Dhirani and others v Ganji (Civil Appeal No. 25 of 1946) [1946] EACA 16 (1 January 1946)

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## FAZAL DHIRANI AND MOHAMED IBRAHIM by their Attorney RASHID MOLEDINA, Appellants (Original Respondents/Plaintiffs),

### ABDULMOHAMED ISMAIL GANJI, Respondent (Original Appellant) Defendant)

Civil Appeal No. 25 of 1946

#### (Appeal from decision of H. M. Supreme Court of Kenya)

Landlord and tenant—Suit for possession—The Increase of Rent and of<br>Mortgage Interest (Restrictions) Ordinance—Section 11 (1) $(a)$ —Nonpayment of rent-Unreasonable to grant order for possession-Costs-Civil-Procedure Code S. 27.

A landlord instituted proceedings against his tenant to recover possession of certain premises to which the Rent Restrictions Ordinance applied on the ground of non-payment of rent. Before the filing of the suit the rent had been tendered but refused. The trial Magistrate held that whilst rent due had not been paid it was not reasonable in the circumstances to make an order for possession. He accordingly refused the application but ordered each party to bear his own costs.

On appeal the Supreme Court reversed the order for costs and ordered the landlord to pay the full costs. The landlord appealed.

Held (27-8-46).—That the order was reasonable and that the magistrate had exercised his discretion judicially.

Appeal allowed.

Kelly for the Appellants.

$\dot{C}$ . A. Patel for the Respondent.

SIR NORMAN WHITLEY, C. J.-In my opinion this appeal should succeed. Section 11 (1) (a) of the Rent Restriction Ordinance provides that an order for possession may be made if any rent lawfully due had not been paid provided that in all the circumstances the Court considers it reasonable to make such an order. Rent lawfully due was not paid and accordingly the landlord had good reason to think that he was entitled to an order for possession. He would of course have to give notice to quit but there was no point in doing that until he had the consent of the Board which is by section 4 of the Ordinance made a condition precedent to his taking any action in Court.

$\cdot$ The first step for him to take was to apply to the Board under that section. That he did on the 11th May. There is no doubt that at that time rent due had not been paid so that the landlord was acting quite properly.

On the 9th June the Board gave its consent. Before that date rent had been tendered and refused but that tender was after the first step required by the Ordinance had been taken, namely, application to the Board. So he was too late.

The conditions required by section 11 (1) $(a)$ have been proved to exist so that the Court might have made an order. But the proviso to section 11 makes it also necessary that the Court should be satisfied that in all the circumstances it is reasonable to make the order for possession.

The landlord cannot possible anticipate what view the magistrate will take on this difficult question of reasonableness. One magistrate might hold that the behaviour of the tenant in persistently falling into arrears with his rent was such as to make it reasonable to eject him. Another Magistrate might be more lenient and say that since the tenant eventually became repentant and undertook to pay regularly or even in advance it would be unreasonable to make an order for possession. Whichever way a Magistrate decided on this question of reasonableness no appellate Court would be likely to reverse him.

In my opinion it was not unreasonable on the part of the landlord to proceed on the assumption that his tenant's most unsatisfactory behaviour in the matter of rent paying would be regarded by the Court as good ground for making an order for possession.

By section 27 of the Civil Procedure Code costs are in the discretion of the Court provided that costs shall follow the event unless the Court shall for good reason otherwise order.

In the present case the learned Magistrate held that whilst rent due had not been paid, thus bringing the case within section 11 (1) (a), it was not in the circumstances reasonable to make an order.

Accordingly he refused the application but exercising his discretion as he was entitled to do he gave what in my opinion are excellent grounds for depriving the tenant of his costs. They are as follows:-

"The defendant was in arrears in the payment of his rent and as a consequence of his unpunctuality the plaintiff considered himself justified (and was, I feel, justified) in applying to the Rent Control Board for permission and subsequently filing this suit. I have held that the facts do not justify me in making an order for vacant possession. At the same time I do not consider it would be just or equitable that the plaintiff should have to pay the costs and expenses of the defendant incurred by the latter in defending an action which was filed through his own failure to punctually fulfil his obligations of tenancy.'

