Colonial Boot Company v Dinshaw Nyramje and Sons (Civil Appeal No. 1 of 1952) [1952] EACA 125 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAYERS, J. (Kenya)

## COLONIAL BOOT COMPANY, Appellants (Original Appellants)

## DINSHAW BYRAMJEE & SONS, Respondents (Original Respondents) Civil Appeal No. 1 of 1952

(Appeal from decision of H. M. Supreme Court of Kenya-Windham, J.)

Landlord and Tenant—New ground of appeal not previously argued—When it: can be taken—Informality of proceedings before Board—Test.

At the hearing of an appeal from a decision of the Supreme Court dismissing an appeal from the Central Rent Control Board, the appellant argued. that it had not been proved that the contractual tenancy had been determined. by a valid notice to quit. The case had been argued in the Court below and before the Board on the basis that the appellants were statutory tenants. It was further argued for the appellant that the defects in the form of the Board's decision amounted to a denial of justice.

$Held$ (1-8-52)—(i) The Court will allow a new point on appeal if it is one which purports to establish that the order made by the Board was not within one of the exceptions set out in section 16 and therefore ultra vires, or that in law the order was wrong and inoperative because made against a tenant whose contractual tenancy had not been<br>validly terminated or if it appeared on the face of the record that the proceedings of a Board were so irregular as to constitute a violation of natural justice.

(ii) The informality of the proceedings before the Board did not offend against natural justice.

Cases cited: Wirral Estates, Ltd. v. Shaw, (1932) 2 K. B. 253; Aboobakar Noor<br>Mohamed Bokharia v. Hajee Yacoob Hajee Ismail, E. A. C. A. Aden Civil Appeal 48<br>of 1950; North Staffordshire Railway Co. v. Edge, (1920) A. C. 263.

Appeal dismissed.

$\overline{1}$

Khanna for appellant (A. R. Kapila with him).

Nazareth for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is a second appeal from a decision of the Kenya Central Rent Control Board dated 26th August, 1950. The respondent firm is the landlord of certain business premises. known as No. 566, Government Road, Nairobi. The firm brought an application to the Board asking for the ejectment of the appellant company who were their tenants: (a) for non-payment of rent under section 16 (1) (a) of the Rent Restriction Ordinance, and (b) alternatively, for a possession order under section 16 (1) (k) on the grounds of a reconstruction. The prayer under ground (a) was rejected but a possession order was granted under ground $(b)$ without conditions.

An appeal was lodged to the Supreme Court. The memorandum of appeal alleged inter alia that the proceedings before the Board were conducted in such a way as to amount to a violation of natural justice and that in any event the Board's decision to grant a possession order without imposing any conditions. on the landlord was unjust and unreasonable.

The learned Judge, who heard the appeal in the Court below and dismissed, it, has stated in his judgment that the appeal had been directed chiefly against:

the failure of the Board to impose any condition on the landlord such as requiring him to grant a new tenancy in the premises when reconstructed. The learned Judge held that this was a matter for the Board's discretion with which he declined to interfere. He also held that there was nothing in the arguments of the appellant's counsel which raised any question of law or of mixed fact or law which alone would give him a right of appeal under section 7 of the Ordinance on this view of the appeal. However this may be, it has not deterred the appellant from coming to this Court holding aloft again a banner on which is described the slogan "informality" as to which issue on the view taken by the Court below we have not the advantage of a decision by the learned Judge. The appellants have also furnished themselves with a new ground of appeal which was neither pleaded nor argued in the Court below at all, namely that it had never been proved that the contractual tenancy had been determined by a valid notice to quit so that the act of the Board in granting a possession order was ultra vires. This brings me to the first point for consideration which is how far this Court should allow an appellant on a second appeal from a decision of a Rent Restriction Board to argue a new point which has never been taken at any stage of the proceedings below, either before the Board or in the first appellate Court.

