Chogley v Bains (Civil Appeal No. 129 of 1951) [1952] EACA 307 (1 January 1952)

## APPELLATE CIVIL

### Before BOURKE, J.

# ISMAIL MOHAMED CHOGLEY, Appellant (Original Second Respondent)

v.

# JAGAT SINGH BAINS, Respondent (Original Claimant)

## Civil Appeal No. 129 of 1951

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant—Effect of section 16 (1) (i) of the Increase of Rent (Restriction) Ordinance, 1949.

During the currency of a six months' notice to quit expiring on 1st July, 1949, the tenant under notice purported to sublet the premises to the appellant occupant, without notice to the landlord and without his consent. There was no restriction against subletting.

The appellant occupant contended that his interest in the premises was lawful in its inception under the provisions of the 1940 Ordinance and that section 16 (1) (i) of the 1949 Ordinance could not be read to have effect retrospectively of withdrawing the protection in possession from the appellant and in any case section 16 $(1)$ $(i)$ of the 1949 Ordinance should be given the same favourable construction as was given to section 11 (1) $(h)$ of the 1940 Ordinance.

Held (9-6-52).—(1) Section 16 (1) (i) of the 1949 Ordinance differed substantially from section 11 (1) (h) of the 1940 Ordinance.

(2) The subletting was unlawful between 1st December, 1941, and 6th September, 1949, and the appellant was an occupier against whom the Board had power to order ejectment.

Appeal dismissed.

$\gamma \to \gamma^+$

Cases referred to: Bains v. Chogley, 16 E. A. C. A. 27 (C. A. No. 1 of 1949);<br>Padamshi v. Hirji, E. A. C. A. Civ. App. No. 32 of 1951, unreported; Motiram & Another v.<br>M. H. Ahmad, 22 (2) K. L. R. 14; Regional Properties, Ltd., v.

#### D. N. Khanna for appellant.

Nazareth for respondent.

JUDGMENT.—The landlord obtained an order from the Central Rent Control Board for the recovery of possession of a bakery premises he owns against the tenant. Sidi Bilal, and the appellant in actual occupation. Admittedly the premises are within the Increase of Rent (Restriction) Ordinance, 1949, which came into force on 6th September, 1949.

The landlord first took steps to recover possession of the premises in December, 1946, and a detailed history of the protracted litigation between the parties is to be found in the judgment of Nihill, C. J. (as he then was) in Civil Appeal No. 1 of 1949 in the Court of Appeal for Eastern Africa. That was an appeal from the judgment of de Lestang, J., in Civil Appeal No. 22 of 1948 by which it was held $(a)$ that Sidi Bilal was a yearly tenant whose tenancy was determinable only by a six months' notice to quit, $(b)$ that the tenancy had not been determined, and $(c)$ that the present appellant, Ismail Chogley, was in possession by the leave and licence of Sidi Bilal. The landlord failed in his appeal questioning the conclusion that Sidi Bilal was his tenant; the decision in that appeal was given in April, 1949, but he did not await the result before taking steps anew to recover possession of his premises. Acting upon the judgment of de Lestang, J., given on 19th November, 1948, he served a notice to auit $\alpha$ the 1st December, 1948, determining the tenancy $\mathbf{O}$ 1st July, 1949. The validity of that notice has for the first time been questioned on this appeal through argument based on ground 12 of the supplementary memorandum filed a year after the original memorandum of appeal was lodged. The submission is that the beginning or end of a year of the tenancy was not established by evidence, so as to show that the notice to quit had in fact determined the tenancy, and to invest the Board with jurisdiction to make an eviction order. The effrontery of this is at once apparent. By his written defence filed in the suit before the Board the appellant expressly admitted that the tenancy "began on the 1st July, 1941, and was determined on the 1st July, 1949". Again, by the document exhibit 6, put in evidence by the appellant and relied upon as a sublease from Sidi Bilal to himself, it is set forth that the yearly tenancy commenced from 1st July, 1941; and in testifying before the Board the appellant himself stated that the notice determined the tenancy as from 1st July, 1949. I refer to Padamshi v. Hirji (1951), E. A. C. A., C. A. No. 32 of 1951.

While the period of this notice to quit was running and on 25th January, 1949, the tenant Sidi Bilal and the appellant executed the sub-lease (exhibit 6) for the purpose of making the appellant the sub-tenant of the premises. This subletting was without the consent in writing or otherwise of the landlord; there was no restrictive covenant against subletting without consent. The tenant has not been in occupation of the premises since October, 1941, and since that time they have been occupied by the appellant. Throughout the litigation the fight has virtually been between the landlord and the appellant.

