Suffian AG LP (read by Gill FJ):

We are concerned here with four buildings on land known as Pajak Galian 4114, being part of Lot 31 in the Mukim of Setapak in s. 85, Kuala Lumpur. It was land held under mining lease from the Selangor State Government. From 16 March 1933, until 21 November, 1963 the lessee was the Renong Tin Dredging Co. Ltd. On 18 January 1955 the company sub-leased to one Fong. On 16 May 1957, Fong transferred the sub-lease to the Weng Yip Tin Mine Co. Ltd.

On 1 May 1963, the Tin Mine Co. let the buildings to the tenant (respondent) at $700 per month.

On 7 November 1966, the Tin Mine Co. sold the buildings to the landlord (appellant). On 30 November the company's representative called at the buildings and told the respondent that they had been sold by the company to the appellant, and that in future the respondent was to pay the rent to the appellant. The respondent agreed and did so beginning from 15 December 1966. He continued to do so until March 1968. In April he stopped. The landlord obtained a warrant of distress to recover six months' rent for the period April 1968 and September 1968. The tenant applied to have the warrant of distress set aside.

It was alleged by the tenant that there had been fraudulent misrepresentation by the landlord as to the latter's title. The landlord's answer was that the tenant was estopped from disputing his title.

A land officer gave undisputed evidence that the mining lease had been cancelled on 20 April 1965 (so that the land then reverted to the State), and that the landlord's name never appeared in the land office records at all. It is clear that when the Tin Mine Co. sold the buildings to the landlord on 7 November 1966, they stood on land belonging to the Government. The tenant did not know this when he paid rent to the landlord. He first came to know of it only in April 1968 when he stopped paying rent.

The learned Judge made two specific findings. He found first that a new tenancy had arisen by attornment and by virtue of s. 116 of the Evidence Ordinance the tenant was precluded from disputing the landlord's title. Secondly, the learned Judge found that the transfer of the premises by the Tin Mine Co. to the landlord was of no legal effect because then that company had no title to the land and the buildings, and nothing therefore passed from that company to the landlord and the latter was therefore unable to create the relationship of landlord and tenant between him and the tenant, and that the tenancy appeared to have been created under a mistake due to ignorance of the legal position at the time. (He did not find fraudulent misrepresentation on the part of the landlord.)

The learned Judge set aside the warrant of distress. The landlord has appealed to us.

It is to be noted that there is no appeal or cross-appeal against the first finding. This appeal is only against the second finding that there was no valid tenancy and/or relationship of landlord and tenant between the appellant and respondent.

The question in this appeal is therefore whether or not the appellant was the respondent's landlord.

Chapter VIII of the Evidence Ordinance contains provisions relating to estoppel, but the Privy Council has held in an appeal from Ceylon (Terunnanse v. Terunnanse [1968] 2 WLR 1125) that it is legitimate when applying s. 116 of that Ordinance to consult and give effect to the English cases, even if they appear to go further than the language of the section.

What the respondent is in effect saying here is not that his landlord had no title at the beginning of the tenancy. That he is expressly forbidden to do by s. 116. What he is in effect saying is that his original landlord, the Tin Mine Co., had title at the beginning of his tenancy but no longer had it when it purported to sell the buildings to the appellant. This he is allowed to do, see the Privy Council case of Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. and Ors. AIR [1937] PC