Bokheriawala v Ismail (Civil Appeal No. 23 of 1952) [1952] EACA 108 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Sir Hector Hearne, C. J. (Kenva)

## ABUBAKER NOOR MOHAMED BOKHERIAWALA, Appellant (Original Defendant)

## HAJI YACOOB HAJI ISMAIL. Respondent (Original Plaintiff) Civil Appeal No. 23 of 1952

(Appeal from the decision of H. M. Supreme Court of Aden—Campbell, J.)

Landlord and Tenant—Aden Rent Restriction Ordinance, section 10 (2) (f).

The respondent applied to the Supreme Court, Aden, for a possession order against the appellant. The appellant argued that by virtue of the provisions of section 10 (2) $(f)$ of the Aden Rent Restriction Ordinance the respondent has not only to give a valid notice to quit but a three months' notice to vacate which could not be given until after the contractual tenancy had first been terminated.

Held (19-6-52).—There was no requirement that the three months' notice to vacate must be in, addition to any period of notice required by law to terminate the tenancy.

Appeal dismissed with costs.

Chanan Singh for appellant.

Kadarbhoy for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—At the conclusion of the hearing we intimated that it was our unanimous opinion that this appeal must be dismissed and I now give my reasons for concurring in that decision.

The appeal relates to premises in Aden owned by the respondent. This is not the first time he has had to come before this Court in the progress of his endeavours to obtain a possession order against his tenant, the appellant. The premises are subject to the control of the Aden Rent Restriction Ordinance, 1947 (Ordinance 12 of 1947), as amended by Ordinance 15 of 1950.

The respondent was granted a possession order by the Supreme Court of Aden by a judgment dated 12th June, 1950, but on appeal to this Court the order was set aside on two grounds—

- (a) that the tenant had been served with no valid order to quit terminating his contractual tenancy; and - (b) that at the time the Supreme Court considered the respondent's prayer there was no permit in force allowing the reconstruction of the suit premises as required by the provisions of section 10 (1) (d) of the 1947 Ordinance, this being the sub-section under which the order was sought.

Subsequently the respondent made a second attempt before the Supreme Court of Aden to obtain a possession order in which he succeeded by the decree dated 6th March, 1952, which is the decree now appealed against. This appeal covers also an interlocutory judgment dated 28th February, 1952. On the second occasion the respondent's application for possession was brought under the amending Ordinance No. 15 of 1950. This Ordinance inter alia repealed and replaced section 10 of the principal Ordinance (Ordinance 12 of 1947). What was section "10 (1) (d)" in the 1947 Ordinance has now become 10 (2) (f). The drafting has been improved but it remains in effect substantially the same.

The interlocutory judgment can be quickly disposed of. Although I am not so sure that the learned Judge was right in presuming that because there was evidence that the letter Ex. 3 was written on 28th March, 1951, it must have been posted so as to reach the appellant before the end of the month, that matter has been laid to rest by our allowing the appellant's Counsel to put in as additional evidence on this appeal a certificate from the Postmaster at Aden Camp which certifies that Ex. 3 as a registered letter was delivered to the addressee, that is the appellant, on 28th March, 1951. Mr. Chanan Singh most properly made no objection to the admission of this further documentary evidence. The learned Judge also held that he was satisfied by the evidence of a rent collector that the appellant's tenancy was a monthly one which began on the first day of a calendar month and was therefore subject to fifteen days' notice terminable on the last day of any month. Again Mr. Chanan Singh has most properly conceded that if Ex. 3 can be regarded as a notice to quit, it did operate to bring the appellant's contractual tenancy to an end on 30th June, 1951. Mr. Chanan Singh argued however that what section 10 (2) (f) demands is not only a valid notice to quit but a three months' notice to vacate and that the latter cannot be given until the contractual tenancy has first been terminated. We were unable to accept this argument. Whilst I agree that a Court cannot make a possession order against a tenant so long as his contractual tenancy exists I cannot read into the wording of section 10 $(2)$ $(f)$ a requirement that the three months' notice to vacate must be in addition to any period of notice required. by law to terminate the tenancy. On the face of it the document Ex. 3 purported. to be a notice to quit and vacate and in my opinion it achieved both its objectives. It did not offend against the requirements of section 103 (1) of the Aden Transfer of Property Ordinance (Cap. 135, Laws of Aden, 1945) and it did comply with the provision in the Rent Restriction Ordinance that a landlord seeking to demolish or reconstruct premises must give his tenant not less than three months' notice to vacate.

There remains only one other question. It is a ground of appeal that the learned Judge misdirected himself on the question of reasonableness in that heonly considered the landlord's point of view and overlooked the hardship likely to be suffered by the tenant. Now it is not in dispute that the object of the reconstruction is that the landlord wants a better and bigger house in which to live with his wife and numerous progeny. At present the tenant and his family occupy the first floor of the premises and because of this respondent testified that four of his children had to live elsewhere. It is interesting to note that if the respondent had not obtained a permit to reconstruct but had brought his application under section 10 (2) $(d)$ , that is to say that the whole of the premises were required for the occupation of himself and his family, the Court before granting a possession order would have had not only to consider reasonability but also the balance of hardship and the question whether other accommodation was available for either the landlord or the tenant. As it is the Court was not concerned with proof of alternative accommodation and had to consider only whether it was reasonable to make an order. From the judgment I find it impossible to say that the learned Judge did not address his mind adequately to the problem or that he was wrong in concluding that in the case of a reconstruction that no obligation lay on him to ensure that no one suffered any hardship. That being so we cannot interfere and say that he has exercised his discretion unjudicially. On the face of it the landlord's application is most reasonable. He needs the whole of the property for his own family purposes, there is evidence that the premises as they stand are in a very dilapidated condition, if they do not even constitute a danger to life and adjacent property owners. He has obtained official approval for his reconstruction which means, I assume, that the scheme is not against the public interest. As he has now complied with both the requirements as to termination of the tenancy and notice to vacate he is in my opinion entitled at long last to possession of his own property. As we have already intimated the appeal is dismissed with costs but the stay of execution on the decree appealed against will be extended until 31st July, $1952$

SIR NEWNHAM WORLEY (Vice-President).—I have had the advantage of reading beforehand the judgment just delivered by My Lord the President and agree with the reasons he has given therein for dismissing this appeal. Indeed, but for the authority of the judgment of this Court in Civil Appeal No. 48 of 1950 between the same parties. I would have gone further and would have been disposed to hold that where the Aden Rent Restriction Ordinance prescribes a statutory period of notice to vacate, as in section 10 (2) $(f)$ , evidence that such notice was given is sufficient to give the Court jurisdiction to make an order. It appears to me that the intention of the legislature was to substitute this statutory notice for the notice which would otherwise be required to terminate the contractual tenancy.

But, whichever may be the correct view on that point, I can see no merit in Mr. Chanan Singh's submission in the present appeal. His argument was that the determination of the contractual tenancy was a necessary prerequisite to taking any step under the Ordinance: the logical result of this would be that the landlord could not apply for the "necessary permit" or give the statutory three months' notice until after the contractual tenancy had been validly determined; and I think he destroyed his own argument when he conceded that the statutory notice could be given at the same time as the 15 days' notice to quit required by the Aden Transfer of Property Ordinance, but that the time for the former would not begin to run until the 15 days had elapsed.

SIR HECTOR HEARNE, C. J. (Kenya).-I have nothing to add to the reasons that have been given for dismissing the appeal with costs. I would merely say with respect that I am in full agreement with the views expressed by the learned Vice-President in the first paragraph of his judgment.