It is well established that an appellate Court will not interfere with a discretion so exercised unless the Magistrate proceeded on some wrong principle. All that the learned Judge said in his judgment appealed from was after shortly referring to the facts "I consider in the circumstances set out that the discretion of the subordinate Judge as to costs was not exercised judicially". He does not say in what way it was not exercised judicially and with respect I am unable to agree with him. In my opinion the Magistrate gave the point most careful consideration and had good grounds for exercising his discretion in the way he did. Mr. Patel for the tenant has relied on the case of Ritter v. Godfrey 89 L. J. K. B. 470 as authority for holding that a successful defendant can only be deprived of his costs for one of three reasons there laid down.

The position in England is complicated by a distinction between jury and non-jury cases, but it is in my opinion unnecessary to go into that since the facts in *Ritter v. Godfrey* were totally different from those in the present case.

There there was no unknown factor such as this question of reasonableness. Also there the defendant was wholly successful. Here the plaintiff succeeded completely on the issue of non-payment and so brought his case within section 11 (1) (a). He only failed on the question of reasonableness the decision as to which he might most reasonably have expected to be in his favour.

At page 470 in Ritter $v$ . Godfrey Lord Sterndale observed: "But there is such a settled practice of the Courts that, in the absence of special circumstances, a successful litigant should receive his costs, that it is necessary to show some ground for exercising a discretion by refusing an order which would give them

to him. The discretion must be judicially exercised, and therefore there must be some grounds for its exercise, for a discretion exercised on no grounds cannot be judicial. If, however, there be any grounds, the question whether they are sufficient is entirely for the Judge at the trial, and this Court cannot interfere with his decision." He went on to say: "I think it may be said that in order to justify an order refusing a defendant his costs he must be shown to have been guilty of conduct which induced the plaintiff to bring the action and without which it would probably not have been brought. This is so stated by Vaughan Williams, L. J., in Bostock v. Ramsey Urban Council, and the test may be applied of putting the question stated in the judgments of the two other members of the Court, A. L. Smith, L. J., and Romer, L. J., i.e. was the defendant's conduct such as to encourage the plaintiff to believe that he had a good cause of action? I do not say that this is the only test, but I think it is the one properly applied to this case."

In that case the only conduct of the defendant which led the trial Judge to deprive him of costs was offensive language used in letters which he wrote defending himself against the charge of negligence. In the present case the defendant's conduct in not paying rent when due was such as to encourage the plaintiff to believe that he had a good cause of action. I would allow the appeal with costs here and below and restore the order of the learned Magistrate.

SIR JOSEPH SHERIDAN, C. J.—I have had the advantage of reading the judgment of the learned Chief Justice of Uganda with which I agree.

SIR G. GRAHAM PAUL, C. J.—I have had the advantage of reading the judgment of the learned Chief Justice of Uganda and I am in respectful agreement with it.

As the result of our judgments however is to reverse the decision of the Supreme Court I consider it necessary to add one or two observations.

In the first place I think it should be emphasized that the real object of this class of legislation is not to protect bad tenants against good landlords but to protect good tenants against rapacious landlords. In the present case there is little doubt that the tenant from his dilatoriness in paying his rents, was a bad tenant and yet the learned Magistrate by his refusal to evict him has saddled the landlord with a bad tenant, that is to say he came to the conclusion that in all the circumstances it would not be reasonable to evict the tenant, bad as he has proved himself to be. The reasonableness of the order in so far as it refused eviction is not challenged before us, nor could it well be challenged on a second appeal.