In February, 1950, the landlord filed his application for recovery of possession with the Board. Sidi Bilal, whose tenancy had been duly determined, did not appear in the proceedings. The appellant made the case that he was protected in possession as a lawful sub-tenant. The Board heard evidence and took notice of the judgment of de Lestang, J., in the prior proceedings, C. A. No. 22 of 1948, which was produced in evidence by the appellant. Having considered the effect of the 1949 Ordinance, the tribunal came to the conclusion that "at most he (the appellant) could only be an unlawful sub-tenant" and expressed the view-<br>"We think he (the appellant) is still, as de Lestang, J., described him, a licensee; and with the termination of the possession (tenancy) of Sidi Bilal his licence lapses". It was also concluded that the landlord had never accepted the appellant as his tenant. The Board plainly considered it reasonable to make the order sought by the landlord and Ismail Chogley now appeals.

I propose to come at once to the substantial question in the case which is covered by the following grounds taken from the memorandum of appeal: —

"4. The Board erred in holding that the six months' contractual interest of Sidi Bilal, could not be transmitted by sub-letting, under exhibit 6, without the consent of the landlord, and in so holding misconceived the effect of the Increase of Rent & Interest Restriction Ordinance, 1940 (Consolidated Edition), and in particular of section $II(1)$ (h) and in further thinking that the appellant's interest from a licence (if it ever was that) could not thereby have been enlarged into a sub-tenancy.

5. The Board erred in holding that section 16 (1) (i) of the Increase of Rent (Restriction) Ordinance, 1949, applied to the assignment or the subletting (later), each of which took place before the section was ever enacted.

6. The Board erred in holding that section 16 (1) (i) aforesaid, applied so as to affect relationships which had already become completely and lawfully effective before the section ever became law.

7. The Board erred in holding that section 16 (1) (i) aforesaid applied at all to contractual tenants, or to any other than statutory tenants.

8. The Board lost sight of the fact that section 28 restrains contractual tenants (with certain exceptions) from assigning or sub-letting, only after the 1st day of September, 1949, but not before that date."

Shortly, the appellant's contention is simply this, that his interest in the premises was lawful in its inception having regard to the provisions of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, in force up to 6th September, 1949 (see section 35 of the 1949 Ordinance), and also in view of the decision of the Court in *Motiram's case*, 22 K. L. R., Pt. 2, 14, section 16 (1) (i) of the 1949 Ordinance could not properly be read so as to have effect retrospectively of withdrawing protection in possession from the appellant;<br>but in any case that section should be given the same favourable construction as was given to section 11 (1) $(h)$ of the 1940 Ordinance in *Motiram's* case.

Now section 16 (1) (i) of the 1949 Ordinance differs substantially from the equivalent section 11 (1) (h) of the 1940 Ordinance which was considered in Motiram's case. Whether I would have decided that case as I did, had I been faced with the recent decision of the Court of Appeal in England in Regional Properties, Ltd. v. Frankenschwerth & Another, 1 A. E. R. (1951) 178, is unlikely. But it fell to the Board in this case to apply the provisions of the new and differing section 16 (1) (i) and in considering whether it did so correctly I do not hold myself bound by a decision concerning the effect of the earlier section in the circumstances of *Motiram's* case.

Section 16 (1) (i) of the 1949 Ordinance reads as follows: $-$

"16. (1) No order for recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom shall be made unless-

(i) the tenant has, without the consent in writing of the landlord, at any time between the 1st day of December, 1941, or the prescribed date, whichever is the later, and the commencement of this Ordinance, assigned or sub-let the whole of the premises or sub-let part of the premises the remainder being already sub-let; or, at any time after the commencement of this Ordinance, has, without the consent in writing of the landlord, assigned, sub-let or parted with the possession of the premises or any part thereof.

A landlord who has obtained or is entitled to obtain an ejectment order on this ground may at his option either obtain a similar order against the occupier or may regard such occupier as his tenant.

For the purposes of this paragraph, if the tenant is a private limited company or partnership the transfer, without the consent of the landlord, or more than fifty per centum of the total par value of the issued shares of the company or the interest of the partners in the partnership shall be deemed to be an assignment of the premises."

At the time the Board came to adjudicate in the matter the second paragraph of the section read: $-$

"A landlord who wishes to obtain an ejectment order on this ground may have the option of obtaining a similar order against the occupier or "having the occupier as his direct tenant."

