Wakilii

Karimjee Jivanjee and Co. v McDiarmid (C.A. 9-1936.)

East African Court of Appeal · [1936] EACA 94 · 1936 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court of Tanganyika judgment for wrongful conversion following distress for rent
Decision
Judgment of the High Court reversed; appellants' distress and sale held lawful

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Law of Distress Amendment Act 1888 applies to Tanganyika but the Lord Chancellor's Rules do not. In the absence of local rules providing for certified bailiffs, a landlord may distrain for rent and sell distrained property through any agent who is not an infant under common law as varied by applicable statute law. The tenant's acquiescence is immaterial where the distress was lawful. A suit to recover proceeds of wrongfully attached property without claims for consequential damages is governed by Article 61 or Article 49 of the Indian Limitation Act, not Article 28.

Outcome

Judgment of the High Court reversed; appellants' distress and sale held lawful

Facts

The appellants were landlords of premises leased to Gordon McDiarmid. Through their agent Cassam Satchu, who was not a certified bailiff, the appellants seized and sold McDiarmid's furniture and chattels in execution of distress for rent. McDiarmid had applied for time hoping for settlement, but when that failed he authorized the sale and his advocates handed over keys to Cassam Satchu. Over a year after the seizure, the respondent, as trustee in bankruptcy of the deceased McDiarmid, sued the appellants for the proceeds of the sale on the ground that the seizure and sale were illegal because Cassam Satchu was not a certified bailiff under section 7 of the Law of Distress Amendment Act 1888, and that the appellants had wrongfully converted the property. The High Court found for the respondent, holding that the distress was illegal and that McDiarmid's consent was vitiated by mistake of law.

Issues

  1. Whether the Law of Distress Amendment Act 1888 applies to Tanganyika Territory.
  2. Whether the Lord Chancellor's Rules made under the Law of Distress Amendment Act 1888 apply to Tanganyika Territory.
  3. Whether a landlord in Tanganyika can distrain for rent through an agent who is not a certified bailiff.
  4. Whether the tenant's acquiescence to the distress and sale vitiates the landlord's right where the tenant acted under a mistake of law.
  5. Whether the suit is barred by limitation under Article 28 of the Indian Limitation Act 1908.

Orders

  • Appeal allowed.
  • Decree of the High Court of Tanganyika reversed.
  • Costs awarded to the appellants in the Court of Appeal and in the Court below.
  • No costs of the appearance before Bates J. on the issues of cause of action and limitation.
  • Respondent to have costs of one day's hearing in the Court of Appeal.

Rules and key headnotes

Statutory Interpretation — Application of English Statutes to Tanganyika — Law of Distress Amendment Act 1888
The Law of Distress Amendment Act 1888 is a statute of general application in force in Tanganyika Territory by virtue of article 17(2) of the Tanganyika Order in Council 1920 and section 2 of the Law of Property and Conveyancing Ordinance (Cap. 67).
Statutory Interpretation — Application of English Rules to Tanganyika — Lord Chancellor's Rules
The Lord Chancellor's Rules made under section 8 of the Law of Distress Amendment Act 1888 are not in force in Tanganyika Territory in the absence of local rules made under Cap. 67, and no such person as a certified bailiff exists in Tanganyika in the absence of such local rules.
Land & Property — Landlord and Tenant — Distress for Rent — Right to Distrain Through Agent
Under the common law as varied by the statute law applicable in Tanganyika, a landlord can distrain for rent and sell the property distrained through an agent who is not an infant, notwithstanding that section 7 of the Law of Distress Amendment Act 1888 is ineffectual in the absence of local rules providing for certified bailiffs.
Contract Law — Mistake of Law — Effect on Consent to Distress
Acquiescence by a tenant to distress and sale is immaterial so long as the distress was according to law. A tenant is presumed to know the law applicable in Tanganyika, and a belief that the Lord Chancellor's Rules applied when they did not does not constitute a mistake of fact vitiating consent.
Civil Procedure — Limitation — Article 28 Indian Limitation Act — Wrongful Attachment
A suit merely to recover the value of property wrongfully attached with no claims for consequential damages is governed as to limitation by Article 61 or alternatively by Article 49 of the Indian Limitation Act 1908 and not by Article 28 of the said schedule.

Legislation cited (15)

  • Law of Distress Amendment Act 1888 s.7
  • Law of Distress Amendment Act 1888 s.8
  • Law of Distress Amendment Act 1888 s.9
  • Tanganyika Order in Council 1920 art.17(2)
  • Law of Property and Conveyancing Ordinance (Cap. 67) s.2
  • Law of Property and Conveyancing Ordinance (Cap. 67) s.3
  • Law of Property and Conveyancing Ordinance (Cap. 67) s.9
  • Indian Limitation Act 1908 art.28
  • Indian Limitation Act 1908 art.29
  • Indian Limitation Act 1908 art.49
  • Indian Limitation Act 1908 art.61
  • Indian Contract Act s.21
  • Bankruptcy Ordinance 1930 s.37
  • Statute of Westminster the Second 13 Edw. 1 Stat. Cap. 37
  • 2 W. & M. Sess. 1, C. 5

Cases cited (11)

  • Abdulhusein Rahemanji v Entertainments Ltd (C.C. 329 B of 1932)
  • Narasimha Rao v. Ganguraju (31 Mad. 431) at 433
  • Yellammal v. Ayyappa Naick (38 Mad. 972) at 983
  • Granger v. George (108 E.R. 156)
  • Sumner v. Ferry (88 E.R. 989)
  • Skeate v. Beale (113 E.R. 688)
  • Brerver and Gregory v. Sparrow (108 E.R. 739)
  • Atlee v. Backhouse (150 E.R. 1298)
  • Waller v. Drakeford (118 E.R. 616)
  • Begbie v. Hayne (1835) 2 Bing. N.C. 124
  • Guclcson v. Winter (1928, 2 Man & Ry. 313)

Full judgment

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Karimjee Jivanjee and Co. v McDiarmid (C.A. 9-1936.) [1936] EACA 94 (1 January 1936)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.