El-Kadsey v Issak (Civil Appeal No. 177 of 1952) [1953] EACA 33 (1 January 1953)

## APPELLATE CIVIL

## Before CONNELL, J.

## SALIM MOHAMED EL-KADSEY, Appellant (Landlord)

## MOHAMED ISSAK, Respondent (Tenant) Civil Appeal No. 177 of 1952

Landlord and tenant—Increase of Rent (Restriction) Ordinance, 1949—Application by landlord for eviction—Section 16(b)—Alleged acts of waste—Conviction for using premises for illegal purpose—Application refused—Whether misdirection by Executive Officer.

A landlord applied to the Coast Rent Control Board for an eviction order on his tenant from his dwelling-house alleging rent in arrear, that the tenant had committed acts of waste, and also that the tenant had been convicted of receiving stolen property stored in the premises. The Executive Officer of the Board refused the application on the grounds that it had not been shown that the rent was in arrear; that, although the premises had deteriorated this was in part due to the landlord's failure to use permanent materials; and that, although the<br>tenant had been convicted of receiving stolen ivory and had stored tusks in the premises, the crime was not one which would debase the reputation or marketability of the premises. The Executive Officer stated that, in his opinion, the landlord was trying to obtain possession of the premises "by hook or by crook" and that there would be no material penalization of the landlord if the tenant was allowed to stay. The landlord appealed on the grounds of misdirection.

Held (8-9-52).—(1) The word "neglect" is used in the context of tenant-like conduct, so that an order for possession may be made even if the tenant is guilty of no breach of legal obligation and has been given no warning. The practical application of the test of waste or neglect is "has the tenant been guilty of untenant-like conduct in looking after the<br>premises, reasonable wear and tear excepted?" The Executive Officer did not properly apply his mind to this test and should have come to a firm decision as to whether the tenant had been guilty of untenantlike conduct or not while in occupation of the premises and whether, as a result, the premises had substantially deteriorated and to an extent not merely trifling.

(2) It was not the intention of the legislature that a tenant may use demised premises for the purpose of committing a crime and yet that the landlord should be compelled to keep him as his tenant. It is only in very exceptional cases that it is unreasonable to<br>evict a tenant who has been convicted of receiving and keeping valuable goods on his<br>premises. The instant case was not an exceptio whom a notice to quit has been given is protected by legislation, but a statutory tenant loses that protection on conviction for receiving stolen goods into the rented house.

(3) The Executive Officer had misdirected himself on the issue of waste by the inferences he drew from the tenant's conviction and from his failure to weigh the seriousness of the crime of which the tenant was convicted against what he regarded as the landlord's attempt to regain possession.

(4) It would be wrong for the Court on appeal to attempt to reach a conclusion which was essentially one for the Rent Control Board. The appeal would be allowed with a direction that there be a rehearing before a differently constituted board.

Cases cited: Schneiders & Sons v. Abrahams, (1925) 1 K. B. 301, 309; Birmingham Y. M. C. A. v. Gee, (1924) (Unreported, cited in the Schneiders' case); Shreeve v. Hallam. (1950) W. N. 140.

Cited: Megarry Rent Acts, 6th Ed. page 200.

D. D. Doshi for appellant.

Mitra for respondent.

JUDGMENT.—In this appeal grounds 2 and 3 may be conveniently grouped together, and grounds 4 and 6 may likewise be grouped together, Mr. Doshi for the appellant having abandoned ground 5.

The points relied on by the landlord for evicting the tenants are: $-$

- $(1)$ acts of waste; - (2) conviction for using the premises for an illegal purpose; - (3) substantial misdirection by the Executive Officer in his decision dated 1st May, 1952.

As to (1), if section 16 (b) be perused it is to be found that the words are "the condition of the premises has in the opinion of the Board... deteriorated owing to acts of waste by, or the neglect or default of, the tenant, or any person residing with him".

Megarry, at page 200, 6th Ed., gives a useful definition: "The word neglect is used in the context of tenant-like conduct, so that an order for possession may be made even if the tenant is guilty of no breach of legal obligation and has been given no warning".

The practical application of the test of waste or neglect is "has the tenant been guilty of untenant-like conduct in looking after the premises, reasonable/ wear and tear excepted?" In my view the learned Executive Officer did not properly apply his mind to this question or this test. He should, in my view, have come to a firm decision as to whether the tenant and occupiers were guilty of untenant-like conduct or not whilst they were in occupation and whether as a result the premises substantially deteriorated to an extent which would not be merely trifling. The case would, if necessary, have to be remitted to the Executive Officer for determination on those principles.

There is a second aspect on which, in my view, the Executive Officer clearly misdirected himself and that was on the question of illegal user. Having found quite correctly that there was an illegal user by the tenant (he had been convicted under a serious charge of receiving a number of ivory tusks and storing them on the premises) the Executive Officer then went on to say: "I can see no material penalization of the landlord if the tenant is allowed to stay. The tenant has been convicted of a crime but hardly one which could be claimed by association with the premises to debase their reputation or marketability at the standard rent."

With respect to the learned Executive Officer none of the inferences I have quoted are correct, nor are they in any way material even to the question of reasonableness.

In the case of Schneiders & Sons v. Abrahams, (1925) 1 K. B. at page 309, quoted to the Executive Officer, Scrutton, L. J. stated: "I cannot imagine the intention of Parliament to have been that a tenant may use the demised premises for the purpose of committing a crime and yet that the landlord should be compelled to keep him as his tenant". These are strong words and in my view only in very exceptional cases can it be said that it is unreasonable to evict a tenant who has been convicted of receiving and keeping valuable goods on his premises; in England though the Statute contains the "reasonable" clause, his eviction appears to me from the authorities to be practically automatic.

The Executive Officer apparently regarded the conduct of the landlord as unreasonable in that, as appears from the record, he obtained eviction on an execution-eviction order although the rent was in fact paid and that the landlord was trying to regain possession "by hook or by crook". In *Birmingham Y. M. C. A.* v. Gee referred to in the Schneiders case Lord Darling made the following comments: "The tenant was in arrear with her rent and notice to quit was given. The legislation did not entitle the landlord to get rid of her; but after that something happened which enabled the landlord, though she was a statutory tenant, to get rid of her. That was because she was convicted as a receiver of stolen goods in this house in which it is alleged that the man was who stole the property. Thereupon she lost the protection given by the Rent Restriction Act, 1923, and by section $4(b)$ the landlord became entitled to an eviction order".

Now in my view there have been misdirections on the Executive Officer's part as to the question of waste, as to the inferences which he drew from the tenant's conviction and by reason of the fact that he did not weigh up the seriousness of the crime for which the tenant was convicted as against what he referred to as the landlord's attempt to regain possession.

In this appeal I propose to adopt the reasoning and course of procedure followed by the learned Master of the Rolls in *Shreeve v. Hallam*, (1950) W. N. 1940. "It would be wrong for the Court of Appeal to attempt to reach a conclusion in the matter. It was essentially one for the County Court Judge. The proper order was to allow the appeal and direct that there should be a new trial by another Judge.".

I allow the appeal and direct a new trial before a different Board.

Regarding costs there is, in my view, in accordance with authorities under the Rent Restrictions Acts or Ordinances a wider discretion than in ordinary cases and I direct that each side pay its own costs in this Court and the Executive Officer's Court.