Bharmal Limited v Ramji and Another (Civil Appeal No. 19 of 1956) [1950] EACA 168 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINGLAIR (Vice-President) and **BRIGGS, Justice of Appeal**

## **BHARMAL LIMITED,** Appellant (Original Applicant)

## (1) KAMPALA MUNICIPAL COUNCIL and (2) M. A. RAMJI, Respondents (Original Respondents)

## Civil Appeal No. 19 of 1956

(Appeal from the decision of H. M. High Court of Uganda, Bennett, J.)

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Landlord and tenant—Statutory tenant—Public health—Demolition order not served on tenant-Whether conflict between Rent Restriction Ordinance and Public Health Ordinance—Uganda Public Health Ordinance (Cap. 98) section 68 (1) and (2)—Uganda Rent Restriction Ordinance (Cap. 115) section $.6(1)(l)$ and $(k)$ .

This was an appeal from an order of the High Court dismissing an application for an order to prohibit further proceedings for the demolition of premises found to be a nuisance and ordered to be demolished under section 68 (1) of the Uganda Public Health Ordinance (Cap. 98). The landlord but not the tenant was duly served with the proceedings before the District Court and with the demolition order.

Held $(17-5-56)$ —(1) A tenant is not entitled to be heard in such proceedings as the owner sufficiently represents all the occupiers.

(2) There is no conflict between the Public Health Ordinance and the Rent Restriction Ordinance and a notice under section 68 (2) of the Public Health Ordinance may be issued to a protected tenant without his being heard.

Appeal dismissed.

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Case referred to: R. v. Pioneer General Assurance Society Ltd., 6 U. L. R. 228.

Dholakia for appellant.

Hunt for respondent No. 1.

Respondent No. 2 in person, in custody.

JUDGMENT (prepared by BRIGGS, J. A.).—This is an appeal from an order of the High Court of Uganda dismissing an application for an order in the nature of prohibition to prohibit further proceedings for the demolition of premises found to be a nuisance and ordered to be demolished under section 68 (1) of the Public Health Ordinance (Cap. 98). The applicant and appellant is a tenant of the premises and the respondents are the Municipal Council of Kampala and the landlord. The Attorney-General was made a respondent but did not appear.

We were asked to consolidate with this appeal Civil Appeals Nos. 23 and 24 of 1956 which arose in the same circumstances between other private parties and involved the same points of law, the Municipal Council being a respondent in each case. The intending appellants had, however, in those cases omitted to extract the orders dismissing their applications for prohibition, and in consequence their appeals were incompetent and were dismissed in limine with costs.

We heard this appeal and dismissed it with costs and now give our reasons therefor.

The District Court at the instance of the Municipal Council ordered on 10th August, 1955, that premises known as No. 31 Allidina Visram Street should be demolished under section 68 (1) of the Public Health Ordinance. The landlord was duly served. Prior to the order the landlord had served on the appellant on 30th July, 1955, a twelve month's notice to quit the premises for the purposes of a rebuilding scheme within section 6 (1) (1) of the Rent Restriction Ordinance (Cap. 115). No notice referable to the order of demolition was served under section (6) (1) (k). The appellant was not served in the proceedings to obtain the demolition order. It does not clearly appear whether the District Court has yet given notice to the appellant as occupier to move from the premises under section 68 (2). If it has not, it no doubt intends to do so: If it has, it might not necessarily be *functus officio* for purposes of prohibition since a prosecution would probably follow if the notice were not complied with.

The grounds on which the appellant relies in claiming prohibition have changed to some extent during the proceedings. He contended first that there was no jurisdiction to make an order under section 68 (1) in the absence of a tenant, or at least that a tenant is entitled to be heard on the matter if he so desires. This was later abandoned and is clearly fallacious. The owner sufficiently represents all occupiers in proceedings of this kind. It was next contended that the occupier, at least if he is a tenant, should be heard before a notice is issued to him under section 68 (2). This is bound up with the next and most substantial contention, which is that there is a conflict between the Public Health Ordinance and the Rent Restriction Ordinance, and that in consequence section 68 (2) does not apply where the occupier is a protected tenant, and the only means of ejecting him is by proceedings under section 6 (1) $(k)$ . It was at first suggested that such proceedings might be brought by the Municipal Council; but we think it was later conceded that only the landlord could initiate such proceedings, though he might be under an absolute duty to do so.

There is local authority on these points. In R. v. Pioneer General Assurance Society Ltd., 6 U. L. R. 228, 230, Pearson, J., said: -

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"The third point is that the applicant has notice to quit without having been before the Court; and that he is deprived of his rights under the Rent Restriction Act: that not being a party to the suit, he has no right of appeal. On this consideration I allowed this summons to issue, and in this lie the merits of the case.