It has not escaped the notice of this Court that in what can be termed tenant appeals against a possession order granted to a landlord under section 16 (1) $(k)$ the issues become progressively extended and confused during the long journey between the Board and this Court. Since it is usual for the tenant-appellant to obtain a stay of execution, delays incidental to this procedure matter not at all. The sufferer is the landlord-respondent, whose rebuilding scheme must be postponed and thereby rendered ultimately much more costly, and the public of Nairobi whose natural wish to see improvements to their City quickly effected cannot be fulfilled. Such are some of the consequences of the application of the Rent Restriction principle to business premises. Nevertheless it is not the function of this Court to criticize the law but to interpret it and in discharging this difficult duty we must have regard only to the text of the statute and the principles of natural justice without taking into account incidental consequences.

Mr. Khanna has cited to us a passage from the 6th edition of Megarry's Rent Acts at page 181 on which he bases his submission that on an issue involving the jurisdiction of a Rent Control Board to make an order for possession "a point not taken by the tenant below can be taken on appeal". (Wirral Estates, Ltd. v. Shaw, (1932) 2 K. B. at 253,254.) From my study of this case, however, I think that, with respect to the learned author, the above passage quoted in parenthesis is misleading if taken by itself, for actually the Court of Appeal declined to allow the appellant in the Wirral case to take a point which involved a finding of fact by the County Court Judge which had not been challenged by them in the Divisional Court (see page 254). If Megarry is to be relied on, then it is fair also to cite a passage at page 26 under the heading "Taking the point", viz.—

"In order to take a point on an appeal, the appellant must (subject to important exceptions) show that he took the point at the trial."

What these exceptions are presents no difficulty. In Aden Civil Appeal 48 of 1950 this Court, on a first appeal from the Supreme Court of Aden, allowed the appeal inter alia on a ground not stated in the memorandum of appeal because it was held that it went to the root of jurisdiction, namely that there was no evidence on the record, or any admission by the tenant, that he had ever received a valid notice terminating his contractual tenancy. That case I regard as authority for stating that this Court will allow a new point on appeal if it is one which purports to establish that the order made by the Board was not within one of the exceptions set out in section 16 and therefore ultra vires or that in law the order was wrong and inoperative because made against a tenant whose contractual tenancy had not been validly terminated. To that I would add that this Court would also interfere if on the face of the record it appeared that the proceedings of a Rent Restriction Board were so irregular as to constitute a violation of natural justice.

Subject to these exceptions this Court in my view should set its face against the introduction of new matter on appeal as strongly in rent restriction cases as in any others. In fact we intend to follow the advice of Lord Birkenhead, L. C. expressed with such clarity in North Staffordshire Railway Co. v. Edge, (1920) A. C. at pages 263 and 264: $-$

"The efficiency and the authority of a Court of Appeal, and especially of a final Court of Appeal, are increased and strengthened by the opinions of learned Judges who have considered these matters below. To acquiesce in such an attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the Judges in the Courts below.

I have carefully examined the cases upon the subject which have been decided in this House, and my examination of them has led me more and more to the conclusion that such attempts must be vigilantly examined and seldom indulged."

It is with the above consideration in mind that I will now deal with Mr. Khanna's argument in respect of the notice to quit. In the respondent's case submitted to the Rent Control Board they averred that the monthly tenancy held by the appellants had been duly determined by a valid notice to quit. This was traversed in the appellant's answer (paragraph 2) but at the hearing before the Board the tenant's counsel never took the point, neither does it appear to have been considered by the Board. Mr. Nazareth however has informed us that he did in fact read out to the Board the notice to quit and that this was done by agreement between counsel in order to save time. Thereafter the proceedings proceeded upon the footing that the present appellant was a statutory tenant. Mr. Kapila (who appeared for the appellant before the Board and on the appeal to the Supreme Court and was with Mr. Khanna on the appeal to this Court) did not admit that he consented to this procedure but conceded that he did not make any objection. Mr. Nazareth also informed us that the notice to quit was in the generally recognized form which besides mentioning the date of expiration of the tenancy includes as an alternative general words to cover any other possible date.