But the disallowance of costs to the respondent is a part of the order of the learned Magistrate. But for the disallowance of costs the Magistrate in my view would have been encouraging the bad tenant, with whom the landlord is saddled indefinitely, to persist in his "badness" throughout his statutory tenancy. It would in my opinion have been most unreasonable for the Magistrate to have given any such encouragement. It would be most unreasonable to say, or to encourage the tenant to think, that each month, by delaying payment of rent, he could force the landlord to go to the expense of an application to the Board and proceedings for eviction and then recover costs from the landlord of resisting such proceedings. We have in this case to consider the reasonableness of the Magistrate's order as a whole and for that reason the question of the disallowance of costs is in this case a special question which cannot be governed by the ordinary rules governing ordinary judgments in ordinary litigation.

I would allow the appeal, set aside the judgment of the Supreme Court and restore the judgment of the Magistrate with costs to the appellant in the Supreme Court and in this Court-any costs paid by the appellant under the Supreme Court judgment, of course, to be refunded.

#### COURT OF APPEAL FOR EASTERN AFRICA

#### Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and SINCLAIR, J. (Tanganyika)

#### KHADIJA BINTI MASOOD BIN SEIF, Appellant (Original Plaintiff) $\nu$ .

# (1) MASOOD BIN SEIF BIN SALIM EL-MISKIRI, (2) ABDULLA BIN SEIF BIN SALIM EL MISKIRI, Respondents (Original Defendants, Nos. 2 and 3) Civil Appeal No. 27 of 1946

(Appeal from decision of H. M. High Court of Zanzibar)

Succession—Bequest by will—Revocation—Mahommedan law—What constitutes intention to revoke—Ibathi school of law.

A testatrix by her will dated 6th June, 1917, bequeathed to the children of her uterine brother "her shamba which is at Mipoponi, together with its appurtenances such as clove and coconut trees and other kinds of trees, and the houses thereon together with what they have been erected and connected with such as wood, corrugated iron sheets, windows and doors".

Subsequent to making the bequest the testatrix did various acts on the shamba such as digging a well, reconstructing a banda, repairing existing buildings, making a drying floor for cloves and planting a large number of clove trees.

The testatrix died on 9th February, 1941, and her heir at law sought to get the bequest set aside on the ground that according to Mahommedan law the various acts of the testatrix constituted an implied revocation of the bequest. She failed in her suit and appealed.

Held (22-11-46).-(1) That according to Mahommedan law a valid bequest may be revoked by a testator in her lifetime.

(2) That revocation of such a bequest may be either express—orally or in writing or implied from the acts of the testator subsequent to the date of the bequest when such acts justify that implication.

(3) That all the acts of the testatrix in this case were acts which one could naturally expect the ordinary owner of a clove and coconut shamba to be likely to do for the maintenance and efficient management of such a shamba and did not conclusively establish an intention to revoke the bequest.

Appeal dismissed.

#### Burke (Talatin with him) for the Appellant.

Ghulam Ali Kader Bhoy for the Respondents.

SIR JOSEPH SHERIDAN, C. J.—All I can gather from the commentaries is that where there has been proved, as in this case, to have been a valid bequest, that bequest can only be revoked by an express or implied retraction of that bequest, something showing clearly that the testator has changed his intention. I do not find it necessary in the circumstances of the present case to say much more than that applying the principle I have mentioned, there was no retraction of the bequest. Some of the translation of what commentators have said put before us may be obscure but I am glad to say that the translations of many of the commentaries in my opinion make it abundantly clear that nothing was done by the testatrix in the present case which would justify an inference that by her acts she evinced an intention to revoke a bequest.

The subject-matter of the bequest was a clove and coconut plantation and the acts relied upon by the appellant to establish revocation were such as an owner of such a plantation was likely to do and might very well be called on by Government to do for the maintenance and efficient management of such a plantation.