The learned Magistrate has duly summoned the owner of the premises, as required by section 68. The section refers to the owner and to the occupier, but does not require the occupier to be summoned. It does expressly require the Magistrate to give the occupier notice to move out, after the demolition order has been made. It clearly contemplates an occupier other than the owner—a tenant—and does not require him to be made a party to the application for demolition. Semble, the owner is the only person who may be interested to resist demolition: it is no business of the occupier. The learned Magistrate has properly and fully observed the procedure prescribed. But, it is argued, by the Rent Ordinance 'no order for recovery of possession shall be made-

Unless an order has been made for demolition and the tenants have been given 28 days' notice to quit'. Section 6 (1) $(k)$ .

The Rent Restriction Ordinance regulates the relations between landlord and tenant. It is submitted that it, and the contractual relations between landlord and tenant, are irrelevant to these proceedings between the local authority and the owner of the property.

I think they are so. The rights of a statutory tenant are rights against his landlord. Section 6 restricts the granting of an order for possession; that is an an order made in favour of a landlord, at his suit. This order made under section 68, is an order to vacate the premises, at the suit of the local authority. It does in effect put the landlord in possession-to enable him to carry out the demolition as ordered by the Court.

It is submitted by learned cousel for the respondent that a demolition order terminates the tenancy: section $68$ (4). This appears to me to be so: the Court is required by section 68 (2) to give the tenant notice to quit: the Court expressly terminates the tenancy. It is submitted that the Rent Ordinance overrides this provision of the Public Health Order [sic]. I hold that this latter provision overrides the Rent Ordinance: indeed I do not find the two inconsistent. Section 6 of the Rent Act says no order for possession shall be made—at the suit of the landlord, as I read it. The Rent Restriction Ordinance gives great privileges to tenants against their landlords. I cannot extend them against public authorities. The requirements of the local authorities for demolition—slum clearance—must obviously override the privileges of statutory tenants."

A.

With all this we entirely agree.

In Miscellaneous Cause No. 19 of 1954, Bennett, J., who was at that time unaware of the earlier decision of Pearson, J., arrived at a similar conclusion in similar circumstances. With this decision also we agree. We think, however, that the following passage in the judgment may require comment:-

"The Public Health Ordinance does not itself provide any machinery for the physical removal of the tenant and it is for this reason that the landlord may be compelled to institute a suit for possession of the premises and to have recourse to the machinery of execution provided by the ordinary law of Civil Procedure. Such recourse may be necessary where the tenant absolutely refuses to vacate the premises notwithstanding that he has been served with a notice under section 68 (2) of the Public Health Ordinance. Once a Demolition Order has been made responsibility for removing the tenants to enable him to comply with the Order rests with the landlord, and if he fails to comply with the Demolition Order he himself commits offence under section 68 (3) of the Public Health Ordinance. $an$ In my opinion, failure on the part of the landlord to give 28 days' notice to quit as required by paragraph $(k)$ of section 6 (1) of the Rent Restriction Ordinance in no way affects the jurisdiction of the District Court in proceedings under section 68 of the Public Health Ordinance. Nor, though it is not necessary to decide the point, does it affect the penal consequences of disobedience to a notice under section 68 (2) of the Ordinance".

We agree with the last two sentences: but we think the remainder of the passage may be questioned. It must be remembered that the Public Health Ordinance is not concerned with the relations between a landlord and his tenant, but only with the question whether premises are or are not a nuisance which should be removed by demolition. We are by no means certain that the public authority would be unable physically to evict a recalcitrant occupier, either with or without appropriate legal proceedings. It is possible that either they, or the landlord in pursuance of the Court's order, might be entitled to demolish over the head of the occupier; but we express no opinion on this. We are not satisfied that a landlord is obliged to ask the Court under section 6 (1) $(k)$ to prevent the occupier from committing the crime of continuing in occupation; but on this again we express no opinion. We would, however, point out that in special cases it might be proper for a notice under section $68$ (2) to give the occupier much

less than 28 days' notice to move, for example, if the premises were rendered immediately dangerous to occupiers or to the public by fire or subsidence. It may well be that section 6 (1) $(k)$ is now of practical importance only if the landlord wishes to evict his tenant some appreciable time before he is obliged to commence demolition. We think it is a mistake to read section 68 (2) and section 6 (1) $(k)$ too closely together. They deal with different matters.

The judgment of Bennett, J., in the present case is open to the same minor criticisms, in that it quotes and relies on the passage from his earlier judgment set out above; but again the decision is in our view correct. We hope that the law of Uganda on the main issue may now be regarded as settled.

We observe that in this case the High Court on the application for leave to apply for prohibition ordered a stay of the proceedings in the District Court without limitation of time. We cannot find that this stay has been removed and believe it to be still operative. Accordingly we order its removal now. On the general question of stay on proceedings of this kind we would remark that different considerations apply from those relevant to proceedings between landlord and tenant. Here the public safety and health are in issue and private interests may have to yield to them. In many cases of this kind much greater harm would be done by granting a stay than by refusing it.