Moti v Fatuma (Civil Appeal No. 17 of 1951) [1952] EACA 8 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Sir Hector Hearne, C. J. (Kenya)

## MRS. AMINABAI w/o HUSSEIN MOHAMED MOTI, Appellant (Original Appellant)

## MRS. GHULAM FATUMA, Respondent (Original Respondent) Civil Appeal No. 17 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya, R. Windham, J.)

Landlord and Tenant—Increase of Rent (Restriction) Ordinance, 1949, section 5 $(1)$ (h) (i) Interpretation—Duty of Board.

For the appellant-landlord it was argued that the Central Board, when examining the issue as to whether premises have been left unoccupied for more than one month without good cause, had a duty to consider whether the person legally competent to give possession of the premises had failed to show sufficiently good reason for non-occupation. It was also contended that because the parties were not put on oath the power of the Board to act was ultra vires.

It was further argued that paragraph 5 (1) (h) (i) can only apply to new premises which were not let on the prescribed date as defined by section 2 (1).

Held (21-1-52).—Worley (Vice-President) dissenting: (1) The Board, after an examination of

all the circumstances, can come to its own conclusion on the issue of good cause, unfettered by any finding that there has been a default by the person legally competent to give possession.

(2) It is only when evidence is taken that the power of the Board to act on less than legal evidence has disappeared.

(3) The wording of section 5. (1) (h) (i) is permissive only and where premises allocated have attached to them a standard rent fixed by law that, and that only, can be the rent the allocated tenant will be required to pay. Appeal dismissed.

Case referred to: Wankie Colliery Co. v. Inland Revenue Commissioners, (1921) 3 K. B. 344.

D. N. Khanna for appellant.

A. R. Kapila with Ishani for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This appeal, which comes to us by way of a second appeal against a decision of the Kenya Central Rent Control Board raises a point as to the construction to be placed on the wording of section 5 (1) (h) (i) of the Increase of Rent (Restriction) Ordinance, 1949. This sub-section reads as follows: -

The (Board) shall have power:

"to allocate to any suitable tenant at such rent as the Central Board... may, fix, any house or portion thereof which without good cause has been left unoccupied for a period exceeding one month and, if any house is in an unfinished condition to cause such house to be finished in all respects and rendered fit for habitation;"

Mr. Khanna, for the appellant who is the landlord of the premises in question, has raised several points on the construction of this sub-section but I will deal first with the most important one. Is it the duty of the Board, when examining the issue as to whether premises have been left unoccupied for more than one month without good cause, to consider whether the person legally competent to give possession of the premises has failed to show a sufficiently good reason for non-occupation, or can the Board, after an examination of all the circumstances, come to its own conclusion on the issue of good cause, unfettered by any finding that there has been a default by the person legally competent to give possession?

The learned Judge who heard the appeal in the Court below found no difficulty in answering this question in the latter sense and there is much that can be urged for such an interpretation. No one can question that the general purpose of this legislation is to alleviate a housing shortage, and that in pursuit of this aim, the legislature has sanctioned much that infringes on the ordinary rights of property owners and the principles governing the law of landlord and tenant. Nevertheless it is a sound principle of law that where a right is invaded a statute must be strictly construed and that a statutory Board or Tribunal is strictly bound to keep its activities within the bounds laid down by the statute creating it. Furthermore on broad grounds of equity there does seem something repugnant in a situation whereby an owner of a house may find himself saddled with an occupier he does not want, because through no default on his part, a house belonging to him has remained unoccupied for the short period of one month and a day. However if that is what the legislature has decreed, we cannot strain the construction of paragraph $(h)$ (i) in order to arrive at a result which on one view of the matter might be considered more in keeping with justice and equity. With some reluctance I have come to the conclusion that it is impossible to question the correctness of the following passage in the judgment of the learned Judge who heard the appeal in the Court below:—

