"That leaves the issue of whether the defendant sublet or parted with possession of the whole of the premises. It is, I think, accepted if she did so the secure tenancy terminated and cannot be resurrected. The claimant relies on the evidence of Abiola Akinpalu who visited the premises on two occasions. First on30 April 2003 and then on13 May 2003 . On the first occasion she spoke to a Mr - there is a challenge with some of the names in this case - Penumisci, who would not let her in but said he was a student living there. He paid rent to a Kim Hyotung. He did not know the tenant/defendant and when told the defendant's name he did not recognise it. On the second occasion on 13 May Miss Akinpalu gained access to the premises and spoke to four people in all: Kim Hyotung, Hyang Juan, who I think is in fact Kim Hyotung's sister and two young men, Kyung Woo and Sung Wong. She saw some of the premises. She was not able to see into two rooms. Another two rooms were locked and she was refused entry to the fifth room by Kim. She said that there were Yale locks on all the doors and she referred to thinking that there was a padlock on one of them. She saw no room being used as a lounge. In one of the rooms she went into there were two single beds. In the other there was a double bed and two singles. Four out of those people she spoke to - that is including the man she saw on the first occasion - said they were paying rent to Kim. The fifth, Kim herself, said she was paying rent to someone called Chris. Miss Akinpalu concluded this was a clear case of subletting, and I accept that that was the case - that the premises was sublet."
"The issue then as I understand it, and I hope I have understood the defendant's position correctly, if there was subletting - and I accept that she did not necessarily accept there was subletting - but if there was subletting she was not responsible for it, but she had in effect been let down by Kim, or Jim as the lady was known to her, a friend that was house sitting at the property rent-free. Miss Akinpalu also gave evidence that there were no signs of family life at the property - no children's toys, no pictures or children's belongings."
"It will be apparent from what I have said that I do not find the defendant's explanation for the events which occurred credible, and I find the defendant did sublet and part with possession of the whole of the premises in about December 2002. On the basis of that finding her secure tenancy, therefore, terminated. Notice to quit was served and expired on16 June 2003 and on that basis I find that the claimant is entitled to possession."
"In this appeal it is urged by Miss Meacher, who also appeared below for the respondent, that this was a conclusion (that is the unlawful subletting of the whole) that the district judge was entitled to come to on the evidence. With the greatest respect, I beg to differ. The burden of proof here must be, and always is, on the landlord (in this case Lambeth) to show that there was a subletting, not any subletting, but a subletting by Miss Vandra to somebody of the whole. However one looks at this case, the only evidence that is accepted that is the only evidence is that of Miss Akinpaulu and her two visits. There is nothing, nothing, nothing in that evidence which shows that this lady Miss Vandra was the one who did the letting or was even connected with any letting."
"To the extent that the caretaker story was not accepted, as I have repeatedly said, that does not equal a subletting by her."
"It seems to me that this case does fulfil the test of no evidence, whatever, and switching the burden of proof. And for those reasons it is not I who come to a different conclusion based on the evidence but on saying that the learned judge unfortunately misdirected herself, both on the question of proof and on coming to the conclusion which Miss Akinpaulu did, testing it on those two visits alone. For those reasons I would allow this appeal and set aside the order for possession made by the district judge."