Colaco v New Theatres Limited (Civil Appeal No. 11 of 1955) [1955] EACA 152 (1 January 1955)

#### APPELLATE CIVIL

## Before WINDHAM, J.

## JOAQUIM MANUEL COLACO, Appellant

ν.

# NEW THEATRES LIMITED, Respondent Civil Appeal No. 11 of 1955

Landlord and tenant—Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954—Section 11 (1)—Interpretation of "reasonable"-Discretion of magistrate to order period of new tenancy-Whether service to public a relevant factor-Object of Ordinance-Whether normal period of new tenancy intended to be two years—Section 13 (1)—Appeal limited to question of law—Appellate Court can interfere only where no evidence to support finding.

The landlord of a cinema, containing bar accommodation, terminated the lease of the bar tenant by notice to quit. The tenant applied to a subordinate court of the first class for an order to grant a new tenancy under the provisions of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954. The magistrate sat with two assessors, one of whom advised a period of 24, the other a period of 12 months, for the new tenancy, which the magistrate had ordered. The magistrate, as he was entitled to do, did not accept these opinions and fixed upon a period of seven months. In so doing he was influenced by a submission that the landlord was planning to give better service than the tenant to the public by running the cinema and the bar as a joint concern. The tenant appealed on the ground that in taking into account service to the public the magistrate had been moved by a consideration he ought not to have accepted and, further, that even if this issue were relevant, the magistrate had attached too much weight to it and should have given effect to the intention of the legislation which was that normally the new period should be for two years, the full length of the Ordinance. The magistrate, by consent of the parties, after deciding the period of the lease, stood over to a later date the consideration of the other terms of the lease. This was argued on appeal as an error in law.

Held (13-7-55).-(1) The object of the Ordinance was merely to give a temporary and transitional projection to tenants for a period not exceeding two years, but not necessarily as long as two years and this temporary protection would be granted if, and only if, the magistrate thought it reasonable to do so. It was by no means implied in the legislation that such protection ought normally to be extended for the full running of the Ordinance because by its scheme the period of the new tenancy was entirely within the discretion of the magistrate.

(2) Since it was by consent that the fixing of the rent and other consideration was<br>stood over to a date later than that upon which the Court decided the period of the new tenancy, the appellant could not be heard to argue that in so doing the magistrate had erred in law. Moreover, there was nothing in section 11 (1) of the Ordinance to suggest that the course followed was precluded or unlawful.

(3) "Reasonable" in section 11 (1) means having regard to the interests of the parties concerned and also having regard to the interests of the public. The magistrate had not erred in law in taking into account the benefit to the public, which was a<br>relevant factor he might consider in assessing the period of tenancy.

(4) Under section 13 (1) of the Ordinance, the only question an Appellate Court could entertain was one of law. The weight to be attached to any particular factor on record was within the discretion of the magistrate and could not be the subject of appeal. The

Court was satisfied that the magistrate had considered the factor of benefit to the public and which he was entitled to do and which was a relevant factor and the weight he had attached to that fact could not be a subject for appeal.

(5) An Appellate Court could interfere as a matter of law where the lower court had arrived at a finding without evidence on record to support it. Provided there was some was inadequate or ought to have been outweighed by other evidence or ought to have been rejected. These were questions of fact not appealable under section 13 (1). After perusing the record the Appellate Court was unable to say that there was no evidence before the magistrate to support his conclusions about better service; it therefore could not interfere.

Cases cited: Cumming v. Danson, (1942) 2 A. E. R. 653, C. A.; Cresswell v. Hodgson, (1951) 2 K. B. 92 C. A.

#### Nazarcth with Davies for appellant/tenant.

Mackie Robertson for respondent/landlord.

