Gauss, Mr. ¥. Bflura.
Couxsu: Mr. H. D. Rodger for Petitionerst Mr. G- H: Wright for Counci.
(Gudgment for Petitioners)
Shanghai, Mer. 15, Damages <mounting to $300 were awarded against the Shanghai Municipal Council' by the Court of Consuls, comprising Gir Herbert Phillips' CHEM. Consul-General Mr. € E Gauss (US. Consul:
General), snd Mr. ¥. Miura (apanese Consul-General) with Mr. EA. Long sitting as Commissioner, on November 30 and December 1. in an action brought by Mrs. S. Mi. Loh, who alleged that she had been unwarrantably evicted from premises Jacquired by the Council, through 3 [British court action, for road-widening purposes, and had suffered the hunillation of police measures. Nominal damages of $1 were awarded to the woman's husband, Mr. S. H. Loh, Who claimed that while the registered owners of the property were 3 British firm, he, as the beneficial owner and occupier, was subject only fo the Jurisdiction' of the Chinese courts. Petitioners were represented by Mr. H. D. Rodger while Mr. G. HI Wright appeared for the Council.
The judgment reads:
'The plaintiff in this case allege two causes of action against the Shanghai 'Municipal Council arising out of measures taken by the Council for the compulsory surrender for public use of certain' property in the Interna tional: Settlement.
Briofly, i, appears that the Shang-hol Municipal Council instituted proceedings before the Lend Commis~ Sloners under Article Via of the Land Regulations for the. compulsory surrender for purposes of road widen= Ing of a portion of the property Known as" B.C. (of "No. 10027 (Cadastral Lot No. 1360), registered in the name of Algar and Company, Limited, British company; thay an award Was Issued by the Land Commissioners under date of June 18, 1EG7, in respect of the compensation 10 be paid for the property so to be surrendered; that the Council therefor, In about April 1934, instituted proceedings in the British Supreme Court against Algar and Company, Limited, for the enforcement of the award;' that Algar and Company, Limited, submitted to Judgment in the terms of the writ of summons lgsued in the case; that by an order dated the third doy of May 1938, the British Court directed Algar ' and Company, Limited, 10 give effect 10 the award and execute a proper conveyance to the Shanghai Municipal Council of the property referred. in the award; that on the twenty third day of Jjine 1938, the Council, by Ils acting Secretary, addressed a communication to Mr.' 8. H. Loh, plaintiff in this action in the Court of Consuls, informing him as occupier and beneficial owner of the property jin question that as a result of the signing by Algar and Company, Limited, of the surrender deed in Fespect of: e property, such property vested in the Council and Mr. Loh was fact a trespasser thereon and should vacate the property by the thirtieth' day of June 1034, failing which the municipal Potice had been Instructed to. take whatever steps proceedings, the Municipal Council by {ts Police entered upon the property. and ejected therefrom the family of Afr. Lou, placing the property in possession of the Council and the Council proceeding forthwith to demolish the Buildings thereon and to use the pro-petty for the purposes of road widen-. ing.