The Chairman's notes of the submissions to the Board on this point show merely "N. T. Q. for 1st July, 1948". It would certainly have been preferable had the Chairman marked the notice as an exhibit and recorded any consent or waiver, if such there were, by Mr. Kapila, but I see no reason for not accepting Mr. Nazareth's statement that after he had read the notice Mr. Kapila waived any objection to its validity and the proceedings thereafter continued on the footing that the present appellant was a statutory tenant. The time to take objection to evidence is when it is tendered, so that questions as to admissibility or sufficiency can be dealt with at the hearing and the Court does not favour parties who refrain from taking objections at the proper time but seek to take them on appeal. The notice to quit was never challenged by the appellants' counsel, who in his efforts to persuade the Board to decide in his clients' favour, never alleged that they were other than statutory tenants holding over. Mr. Nazareth has submitted and his submission convinces me that the appellants' counsel did not do so because he could not have succeeded. It is quite clear that the advocates for both parties argued their case both before the Board and in

the Court below on the basis that the appellants were statutory tenants who had no protection other than that afforded them by the Rent Restriction Ordinance. That being the case I can see little difference on the facts between this case and the Popatlal Case (Civil Appeal 32 of 1951) where this Court refused to allow the validity of the notice to quit to be reagitated on appeal to this Court when the party concerned had admitted its validity at an earlier stage in the litigation. The only difference perhaps is that whereas in Popatlal's case the admission was expressed, in this case it is implied by the conduct of the parties. As in Popatlal's case, the instant case is certainly distinguishable from the very special circumstances which obtained in the Aden case Abocbakar Noor Mohamed Bokharia v. Hajee Yacoob Hajee Ismail (Civil Appeal 48 of 1950) where the Court granting the order had wrongly assumed or had not directed its mind to the fact that a special form of statutory notice termed a notice to vacate was not the same thing as a notice to terminate the contractual tenancy. For my part then I think that the appellants cannot now be heard on this ground of appeal and that it must be presumed that the Board's order was directed to them as statutory tenants, which was in fact their status.

I now come to the grounds of appeal which can be classed generally under the heading "informality". Here again there is a sharp distinction between the way this appeal has been presented to us and the manner in which it was argued in the Court below. Mr. Khanna has brought his big guns to bear on matters alleging defects in the form of the decision whereas Mr. Kapila, according to the notes of the argument in the Court below, was concerned with the informality of the hearing proceedings. It is true that he submitted that they were of such a character as to amount to a denial of natural justice so that it is a lacuna in the judgment of the Court below that the learned Judge has made no reference to this submission. Since however this aspect of the alleged informality has not been persisted in before us I am content to regard the submission as one that has no substance. I hold the same view as regards Mr. Khanna's submission to us, except the ground stated in paragraph 4 of the memorandum of appeal which has given me some anxiety. I will however deal first with what I regard as his untenable submissions.

First it must be borne in mind that the procedure of the Central Rent Control Board at the material time was not, nor is now, covered by any statutory rules although there is provision in the Ordinance for their enactment. The only test this Court can apply therefore and which has been applied in past cases, is to see in each case whether the informality practised can be said to offend against natural justice. If in the opinion of this Court it does not then we have refused and shall continue to refuse to upset a decision on this ground.

Now Mr. Khanna's first complaint is that the other members of the Board who had heard the application were not present when the Chairman delivered the decision and that they did not sign the decision individually or write separate judgments so as to make it the decision of the Board. I reject this submission because on the date of the delivery of the decision which was read out in the presence of the advocates for both parties the Chairman certified that the other members of the Board had expressed their concurrence with the decision and had asked him to deliver it. Clearly it was a decision of the Board with which every member agreed. It is in my opinion absurd to suggest that the validity of the Board's decision is impugned because every member has not subscribed his signature to it or written separate "judgments". Although the Central Board has been given many of the powers of a Court it is still not a Court but a Tribunal composed, outside the Chairman, of busy laymen who need have no legal qualifications whatsoever. The legislature has decreed that the Chairman shall

be a specially qualified person and it may be expected therefore that the task of putting the Board's decision into proper shape will ordinarily devolve upon him. It is important, I agree, that a decision taken by the Board should represent the consensus of all the members, or of a majority of them if there be a disagreement, but subject to that there is no statutory requirements to the form in which their decision should be conveyed to the parties. $A_S$ I have observed in the present case we have the Chairman's certificate that the decision written and delivered by him is the decision of the Board as a whole and that surely is enough.

