Bhimjiani v Uganda Theatres, Ltd (Civil Appeal No. 9 of 1945) [1946] EACA 3 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir John Gray, C. J. (Zanzibar), and THACKER, J. (Kenya)

#### B. V. BHIMJIANI (carrying on business under the name of Central Picture House), Appellant (Original Defendant)

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# UGANDA THEATRES, LTD., Respondents (Original Plaintiffs)

## Civil Appeal No. 9 of 1945

## (Appeal from decision of H. M. High Court of Uganda)

Landlord and Tenant—Letting of furnished business premises—The Uganda Rent Restriction Ordinance, 1943—Application to business premises.

The respondents were the owners of a cinema building in Kampala in which they exhibited cinema films. By an agreement dated 17th August, 1942, they leased to the appellant the building, including the bar rooms, together with the use of all the fixtures, fittings, carpets, furniture, upholstery, theatrical machinery and effects for a period extending from 17th August, 1942, till 31st December, 1943. The agreement contained an option to renew the lease for one year which was duly exercised so that it expired on 31st December, 1944, when the respondents wished to resume occupation of the premises on 1st January, 1945. The appellant claimed the protection of the Rent Restriction Ordinance. The question which the Court had to decide was whether the Uganda Rent Restriction Ordinance applied to furnished business premises.

Held (24-9-45).—That the Uganda Rent Restriction Ordinance applies to furnished business premises.

Appeal allowed.

Cases referred to: Necchi v. Cranchi 37 T. L. R. 934; Daly v. Edwards (1901) 83 L. T. 548.

#### Ainslie for the appellant.

#### Modera (D. D. Doshi with him) for the respondents.

SIR JOSEPH SHERIDAN, C. J.—During the course of his argument I inquired from Mr. Modera whether the premises in question in this appeal were furnished business premises and his answer was that they were. On that assumption he agreed that the question for decision was whether the Rent Restriction Ordinance No. 8 of 1943 applies to furnished business premises. (Where I use the term "furnished dwelling" or "furnished business premises" in this judgment 1 mean dwelling-houses or business premises let at a rent which includes payments in respect of the use of furniture.) The argument for the respondent was that were it not for section 7, the Ordinance would not apply to a furnished dwelling-house, that the section has the effect of applying the Ordinance to furnished dwellings and that in as much as it makes no reference to furnished premises, the Ordinance does not apply to furnished premises. That section is as follows: -

"(1) Where any person lets or sub-lets any dwelling-house or any part thereof at a rent which includes payment in respect of the use of furniture and it is proved to the satisfaction of a Board on the application of the tenant that the rent or combined rent charged is yielding or will yield to the landlord a profit in excess of the normal profit as hereinafter defined, a Board shall determine the amount of such excess and thereupon the amount of such rent shall be reduced accordingly.

(2) For the purpose of this section 'normal profit' means the profit which would reasonably have been expected from a similar letting on 1st day of January, 1942."

I have no doubt that that section cannot be relied on for deciding whether the Ordinance applies to furnished dwellings. Its only effect is to give a tenant of a furnished dwelling a right to invoke the Rent Board in the circumstances stated and have the rent reduced in a proper case. There was a similar provision section 9—in the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (England), and an examination of the provisions of that Act reveals that, notwithstanding that section, the Act did not apply to furnished dwellings or premises. The authority for excluding such from the Act was the proviso to section 12 (2), which reads: $-$

"Provided that this Act shall not, save as otherwise, apply to a dwellinghouse bona fide let at a rent which includes payments in respect of ... use of furniture".

and in so far as business premises were concerned, section 13 which provided that "This Act shall apply to any premises used for business... as it applies to a dwelling-house . . . and as though references to dwelling-house . . . included reference to any such premises". Certain modifications were introduced, one of them being that the provisions of section 9 did not apply to premises used for. business. The case of Necchi v. Cranchi, 37 T. L. R. 934, decided that where business premises "were let at a rent which included the use of furniture", the premises were not included within the ambit of the Act. There is no equivalent to the proviso to section 12 (2) of the English Act in the Uganda Ordinance and in the absence of such a provision, dwelling-houses and business premises are on the same footing so far as the application of the Ordinance is concerned, except that in the case of the former the tenant has a right of recourse to the Rent Board as provided in section 7. It is by virtue of there being no exclusionary provision such as appeared in the English Act that, in my opinion, furnished dwellings are included within the ambit of the Ordinance and similarly furnished premises are included subject to the provisions of section 7 not being applicable to them. This being my view, I would allow the appeal and set aside the judgment of the learned Chief Justice of Uganda with costs.

