1 The first appellant who claimed to be conducting a business known as `Nathan Brothers` at No 67 Bukit Timah Road in partnership with the second appellant, was, after a careful analysis of the evidence and consideration of the pertinent authorities, held by the trial district judge to be in unlawful occupation of the said premises which are owned by the respondents/landlords. The second appellant, after similar considerations, was held to have completely abandoned the statutory tenancy which be possessed from 1958 onwards by failing to remain in possession of the premises with the necessary `animus` long before the present proceedings were instituted in 1972 for recovery of possession thereof from them both. It is not surprising that such a decision was reached when one considers the facts and the near-startling `ploys` adopted to substantiate possession on the part of the statutory tenant as revealed by the evidence.

2 An appellate court does not of course have the advantage which the trial district judge had of seeing, hearing and thereby being better able to assess the credibility of witnesses. There was, however, nothing in the record of evidence which caused me any apprehension that he did not have overwhelming material on which he could properly arrive at the decision which he reached on the facts. If ever there were facts in a case of this kind which pointed almost inexorably - and not merely by a preponderance of evidence - to one conclusion only, this was such a case.

3 The evidence of PW2, a Director of the respondents, was accepted by the district judge without any reservations. She told a simple, straightforward story contrasted with which the appellants` versions paled into insignificance and were rightly treated with the near-derision which they deserved as revealed by the following penetrating analysis of the factors militating against them:

4 The district judge accordingly came to the conclusion that: since 1966 or thereabouts the firm of Nathan Brothers, although registered as a `business` with the Registry of Business Names, was not in fact operating at all and had ceased its purported business operations altogether. It was a fictitious firm and the firm-name had obviously been retained and registered by the defendants as a means to enable the second defendant, at least, to block any attempt by the plaintiffs to recover possession of the premises in question, when in actual fact the first defendant was carrying on his own business there under the style of `Liberty Stores`.

5 Before finalizing his judgment he also took note of the following matters:

6 It was argued by his counsel that the second appellant claimed under cross-examination that he still had a desk at the premises and a key to the front door. Counsel relied on this claim to show that the second appellant retained his right to possession. Having regard to the total ignorance which he evinced of the actual operations of the business, as found by the district judge, I am not impressed by the argument that because he made this claim he retained the `animus` necessary to possession and that he had not abandoned his statutory tenancy.

7 It must be remembered that the first appellant at first tried to make out that the second appellant did not move out of the premises but later reluctantly admitted that he stopped coming back to sleep there in 1973. He had earlier said that he was unable to remember when the second appellant moved out. The second appellant, however, made no bones of the fact that he left the premises in 1952, ie more than 20 years before the writ! Since the first appellant moved into occupation of the premises as early as in 1950 (which be later changed to 1952) he should have known only too well when it was that he was left in sole physical occupation.

8 The retention, if true, of the desk and the key, after the second appellant left the premises in 1952 obviously appeared to have been done in furtherance of an impious hope on his part to utilise this fact as a means of substantiating the necessary `animus` at some future date, if and when the need should arise, as it did in fact arise when these proceedings were instituted.

9 In the circumstances, he did not remain in possession of the premises after 1966 as the district judge found. Once he ceased to remain in possession, he ceased to remain a statutory tenant by reason of s 27(a) and s 28 of the Control of Rent Act (Cap 266, 1970 Ed) had no application to his case for the reasons set out clearly by Thomson LP in Tan Khio Soei & Anor v Ban Hin Lee Bank Ltd [1964] MLJ 71 at p 72. The material portions of these sections read:

10 The learned Lord President was sitting on an appeal against a judgment involving a statutory tenant of premises in Singapore in whose case the applicability of s 28 (formerly s 17) was considered. His Lordship reiterated what he had earlier stated in the case of Ramasamy Pillai v Meyappa Chettiar [1955] MLJ 105 that there was no difference between a statutory tenant under our legislation and a statutory tenant under the English Rent Acts and went on to cite with approval the position of such a tenant as described by Bankes LJ in Keeves v Dean [1924] 1 KB 690 to the following effect:

11 This `dictum` of Thomson LP was disputed but it has stood the test of time and is still being followed in Singapore and in Malaysia (see eg United India Fire & General Insurance Co v Jaffnese Co-operative Society [1971] 1 MLJ 118 ). Moreover, it had the concurrence of the remaining members of the Federal Court including our own Chief Justice.

12 Since the second appellant parted with possession in 1966 at least, I failed to see how he could possibly have remained a statutory tenant when these proceedings commenced in 1973. Counsel for the appellants submitted that it is only when such a statutory tenant dies that such a tenant ceases to have the protection of s 28. I could not accept this proposition. Moreover, the second appellant not only parted with possession but ceased altogether to remain in possession thereof.

13 I accordingly dismissed the appeal against the judgment of the district judge with costs but allowed a stay pending further appeal.

14 Appeal dismissed .