Mohamed and Another v Patel and Others (Civil Appeal No. 69 of 1955) [1950] EACA 80 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Briggs and BACON, Justices of Appeal

# DR. NUR ILLAHI s/o DR. NUR MOHAMED, Appellant (Original Plaintiff) $\mathbf{v}$

## (1) VALAVBHAI BECHARBHAI PATEL, (2) BHAILALBHAI DESAIBHAI PATEL: (3) SAMSUL HAQUE, Respondents (Original Defendants)

#### Civil Appeal No. 69 of 1955

(Appeal from the decision of H. M. High Court of Uganda, Jeffreys Jones, J.)

Landlord and Tenant—Sub-letting contrary to Municipal Building Rules— Acceptance of rent by landlord with knowledge of subletting—Rent Restriction Ordinance, section 6 (1) (a) and (b)—Kampala Municipal Building Rules.

The first respondent was a statutory tenant of the suit premises of which the appellant was the landlord who sued for possession and mesne profits. The second and third respondents were sued as persons to whom part of the premises had been illegally sublet. The premises having been approved for occupation by one family, occupation by more than one family, which was admitted, constituted a breach of the Kampala Municipal Building Rules although no proceedings in respect of the breach had been taken. The defence was that the subletting was with the knowledge and connivance of the appellant who was thereby estopped from objecting to the subtenancy by reason of having accepted rent after having knowledge of the subletting. The Supreme Court dismissed the suit.

Held (13-2-56).—The evidence was sufficient to show that the landlord had knowledge of the subletting at a time when he received rent and must be deemed to have waived any rights he may have had arising out of the unlawful subletting. Dicta on interpretation of statutes and effect of English authorities.

Appeal dismissed.

Cases referred to: Probhalal & Vora v. Ashoka Cotton Co. Ltd.. (1947) 6 U. L. R. 176;<br>Oak Property Co. Ltd. v. Chapman, (1947) 2 All E. R. 1; Carter v. Green, (1950) 2 K. B<br>(C. A.) 76; Trimble v. Hill, (1879) 5 A. C. 342; Nadara v. Rajabally Kassam Suleman, (1952) 19 E. A. C. A. 214.

#### Wilkinson for appellant.

M. L. Patel for respondent No. 1.

#### D. A. Patel for respondent No. 2.

Respondent No. 3 absent, unrepresented.

WORLEY, President.—In this case the appellant sued as landlord for possession against all three respondents and for mesne profits at the rate of Sh. 225 per month from 1st July, 1953, until possession given. The first respondent was at all material times a statutory tenant of the whole premises known as No. 32, Hannington Road, Kampala, and the second respondent was sued as a person to whom part of the suit premises had been illegally sublet. The third respondent was joined as a defendant for a similar reason but entered no defence and has taken no part in the proceedings: he appears to have vacated the premises. The first respondent in his defence admitted having sublet to the second respondent but denied that such subletting was contrary to the terms of the tenancy and further alleged—

- (a) that the subletting was with the knowledge and connivance of the appellant; and - (b) that the appellant was estopped from objecting to the subtenancy by $\frac{1}{2}$ reason of having accepted rent from him after having knowledge of the subletting.

The second respondent in his defence also relied upon this "estoppel".

The appellant's title to the premises is a Crown lease containing a condition that "not more than one residence of a type suitable for occupation by one family only to be erected on the said land without the consent in writing of the Governor". No consent to any variation or waiver of this condition has been sought or obtained. It was also proved that the plan for the dwelling-house erected on the land was approved by the Kampala Municipality for occupation by one family only. Occupation by more than one family constitutes a breach of the Municipal Building Rules, though no prosecution has been instituted for such breach.

The appellant, therefore, rested his claim for possession on two grounds—

- (a) under section 6 (1) (a) of the Rent Restriction Ordinance, on the ground that the subletting (to which he said he never consented) was a breach of an obligation of the tenancy, there being an implied obligation on the tenant not to sublet in breach of the condition in the head lease; and - (b) under section 6 (1) (b) of the same Ordinance.

This paragraph provides that the order for recovery of possession may be made where "the tenant, or any person residing with him or using the premises or dwelling-house... has been convicted of using the dwelling-house or premises or allowing the dwelling-house or premises to be used for an immoral or illegal purpose".

It was urged for the landlord at the trial that occupation of the suit premises by more than one family was illegal as being in breach of the municipal by-laws. That may be so, but I think the learned trial Judge was correct in holding, following the decision of the High Court of Uganda in Probhalal and Vora v. Ashoka Cotton Co. Ltd., (1947) 6 U. L. R. 176, that section 6 (1) of the Rent Restriction Ordinance should be read as exhaustive of the grounds on which a statutory tenant can be evicted and that an illegal use of the suit premises which has not resulted in a prosecution and conviction does not entitle a landlord to recover possession. It follows, therefore, that the appellant's claim under $(b)$ above was rightly rejected.