"These same considerations afford in my view, the answer to the third contention advanced for the appellant, namely that section 5 (1) (h) (i) can be resorted to only where, during the period exceeding one month for which the premises remained vacant, the landlord had an actual right to possession and was responsible for, or at least capable of preventing, their being left unoccupied. Here again, there is nothing in the language of paragraph $(h)$ (i) to warrant its being so restricted. It speaks not of a house which the landlord has left or allowed to be left unoccupied, but of a house which 'has been left unoccupied'. The words are in the passive mood and require proof of one fact only, the actual emptiness of the house for over one month, without reference to responsibility for its emptiness—subject always to its being without good cause."

To hold otherwise there would have to be an importation into the subparagraph of something which is not there, and something inconsistent with the general scheme of the Ordinance. The fact of the matter is, as I see it, this is an instance where the wording in dispute is so plain that we should not be entitled to put an unnatural interpretation on the words used simply to avoid what may seem to be an injustice to the landlord (see Wankie Colliery Co. v. Inland Revenue Commissioners (1921) 3 K. B. 344, cited in 31 Hailsham at page 507). On this point then, if the Rent Control Board did properly direct its mind to the issue of good cause and did not act capriciously on extraneous matters, it is not for an Appellate Court to interfere with the exercise of its discretion. That is clearly the position here. The Board heard all the parties, addressed its mind to all the circumstances and came to the conclusion that there was no good cause for the non-occupation of the premises. It has been contended that because the parties were not put on oath the power of the Board to act was ultra vires. I can see no merit in this submission. The Board heard the parties or their advocates and presumably did not require evidence. It is only when evidence is taken that the power of the Board to act on less than legal evidence has disappeared, that is so because in the 1949 Rent Restriction

Ordinance, section 3 (6) of the previous Ordinance was not reproduced. (See the judgment of Lockhart-Smith, Justice of Appeal, in Civil Appeal No. 51 of 1950 at page 3.) In this case no objection was taken on informality until after the Board had arrived at its decision.

One other point taken by the appellant needs to be mentioned. It has been argued that because paragraph $(h)$ (i) confers upon the Board the power to fix the rent for an allocated tenant, the paragraph can only apply to new premises which were not let on "the prescribed date" as defined in section 2 (1). My answer to that is that the words are permissive only and that where the premises allocated have attached to them a standard rent fixed by law that, and that only can be the rent the allocated tenant will be required to pay.

As the Court by a majority support my opinion, this appeal will be dismissed with costs.