According to the authority of El Nil a commentary of the Ibathi School (and the parties in this case are Ibathis) there is a revocation of a bequest if "the testator has made use of it and has effected changes in the name of the bequest" but "it is not revocation if he increases and perfects what he bequeaths" (Jawhar-el-Nidham). Quoted these passages the leanned Chief Justice said: 'After reading the above authorities (I have only referred to the two Ibathi authorities) I have come to the conclusion that the Ibathi commentaries possibly express most clearly of all the principle which I believe to be common to all the schools. The passages from El Nil and Jawhar-el-Nidham are in my opinion clearly reconcilable and not contradictory. If a man increases and perfects what he bequeaths then there is no revocation. But if such increase or perfection amounts to what the Shafei commentator calls "a severe alteration" of such a kind as to effect "a change in the name of the thing bequeathed" then there is an implied revocation of the bequest. If this opinion is correct, then it must always be a question of fact depending upon the evidence in each case as to whether an alleged "increase and perfection" has or has not effected "a change in the name of the thing bequeathed". This statement taken from the judgment in my opinion correctly sums up the position and on the facts of the case it is quite impossible to say that there was any "change in the name of the thing bequeathed". A clove and coconut shamba in bearing together with appurtenances appropriate to such a shamba was bequeathed and, to repeat, any acts performed in respect of that shamba after the date of the bequest were such as were likely to be performed for its maintenance and effective management. I am in full agreement with the learned Chief Justice when he said: "Even if the testatrix had confined herself to the use of the word 'shamba' I should have been disposed to have held that that word alone was sufficient to pass all the ordinary concomitants of a shamba. The bequest being of the shamba with 'its appurtenances', I feel no doubt at all that it does pass all these things."

In dismissing the appeal with costs I will quote the final passages from the judgment with which I am also in full agreement:-

"In his Mahommedan Law (4th Ed.) I 644, after a review of the authorities on the subject of implied revocation, Syed Ameer Ali says: 'It will be observed that both under the Sunni and Shiah laws, although various examples are given in the law books as to what would amount to a revocation and what would not, the general rule is that revocation depends entirely on intention which may be evidenced by a variety of acts or circumstances.' As the very learned author would have been the very first to admit, that passage only expresses an opinion and does not lay down the law, but coming from such a source it is an opinion to be treated with very great respect, and the introductory words of the already quoted passage from the Hedaya certainly afford confirmation of this opinion. 'As acts are demonstrative of the inclination as much as express words, they are consequently equivalent thereto.' Obviously it must be a question of fact in each individual case as to whether or not a particular act demonstrates a particular inclination. In one case surrounding circumstances may clearly show that a certain act was done with an intention to revoke, whilst surrounding circumstances in another case may show that no intention to revoke by the doing of precisely the same act.

If the test to be applied in this case as to revocation is that laid down by Syed Ameer Ali, then I have no hesitation in saying that none of the acts done by the testatrix in relation to this shamba are evidence sufficient to prove, either singly or collectively, an intention on her part to revoke the bequests of this shamba. If the test is whether or not any of the acts done to the subject-matter of the bequest are sufficient to alter the nature of the thing bequeathed, then I am of opinion that none of the acts done by the testatrix in this case were, either singly or collectively, sufficient to alter the nature of the thing bequeathed."

SIR G. GRAHAM PAUL, C. J.—The plaintiff in this suit is the sister and heiress of the late Saada binti Masood bin Seif, who died on 9th February, 1941. The deceased by her will dated 6th June, 1917, bequeathed to the children of her uterine brother her "shamba' at Mipoponi, "together with its appurtenances such as clove and coconut trees and other kinds of trees, and the houses thereon with what they have been erected and connected with such as wood, corrugated iron sheets, windows and doors".

The defendants are the surviving children of the deceased's said uterine brother.

The main part of the claim in this suit was:-

- (a) For a declaration that the alleged bequest is bad in law, and of no effect and that the "shamba" forms part of the heritable estate of the late Saada and plaintiff as her heir is entitled to half of it. - (b) That the same be administered under the directions of the Court. - (c) That defendants be ordered to give up possession to such person as the $(c)$ Court may direct for administration under the directions of the Court.

