(COURT OF APPEAL)*
THE HELLENIC COMMUNITY vs. THE PETIT BAZAAR
(AC-APP- 1956
Principles
·  Trespass — right to bring action - possession — abandonment of possession — Rent Restriction Ordinance, 1953, Section 11’ (g)
·  Advocates—acting as solicitor or counsel — power of— compromise  of action by — Court order as to compromise by
·  Appeal—facts, question of — Appeal from Court of first instance —finding of facts at first instance — independent view on appeal-Principles applicable.
The Plaintiff was the tenant of Defendants. Defendants intended to demolish the premises and to erect a modern block of offices and shops instead. After giving notice to quit, Defendants brought an action in ejectment. Although Plaintiff vas throughout represented by counsel, Defendants did not serve a notice on such counsel of their intention to have their action dismissed on the ground that by leaving  the Sudan the Plaintiff had abandoned possession of the premises and thus there was no need for Defendants to bring an action to recover possession Plaintiff had not returned the key to shop and had previous to action paid rent through an agent but not thereafter, the rent not being accepted by Defendants. Defendants entered' and demolished the premises. Judge of High Court held that the Plaintiff had not  abandoned possession and thus was protected by Rent Restriction Ordinance and in lieu of alternative premises was entitled to LS. 1000 damages. The Defendants appealed.

(3) An Advocate acts as solicitor and counsel in the Sudan. As Solicitor he is authorized to bind his client by a compromise of existing proceedings
(5) Court Abu Rannat C.J.; Hassib J. and Osman el Tayeb P.J.
while if acting as a counsel he cannot compromise nor take any action unless expressly briefed.
(4) Though Advocates have apparent authority to bind clients they have no power to bind the court to act in a particular way. So that if the compromise is one which involves the Court in making an order, other than an order merely dismissing an action at the Plaintiff’s request the want of authority of Advocate can be brought to the notice of the Court.
Decision of Soni J. HC-CS-367-1955 reversed.

Held: (1) Although the Court of Appeal will accept a finding of facts it is not bound. by the inferences drawn by the Court below from those facts Benmax vs. Austin Motors Co. Ltd. [1955] I.W.L.R. 418; duct'a of Lord Reid at page 442 applied.
(2) On the facts as established in the Court below there was here an abandonment of possession especially as no rent was offered nor accepted for six months after Defendants had brought their action which did not absolve Plaintiff from tendering the rent.

