Din v Said (Civil Case No. 359 of 1950 (Mombasa)) [1951] EACA 335 (1 January 1951)

## ORIGINAL CIVIL

#### Before CONNELL, J.

## MUHIDDIN MOHAMED DIN, Appellant

# MBARAK bin SAID, Respondent

## Civil Case No. 359 of 1950 (Mombasa)

### (Appeal from decision of the Coast Rent Control Board)

Landlord and tenant—Rent Restriction Ordinance—Subletting without landlord's consent—Section 16 (1) (i) and section 28 Rent Restriction Ordinance— Expiry of lease for fixed period—Whether notice to quite necessary—Tenant never in occupation—Effect of application for standard rent.

The Rent Board found that there were two lease agreements, the second expiring in December, 1950, after which no rent was paid by the original tenant appellant who in fact never occupied the premises but sublet to a number of different persons without the landlord respondent's consent. On appeal it was:

Hela (3-9-51).—(1) The Board clearly had in mind the provisions of section 16 (1) (i) and section 28 Rent Restrictions Ordinance, against sub-letting, which were clearly broken by the tenant as they were without written permission.

(2) That the tenancies determined by effluxion of time and notice to quit was not necessary.

(3) That the tenant was never in possession and could not invoke the protection of the Rent Restriction Ordinance.

(4) That the landlord never agreed to the creation of a new contractual tenancy.

(5) There is no case which lays down that the mere fact that a tenant has applied for fixation of rent will prevent the court from making an order for possession where there are a number of other circumstances to be considered.

(6) In the result the order for possession must be upheld.

Cases referred to: Duxbury v. Nourse (1947) C. L. Y. 2677; Remon v. City of London Rent Property Co. (1921) 1 K. B. 49; Morrison v. Jacobs (1945) 2 A. E. R. 430; Dun<br>Loghaire U. D. C. v. Morgan (1921) 2 I. R. 404 D. C.; Rhodes v. Cornford (1947) 2 A. E. R. 603.

### S. M. Ahmad for appellant.

#### S. F. Hassan for respondent.

JUDGMENT.—The facts as found by the lower Court are that the tenant appellant and landlord respondent entered into two lease agreements dated 11th January, 1949 and 30th June, 1949, for a shop and store, each agreement<br>being for six months at a rent of Sh. 80 per month. In each case the rent (Sh. 480) was paid in advance and each agreement gave an option to the tenant "of further six months" on expiry of the period on request of the tenant made at least one month before the tenancy expired. No option was exercised. Since January, 1950, no rent was paid by the tenant. One Said Mohamed occupied the premises from 7th January, 1949, until May, 1950, paying the tenant Muhiddin Sh. 80 a month; Said Mohamed collected rent at Sh. 80 a month from a barber until Muhiddin stopped him doing so and collected it himself; Said Mohamed also sublet to Shadrack from February to May, 1949, at Sh. 30 a month and from May till August, 1950, Shadrack paid Muhiddin direct. Said Mohamed also stated Muhiddin asked him to get a sub-tenant to help pay the rent.

v

The landlord Mbarak testified that he agreed about January, 1950, to let Muhiddin stay at Sh. 80 a month but Muhiddin paid no rent so he consulted his advocate who wrote a letter on 20th February threatening ejectment proceedings if arrears of rent and rent for March in advance were not paid in three days. On 4th March the tenant's advocates wrote to Mbarak demanding a statement of standard rent. On 2nd August the tenant's advocates wrote a similar letter threatening to apply to the Rent Board to fix the standard rent. On 19th April, 1950, Mbarak's advocates applied to the Rent Board for vacant possession and rent, the grounds being: (1) failure to pay rent in advance for January till April, 1950, (2) expiry of lease on 31st December, 1949, (3) tenant being no longer in personal occupation.

On 1st November, 1950, the Board assessed standard rent at Sh: 40 a month with effect from 1st September, 1950, and on 4th November, 1950, ordered ejectment and payment of arrears of rent.

It is admitted that no notice to quit was sent to the appellant, Mr. Hassan for the respondent contending that it was not necessary.