SIR JOHN GRAY, C. J.—As pointed out by the President, there are distinct differences between the Uganda Rent Restriction Ordinance and the corresponding English legislation. Consequently decisions regarding the English legislation are not necessarily applicable in interpreting the Uganda Ordinance.

If one examines the Uganda Ordinance, one finds that its objects are twofold. It seeks to protect tenants from being charged exorbitant rents and it also seeks to protect them from eviction. Sections 3 and 7 deal with the first of these objects and sections 6 and 8 with the second object.

The persons whom it seeks to protect are tenants of "dwelling-houses" and "premises". Section 2 of the Ordinance defines these expressions as follows:-

"'Dwelling-house' means any building or part of a building let for human habitation as a separate dwelling where such letting does not include any land other than the site of the dwelling-house or the garden or other land within the curtilage of the dwelling-house.

'Premises' means any building or part of a building let for business, trade or professional purposes or for the public service, but does not include any land other than the site of the premises or land within the curtilage of the premises."

These two definitions have, of course, a number of points of difference, but it is also to be noted that they have certain points of resemblance. It will be seen that each expression includes (1) the building: (2) the site of the building: and (3) the curtilage of the building.

There is no definition of "furnished dwelling-house" or "furnished premises". The Ordinance, in fact, does not use either such expression. Section 7 deals with the case of a dwelling-house which is let "at a rent which includes payment in respect of the use of furniture", and seeks to restrict the landlord to a "normal" profit" in the case of any such letting. Neither that nor any other section deals with the case of "premises" which are let "at a rent which includes payment in respect of furniture". Consequently there is no machinery for the restriction of a landlord to a "normal profit" in respect of premises let by him "at a rent which includes payment in respect of furniture".

But in my opinion this is the only matter in which the Ordinance differentiates between "dwelling-houses" and "premises". Section 3 enacts that "no owner or lessee of a dwelling-house or premises shall let or sub-let such dwelling-house or premises at a rent which exceeds the standard rent". Reading, as we have to do, the definitions in section 2 in conjunction with this section, we find that the landlord is restricted to the standard rent in respect of the building and site and curtilage of the building, whether that building be a "dwelling-house" or "premises".

Section 6 of the Ordinance enacts that "no order for the recovery of any dwelling-house, or for the ejectment of any tenant therefrom, shall be made by any Court" except in the circumstances thereinafter mentioned in that section. Section 8 (1) of the Ordinance enacts that "subject to the modification contained in sub-section (2) of this section the provisions of section 6 of this Ordinance. in so far as they are applicable, shall apply *mutatis mutandis* to premises". Therefore, the effect of section 6 and 8 as read together is that "no order for the recovery of possession of any premises, or for the ejectment of any tenant therefrom, shall be made by any Court" except in the circumstances set out in section 6 as modified by section 8 (2). Once more referring back to the definition of "premises" in section 2, we find that the expression includes the building, site and curtilage. It would, therefore, appear to me to be clear that a tenant of a building coming within the definition of "premises" in section 2 cannot be ejected therefrom by the Court except in the circumstances set out in section 6 as modified by section $8(2)$ .

It was argued in the lower Court that the premises in this case were not protected by the Rent Restriction Ordinance because the agreement between the parties did not, in fact, create a relation of landlord and tenant. The case of Daly y. Edwards (1901) 83 L. T. 548 was relied on in support of that argument, but the present case is clearly distinguishable from that case. In Daly v. Edwards the subject-matter of the agreement was the free and exclusive right to use certain portions of a theatre for certain purposes and it was consequently held that the agreement created a licence and not a tenancy. Here, the subject-matter of the agreement is the whole building. There may be certain covenants on the part of both landlords and lessees which are not usually to be found in leases, but the presence of unusual covenants in a lease does not necessarily alter the effect of an agreement, which also contains the usual covenants which one would expect to find in a lease and confers upon the landlord in the usual language of a lease a right of re-entry on non-payment of rent or a breach of a covenant. Looking at the whole substance of the agreement, I am of the opinion that its effect is what it purports to be, namely, an agreement for a lease which creates a tenancy of the nature contemplated by the Rent Restriction Ordinance.

