Kellar v Narayan et Al

• Jurisdiction: Caribbean States
• Judge: Archer, C.J.,Wylie, J.A.,Lewis, J.A.
• Judgment Date: 29 July 1959
• Court: Federal Supreme Court (West Indies)
• Docket Number: Civil Appeal No. 13 of 1958
• Date: 29 July 1959

Federal Supreme Court

Archer, C.J. (Ag.); Wylie, J.A.; Lewis, J.A.

Civil Appeal No. 13 of 1958

Kellar

and

Narayan et al

Appearances:

Mr. P.A. Cummings, instructed by Mr. H.B. Fraser, for the defendant.

Mr. S.L. Van B. Stafford, Q.C., instructed by Mr. Sase Narain, for the plaintiff.

Tort - Appeal from judgment in an action for false imprisonment, malicious prosecution and trespass to land and goods — Respondents were employed and lived on the premises — Respondents' employment was terminated and they were called upon to leave the house by the following day with no notice period — At the time of the arrest the owner could not lawfully require the respondents to leave the house as he was not entitled to possession from that time — The owner had no legal justification for instructing the police to arrest the respondents when he did — Appeal dismissed.

JUDGMENT OF THE COURT:

1 This is an appeal from a judgment of the Supreme Court in an action for false imprisonment, malicious prosecution and trespass to land and goods: The male respondent was employed by the appellant as the manager of his estate and together with the female respondent, whom the appellant employed to manage a shop on the estate, occupied a house on the estate. On the 16th March, 1954, the appellant terminated the respondents' employment and called upon them to leave the house forthwith and to remove their things therefrom by the following day. The written notice to quit did not give the respondents any time in which to remove their belongings and was delivered to them at Georgetown on the 16th or 17th March, 1954. The respondents returned to the estate on the.19th March, 1954, which was the earliest date on which they could have done so. The appellant also returned to the estate on day and when the male respondent reached his home he found the appellant in his yard. Police Officers arrived shortly after an altercation ensued.

2 The male respondent contended that he was a tenant of the appellant and as such was entitled to reasonable notice to quit. He refused to leave the house. He also refused to allow the appellant who had been occupying a room in the house to enter the house but later relented.

3 The respondents alleged at the trial that at that point the appellant instructed the police to arrest them. The appellant denied this but the judge found that he did give those instructions. Whatever the truth of the matter — and whether or not the evidence justified the judge's findings of facts is one points in issue on this appeal — the narrative continues with the attendance of the parties at the police station where the appellant made a charge of wilful trespass against the respondents and signed a complaint. The respondents were released on bail and on the 22nd March, 1954, they appeared before a magistrate. The case against them was adjourned and on the 27th July, 1954, when they again appeared before the magistrate the appellant withdrew the charges against them. It was further alleged that on the 19th March, 1954, after the respondents had been released on bail and had returned to the house a search warrant was executed at the house and books and documents belonging to the appellant removed therefrom after which the male respondent was made to go outside with the female respondent and her children and told by a Superintendent of Police that he would be locked up if he made himself a nuisance or went back to the house. It was further alleged that on the 24th March, 1954, the appellant threw the respondent's household and personal articles out of the house and continued to trespass upon the premises.

4 The judge found that the male respondent was not a tenant of the appellant. He held, however, that he was a licensee with a right to reasonable notice to quit and that such notice had been given. He decided in favour of the respondents on the issue of false imprisonment and awarded damages but he considered that they had not proved absence of reasonable and probable cause for the prosecution or the charge of wilful trespass and resolved that issue in favour of the appellant. He did not give damages for trespass to the premises on the ground that the trespass was technical. He found trespass to goods proved and awarded damages. Both counsel have accepted the judge's finding that the male respondent was not a tenant. Counsel for the appellant has, however, submitted that the male respondent was required, and not merely permitted, to occupy the premises and that his occupancy was therefore a service occupancy; that he was not entitled on his peremptory dismissal to any time within which to remove his goods; that he had no right to re-enter the house on his return from Georgetown except to remove his goods; that he was a trespasser from the moment he entered because his purpose was not to remove his goods, or, at any rate, from the time he defied the appellant and refused him entry into the house, even though he later allowed him to enter and remove his things; that any time given by the appellant for the removal of the respondents' goods would have been an indulgence, that such an indulgence would have been forfeited by a refusal to give up the premises, and that, moreover the respondents had not asked for any such indulgence. Counsel submitted further that the male respondent was guilty of criminal trespass under section 33 of the Summary Jurisdiction (Offences) Ordinance, Chapter 14, the moment he was told by the appellant to leave the premises and refused to do so.

5 Counsel for the respondent accepted the finding by the trial judge that the respondents were licensees. He said that as licensees the respondents were entitled to a reasonable time within which to remove themselves and their goods from the premises; that time had not begun to run against them up to the time of their arrest because until then the parties had been engaged in argument which provoked heated words from the male respondent but not defiance nor an intention to exclude the appellant indefinitely from the premises.

6 Counsel for the appellant confined his argument almost exclusively to the status of the male respondent. The occupation of the premises by the female respondent vas clearly not a service occupancy and counsel found himself having to argue that the state of mind of the male respondent must be imputed to the female respondent. He also omitted no doubt through an oversight, to complain against the finding that the appellant had committed a trespass to the premises. The male respondent was the manager of the estate before the appellant acquired it and he occupied the manager's house. He said that the arrangement between the appellant and himself was that he was to remain in the house and that $20 per month was to be deducted from his salary (which he said was agreed to be $80 per month) for rent. The judge did not accept his evidence that $20 per month was to be deducted from his salary for rent of the house but found that his salary was $60. per month and that occupation of the house was part of his remuneration. The appellant said that he permitted the male respondent to occupy the house but reserved a room in it for himself. The judge did not believe that there had begin any such reservation.

7 Neither of the parties said that the appellant had required the male respondent to live in the house but the judge inferred from all the circumstances that the male respondent had been required to occupy the whole of the premises “in the performance of his contract of service as part of his remuneration” and that he had been required to do so for the better performance of his duties of service. The precise meaning of the passage in his judgment in which he expresses this view is obscure but if he intended to find that the appellant required the male respondent to occupy the premises, his finding would have been without any evidence to support it. In that part of his judgment he was contrasting the position of a tenant with that of a licensee and his conclusion that the male respondent was a licensee and not a tenant recognises that there was something more in the arrangement than the mere accommodation of the male respondent. He referred to the duties which the male respondent had to perform and said that it was essential for the male respondent to be on the spot. There was evidence, however, that the male respondent had an interest in a hotel near the manager's house and however desirable it may have been that he should occupy the manager's house there was no necessity that he should do so and I draw the inference of convenience and not that of necessity. In Torbett v. Faulkner (1952) 2 T.L.R. 659, Denning, L.J. said at page 660: “If a servant is given a personal privilege to stay in a house for the greater convenience of his work, and it is treated as part and parcel of his remuneration, then he is a licensee, even though the value of the house is quantified in money, but if he is given an interest in the land, separate and distinct from his contract of service, at a sum properly to be regarded as a rent, then he is a tenant, and none the less a tenant because he is also a servant. The distinction depends on the truth of the relationship and not on the label which the parties chose to put upon it”.

8 Taking the view, as I do, that the male respondent was not required either by the nature of his duties or by the express of his contract to reside in the manager's house, I do not find it necessary to consider any of the numerous authorities upon which counsel for the appellant relied to support his argument that the male respondent held a service-occupancy which gave the appellant the right to turn him out of doors at a moment's notice. The male respondent was a licensee and as such was entitled to a reasonable time within which to remove himself and belongings from the premises. There can be no...