The crux of the case is whether a contractual tenancy continued, in which case it seems to be admitted by both advocates and generally recognized that a notice to quit would be necessary to determine the tenancy before taking ejectment proceedings, or whether the tenant became a statutory tenant in which case no notice to quit would be necessary, in the circumstances of this case. It is stated in Megarry 6th edition, page 145 that no statutory tenancy can arise while the contractual tenancy still exists. The authority referred to was *Duxbury* v. *Nourse*, 1947 C. L. Y. 2677. "The burden of proof", Megarry continues "lies on him who asserts that a statutory tenancy has arisen (Menzies and Mackay, 1938 S. C. 74), and he must show not only that the contractual tenancy has determined (which is primarily a question of fact although clearly questions of law such as the validity of a notice to quit may arise) but also that the tenant is holding over from the contractual tenancy (Remon v. City of London Rent Property Co., 1921 1 K. B. 49)". In the case quoted a valid notice to quit had been served but it was held that the plaintiff who did not yield up the premises against the will of the landlord, yet was a tenant who retained possession within the meaning of the Rent Act. In Remon's case, however, there was no such complication as arose in the present case, for in the present case there was a subletting during the pending of the original agreements which even continued after their expiration.

The Board clearly had in mind the provisions of section 16 (1) (i) and section 28 Rent Restrictions Ordinance against subletting, which were clearly broken by the tenant as they were without written permission. They also took the view that the tenancy was for a fixed period and automatically expired at the end of that period (i.e. the "agreement periods") without the necessity for notice to quit. Now it seems to me that the statement so strongly opposed by Mr. Ahmad must be a correct statement of the law. See *Morrison v. Jacobs*, 1945 2 A. E. R. 430. Section III (a) of the Transfer of Property Act states a lease of immoveable property determines by efflux of the time limited thereby. The common law on the subject is equally clearly set out in Hill and Redman's Landland and Tenant Edition 10 at page 399 "other tenancies may determine (1) by effluxion of time". Notice to quit is of course another method of determining a contractual tenancy. Taking that view of the law as I do I hold that in the present case no notice to quit was necessary. The tenant therefore it seems to me was in a "double dilemma"; he was at any rate for some period never in personal occupation and cannot even under the authority of Skinner v. Geary invoke the protection of the Rent Ordinance. He had moreover broken the provisions of the

ordinance against subletting. He could therefore apart from any other argument against it in my view be evicted under the ordinance. Mr. Ahmad has set up two other arguments (1) that a new tenancy or sub-tenancy was created and under the principles laid down in Megarry page 144 and 145 there could be no eviction. In my view the proposition contended for is not laid down at all for Megarry makes it clear that what is necessary to take the tenant out of the ordinance are such cases of subletting in which the landlord accepts rent from a new sub-tenant and agrees to the creation of a new contractual tenancy. The facts in the present case are just the opposite. Secondly Mr.<br>Ahmad argued that rent in the present case was "not lawfully due" under section 16 (1) of the Rent Ordinance as in fact long before the ejectment proceedings the tenant had applied to the landlord for fixation of standard rent. He quoted pages 195 and 196 of Megarry and the Irish case of Dun Loghaire U. D. C. v. Moran, 1921 2 I. R. 404 D. C. In the present case, however, by no means the only question which the Board heard evidence about was whether rent was lawfully due; there was the question of subletting against the ordinance, and the absence of the tenant. There is no English case so far as I am aware which lays down categorically that the mere fact that a tenant has applied for fixation of rent will prevent the Court from making an order for possession where there are a number of other circumstances to be considered; otherwise a tenant could be in arrears for 12 months and avoid an order for possession by taking out an application for fixation of standard rent after that period. The Board had in fact decided the standard rent on 1st November.

Mr. Ahmad argued that the question of reasonableness had not been considered by the Board; he did not take this as a ground in his Memo of Appeal; it has been laid down in *Rhodes v. Cornford*, 1947 2 A. E. R. 603 that on appeal it will be assumed that the Court had properly applied its mind to all relevant considerations. Certainly no grounds apart from purely legal grounds have been argued before me as to why it would be unreasonable to eject the tenant. From the tenant's point of view it is difficult to conceive a more unmeritorious case than the present one.

The appeal is dismissed with costs.

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