As to (a), the learned trial Judge did not expressly find that the subletting, if without consent, was in breach of an obligation of the tenancy, but held that the landlord had "waived any rights that he had against the defendants". He, therefore, dismissed the action with costs.

Before us, the argument turned almost entirely on the question of waiver, it being, I think, impliedly admitted by the respondents that if waiver were not established the landlord would be entitled to succeed under section 6 (1) $(a)$ of the Ordinance. There was evidence that, so far back as February and March, 1951, the appellant was complaining to the first respondent that subletting was a contravention of the terms of the tenancy agreement and that he had received a notice from the Health Authority in respect of this. I have no doubt, therefore,

that the appellant is entitled to the order for possession in these circumstances, unless the respondents have discharged the onus, which rests on them, to prove waiver.

It will be convenient first to deal with Mr. Wilkinson's submission that accentance of rent from a statutory tenant can never amount to waiver for the reason that the landlord of a statutory tenant has no right to avoid the tenancy, his only right being to apply to the Court for an order for possession. In short, Mr. Wilkinson put forward the case unsuccessfully submitted for the landlords to the Court of Appeal in England in Oak Property Co. Ltd v. Chapman, (1947) 2 All E. R. 1. In that case as explained in *Carter v. Green*, (1950) 2 K. B. (C. A.) 76 at p. 84, it was held that an unqualified acceptance of rent is as much an affirmation of the statutory tenancy as it would be in the case of a commonlaw tenancy but that if the acceptance of rent is qualified it would be a question of fact for the County Court Judge to determine whether that qualified acceptance must be treated in all the circumstances as an unequivocal act of affirmance of the tenancy.

Mr. Wilkinson has invited us not to follow these two decisions. It is true that they are not necessarily binding on us, but I think that the provisions of the Uganda Ordinance affecting the relation between a statutory tenant and his landlord are sufficiently like the equivalent provisions of the English Rent Restriction Acts as to require us to apply the rule laid down by the Judicial Committee in *Trimble v. Hill*, (1879) 5 A. C. 342 at p. 344, and in *Nadarajan* Chettiar v. Walauwa Mahatmee, (1950) 66 T. L. R. Pt. 2, 15 at p. 20, namely that in such a case we should govern ourselves by the authoritative construction of the statute found in judgments of the Court of Appeal in England.

I will next consider the point made by Mr. Wilkinson that in fact and in law there was no such acceptance of rent by the appellant as would bring into operation the rule as to waiver. The appellant's father, who managed the property, gave uncontradicted evidence that from the time the appellant became the owner of the premises, the first respondent (who was already in occupation) paid the rent every six months in advance. He said: "The practice was to pay on about 1st January or 1st July. There was no agreement with us to pay at any other time". Some time in January, 1953, the third respondent, Haque, was charged with criminal trespass in respect of the suit premises and the witness gave evidence on Haque's behalf. In the course of his evidence in the present action he swore that it was during the course of the criminal action that he learnt of the subletting. (I put the effect of his evidence in this way as he was rather equivocal and the precise effect will be considered later in this judgment.) The witness admitted accepting six months' rent in respect of January–June, 1953, on 9th February, 1953: it was paid by cheque sent by hand of a boy. The witness refused rent tendered in June.

On these facts Mr. Wilkinson argued that there was only an acceptance of rent accrued due, which a landlord is always entitled to accept even under a common-law tenancy without being deemed to have affirmed the continuance of the tenancy. This is certainly correct when the rent is payable in arrear, i.e. at the end of a period of the tenancy. The position at law is not so clear when rent is payable in advance. We were not referred to any direct authority on the point nor do I know of any: but on principle, it seems to me that where a landlord accepts rent in advance for the next six months the only reasonable conclusion is that he intends to affirm the continuance of the tenancy for that period. And if he accepts that rent with knowledge of an existing act of forfeiture, he must I think be deemed to have waived his right.

The judgment of the Court of Appeal in England in *Clarke v. Grant*, (1949) 1 All E. R. 768, seems to proceed upon this basis, though it is not directly in point as it was a case of acceptance of rent after service of a notice to quit. In that case, after service of a valid notice, one of the tenants went to the landlord's agent and paid him a sum of money equivalent to one month's rent. The agent accepted it in the belief that it was rent in arrear in respect of the previous month. In fact, the rent had always been paid in advance, and the tenant was paying the money as rent in advance. The County Court held that the notice to quit had been waived but the Court of Appeal reversed this, holding that the Court below had fallen into the error of confusing an acceptance of rent after a notice to quit with an acceptance of rent after notice that an act of forfeiture has been committed. The judgment continues:

"If a landlord seeks to recover possession of property on the ground that breach of covenant has entitled him to a forfeiture, it has always been held that acceptance of rent after notice waives the forfeiture, the reason being that in the case of a forfeiture the landlord has the option of saying whether or not he will treat the breach of covenant as a forfeiture. The lease is voidable, not void, and if the landlord accepts rent after notice of a forfeiture it has always been held that he thereby acknowledges or recognizes that the lease is continuing."