I would therefore allow this appeal and set aside the judgment of the lower Court with costs.

THACKER, J.—It has been conceded by Mr. Modera during the course of his argument for the respondent company that the lease executed by the parties is one of furnished business premises. The question which this Court is asked to decide, namely, whether or not the Uganda Rent Restriction Ordinance, 1943. applies to furnished business premises is not a matter of express provision but one the answer to which depends upon the proper inference to be drawn from certain sections in the Ordinance, *inter alia* sections 1, 7 and 8, and from the general objects of the Ordinance. The Ordinance, it is expressly provided, does apply to dwelling-houses and to business premises (the latter by section 8), but throughout the Ordinance, except for section 7, there is no express reference to furnished dwellings and none to furnished business premises.

One of the principal objects, if not the most important object of the Ordinance, is to safeguard a tenant from eviction by his landlord, save for certain specified reasons which are set out in section 6. Now, section 7 expressly provides the **tenant** with machinery for avoiding an excessive rental for the use of any furniture in a dwelling-house which he may have rented or leased. There is no mention in that section or reference to furniture in business premises. Section 8 reads as follows: $-$

"(1) Subject to the modification contained in sub-section $(2)$ of this section, the provisions of section 6 of this Ordinance in so far as they are applicable shall apply *mutatis mutandis* to premises.

(2) For the purposes of this section only, the following shall be substituted for paragraph $(d)$ of sub-section (1) of section 6 of this Ordinance:

$(d)$ the premises are reasonably required by the landlord for business, trade or professional purposes or for the public service and alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available."

It is emphasized by the respondent that the provisions of section $7$ (the one relating to furniture in a dwelling-house) have not been applied to business premises. That is quite true. We are, however, asked to infer from that exclusion that the legislature did not intend to give any protection whatever to the tenant of furnished business premises not only from the payment of an excessive rental for the furniture but also from eviction. This latter inference, as it seems to me, is too sweeping having regard to the objects of the Ordinance. It seems to me more logical and more reasonable from the general construction and objects of the Ordinance to hold that a dwelling-house or business premises still remain a dwelling-house or premises whether furinshed or unfurnished. A dwelling-house does not cease to be a dwelling-house by reason of the fact that it has furniture in it, nor do business premises cease to be business premises by reason of the fact that there is furniture for business purposes in such premises, and I can see no logical reason for withholding the protection given by the Ordinance to a tenant whose dwelling-house or business premises is or are furnished merely because it is or they are furnished and at the same time extending the protection of the Ordinance merely because the dwelling-house or business premises is or are not furnished.

Furthermore, I feel myself fortified in this reasoning by reference to the relevant Imperial Act, whilst at the same time appreciating that it may not always in every case be desirable or proper to base one's judgment on legislation existing elsewhere. By section 12 (2) of the Imperial Act, there is an express provision, specifically excluding from the operation of the Act furnished dwellings and furnished business premises. There is no such express provision in the Uganda

Ordinance and it seems to me that this is significant and that weight should be given to it. The Imperial draftsman evidently regarded it as essential to incorporate a specific and express provision in the Act excluding its operations from furnished dwelling-houses and business premises. The fact that the Uganda Legislature has omitted this express provision seems to me to lend weight to the appellant's argument, namely, that the Uganda Ordinance is intended to apply both to a furnished dwelling-house and also to furnished business premises. The case of Necchi v. Cranchi, 37 T. L. R. 934, which has been referred to, turned solely on the effect of section 12 (2) in the Imperial Act, and I should not feel justified in arriving at a result in this appeal similar to the result in the English case seeing that the Uganda Ordinance has omitted to incorporate the very section upon which the English decision turned. It seems to me that the proper inference to be drawn from the Uganda Ordinance is that the protection given by the Ordinance to a tenant against eviction (subject to certain conditions) extends to a tenant of a furnished dwelling-house or to furnished business premises. Before I could come to any other conclusion, I should require to see express provision for it.

For these reasons I would allow this appeal and set aside the judgment of the learned Chief Justice of Uganda with costs.