Karam v Nathwani (Civil Appeal No. 966 of 1949) [1950] EACA 49 (1 January 1950)

### APPELLATE CIVIL

#### Before SIR BARCLAY NIHILL, C. J.

## DALIP SINGH KARAM, Appellant (Original Respondent)

ν

# ANDERJI ODHAVJI NATHWANI, Respondent (Original Claimant)

### Civil Appeal No. 966 of 1949

(Being an appeal from a determination of the Rent Control Board Central Province Case No. 33 of 1949)

Increase of Rent (Restrictions) Ordinance, 1949—Jurisdiction of Board-Procedure before Board.

The facts appear sufficiently from the judgment below.

Held (3-7-50).—(1) That although regulations under the Increase of Rent (Restrictions) Ordinance, 1949, regarding procedure before the Rent Control Board have yet to be promulgated, it must be presumed that the legislature intended that the Boards should not be bound by the strict procedure of the Courts. Nevertheless they must not disregard the principles of natural justice.

(2) Under section 16 (1) (b) and (i) of the Increase of Rent (Restrictions) Ordinance. 1949, a landlord must obtain an order for recovery of possession against his tenant before he can obtain an order for ejectment against an occupier who is not his tenant.

Cases referred to: R. V. Brighton & Area Rent Tribunal ex parte Marine Porcell Estates (1936), Ltd., (1950) 1 A. E. R. 946; Brown v. Draper (1944) 1. A. E. R. 246; De Souza v. De Costa & Another, 16 K. L. R. 48.

D. N. Khanna for the appellant. $\mathcal{L}$

Hunter for the respondent.

JUDGMENT.—This is an appeal from a decision of the Central Rent Control Board established by the Increase of Rent (Restrictions) Ordinance, 1949, which came into force on 6th September, 1949.

The success or failure of this appeal turns upon the issue as to whether the Board, in making an order for recovery of possession against the appellant did or did not exceed its jurisdiction. Before considering the issue, however, there is a preliminary matter upon which I think something should be said. Mr. Khanna has argued that since the Board has been entrusted by the legislature since 6th September, 1949, with powers hitherto only exercisable by a Court of competent jurisdiction, this Court as an appellate authority should apply to its proceeding's tests as strict as would be applied to the record of a hearing before any subordinate Court—Much the same point was taken before my brother de Lestang, J., in Civil Appeal 954 of 1949. It was contended in that case that a Rent Control Board had heard and determined a certain matter ex parte without serving any notice on the person affected—My brother found as a fact that this was not so but he observed that if he had found that the person affected by the decision had not been notified of the date of hearing by the Board he would have set aside the Board's decision. He based that observation on the principle that every judicial or quasi-judicial tribunal must apply the fundamental principles of natural justice and that natural justice will not allow a person to be jeopardized in his person or pocket without giving him an opportunity of appearing and putting forward his case. With that statement of the law there can be no dissent, but I am not concerned with such a simple issue as this in the present case. Here the difficulty is that certain correspondence relevant to the application was read by the applicant's Counsel when he opened his case but there is nothing on the record to show that the letters were ever formally proved and put in as evidence. If I must regard the Board in the same sense I should a subordinate Court Mr. Khanna is right in his submission that I am not entitled to look outside the recorded evidence. The question is, however, did the legislature intend that the Board, which apart from its Chairman who need not always be present, will ordinarily be composed of laymen should be bound by a procedure somewhat less formal than that obtaining in the ordinary Courts? The question is not easy to answer because up to date I am advised no regulations have been made by the Governor in Council under section 34 (2) (a) and (b) of the Ordinance, This sub-section confers power on the Governor in Council to make regulations providing (a) for the manner in which Rent Control Board shall conduct their business and $(b)$ for prescribing the matters which shall be taken into account by Rent Control Boards in exercising their powers under the Ordinance. In the absence of such regulations the Boards have no guidance as to procedure except that they know that their decisions may be upset if it can be shown that in arriving at them they have disregarded some principle of natural justice. Since listening to the arguments on this appeal I have seen and studied the very recent case of R. V. Brighton and Area Rent Tribunal ex parte Marine Porcell Estates, 1936. Ltd., reported in 1950 1, A. E. R. 946. I have not had the benefit of hearing Counsel on the assistance if any to be derived from this case but in my view provided it is not overlooked that the Brighton Rent Tribunal is a body established under an English Act (the Landlord and Tenant (Rent Control) Act, 1949) and not under a Kenya Ordinance the case is one from which this Court can obtain some guidance. This was an application before the King's Bench Division for orders of certiorari and mandamus addressed to the Brighton and Area Rent Tribunal to bring up and quash orders made by them in respect of the rents of certain premises in Brighton on the ground that the application before the Board, had not been heard and determined according to law. The irregularities complained of were $(a)$ that at the hearing Counsel for the tenants made statements which were taken into account by the tribunal although no evidence in support of the statements was led and $(b)$ that several witnesses called on behalf of the landlords were not cross-examined. The King's Bench Division consisting of three Judges refused to issue a writ against the tribunal because the Court came to the conclusion that there had been sufficient compliance with the formalities of the Landlord and Tenant (Rent Control) Act, 1949, and the regulations made under that Act. In this judgment Lord Goddard, C. J., was able to show by citations from the regulations made under the Landlord and Tenant (Rent Control) Act, 1949, that it was clearly the intention of Parliament that the tribunals set up by the Act should follow a procedure of a most informal nature, so that it was possible for proceedings to be conducted in a way which would not be tolerated in an ordinary Court-As I have already observed the difficulty in this Colony is that no regulations have as yet been promulgated comparable to the regulations made under the Landlord and Tenant (Rent Control) Act, 1949. Must I then hold that until such regulations are enacted the strict procedure of the ordinary Courts must be applied? I do not think so. I consider that the general intention of the Ordinance is clear enough to make the assumption a safe one that the legislature intended that subject to the requirements of natural justice, their tribunals should not be unduly fettered in the manner and method by which they give consideration to the problems brought before them. It is quite impossible to argue that the Board offended against natural justice in paying attention to correspondence read out to them by Counsel, the accuracy or truth of which was not in dispute and for the purposes of this appeal I propose also to take into account the correspondence attached to the file as if it formed part of the record and had been properly proved.

