Kassam v Virpal and Another (Civil Appeal No. 5 of 1946) [1946] EACA 8 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), PEARSON, J. (Uganda) and AINLEY, J. (Uganda)

### AHMED KASSAM, Appellant (Original Appellant-Tenant)

# $\mathbf{v}$

## (1) SHAH ZAVERCHAND VIRPAL, (2) SHAH POPATLAL KANJI,

## Respondents (Original Respondents-Landlords)

## Civil Appeal No. 5 of 1946

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

Landlord and Tenant—The Increase of Rent and of Mortgage Interest<br>(Restrictions) Ordinance, 1940—Standard rent—Appeal to Subordinate Court from decision of Rent Control Board—No appeal to Supreme Court and to Court of Appeal for Eastern Africa.

The appellant appealed to a subordinate court against the determination of the standard rent of certain premises by the Rent Control Board. The learned magistrate upheld the Board's decision. He appealed to the Supreme Court and the appeal was dismissed. He appealed to the Court of Appeal for Eastern Africa.

Held (28-5-46).—The decision of a Court sitting in appeal from a determination of the Rent Control Board is not a decree within the meaning of the Civil Procedure Ordinance and no appeal lies therefrom.

Shaw for the appellant.

### S. C. Gautama for the respondents.

JUDGMENT (DELIVERED BY SIR JOSEPH SHERIDAN, C. J.)—Counsel for the appellant based his appeal on the question whether the Rent Control Board held an inquiry in accordance with the provisions of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940.

This Court however has thought proper to consider in the first instance whether an appeal lies to this Court, a point which was not raised by Counsel but which on its being raised by the Court Counsel were given an opportunity of arguing. The proceedings originated with an application to the Board for the adjustment of rent as between a landlord and his tenant. The Board gave their decision in the following terms:—"After having perused the Title Deeds of this plot, the Board resolved to determine the market value of the premises at the figure of Sh. 23,580, and resolved authority should be given to the landlords, after giving the tenant not less than three calendar months' notice in writing, to increase the rent with effect from a future date to a sum not exceeding 10 per cent of this ascertained market value at the prescribed date, 31st December, 1940".

On appeal to the learned Resident Magistrate Eldoret, the Board's finding was upheld and on a further appeal to the Supreme Court the result was the same. It is provided by section 3 (6) of the Ordinance that: $-$

"In its determination of any matter the Board may take into consideration any evidence which it considers relevant to the subject of the inquiry before it, notwithstanding that such evidence would not be admissible under the law relating to evidence,"

And by section 3 $(7)$ :—

"Where any matter is under the provisions of this Ordinance to be determined by the Board, the determination of the Board shall be final and conclusive.

Provided that an appeal shall lie to the Court from any such determination on a point of law, but not on a question of fact."

It is convenient here to refer to the definition of Court which is "Court means" the Supreme Court, and notwithstanding the provisions of the Courts Ordinance, 1931 relating to the jurisdiction of magistrates, any magistrate holding a subordinate court of the first class". We interpret this definition as meaning that a person appealing from a determination by the Board may, in the absence of limiting words (and there are none) prefer his appeal before either the Supreme Court or a First Class Magistrate. In the present case the appeal was, as we have said, made to a First Class Magistrate and on his dismissing the appeal a further appeal was made to and entertained by the Supreme Court. As for the question as to whether an appeal lay to the Supreme Court the learned Judge held Section 65 of the Civil Procedure Ordinance is couched in very wide terms and prescribes that: $-$

"an appeal shall lie from the decree or from any part of the decree and from the orders of all subordinate courts to the Supreme Court": "Decree" in the Civil Procedure Code in so far as it is material is defined as:

"Decree" means the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

The important words are "in the suit", "suit" is defined as meaning "all civil proceedings commenced in any manner prescribed" and "prescribed" as meaning "prescribed by rules" and "rules" as meaning "rules and forms made by the Rules Committee to regulate the procedure of Courts".

The Rules Committee is a statutory body constituted by section 81 of the Ordinance consisting of two Judges of the Supreme Court, the Attorney General and two Advocates. In our view the proceedings in the present case cannot be regarded as a suit and the authority for this is the case of Hussein Esmail Bros. v. Gordhan Bogha 2 E. A. C. A. p. 98. The case was a Uganda case but the provisions of the law under which it was decided are similar to those applicable to the present case. Our view is that the provisions of the Civil Procedure Code cannot be resorted to in support of an argument that an appeal lies either to the Supreme Court from the Magistrate's decision or to this Court from the decision of the Supreme Court. Mr. Shaw has relied on section 72 of the Civil Procedure Code as an authority for his submission that an appeal lies to this Court. In so far as it is material that section enacts:

Section 72 (1) "Save where otherwise expressly provided in the body of this Ordinance or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the Supreme Court, on any of the following grounds, namely: -

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law."

The difficulty confronting Counsel in relying on this provision is that the decree passed by the Supreme Court, if it may be described as a decree, was not a decree within the meaning of the Civil Procedure Code. On this aspect of the case our view is that no appeal lay from the Magistrate's decision to the Supreme

Court and that no appeal lies to this Court, and that on that ground alone this appeal must fail. But we think it desirable to say that if we had had to consider the question whether an investigation as prescribed by the Ordinance had been held, we would unquestionably have come to the conclusion that it had. We cannot do better here than adopt the following passage in the judgment of the learned Judge.

"As regards the first ground it is quite clear from the certified copy of the proceedings before the Board that the matter was properly investigated. The parties were represented by their advocates and there is no suggestion that they were not given full opportunity of putting their respective cases before the Board. If they did not they have themselves to blame for it. As far as the Board is concerned it did its duty. As regards the second ground of appeal I find again from the certified copy of the proceedings that the Board had before it, the application form duly completed, the rent fetched by the premises from the prescribed date to the 31st December, 1942 and subsequently, the title deeds of the premises and the sale price in December, 1942. The Board almost certainly knew the premises very well and from all the information before it, it proceeded to ascertain the market value as at 31st December, 1940. If the Board has erred in determining the correct market value of the premises, which I am not prepared to find, it is not for this Court or any other Court to correct it as no appeal lies from the decision of the Board on a question of fact but I shall merely content myself with saying that there was material and enough material before the Board upon which it could properly determine the market value of the premises in question and that it does not appear to have applied any wrong principles."

The appeal is dismissed with costs.