Tan Ah Tah FJ:

In this case the plaintiffs claim a declaration that the defendants are trespassers of that part of the premises known as No. 6 Bonham Street, Singapore, which is at present occupied by the defendants, and an injunction restraining them from further occupying the said part. Alternatively the plaintiffs claim possession of the said part.

It is not disputed that the premises are subject to the Control of Rent Ordinance (Cap. 242). One v. Mathiaparanam, formerly trading as v. Mathi & Co, was a monthly tenant of the premises from the year 1947. The learned trial Judge found that a trade union called the Singapore Lighter Owners' Association (hereinafter referred to as the association) became the subtenant of Mathiaparanam on 27 September 1947 in respect of that part of the premises which is shaded green in the plan showing the premises which is annexed to the statement of claim. The learned trial Judge also found that the defendants became licensees of the association during the year 1947 and in that capacity occupied part of the premises which is shaded green in the plan. It is convenient at this stage to state that in my opinion there is no reason to disturb these findings of the learned trial Judge.

On 19 September 1958 Mathiaparanam was adjudicated a bankrupt and thereupon his contractual tenancy of the premises vested in the official assignee. The plaintiffs bought the premises from the previous owners on 22 May 1963. They duly determined the official assignee's contractual tenancy on 31 August 1963, by a notice to quit dated 31 July 1963. On 9 June 1965 they issued the writ of summons in this action against the defendants.

It was contended by Counsel for the plaintiffs in the Court below that the defendants were trespassers. The learned trial Judge in his judgment reached the conclusion that the defendants were not trespassers and dismissed the claim for a declaration and injunction against the defendants. As regards the alternative claim for possession, the learned trial Judge stated that he was not in a position to adjudicate upon it as the association had not been made a party to the action. It is against this judgment that this appeal is brought by the plaintiffs.

In my opinion, on the facts of this case, the association had already become a statutory tenant of the official assignee by the time the writ of summons was issued against the defendants.

It is important to note that there is no evidence whatsoever to show that the association's statutory tenancy has been lawfully determined. This point was not raised in the pleadings nor does it appear to have been argued in the Court below.

At this stage, it becomes relevant to refer to Brown v. Draper [1944] 1 All ER 246 in which it was held that in the case of a tenancy protected by the Rent Restriction Acts, the Court has no jurisdiction to make an order for possession against a licensee unless the tenant is a party and an order is made against him as well. This case has been followed in Singapore in Weinberg v. Lim Seow Peng [1955] MLJ 152 and Kassim bin Adam v. Bandukwala GE [1958] MLJ 226

Counsel for the plaintiffs contends before us that where a statutory tenant is not in possession the Court can find as a matter of law that the statutory tenant has lost the protection of the Control of Rent Ordinance if there is evidence that he is no longer in physical possession of the premises and has no animus revertendi, even though the statutory tenant was not a party to the proceedings before the Court and he relies on the case of Chartered Bank (Malaya) Trustee v. Abu Bakar [1957] MLJ 40 in support of this proposition.

In that case certain premises known as 104 North Bridge Road, Singapore, which were rent-controlled premises, were let by the plaintiff company on a monthly tenancy to the firm of Mohamed Saiboo & Co. which consisted of two partners Mohamed Salih and Abdul Majid. Various changes in the partnership took place and at the time the wr