I now come to the facts of the case which must be set out in order to see what it is that the Board has done. The premises (consisting of a shop) which are the subject matter of the landlords application to the Board were let to one Dharam Singh in 1943 on a tenancy which forbade sub-letting. In 1948 Dharam Singh went to India leaving behind in the premises one Harcharan Singh as his caretaker. The shop was closed to business. In February, 1949, Dharam Singh

returned to Nairobi and found Dalip Singh the appellant in these proceedings in occupation of the premises. The appellant refused to vacate and is still in occupation. It is his contention that he obtained a lease of the premises from one Atma Singh an agent of Dharam Singh. From the correspondence on the file it appears that the advocates for the landlord wrote to the Secretary of the Rent Control Board on 10th August, 1949 (that is before the date of the coming into force of the 1949 Rent Restriction Ordinance) asking for the consent of the Board for the institution of ejectment proceedings against the tenant, the subtenant and the occupier-ten days later the Assistant Secretary of the Board addressed letters to Dharam Singh, Harcharan Singh, and Dalip Singh, inviting the lodging of objections to the landlords application for consent. In due course by letter dated 29th August the advocates for the occupier Dalip Singh gave notice of the Board of objections. Presumably before the matter could be heard the new Ordinance came into force, an Ordinance which conveyed widely extended powers to the Board—instead of as formerly the Board's prior consent being necessary before proceedings for the recovery of possession could be instituted, the Ordinance of 1949 gives the Central Board, as reconstituted, the power itself to make orders for the recovery of the possession of premises (section 5 (1) $(b)$ ).

It is not surprising therefore to find that on 12th September, 1949, the advocates for the landlord, and Dalip Singh informing the Secretary of the Rent Control Board that they were agreeable to the case being settled under the appropriate section of the new Ordinance. On 25th November, the Secretary informed Dharam Singh and the advocates for the landlords and Dalip Singh that the case would be heard on 29th November, 1949.

