of action, to that for an illegal distress. In my opinion therefore the learned Magistrate came to the right conclusion on the facts which he accepted that there had not been an illegal distress. Although the evidence was conflicting, I do not see my way to interfering with his view of the weight of reliability to e attached to the evidence. But even on the plaintiff’s evidence, it is not at all clear that the plaintiff suffered any special damage by reason of the irregular or unlawful acts which occurred after distress was lawfully levied.” (8) Appeal dismissed with cost.