I think that in this passage the words "acceptance of rent after notice" must be read as limited to acceptance of rent tendered in respect of a period wholly or partly subsequent to the date of the notice: but what is significant is that Lord Goddard, C. J., with whose judgment the other members of the Court agreed, does not distinguish cases where rent in respect of such period is payable in advance and is accepted as such.

In Ngara Hotel Ltd. v. Rajabally Kassam Suleman, (1952) 19 E. A. C. A. 214, which was an appeal from this Court to the Privy Council in a matter arising in Kenya. Their Lordships state the English rule in similar terms (pp. 216–217) and, again, although the rent in that case was payable in advance no distinction is drawn on that account. It is true that it was not strictly necessary for their Lordships to consider the point since they held that the landlord did not have sufficient knowledge of the acts of forfeiture which had occurred for his acceptance to constitute a waiver thereof; but at least there is in the judgment nothing which conflicts with the view I have taken.

Alternatively, if the question be considered as one of fact in accordance with the rule in the Oak Property Co. case (supra), then the learned Judge's conclusion seems to me a very reasonable one.

On this point the trial Judge has said: $-$

"In 1953 the plaintiff was a witness in a criminal case where the premises were involved. He knew then who the subtenant was, yet in the following month he accepted six months' rent which was payable in advance. It became due on 1st January, 1953. There is no evidence that there was a qualified acceptance of the rent although in fact he did renew his request for possession shortly after February, 1953. On that point too the plaintiff's case fails as I consider he waived any rights that he had against the defendants."

Lastly, Mr. Wilkinson had contended that the High Court misunderstood the evidence and misdirected itself as to its effect. He said that it was not sufficient for the tenant to show the landlord had reason to suspect that an act of forfeiture had been committed: the tenant must if he wishes to show waiver go further than that and must show that the landlord's knowledge of the act of forfeiture, at the time when he accepted rent, was sufficiently precise to have supported an action for possession. I accept that proposition, which receives some support from the observations of the Judicial Committee on p. 217 of the report of the Ngara Hotel case (supra). The tenant here had to show that the landlord's state of knowledge was at least such as would, prima facie, have entitled him to an order for possession under section 6 (1) (a). The question is was that degree of knowledge proved to exist in this case? I think the learned trial Judge impliedly found that it was. He says: $-$

"It was not denied that letters were written by the plaintiff's advocates to the first defendant as far back as February and March, 1951, in which they stated that they wanted possession as part of the premises had been subject without their client's consent. Yet the plaintiff kept on accepting rent."

Then follows the passage cited above. The letters in question refer to subletting "to many other persons" and to "a number of families residing in the said plot", no names being given. Mr. Wilkinson says that these letters cannot support a finding that the appellant had, at the time they were written, "knowledge" of any sub-letting in the sense or of the degree required. He says they were merely "fishing" letters intended to provoke a reply from the first respondent which might supply the requisite evidence: but in fact no reply was sent and no admission was made by the first respondent until he filed his written statement of defence. I am disposed to agree with Mr. Wilkinson's argument as to the two letters: but I think the learned Judge really based his decision on the appellant's father's evidence as to what he learnt in the course of the criminal proceedings in January, 1953. In the passage already cited the Judge says, referring to those proceedings: "He (the father) knew then who the subtenant was". Mr. Wilkinson says that this is a misunderstanding of the evidence and relies upon an answer given in re-examination: "As a result of the case in 1953 I was led to believe that first defendant had sublet the premises to Samsul Haque." But in cross-examination the witness had said, referring to the criminal proceedings against Haque: "It was during that case that I heard that first defendant had sublet to the second defendant" and again "I knew he (the tenant) had sublet but I could not prove it. I tried to find out second defendant's father's name so as to serve notice on him. Since then I heard in the criminal action that there were sublettings". It was conceded by Mr. Wilkinson at the trial that the premises were never let to Haque. On this evidence it was clearly open to the learned Judge to find as he did. It is true that in his brief judgment he does not examine this evidence in detail, but his conclusion was almost an inevitable one after it had been admitted that Haque never had been a subtenant. It is certainly not a finding which this Court would be justified in reversing. In my opinion the first respondent did show that the appellant or his agent had the requisite degree of knowledge of the act of forfeiture on 9th February, 1953, the day on which he accepted six months' rent in advance.

For these reasons I think the appeal fails on all points and should be dismissed with costs.

BRIGGS, J. A.—I agree and have nothing to add.

BACON, $J. A.-I$ agree.