As a frst cause of action against the Council, the petition in this case, in Its essentials and so far as pertinent fo the action within the jurisdiction of this Court, alleges thay the plaintiff S.H. Loh is a Chinese citizen; that he owner and occupier of the properly. in question: that while Algar and Company, Limited, were the registered owners of the land they were not the registered owners of the buildings thereon; that the plaintiff Loh as the beneficial owner of the land and buildings was not satisfied with and unable to accept the award of the Land Commissioners as the land and buildings had been mortgaged to a Chinese bank for a sum in excess of the award of the Land Commissioners; that the award of the Land Commissioners dealt only compensation in respect of the land and did not deal with compensation in respect of the buildings on the Jand: that it was improper and. irregular and not in accordance with the provisions of the Land Regulations for the Council to bring action against Algar and Company, Limited, the registered owners of the iand, in the British Court, the Couneit well knowing that Algar and Company, Limited, as the registered cwmers of B. C. Lot No. 10027, nado actual interest the property thet the order of the British Court didn't authorize the Counc fo eject the plainti Lan and Kis amily by force stem the property or fo tear down snd. demolish the Dutldings thereon; that it is provided Artele: Via_of the Land Regula-tons that awards of the Land Com: missioners shall be. enforced inthe court oF courts having jurisdetion over the owners and occupiers of the Droperty; that the plointit Loh Sceupler of the "property" bein Chinese etizen, the only court having Jurisdiction over him' and his pro= petty, end lawfully entitled 10 eet firn rom said property' is a Chinese Gourt of competent jurisdiction snd that the Gounell has obtained "ne Judgment, decree or order from. court having. juisdicton authorising
family by force from the property of let the plinth and his to tear down and demolish the build Ings thereon. "Wherefore the. Diain-{itt Loh claims damages inthe sum of-One Della, Shanghai currency. the second cause of action itis alleged that the second-named laine Mrs. S. M. "Loh, is a. Chinese citizen and the wife of plainti $1. Loh, that she was the occupier of the Property concerned in this action, {hat at" about seven o'clock on. the morning of the fist of July 1998, 3 {force of Muntcipal Police surrounded the property and forcibly entered thereon, "taking her by force and transporting her in a police van te the Chengtu Road Police Station and there interrogating and legally" de-faining her for about one" hour. Wherefore demand is made for punt: five damages for the indignities sutfered, for assault, assault and battery 388 ron imprisonment and for leetment by force from the proper without court order, hai!
Inthe. answer of the Municipal Counelt "in the fest cause of action itis denied that the platatin Loh was! at any' time material to the action the beneficial owner of B.C: Lot No. 002%, and. it is aeserted that Algar land Company, Limited, being the fe: {istered owners of ho lot were by Feason of such registration the legal owners of the land together with all Butldings and erections thereon. "The answer further asserts that the pro ceedings before the Land Commission fod relation to the compulsory sur Fender of a portion only of B.C. Loi No. £0027, and not the wale of said of; and that the Land Commission in ward gave due consideration t0 the fact that the land was developed with buildings, " The "Council gunther napery ihat"on he. execution of 8 conveyance in its favour find "Compeny. Limited, of" the prot erty referred to in the award of' tne Land Commissioners, the Counc bes came the legal owner of such pro: perty and az such entitled to. deal with' the property and to. treat all persons without legal. title. thereto thereafter eonnd on the property a8 trespassers. The Council admits that alleged by" the plainti Loh it Obtained no judgment, decision oF order from any court having furlsdiee tion over the plaintiff Loh authori: Ing it to eject the plaintitt Loh and his family" from the properly oF to fear down and' demolish the Dailde lings on such property, ut_denies that any such judgment, decision or order' was, in the circumstances, ne-fe sary. The Council admits that it Semoliched the buildings on the land fand maintains that as the legs owner thereof it was entitled to Go. 0.1 the exercise of its legal Fights, As. to. the second cause of action, the Council in its anewer that It has of, instituted" any legal proceedings Sgainst the second plainti, Bir, HE' Loh, denies that Mrs, Loh was at any lime the occupier of the premises, and. asserts that when "the isin" Loh disregarded. the notice find warning to vacate given by the Gounellon the twenty-third day" of Ste 1038, the Coun "proceeded as it-was entitied to in the exercise of iis rights" to secure possession of the property. with the assistance of its Police, but "doing no more than was DRecestary "for that purpose."