Appeal
The Plaintiff was the tenant for one year of a shop in premises belonging to the Defendants. She received a notice on the 10th March 1954 informing .her that her tenancy would not be renewed and that she would have  to vacate the premises as it was intended to demolish them to build an office block and shops. The said letter ended "Mean-while" we assure you that we shall do our best to accommodate you in “the new building if you will be interested at such time, term and “conditions on which a mutual agreement may be made”.
The Plaintiff replied on 2oth June 1954 requesting a written undertaking  in accordance with section ii of the Rent Restriction Ordinance 1953, before vacating the premises. No reply was received to this letter. On 10th October 1954 the Plaintiff held an auction on the premises at which the contents of the shop were sold, except for some items which were stored with Barclay’s Bank D.C.O. She then left the Sudan, in November1954 taking the key to the shop with her and returned to the Sudan in September 1955. Cheques for rent were sent to the Defendants for the months November, December 1954 and January 1955, by an agent of the Plaintiff but were refused by the Defendants. Before leaving the Sudan the Plaintiff informed an agent., of the Defendants of her intention to leave the keys to the shop with someone as soon as she had removed all the contents of the shop.
In January 1955 the Defendants instituted proceedings for possession not only against the Plaintiff but also against other tenants of their premises. On the 3rd  March 1955 Advocate Gumaa entered an appearance on behalf of the Plaintiff to these proceedings, and it was ordered that the action stand over to await the outcome of similar actions pending. After negotiations the o her actions were dealt with by consent orders various sums being paid by the Defendants in compensation. The Defendants in an cx parte summons asked for their action against the Plaintiff to be dismissed as Defendants felt that the
Plaintiff had abandoned the shop thus giving the Defendants possession. Mr. Gumaa was not informed that such an application would be made and Plaintiff contended that she was thereby prevented from making a compromise similar to those made between the Defendants and other tenants.
After their action had been dismissed, the Defendants proceeded to demolish the premises.
When the Plaintiff returned to the Sudan she protested through her advocate Mr. Gumaa at the demolition of the premises and demanded alternative premises in the new building when erected, or alternatively L.S.1000 damages.
Soni J. held HC-CS-367 1955 that by retaining possession of the key the Plaintiff retained possession of the shop. Thus she never lost possession and the Defendants had committed .trespass. He held further that an advocate could compromise an action on behalf of his clients and thus Mr. Gumaa should have been informed by the Defendants of their intention to take proceedings to have their action against the Plaintiff dismissed.
Advocates            Mohd. Ibrahim Khallil….. for Appellants
Ahmed Gumaa …………………………for Respondent
Abu Rannat C.J. after referring to the facts continued
“As I see it this appeal must be allowed. The learned Counsel for the appellants has drawn our attention to the House of Lords in the case of Benmax v. Austin Motor Company Ltd.[1955]  2 W.L.R. 418.
In that case it was argued for the appellants in the House of Lords, that the Court of Appeal ought to have held itself bound by the trial judge’s finding of fact, but their Lordships held, that there was no limitation on the powers of an appellate court. Viscount Simonds emphasized that “some confusion  may have arisen from the failure to “distinguish between the finding of a specific fact and a finding of fact “which is really an inference. from facts specifically found, or, as it has “sometimes been said, between the perception and evaluation of facts”. Thus, as he pointed out, a judge sitting without a jury in a negligence case, first finds the facts and then draws from them the inference of whether’ or not the defendant has been negligent. An appellate court will be reluctant to reject a finding of specific fact which may be founded on the credibility of a witness, but it will not hesitate to form an independent opinion concerning the proper inference from the
specific fact. Similarly Lord Reid said:- “But in cases where there is “no question of the credibility or reliability of any witness, and in cases “where the point in dispute is the proper inference to be drawn from “proved -facts, an appeal court is generally in as good a position to “evaluate the evidence as the trial judge, and ought not to shrink from “that task, though it ought, of course, to give weight to his opinion.”
In the present case the learned Judge of the High Court made findings of specific facts, and all these facts were accepted as proved, but we differ with him in the inferences which he drew from the facts specifically found by him. The specific facts found by the learned Judge are these : - That the respondent did not deliver the keys to the appellants. That she took a store before she left for Cyprus from Barclays Bank. That she admits that her representative removed all the goods from the shop, and that there were no goods in the shop  ‘ at the time of the demolition. He also found that she paid rent for three months, but she did not pay rent for the six months before the shop was demolished, and that she renewed her trader’s license for 1955 and1956:
These are the specific facts found by the trial judge. There are other facts which were proved in favour of the appellants, and which should be taken into consideration. These facts are - That the respondent published a notice in the press that she would sell all her goods. That she admitted in cross-examination that all her goods were removed by her representative in March 1955, and that the shop was empty since that time. That she did not pay rent for six months. That her manager left the country before her departure, and that he did not return until now.
The learned Judge is of the opinion that the retention of the keys and the tendering of rent for three months, are pieces of evidence of the strongest possible indication, that the premises were intended to be retained.
In this connection I refer to the passage in Clerk and Linsell on Torts, 11th Ed p. 521, where it is said - ‘Possession means the ‘occupation or physical control of land. What amounts to possession ‘is a question of fact in each case, but by possession is meant that “character of which the thing is kept In the case of a building, posses “sion is evidenced by occupation, or if the building is unoccupied, by “possession of the key or other method of obtaining entry.”
I agree that the retention of the keys should be taken into consideration together with other acts, but it is not alone sufficient to establish that
the tenant had intention of retaining it. Possession is acquired whenever the two elements of corpus and animus come into co-existence and it is lost as soon as either of them disappears.
In this case the respondent had advertised for the sale of her goods. She sold part of the goods and removed the other. She also left the country and there is evidence that, in fact, her uncle wanted to start business in Cyprus, but it turned out to be unsuccessful. There is also evidence that she promised to give the keys to a barber, with a view to deliver them to Mr. Metaxas.
We think that the non-payment of the rent for six months is a factor which tends to show that she had abandoned the premises. Payment and acceptance of rent are evidence of the continuation of a lease and These two factors were non-existent in this case.
Lastly I come to the alleged authority given to Mr. Gumaa as an advocate to settle the dispute. The learned Judge has in the Court below made the following statement : - “It was argued that Mr. “Gumaa had no authority to settle. But an advocate’s authority to “settle or compromise his client’s case is undoubted.”
With respect to the learned Judge, this statement is not very accurate. In the Sudan an advocate does the work of a solicitor and that of a counsel. As  a solicitor he is authorized to bind his client by a compromise of existing proceedings, while if: the advocate was acting as  a counsel, he cannot compromise or take any step in an action unless he is expressly briefed by his client. In civil actions a counsel's  authority may be limited by the client. It is not clear from the evidence whether Mr. Gumaa was authorized by the representative of his client to make a compromise. It is important to bear in mind that while a solicitor or counsel may have apparent authority to bind in contract his client to a particular compromise, neither solicitors nor counsels have power to bind the Court to act in a particular way. So that if the compromise is one which involves the Court in making an order, other than an order, merely  dismissing the action on the plaintiff’s request, the want of authority may be brought to. the notice of the Court at any time before the grant of its intervention is perfected, and the Count may refuse to permit the order to be perfected.
So it is clear to me from the evidence of Mr. Gumaa that. he was acting not as a solicitor but as a counsel, who was briefed for one particular action and he cannot compromise without the consent of his client, and that if there was a compromise, it requires an order of the Court to give effect to it. This disposes of the whole appeal.
I do not want to dwell on the quantum of damages,, but if our decision was otherwise, I think that the damages awarded were far too much.
The appeal is allowed and the respondent’s claim is dismissed with costs.
Hassib J.                    : I concur
Osman el Tayeb P.J.            I concur
 (Appeal allowed)