That singularly inept piece of drafting was replaced as has been seen by an amending Ordinance, No. 34 of 1951, which came into force in June, 1951.

It is as well also to set out the sections relied upon in the argument for the appellant: $-$

"16. (6) An order against a tenant for the recovery of possession of any premises or ejectment therefrom under the provisions of this section shall not affect the right of any sub-tenant, to whom the premises or any part thereof have been lawfully sub-let before proceedings for recovery of possession or ejectment were commenced, to retain possession under the provisions of this section, or be in any way operative against any such sub-tenant.

23. (3) Where the interest of a tenant of any premises is determined, either as the result of an order for possession or ejectment or for any other reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let shall, subject to the provisions of this Ordinance, be deemed to become the tenant of the landlord on the same terms as he would have held from the tenant if the tenancy had continued.

28. Notwithstanding the absence of any covenant against the assigning or sub-letting of any premises no tenant shall have the right to assign, sublet or part with the possession of such premises or any part thereof without the written consent of the landlord or, where such consent shall be unreasonably withheld, without the consent of the Board:

Provided that this section shall not apply to a tenant holding a tenancy commencing after the commencement of this Ordinance for a term exceeding one year or holding any tenancy the unexpired residue whereof at the commencement of this Ordinance exceeds one year."

Section 28 is referred to for the purposes of the argument as going to show that it was never intended that section 16 (1) (i) should apply to a contractual tenant; if section 16 (1) (i) also applied where consent to an assignment or subletting was not required by the tenancy agreement then there would be no need for section 28. Sections 16 (6) and 23 (3) are relied upon as affording protection to the appellant, and it is submitted that they are in flat contradiction to the provision contained in the second paragraph of section 16 (1) (i) unless some restricted meaning, inapplicable to the appellant as a lawful sub-tenant, is given to the word "occupier".

Once one adopts, as I have no doubt one must, the elementary principle of construction applied in Regional Properties, Ltd. v. Frankenschwerth & Another (sup.), the effect of section 16 (1) (i) is clear and there is no complication such as was introduced in *Motiram's* case having regard to the authorities therein considered. It is a matter of construction of simple words in the English language; such words are to be taken as meaning what they say and are to be read in their ordinary sense. It follows, as in the Regional Properties, Ltd., case (1) that there is no reason for confining the words "the tenant" so as to mean the statutory tenant. The section covers, and is intended to cover, the case of an assignment or subletting by the contractual tenant before the contractual term comes to an end, and (2) no qualification is to be implied that the section only applies where consent to an assignment or subletting is required by the tenancy agreement. The presence of section 28, which makes this doubly certain in respect of assignments and sublettings after the commencement of the Ordinance, provides no basis

in my opinion, for the contention that a construction to the opposite effect is properly to be accorded to the first part of the first paragraph of section 16 (1) (i) (which is the provision applied in the instant case) namely:-

"16. (1) No order for the recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless—

(i) the tenant has, without the consent in writing of the landlord, at any time between the first day of December, 1941, or the prescribed date, whichever is the later, and the commencement of this Ordinance, assigned or sub-let the whole of the premises or sub-let part of the premises the remainder being already sub-let; ..."

Those words seem perfectly simple and straightforward; the part of the section just quoted is made in clear and express language retrospective in its application. Where the tenant has assigned or sublet the whole of the premises between the dates specified without the consent in writing of the landlord, there is no protection under the Ordinance.

Turning now to the facts of the case, we have it that there was a subletting of the whole premises by the contractual tenant Sidi Bilal to the appellant in January, 1949 (exhibit 6) without the consent in any form of the landlord; there was no covenant between the tenant and the landlord in restriction of rights of subletting. The appellant still persists in contending that through an assignment in April, 1946, he then became a sub-tenant by virtue of a provision in the Indian Statute applicable, and on this he seeks to attack the findings of the Board for the reasons put forward in grounds 1 to 3 of the memorandum of appeal. I do not think there is any substance in these grounds, but whether one takes 15th April, 1946, or 25th January, 1949, as the time of the subletting without a consent in writing of the landlord, it still falls within the two material dates provided in the section, that is, 1st December, 1941 (applicable in this case), and 6th September, 1949, being the date of the commencement of the Ordinance.

The premises accordingly were not lawfully sublet to the appellant and he cannot rely upon sections 16 (6) or 23 (3) for protection in possession. He is the "occupier" whom the landlord has never regarded or accepted as his direct tenant and the Board was entitled to make the order for recovery of possession against him.