SIR HECTOR HEARNE (Chief Justice of Kenya).—The facts out of which this appeal arises are these. The appellant obtained an order from the Supreme Court of Kenya against the respondent, in circumstances which are immaterial to this appeal, for the possession of a two-roomed flat in the appellant's house which was occupied by the respondent. A three-roomed flat in the same house had been let to one Dawood Suleiman who had vacated it on 31st July, 1950. It had remained unoccupied till 15th October. The Executive Officer of the Central Rent Control Board visited the house on 15th October, 1950, and on the same day notices were issued to the appellant and Dawood Suleiman directing them to appear "and show cause why the three rooms" which the latter had vacated on 31st July "should not be taken over by the Board and rented to a suitable tenant at a price to be fixed by the Board". The letter was signed by the "Acting Chairman" of the Board. It would appear that the Executive Officer was at that time also acting as Chairman. On 16th October, H. M. Moti the husband of the appellant, Sattani, Sher Ali Jan Mahomed the son of the respondent who represented her, and Dawood Suleiman were before the Board. The respondent had presumably applied to the Board for the allocation of Dawood Suleiman's flat to her. No evidence was taken, but Dawood Suleiman told the Board that he had not handed over the key of the flat let to him as he wished his mother and son-in-law to occupy it for the convenience of the former who wished to be near a mosque, and the husband of the appellant told the Board that he had promised to let Dawood Suleiman's flat to Sattani who was occupying quarters built for Africans in respect of which he had been summoned. The Board decided that the Town Clerk be asked to allow Sattani to remain in the quarters he occupied, and added that "this will enable the Board to take over the three rooms" (let to Dawood Suleiman) "for allocation". On 18th October a letter was addressed to the Town Clerk, who replied on 20th October that Sattani would not be allowed to retain the quarters he was occupying. Dawood Suleiman's reason for desiring to retain the three-roomed flat let to him was considered to be inadequate. It does not appear that on 16th October the Board made any definite decision. On 28th October the appellant appeared before the Board, represented by an advocate. The respondent and Sattani were also present. The Town Clerk's letter was read; the appellant's advocate said that the respondent had not paid rent for the two-roomed flat she had occupied in the appellant's house; the respondent said she had offered rent twice, the appellant's advocate said the appellant required the two-roomed flat for herself and Sattani said that he had nothing more to say. The Board then decided "to take over the three rooms vacated by Dawood Suleiman and to rent them to the respondent at a rent to be assessed; rooms to be taken over forthwith". The terms of the order are inappropriate. The Board had no power to take over the flat. What was undoubtedly meant was that the three-roomed flat had been allocated as against the appellant to the respondent who was in danger, together with her eight children, of finding herself without a roof over her head. The appellant's advocate, apparently on the same day, 28th October, asked for a reconsideration of the Board's decision and on this occasion it was said that "Dawood had been notified to leave by notice on 23rd August to quit by 1st October". The Board declined to reconsider its decision. An appeal was taken to the Supreme Court of Kenya by the present appellant which was dismissed and she has now appealed to this Court.

After the advocate for the appellant had made his abortive application for a reconsideration of a matter that had already been decided, the Acting Chairman, by reason of submissions that had been made to him, recorded "that the Board need not hold hearings like a Court and their proceedings could be most informal". This is certainly in accordance with views that have been expressed by Judges of the Supreme Court of Kenya, but it should be noted by the Board in future proceedings before it that in the view of the Court of Appeal for Eastern Africa in Civil Appeal No. 51 of 1950, where it is necessary to take evidence "the power of the Board to act on less than legal evidence has disappeared". In the proceedings with which we are concerned the Board did not record any evidence, but it acted on statements made by the parties before the Board which were unchallenged. These statements were that Dawood Suleiman had vacated the flat on 31st July and retained the key as he wished to put his mother-in-law in it and that the appellant had promised to let the flat to Sattani. The statement made by the advocate for the appellant about the notice to Dawood Suleiman was not made, according to the Board's record of the proceedings, till after it had made its decision, but it appears to have been assumed by the Supreme Court on the first appeal and not canvassed by Counsel for the respondent that the Board, before its decision, was cognizant of the notice which was not in dispute. Can it be said that the Board was right on those facts in holding that Dawood Suleiman's flat had been left unoccupied "without good cause" for the two and a half months during which it was unoccupied?

One of the arguments addressed to us on appeal was that "the right of allocation in the Board only extends over premises in respect of which the Board has lawfully the power under the Increase of Rent (Restriction) Ordinance, 1949, to fix a rent in accordance with the provisions of the said Ordinance". It was argued that section 5 (1) $(h)$ (i) empowers the Board to allocate vacant premises at such rent as the Board may fix, and the Board may therefore only allocate vacant premises where they were in existence but not let on the prescribed date and not vacant premises which were let on the prescribed date, as the standard rent of the latter premises (the house of the appellant belonging to this category) could not be fixed by the Board as it was fixed by operation of law. In my view the argument is without merit. Power is given to the Board to allocate any house or portion of a house and to fix the rent as the law lays down it should be fixed either in accordance with section 2 (1) (A) (i) or (ii) of the Ordinance. Alternatively the words "may fix" are capable of being regarded as permissive, so that the Board would only fix the rent in cases where the rent has not been fixed by law, and is required to be fixed by the Board in accordance with section 2 (1) $(A)$ (ii).