JUDGMENT.—This is an appeal by an erstwhile tenant of business premises, namely a portion of the Playhouse Cinema in Nairobi, which the appellant has been renting from the respondents and had been running as a bar, against an order of the learned magistrate ordering the respondents to grant him a tenancy of those premises for a little more than a further seven months only as from 24th December, 1954, that is to say until 31st July, 1955. The order was made under section 11 (1) of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954, upon an application made by the appellant under section 10 of that Ordinance for an extension of his tenancy. That tenancy had expired upon 31st October, 1954, by virtue of a notice to quit, and the protection thereafter afforded to the appellant by the Increase of Rent (Restriction) Ordinance, 1949, had by operation of law ceased to extend to him on 24th December, 1954, upon which date the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954, came into force. Section 11 of that Ordinance, under which the order now appealed against was made provides as follows:—

"11. (1) Subject to the provisions of this section, on an application under this Part of the Ordinance duly made, the Court may, if in all circumstances of the case it appears reasonable so to do, order that there shall be granted to the tenant a tenancy for such period, at such rent and on such terms and conditions as the Court in all the circumstances thinks reasonable. and thereafter the parties shall be deemed to have entered into a contract creating such a tenancy of the premises:

Provided that in fixing the rent, terms and conditions the Court shall disregard any considerations arising from the personal circumstances of any of the parties.

(2) The period for which under sub-section (1) of this section a tenancy may be ordered to be granted shall be such period beginning with the end of the expiring tenancy (whether it ends in accordance with the terms thereof or after being continued by sub-section (2) of section 10 of this Ordinance) and terminating not later than the expiration of this Ordinance, as the Court may determine."

Section 1 $(2)$ of the Ordinance provides that the Ordinance shall continue in force for a period of 2 years. Thus the longest tenancy which the Court could have ordered under section 11 would have been one for two years, expiring on 24th December, 1956. After sitting with two assessors, as provided for by rule 11 of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954, and after hearing the evidence of both parties, the learned magistrate decided to order the grant of a new tenancy not for the full 24 months which he might have done, but until 31st July, 1955, only. One of the two assessors had advised the grant of a new tenancy for the full 24 months, and the other had advised its grant for a period of 12 months. In overriding their advice he was exercising the discretion conferred on him by proviso (ii) to rule 14 of the same Rules, which provides that "the Court shall not be bound to accept or act upon the opinion of the assessors or any assessor". Nevertheless the main ground of this appeal is that in deciding to grant the new tenancy for only seven months the learned magistrate was moved by considerations which he either ought not to have taken into account or which were unsupported by the evidence; and the prayer in the appeal is that his order ought to be set aside and an order substituted granting the new tenancy for the full permitted period of 24 months.

The judgment, which was dated 22nd February, 1955, was brief and was in the following terms: $-$

"I find myself to be not in full agreement with the views of the assessors; because I consider that the case put up by the respondent is based on better service to the public. The public are to be and should be considered in this case. I consider that it is not essential for the respondent to put forward one of the grounds in section 11 (3) for him to succeed; though section 11 (3) is a great assistance as a guide. Taking all the circumstances of this case and the advice of the assessors, into consideration, I order a new tenancy until 31st of July, 1955."

By consent, the question of rent and other conditions of the tenancy were stood over until 10th March, 1955, and on that date a consent order was made whereby the parties agreed to a rent of Sh. 1,500 per month and to a condition against assigning or sub-letting. I may say at once that since it was by consent that the fixing of the rent and other conditions was stood over to a date later than that upon which the Court fixed the period of the tenancy, the appellant cannot now be heard to argue, as through his counsel he seeks to do, that the magistrate erred in fixing the period of the tenancy before the rent and other conditions were fixed. Nor do I find anything in the wording of section 11 (1) of the Ordinance to preclude the adoption of the course which was followed.

On 2nd May, 1955, the magistrate, as he was entitled to do by rule 9 of the Rules, gave the following further written reasons for his having granted the tenancy only until 31st July, 1955:-

<sup>11</sup>"Reasons.—The tenant applied for a new licence for his bar premises in the Playhouse Theatre. The applicant owns another bar near Khoja Mosque, on which he states that he makes a loss of £400 per annum, but he likes to keep it on as it was his old business and it has good premises. The applicant received notice to quit on 31st May, 1954. He knows that he has been staying on because of Rent Control. He had plenty of notice. Here one assessor thought there should be a new tenancy to 31st December. 1955, and the other thought that there should be a new tenancy for the whole period because the grounds for not granting it were not satisfactory. I was of the opinion that applicant had had plenty of notice. He had had a long stay in the premises at a low rent compared to that he was now offering. He had another bar of his own. The respondent's reasons were that they wanted to improve the facilities for the public, and they wanted to get the whole building under their own control. I consider that it was to the benefit of the public that the landlord should have control over the whole premises. Consequently I was unable to agree with the assessors but allowed a short tenancy to enable the applicant to make other arrangements."