Mr. Khanna's next complaint is that there is nothing on the record to indicate that the decision of the Board was arrived at by the procedure laid down in section 4 (4) of the Ordinance, $viz:$

"All matters considered by either of the said Boards shall be decided by the votes of the majority of the Chairman or the Deputy Chairman and members present and voting, and, in the event of an equality of votes, the Chairman or Deputy Chairman as the case may be, shall have a casting vote."

I am not sure whether Mr. Khanna has specifically alleged that the Board in this case have acted contrary to this statutory injunction but I think that this must be implied by his argument. I can see no warrant for any such assumption. The landlord's application was heard by the Chairman of the Board and two members on 31st May, 1950, and 2nd June, 1950. At the conclusion of the hearing the Board reserved its decision which was not delivered to the parties until 29th August, 1950. Whether the Board met in private during that period to consider its decision we have no means of knowing but when the decision was delivered the Chairman certified that it was a decision in which all the members concurred and I presume that by this he meant all the members who had listened to the arguments on 31st May. It must also be presumed, that if during its deliberations, there was a disagreement, then such was resolved by a majority vote. It would be quite wrong to read into this procedural provision, which incidentally would have been better placed under Rules made under section 34 (2) (a), more than is said. The sub-section most certainly does not require a voting by a show of hands in the presence of the parties, it merely indicates the method by which differences of opinion shall be adjusted in order to arrive at a decision which shall be considered as the decision of the Board. On this ground therefore the appellant has totally failed to establish any violation, either of the statute or of natural justice.

I now come to Mr. Khanna's last ground which, prima facie, may appear to have substance. It is a fact that after the hearing of the application and the delivery of the decision the respondents' legal advisers addressed a letter to the Chairman. This letter was dated 7th July, 1950, and its purpose was to inform the Board that owing to some difference which had arisen about the taking over of a lane adjacent to the respondents' premises it would not be possible to have more than two shops on the ground floor of the reconstructed premises. At the hearing an architect called by the appellants had pointed out that if the lane was taken over three shops would be quite possible. At the time of the hearing the respondents had come to no firm decision with regard to the lane. In the letter of 7th July the Board was told that the lane could not be taken over and that therefore the case must be decided on the footing that only two shops would be available in the reconstructed premises. Now I can envisage cases where this Court might well hold that an approach to the Chairman of a Rent Board by one party after its decision had been reserved constituted a violation of natural justice. I am equally convinced that this case is not one of them. The information contained in the letter of 7th July was not necessarily calculated to assist the respondents' application, it might just as well have embarrassed it. Furthermore the respondents' advocates sent a copy of their letter to the appellants' legal advisers who entered no protest whatsoever, either on receipt of the letter or at any time thereafter. It is impossible therefore in my opinion to maintain that this action on the part of the respondents' advocates, can have acted to the appellants' prejudice.

For the above reasons I consider that all the grounds urged in support of his appeal fail and that the Court below was entitled to come to the conclusion that the Board had exercised its discretion in issuing an ejectment order judicially and with proper regard to the provisions of the Ordinance. I would therefore dismiss this appeal with costs.

It has taken the respondents many years of striving to get back the possession of their own property. Nevertheless as it is usual in these cases for this Court to grant some indulgence to the party put out of possession I would stay the execution of the Board's order so far as it relates to ejectment until 31st August, 1952.

SIR NEWNHAM WORLEY (Vice-President).—I concur and do not wish to add anything.

HENRY MAYERS, J. (Kenya).—I concur and have nothing to add.