The main argument on behalf of the appellant, though it was elaborated at length, may be stated very shortly:-

(a) An order by the Board under section 5 (1) (h) (i) of the Ordinance "allocating to a suitable tenant any house or portion thereof" can only be directed to or, as it was put, be made at the expense of a person legally competent to give possession of the house or portion thereof to the "suitable tenant".

- (b) An order by the Board as in $(a)$ could only be made against the person legally competent to give possession if it was by the default of that person that the house or portion of a house sought to be allocated to a "suitable tenant" was unoccupied for a period exceeding one month: in other words that the absence of good cause must be referable to him and to no one else. - (c) Dawood Suleiman was a statutory tenant who was not in actual possession although he retained the key: the appellant alone could have given possession: and as he had not been responsible for the flat being unoccupied for more than a month, the Board could not have made the order it did against him.

I agree with (a) but I find myself incapable of reading (b) into section 5 (1) (h) (i). The legislature must be taken to have been aware of the law stated in (a) and if it was intended that the Board could only act if the person competent to give possession was responsible for a house being unoccupied for more than a month, it would have said so. On the contrary the section merely refers to a house or portion of a house being left unoccupied "without good cause". Whenever an attempt is made to import into a section something that the legislature has not seen fit to put into the section, something that has not been enacted, the way is pointed to a course that is beset with pitfalls. As I read section $5(1)$ (h) (i) without any importations into it what it contemplates is that when a house is unoccupied for more than a month its unoccupied state must be brought to an end if it exists "without good cause": and in considering whether there was or was not an absence of good cause the Board, while bearing in mind that it can only make an order against a person capable of giving possession, is entitled to take into account all the circumstances pointing to an absence of good<br>cause whoever may be responsible for them. It may be that the landlord was wholly or partly responsible, it may be that a tenant of his was wholly or partly responsible or it may be that both were jointly responsible. But it is not the function of the Board to apportion responsibility. It has merely to decide whether there was good reason, good cause, for a house or portion of a house to remain unoccupied as that state of affairs is regarded by the legislature as being against the public interest. That appears to be the opinion of the Supreme Court of Kenya and I am entirely in agreement with it.

On the view which I have taken the question of whether the appellant can be said to have been responsible for the absence of good cause found by the Board—her inaction, apart from the notice, must certainly have encouraged Dawood Suleiman in his conduct—need not be considered.

There is one other small point. The advocate for the appellant argued that the rent of the house or portion thereof allocated to "a suitable tenant" should be fixed at the time of the allocation. While section 5 (1) (h) (i) does not say so and the fact that the rent was not fixed at the time of the allocation would not vitiate the allocation, it is certainly desirable that this should be done. I note, however, from the statement made by the advocate for the appellant before the Supreme Court that "the premises (were) admitted by my friend (to have been) built in 1932 and the standard rent (is) 155 (shillings), therefore no need to remit". The respondent's advocate did not take exception to that statement and it would appear that the rent which the Board should have fixed was Sh. 155 per month,

For the reasons I have given I would dismiss the appeal with costs.

SIR NEWNHAM WORLEY (Vice-President).—I have had the advantage of reading the judgments prepared by the other members of the Court but with regret I find myself unable to agree with the conclusion reached by them on the main question raised in this appeal. I do not for a moment suggest that the construction put upon this singularly ill-conceived and ill-drafted section in those judgments is not one for which there is much to be said; but it is not the construction which recommends itself to me.

$\mathbf{1}$

"A sense of the possible injustice of an interpretation ought not to induce Judges to do violence to well-settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. Whenever the language of the Legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the Courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words."

(Maxwell on *Interpretation of Statutes*, 9th Edition, pp. 207-8.)

