JUDGMENTBY: WHYATT CJ, CHUA J, AMBROSE J

WHYATT CJ The question for decision in this appeal falls within narrow limits but in order to understand how it arises, it is necessary to set out the facts in some detail.

In 1942, during the Japanese occupation, the first defendant commenced a restaurant business, known as the Stamford Cafe, at 82 Bras Basah Road and 312 North Bridge Road, the premises being contiguous and so arranged that the restaurant was on the ground floor of 82 Bras Basah Road and the kitchen and storeroom of the restaurant on the ground floor and first floor respectively of 312 North Bridge Road. The first defendant held the premises from the plaintiffs predecessors in title on an oral monthly tenancy which subsequently was changed to a written monthly tenancy and it is common ground that these premises, of which the plaintiffs are now the landlords, are subject to the provisions of the Control of Rent Ordinance 1953.

From the outset the first defendant was assisted in the management of the restaurant by his wife, who is the second defendant in these proceedings and it would appear that the business grew and prospered over the years for by the year 1952, in addition to the owner and his wife, there were seventeen or eighteen persons employed in it. Unfortunately early in 1952, the enterprise encountered an unexpected hazard -- the owner fell in love with the cashier. The result was that he lost interest in the business and told his wife that he wished to go elsewhere; "and so", said the wife in evidence, "I took over the management of the business". Later, in July 1952, according to her testimony, she took over the premises as well, but before this drastic change was made, she and her husband went to see a partner in the plaintiff firm, a Mr. Foo by name, to explain their difficulties to him. Mr. Foo very sensibly advised them to see a lawyer and acting on his advice, they went to see the solicitors who are now acting for the second defendant. These solicitors, at the beginning of July, prepared a deed of assignment, whereby the husband, "in consideration of his natural love and affection for the donee" his wife, assigned to her the monthly tenancy of 82 Bras Basah Road and 312 North Bridge Road and the goodwill and stock-in-trade of the Stamford Cafe.

The deed prepared by the solicitors was signed by the husband and wife on the 8th July 1952 and on the 17th July 1952, the solicitors wrote on behalf of the husband to Mr. Foo, notifying him that the husband had assigned the tenancy of the premises to his wife "to hold under the same terms of you, the landlord" and requesting Mr. Foo, in future, to issue rent receipts in her name. Thus it came about that the wife -- to use her own words -- "took over the premises in July". She was at that time on the premises every day; moreover she paid the rent for July, and indeed continued to pay the rent month by month right up to August 1955 when the plaintiffs refused to accept any further rent from her on the ground that the tenancy was still vested in her husband.

In December 1955 proceedings were instituted by the plaintiffs against the husband, as the first defendant, and the wife as the second defendant, claiming possession of the premises. Two years later, in November 1957, judgment was entered by default against the husband but the plaintiffs continued the action against the wife, setting out in their pleadings, a number of different grounds on which they claimed to be entitled to a declaration that she had no interest in the premises and was a trespasser. However when the case came on for hearing, the plaintiffs abandoned every ground except one, namely, that the deed of assignment dated the 8th July 1952 was not admissible in evidence as it had not been registered under the Registration of Deeds Ordinance and therefore she could not rely upon it to establish her title to the premises. To this argument, the second defendant replied that it was not necessary

Click Here to Read the rest of this document