Facey v Thompson and Robinson

• Jurisdiction: Jamaica
• Judge: Watkins, J.A.
• Judgment Date: 09 April 1976
• Neutral Citation: JM 1976 CA 21
• Docket Number: No. 77 of 1975
• Court: Court of Appeal (Jamaica)
• Date: 09 April 1976

Court of Appeal

Luckhoo, P. (Ag.); Swaby, J.A.; Watkins, J.A. (Ag.)

No. 77 of 1975

Facey

and

Thompson and Robinson

Appearances:

J. A. Dabdoub for defendants/appellants.

E. Hill for respondent.

Real Property - Landlord & Tenant — Levy for Rent

1 Watkins, J.A. (Ag.): This is an appeal from the judgment of His Hon. Mr. T.N. Theobalds, a resident magistrate for the parish of St. Catherine in which he found in favour of the plaintiff/respondent in an action arising out of an execution of distress for rent.

2 The following are the facts. Roy Facey, the plaintiff/respondent was head-lessee of land at 43 Monk Street, Spanish Town, St. Catherine of which the first-named defendant/appellant W.J. Thompson was the freeholder. Originally, the annual rental of the demise was $30 but upon enlargement of the said demise in 1971, the rental was increased to $60 per annum. Facey had expected the execution of a written agreement but when this was not forthcoming he decided, to withhold payment of the rent due notwithstanding his continuance in occupation and enjoyment of the demise. In fact, Facey erected a four-apartment house thereon, three of which he occupied and the fourth he underlet to one Miss Vera Edwards. A description of this house limited to purposes of suit may be interposed. One door afforded entrance and exit to Miss Edward's room which was separated from the rest of the residence by a door so bolted or locked on either side that neither of the respective occupants could obtain entrance to the other's abode. By May 1973, rent totaling $150 had become due and the second-named defendant/appellant Robinson on the orders of the first--named defendant/appellant executed distress upon the goods of Facey, not however, for $150, but for $180. Gaining entrance without force (and there was no issue on this point) through the door to Miss Edward's room, the landlord bailiff forcibly unlocked the intervening door, entered that portion of the house occupied by Facey and there distrained upon his goods. Taken away, these goods were subsequently redeemed upon payment of a sum, which covered the rent claimed and incidental costs and expenses.

3 The Particulars of Claim in respect of which no further and better particulars were sought or supplied simply alleged –

• (a) illegal levy, and

• (b) negligence in the keep and care of the distrained goods,

4 and furnished particulars of special damage relating to (b) only amounting to $340. The defendants/appellants in their statement of defence affirmed the legality of the levy and denied the special damages alleged.

5 During the course of the trial the issue of excessive levy was also agitated and occupied no insignificance part of the learned resident magistrate's reasons for judgment. Of this more will be said anon.

6 Before us, as indeed before the Court below, the three issues for resolution were clear -

• (i) Was the levy illegal?

• (ii) Was it excessive?

• (iii) Was there negligence in the handling of the goods distrained, some of which, it was alleged, were damaged and others lost?

7 Was the levy illegal? This was of course the paramount question. “An illegal distress is one which is wrongful at the very outset, that is to say, either where there was no right to distrain or where a wrongful act was committed at the beginning of the levy invalidating all subsequent proceedings so as to render the distrainor or a trespasser ab initio”. (Hals. Laws of England 2nd ed. Vol. 10 para 738). That learned author proceeded to give examples of illegal distress among which the following are relevant:

• (i) when no rent is in arrear;

• (ii) a distress made in. an unlawful manner, as by breaking open an outer door.

8 In the instant case it was not challenged that rent was in arrear and indeed the single question was as to whether that door intervening between Miss Edward's and Facey's respective abodes, which was admittedly forcibly opened, was indeed an outer door. The answer is to be determined not only by a consideration of structure of the house but also by reference to a consideration of the policy and purpose behind the ancient and long settled rule of law that a distrainor for rent may break an inner door but may not break open an outer door. ( Browning v. Dana et al 95 All E.R. Full Reprint KB 24 p. 107). In American Concentrated Must Corporation v. Hendry and Another (1893) L.J. Vol. 62 p. 388, the matter was the subject of expensive and learned analysis by Lord Justice Bowen who at pages 389 and 390 said “The doctrine of the inviolability of the outer doors of a house anal its precinct has long been established by English Law. The principle is one which carries us back in imagination to wilder times, when the outer door of a house, or the outer gates and enclosures of land, were an essential protection, not merely against fraud, but violence…All creditors and all aggrieved persons who respected the king's peace, the sheriff in a civil suit, and the landlord in pursuit of his private remedy for rent and services, were both of them held at bay by a bolted door or barred gate. To break open either was to deprive the owner of the protection against the outer world for his family, his goods and furniture and his cattle.” (See also Lee. v. Gansel [1558 – 1774] All E. R. Rep. 467 at p. 468). Applying this purpose of the ancient law to the facts of the instant case, could it be really asserted with any conviction that this intervening door served the purpose of a protection against the outer...