Mr. Kapila admitted, in the course of the argument, that the construction of section 5 (1) $(h)$ which he contends might lead to injustice for it would be competent for the Board to allocate premises to an applicant against the wish of the landlord, merely on being satisfied that a tenant had left them unoccupied without good cause for more than one month and in despite of evidence that the landlord was desirous of recovering possession and had taken and was taking without delay all lawful steps to that end. In my view a construction involving such harsh and unjust consequences ought not to be adopted if the words used are reasonably capable of an alternative meaning, which will avoid such consequences.

The scope and intention of this sub-section are so sketchily indicated in the words used that it seems to me impossible to construe it or any part of it without putting a gloss upon almost every phrase. On the very threshold there is a doubt as to whether the Board may act of its own motion or whether, as Mr. Khanna suggested, there must be a prospective tenant in existence who has made an application to the Board in respect of the premises in question. Further, it is by no means clear whether, in the case of premises let on a contractual tenancy, the "suitable tenant" to whom they or a portion of them may be allocated is to be a sub-tenant to the tenant or is to step into the shoes of the contractual tenant. Again, the Board is empowered to fix the rent to be paid for the allocated premises, but no indication is given as to how or by whom the other terms and conditions of the tenancy are to be fixed. If there has been a previous tenancy it might be argued that the previous terms and conditions are to continue, but what is the position if the allocated premises have never been let before? These and other similar considerations lead me to the view that no satisfactory interpretation is possible without importing into the sub-section a great deal which is not to be found in the actual words used and that this is best achieved, as Mr. Khanna suggested, by considering it against the background of the general law of landlord and tenant.

Mr. Kapila acknowledged in part the correctness of this view when he conceded that an order could only be made and a tenancy created by the Board against the person who is legally in a position to grant a tenancy or subtenancy and to give possession. One of the difficulties I have found in considering the case before us is that this point does not appear to have been present to the mind of the Board and there is no clear finding whether Dawood Suleiman's tenancy, whether contractual or statutory, has been terminated and, if so, when. It is quite clear, however, that the appellant was not legally in a position to give possession of the three rooms to the respondent so long as Dawood Suleiman retained the key, or until he got an order for possession. The fact that Dawood surrendered the key to the Board's Executive Officer in circumstances which do not appear on the record, seems to me immaterial.

But to return to my consideration of the sub-section. Bearing in mind the general considerations set out above, the construction contended for by the appellant is to my mind one which the words can reasonably bear and one which will more readily commend itself as being consonant with justice. It is I think only reasonable to suppose that the legislature contemplated that the person responsible for leaving the premises unoccupied should be the person who is to be deprived of the right to possession: if it was intended to penalize a landlord who is innocent of all blame or responsibility, this could and should have been expressly provided.

Mr. Kapila has argued that the construction which I favour will enable landlords to circumvent the sub-section and to keep premises vacant with the object of extorting "key money" or premiums. If that does prove to be the effect it will no doubt be remedied by further legislation. But the contemplation of such a possibility is not sufficient to induce me to accept a construction which. as the present case shows, will cause hardship and injustice.

It is significant that in the "Points for Consideration" recorded by the Chairman of the Board on 28th October, 1950, the reference to section 17 (2) of the Rent Restriction Ordinance shows that he thought the question whether the rooms should be allocated to the respondent fell to be decided upon the general question of "reasonableness". In that respect the Board went outside the scope of section 5 (1) (h) (i); but, because of the interpretation they were putting upon it, they found themselves in the position, as they thought, of having to weigh the merits of the respective claims of Sattani and the respondent and to decide whose need was the greater. If the alternative construction be adopted this dilemma could not arise: the questions before the Board would then be simply two: has the person (whether the landlord or tenant) who has the immediate right to possession left the premises unoccupied without good cause for more than a month? If so, then is the applicant a suitable person to be awarded the possession?

On the other points raised by the appellant in his memorandum of appeal I concur with the views expressed in the judgments which have been read, but for the reasons above stated I am of opinion that the appellant succeeds on his main point and would therefore have allowed the appeal.