The grounds upon which the plaintiff made this claim are specified in paragraphs 5 to 7 of the plaint, which are in the following terms: $-$

"5. That after the making of the bequest the deceased Saada planted over 400 clove trees and over 500 coconut trees, she also dug a well and built a house with corrugated iron sheets in the shamba.

6. That according to Sheria applicable to the parties these acts on the part of the deceased Saada makes the bequest to defendants wholly void and of no effect.

7. That the deceased was in possession of the shamba at all material times up to the time of her death as owner exercising all acts of ownership. That by reason of statements in paragraph 5 such bequest was retracted or revoked in Sheria."

The case was tried in the High Court for Zanzibar by the learned Chief Justice who dismissed the claim with costs to the defendants. From that judgment the plaintiff has appealed to this Court.

Such controversy as there was as to the facts of the case does not materially affect the appellant's case which as presented to this Court is based on points of law. The law governing the case is the Mahommedan Law of the Ibathi School which the Court below was bound to recognize and administer in this case and consequently this Court must also deal with the appeal under that law.

The learned Chief Justice in his careful and exhaustive judgment has gone very fully into the material parts of the law applicable to this case, quoting from many commentators the revelant parts of their commentaries. Indeed Counsel for the appellant based his case in the main on a selection from the quotations of the law contained in the learned Chief Justice's judgment.

The task of the Court below and of this Court would appear to be to arrive at an understanding of the fundamental principles of the Mahommedan Law applicable to this case and to apply these principles to the facts of this case. That task was in my respectful opinion very fully performed by the learned Chief Justice in his judgment, and it appears to me that under the governing principles of the law in question certain propositions of law are abundantly clear, and it will be convenient to set these out at once. I conceive these propositions to be: $-$

- (1) The bequest in question—not offending against the restrictions as to the proportion of the estate which might legally be bequeathed or as to the relationship with the deceased of the persons in whose favour it was granted—was a perfectly good and valid bequest under the Mahommedan law applicable. That is not disputed. - (2) Such a bequest is valid and effectual unless revoked by the testatrix in her lifetime. That also is not disputed. - (3) Revocaton of such a bequest may be expressed—either orally or in writing—the onus of proof of express revocation being upon the party claiming that the bequest had been revoked. That of course would involve a question of fact for the trial Court but it does not arise here as it is not suggested for the appellant that there was express revocation. - (4) Revocation may be *implied* from the acts of the testatrix subsequent to the date of the bequest where such acts justify the implication. That again involves a question of fact for the Court to decide upon the whole facts and circumstances of the particular case, and again the onus of proof of implied revocation of the solemn act of the bequest would seem to be upon the party seeking to establish the fact of revocation the plaintiff in this case. - These four matters of principle cannot in my opinion be contested upon the authorities quoted by the learned Chief Justice. These authorities are clear enough on what I may call the principles of law to be applied. It is when the various commentators condescend to particular instances of acts from which revocation of a bequest may be implied that they become confused and confusing, and indeed conflicting. The reason for this is to my mind quite plain. Whether a particular act or particular acts of a testator in a particular case would amount to proof of intention to revoke is a question which obviously must depend upon a careful consideration of all the facts and circumstances surrounding the act or acts of the testator founded upon and in giving such instances as they quote the commentators consistently omit to give the full facts and circumstances of the instances they give.

For instance, the digging of a well on land bequeathed (by the testatrix subsequent to the bequest) has been given as an example showing intention to revoke the bequest. But, as showing intention, the digging of a well may vary in different circumstances. If the bequest is of a piece of waste or desert land the subsequent digging of a well may so change the nature of the subject of the bequest as to imply revocation. By that act a community's water supply might take the place of a spot of desert land. It must not be forgotten that desert conditions had a lot to do with the origins of Mahommedan Law. This no doubt explains the commentator's choice of a well as an example. But where an existing "shamba" is bequeathed, considerations quite different apply to the digging of a well on the "shamba" for the purpose of working of the "shamba". The present case is an instance. To provide by digging a well a water supply for a "shamba" more convenient than a stream some distance away cannot be said to change the nature of the subject of the bequest which was and continues to be a "shamba".