I now come to the record on the outside cover of which the parties are described as "Landlord Anderji Odhavji Nathwani and the tenant as Dalip Singh Karam". There is no mention of Dharam Singh or Harcharan Singh. The application is, however, described as one for the ejectment and recovery of possession against the tenant, sub-tenant and present occupier. In the written record itself Mr. Walker is wrongly described as Counsel for the tenant. He was in fact Counsel for Dalip Singh who whatever his status may be was never the tenant of the landlords. At the beginning of the proceedings Mr. Hunter for the landlords opened and read certain letters. He then called Dharam Singh who gave evidence on the lines of the facts I have outlined above. Mr. Walker then admitted that Dalip Singh had been in occupation of the premises since August, 1948, and he considered that he must agree to a recovery order against his client. The Board then unanimously made the following order:-

"Order for possession of premises to landlord against occupier Dalip Singh on or before 15th December, 1949, and order for mesne profits at Sh. $93/90$ a month against him from date of occupation to date of vacation. Costs Sh. 200 to the applicant. Occupation date agreed 31st August, 1949. No rent due for August, 1948."

Mr. Khanna has attacked this order on various grounds but I do not propose to consider them in seriatim because on one ground alone. I consider that he is entitled to succeed on this appeal, namely ground 3 of the memo of appeal: -

"If the appellant as a trespasser ab initio; the Board had no power to make an eviction order, but the power rested with a Court having requisite pecuniary jurisdiction."

There can I think be no doubt on the evidence before me and in the term "evidence" I include the correspondence that the status of Dalip Singh is no better than that of trespasser. Dharam Singh the tenant in his evidence has by implication said so and he has been so regarded by the landlords' advocates (see this letter of 15th July, 1949). The Board's order then is in terms not an order for recovery against the tenant Dharam Singh but against the trespasser Dalip Singh. Has the Board the jurisdiction to make any such order? I do not think so. I can find nothing in the Increase of Rent (Restrictions) Ordinance, 1949, which gives the Central Rent Control Board any such power and a great deal which suggests that it has not got it. Thus section 16 (1) of the Ordinance is in these terms: $-$

"No order for the recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless $\ldots$

## Again in section 16 $(b)$ :—

"An order against a tenant for the recovery of possession of any premises or ejectment therefrom."

## Again in section 16 (1) (i): $\rightarrow$

"The tenant has without consent in writing of the landlord . . . assigned, sub-let, or parted with the possession of the premises or any part thereof. A landlord who wishes to obtain an ejectment order on this ground may have the option of obtaining a similar order against the occupier or having the occupier as his direct tenant."

I can only read the above section as meaning that if a landlord wishes to obtain an ejectment order against an occupier who is not his tenant he must first have obtained an order for recovery of possession against his tenant. Brown $v$ . Draper, (1944) 1. A. E. R. is authority for the proposition that a tenant cannot contract out of the protection which the rent restriction Acts gives him unless he has effectively surrendered possession. I do not see how the first two paragraphs of paragraph (i) of sub-section (1) of section 16 can bear any other construction than the one I have given it above. In this case there has been an order for recovery of possession against the occupier but not against the tenant. In matters of jurisdiction this Court must be vigilant to guard against the ousting of the jurisdiction of the ordinary Courts of law by Statutory tribunals argued by statute with certain judicial or quasi-judicial duties. Such a tribunal can exercise only such powers as are clearly given to it by statute and no more.

Mr. Hunter has submitted that in the present case the order against Dalip Singh was in effect a consent order. I have considerable sympathy with the landlords in the position they now find themselves in and very little with Dalip Singh. Nevertheless it is of course impossible for me to hold that a lack of jurisdiction can be cured by consent. As was said by the Court in *De Souza* $v$ . De Costa and another 16 KLR 48 "parties advocates cannot by agreement or in any other manner enlarge the jurisdiction of a Court. When a limited Court takes upon itself to exercise a jurisdiction it does not possess its decision amounts to nothing".

I am therefore constrained to find that the decision of the Board dated 29th November, was in excess of its jurisdiction and must be set aside. The appellant is entitled to costs both in the proceedings before the Board which I assess at Sh. 200 and the execution proceedings before the Magistrate and to the costs of this appeal.