The main ground of appeal is that the magistrate erred in basing his decision pre-eminently on the ground that the respondent/landlord, who ran the Playhouse Cinema, was planning to give, and was likely to give, better service to the public in taking over the running of the cinema bar than the appellant had been doing, although at the same time it was not suggested that the appellant had been running it badly. It is contended, firstly, that the benefit to the public which might result from the premises reverting to the landlord is not a relevant factor at all. or is at most a very minor one, upon which to base either a refusal to grant to the tenant a new tenancy, or a decision to grant him a tenancy of more limited duration than might otherwise have been granted. But I consider that prospective benefit to the public is one of the factors that a magistrate is entitled to take into consideration in such cases. The test laid down in *Cumming v. Danson*, (1942) 2 A. E. R. 653 C. A., is that "the duty of the Judge is to take into account all relevant circumstances as they exist at the date of the hearing and that he should consider them in a broad, commonsense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation". This test was laid down as the one that should be applied by a Court in considering whether it would be reasonable to order an eviction of a tenant under the ordinary rent restriction legislation; but I consider that it would be proper to apply it likewise to the question whether, and for what period, a new<br>tenancy should be granted under the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954. That benefit to the public is one of the relevant factors to be considered in deciding whether it is reasonable to make an eviction order under the Rent Acts was expressly stated by Denning, L. J., in Cresswell v. Hodgson, (1951) 2 K. B. 92 C. A., at page 97, where he said, with regard to the interpretation of the word "reasonable"-"That means, I think, reasonable having regard to the interests of the parties concerned and also reasonable having regard to the interests of the public".

It is true that the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954, is expressed in its short title to be an Ordinance for, inter alia, "the protection of tenants of such premises from eviction". But it is certainly no more for their protection than was the Increase of Rent (Restriction) Ordinance, 1949, and its object is merely to give temporary and transitional protection for a period not exceeding (but not necessarily as long as) two years, to tenants of shops and hotels who have, through decontrol, been deprived of the protection of that earlier Ordinance; and this further temporary protection will be granted if, and only if, the Court thinks it reasonable to grant it. It is by no means implied in the Ordinance of 1954 that such protection will normally be extended, still less that if extended it will normally be extended for the full two years.

With regard to the contention that, even if the benefit to the public was a relevant factor, the magistrate gave it too much weight, the answer is that if he has considered the various relevant factors, which from his recorded reasons I am satisfied that he did, it is not for this Court to enquire what degree of weight he attached to each or any particular factor. As was said by Somervell, L. J., in Cresswell v. Hodgson (supra) (at page 96), of the learned trial Judge whose order was being appealed from: $-$

"He may have given more weight than we should give, or more weight than another county court Judge would give, to some matters, but that is not the question here. The question here is whether he has so plainly gone wrong in law that this Court should interfere...."

That is precisely the question in the present case. And furthermore, if there was any evidence at all to support the magistrate's view, that the respondent would give "better service to the public" than the appellant, which view did clearly play a significant part in his decision to limit the extension of the appellant's tenancy to seven months, then this Court cannot interfere upon the ground that such evidence was inadequate or ought not to have been accepted or was outweighed by other evidence. For the question would then become one of fact; and by section 13 (1) of the Ordinance an appeal lies to this Court only on questions of law.

Upon perusing the record of the trial magistrate 1 am quite unable to say that there was no evidence before him upon which he could base his conclusions that the public would receive better service if the respondent ran it than if the appellant continued to run it. I need do no more than quote in this connexion the respondent's evidence that: —

"We feel the bar is an ally to the cinema and should be under the control of one person. We feel it should be for cinema patrons and under control of the management, who can then co-ordinate the working of the bar with good service to the public. The manager should be in a position to control the opening and closing and orderliness of the people attending the bar... We would spend quite a considerable amount of money on refurnishing the place, providing better facilities in every way. ... Our offer is to increase an improved service. Our intention is to benefit not only the patrons, but also people who go at times the cinema is not opened..."

For all these reasons I find no ground for interfering with the decision of the magistrate, and this appeal must be dismissed with costs.