Each case must of course be decided upon its own particular facts and circumstances, and it would be impossible to apply the decision in one case as an authority for a decision in another case without the most careful comparison of all the facts and circumstances in the two cases. The same applies to particular acts mentioned by some commentators as showing intention to revoke, without any reference to surrounding circumstances or any explanation of how the instances come to be regarded as evidence of intention to revoke.

. It seems to me that the clearest statement of the law is that by Syed Ameer Ali in "Mahommedan Law" (4th Ed.) I 644, as follows:-

"It will be observed that both under the Sunni and the Shiah Laws." although various examples are given in the law books as to what would amount to revocation and what would not, the general rule is that revocation depends entirely on intention which may be evidenced by a variety of acts or circumstances."

That intention may be "evidenced by a variety of acts or circumstances" is not only good Mahommedan Law; it is good common sense and sound psychology. In that passage as it seems to me is enshrined the fundamental principle of the relevant law, and it is that fundamental principle by which the Courts must be guided in each case as it arises. The Courts must not in any case disregard that fundamental principle because this or that mere commentator on the principle has mentioned without adequate particulars this or that act as an act which would or might prove an intention to revoke.

In the present case, applying that fundamental principle to the facts, I can find nothing whatever in anything the testatrix did in any way inconsistent with her bequest of the "shamba"; still less of her intention to revoke it. At the<br>time of the bequest the "shamba" was a coconut and clove plantation. A plantation is a living thing; trees grow old and useless or they die; so long as a<br>plantation is a "going concern" planting must go on. That large numbers of<br>seedlings were planted after the bequest does not in any way alter the of the subject of the bequest or suggest any intention on the part of the testatrix to alter or revoke her bequest.

That the testatrix, in a "shamba" not very far away from the Equator. provided a convenient water supply by digging a well in no way altered the nature of the "shamba". The same comment obviously applies to the reconstruction of a "banda" required for working the "shamba".

With respect I agree emphatically with the learned Chief Justice that all the acts of the testatrix in question in this case were "acts one would naturally" expect the ordinary owner of a clove and coconut shamba to be likely to do for the maintenance and efficient management of such a shamba".

There is nothing in the evidence to suggest that in doing what she did by way of carrying on the "shamba" as a going concern the testatrix had forgotten about her bequest of 1917; still less to suggest that her carrying on the "shamba" proved her intention to revoke the bequest.

It is by no means irrelevant to the question before the Court to bear in mind that eleven years after the date of the bequest and just shortly before she completed the well, etc., as part of her carrying on the bequeathed "shamba", the testatrix by her codicil of 1928 expressly refers to her will of 1917 as still present to her mind and unrevoked. Be it noted too that the defendant Masood bin Seif lived with the testatrix at this very shamba in question until the death of the testatrix. He was brought up by the testatrix from the age of eight and<br>lived with her as protégé till she died. Such care by an aunt of her nephew suggests to my mind nothing whatever of an intention to revoke the bequest to the nephew and his brothers and sister. Quite the contrary.

In the whole evidence in the case I can find nothing whatever to suggest any intention whatever on the part of the testatrix to revoke the solemn act of her bequest. In fact all the indications are to the contrary and it would to my mind be ludicrous to suggest that the plaintiff had discharged the onus of proof that the express solemn bequest had been revoked my implication.

I would dismiss the appeal with costs to the respondents.

SINCLAIR, J.-I have had the advantage of reading the judgments of the learned President and Chief Justice with which I am in complete agreement. I have nothing to add.