"There" has been. presented in evi dence the record. of the proceedings of the Land Commissioners in respect ofthe property involved "in this ase, This record. shows. that the proceedings before the Commissioners Fae relation to the compulsory. sure Fender of a portion arnly of B.C. Tot No. 10027, and not the whole of sia of, and that the Land Commis Sioners, as required. by Article. Vin of the Land Regulations, gave due consideration to the fact thatthe and was developed. with buildings, No evidence haz been offered that the Couneit has taken any more than {hat portion of the land covered by the award of the Lind. Commission= rs; nor has it been shown that thet Sivard was not fast "As tothe claim of the plainti Loh that he was the beneflela owner and Sccupler of the Land and. bullaings {ir question, the Council has produced evidence a document described as a "Declaration of Trust" in respect of B.C. Lot_ No. 10027, signed by Algar and Qompany, Limited, and bearing date the thirteenth day of December 1035, in which a. Chinese bani, and not the plaintiff Lob, was eclated to be the "beneficial owner" of the property In question: This document boars an endorsement dated {ho fourth day of August 1629, by the bani: named therein as the "benedelal owner, directing Alger and Company, Limited, to "transfer and hold" the property described "therein Sor Enother Chinesq bank. There "Is {estimony. that the property. was mortgaged by the plain lift Loh ihe Chinese banlss "and that such mortgage was not foreclosed "and here has also been presented evidence "certain correspondence of Chinese' banks and atlornoys.repre-tenting the registered owners. {rom which! it! might appear thatthe plainti Loh was by. them regarded fein fat the banal owner the Fecord of the proceedings before property; but it also appears from
the Zand 'Commissioners that the plaintiff Loh while appearing before those Commissioners' in June. 1097, stated that he had been adjudged 6 bankrupt' by' order of the Chit court and that all his assets had been seized' by that court, and' while in his testimony' before' the Court of Consul Sri this ease the plointimt Loh slated that he had been discharged from bankruptey, the date of such discharge has not been definitely tablished and no other proof In rec spect of this aspect of the case has Been offered.
"The Court, afler careful considera~ tion, holds that. the proof before not adequate to establish salisfac~ torily and danitely that the plainti Lon was of the. Umes material 40 this case the "beneficial owner". of the property known as B.C. Lot No. Todt, But it holds that" adequate proof has been presented to eslabe Tish that the plainti Loh hed some equitable interest in the property fud that he was, at the times material to the cafe, and for some Yea prior thereto, the "occupier" of the property, within the meaning and Intent of the Land Regulations "Ande VIA of those" Regulations, in providing for the compulsory surrender of fand for, certain. public purposes, stipulates" that. "surrender bf the land. on the terms of the hoard "and" findings of the Land Commissioners shalt, in case of need, be enforced by the Court or Courts having. duriadiction over the owners ana occupiers of the Tana.
"The meaning and intent of these words ave clear, and. although the Court has carefully examined. and considered the argument of counsel for the defendant Counelt that upon the execution of the. appropriate surrender deed by" the registered owners covering the portion of the for to be taken gor" public purposes the pisintit Loh" became "a. mere Wrespbeser on the properly and Jeet therefore to eviction by force, necessary, by. the Council, tunable to agree with oF accept such The Court holds that plainti Loh was an "occupier" of the property, Within the meaning and intent of the Land Regulations, and that when he failed or refused upon due notice to Vacate and. surrender possession. of Ihe property" in question it was clearly mandatory upon the Council institute proceedings against him such "occupier In. the court. of competent jurisdiction to enforce. the award of the. Land' Commissione ud that the Council was not entitled to enter upon the property by force and eject the plainti or his family therefrom without the appropriat® order or authorization of that court, does not appear, however, that plaintiff Loh has been more than nominally damaged; and the pla Loh in fact. seeks only nominal carnages on account of this cause Nominal damages in the sum of One Dollar" Shanghai "Currency ara warded, with costs and. attorneys ices.
'As 10 the second cause of action, there has been submitted to the Court great. deal of contradictory. tess {imony, but the Court finds that the second' named plaintiff was una; Fantedly' evicted from the. premises ud subjected to the humiliation of Police measures, and an award. of Gamages. is made in respect of the Second cause of action inthe sum of Three "Hundred" Dollars Shanghai Currency, with costs and allorneyst fees, 'The bills of costs and attorneys' fees hall' be submitted for. examination and approval of the Court, HIM. Police Court Traffic Cases for a breach of Trafle Reguiation 48 (Qbwas withdrawn on the applica tion of the police.
Text read from the printed page and cleaned; old type leaves the occasional error.