Having come to that definite conclusion I do not consider it necessary to express an opinion upon the ruling regarding the alternative submission for the landlord under section 16 (6) that the subletting on 25th January, 1949, was not made "before proceedings for recovery of possession or ejectment were commenced", so as to allow the appellant successfully to avail himself of the provisions of the sub-section. A legal question is involved as to what is meant by "proceedings". The Board answered the question in favour of the landlord, holding that the subletting was entered into "years after the commencement of proceedings for recovery" and also "after the notice to quit was given, and the notice to quit is the commencement of proceedings for possession". As to this I have only been referred to the Rent Acts by R. E. Megarry, 6th Edition, page 3, mentioning two Irish cases which are apparently queried, the reports of which are not available.

There are two further grounds of appeal also raised as afterthoughts through the supplementary memorandum. The first is that a member of the Board who had not taken part in the earlier proceedings sat when the decision was read out. There is no suggestion and nothing whatsoever to show that this new member took any share in the actual adjudication. It is a rubbishy ground of appeal and merely indicates the desperate straits to which the appellant must feel reduced. Then it is submitted that the decision was not that of the Board but of the Chairman who signed it. It is asserted that the other members failed to vote by a show of hands in the presence of the parties or at all and failed to sign the decision so as to make it the decision of the Board. The nonsense of all this is apparent. Section 4 of the Ordinance does not require a voting by show of hands of the members or that they should sign the determination. It is on record that "the judgment of the Board was read" and from the contents of the judgment it is clear on its face that it is a decision by the Chairman and the other two members forming the necessary quorum whose names appear on the record. The decision reached this Court under certification on record by the Secretary of the Board that it is the decision of the Board. There is nothing to suggest that the members of the Board concerned with the case and who heard the evidence and arguments did not concur in the decision in accordance with law; on the contrary everything points the other way. If ever there was a case in which the well-known presumption, which appears not to be as well known as I thought it was, applies, it is this. Finally, I refer to $Karman v$ . Devrai, C. A. No. 738 of 1951, in which the appellant's advocate failed on similar grounds before Windham, J.

It is unfortunate, as I now realize, that I did not sustain Mr. Nazareth's objection to this belated supplementary memorandum of appeal being entertained at all; my wish at the time was to see every aspect ventilated so that there might be an end once and for all to this protracted and costly litigation.

There remains the question in regard to the claim for rent at Sh. 300 from the end of June, 1946. There is no dispute as to the amount of the monthly rent or the period of accumulation of rent due up to the end of February, 1951, on which date the order for vacant possession was to take effect. The Board has ordered that the appellant should "pay Sh. 16,200 mesne profits to end of December, 1950, and Sh, 300 a month mesne profits for January and February, 1951"—a total of Sh. 16,800. It seems plain, and is not in dispute, that there is an error in this. The landlord has throughout looked to his tenant Sidi Bilal for payment of the arrears of rent. As was said by Nihill, C. J., in his judgment in the earlier proceedings on the appeal between the present parties (C. A. No. 1) of $1949$ :—

"I concede that in the result the peculiar position is arrived at that the first defendant (Sidi Bilal) may become liable for payment of rent in respect of premises which he has long since vacated but the situation is one which has arisen as a result of his own laches and his failure to comply with the law as regards registration. Furthermore the second defendant (Ismail Chogley) is in possession and he has always been anxious and ready to pay rent. It is quite unreal therefore to suppose that the final result of this litigation is in some way or other going to work disadvantage to the first defendant (Sidi Bilal) who at all times has shown a complete indifference to its outcome."

The appellant appeals against the order for payment by him on the ground that the arrears are only payable by the tenant Sidi Bilal to his landlord. Mr. Nazareth for the landlord agrees that the order is wrong and submits that it is Sidi Bilal who is liable for the payment of rent, he informs that as a precaution he has entered an appeal against the order of the Board for payment; but he submits that in view of rule 12 of the Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court, Rules of Court, 1950, and Order 41, rule 27, of the Civil Procedure (Revised) Rules, 1948, this Court is enabled to make the order which ought to have been made there being an obvious

mistake by the Board having regard to its findings. But it is the duty of this Court to adjudicate on the questions raised as between the parties to this appeal. The tenant Sidi Bilal is not such a party and I am unable to read the rule as permitting an order for payment against him to be substituted. Such would be to the prejudice of a person who has had no notice and has not had the opportunity of being heard; in short, a person who is not a party to the present appellate proceedings.

The appeal against the order for recovery of possession fails and is dismissed. The order for payment of mesne profits by the appellant is set aside.

τ.