Pirbhai v Central Rent Control Board (Civil Appeal No. 208 of 1951) [1951] EACA 323 (1 January 1951)

## APPELLATE CIVIL

### Before BOURKE, J.

### JAMAL PIRBHAI, Appellant

# THE CENTRAL RENT CONTROL BOARD, Respondents

### Civil Appeal No. 208 of 1951

(Appeal from the decision of the Central Rent Control Board at Nairobi)

The Appellant was served with a notice from the Central Rent Control Board on 30th January to appear at 9.30 on 31st January before the Board and show cause why his house which had been vacant for more than a month should not be taken over under the Increase of Rent (Restriction) Ordinance, 1949, section 5 (1) (h) and rented to a suitable tenant at a rent to be assessed by the Board. At the hearing on the 31st January the appellant was informed that the Board would refrain from taking over if the appellant occupied his house within 14 days and handed over premises he then occupied to the landlord. The appellant refused to do this whereupon the Board intimated that it would take over the house and rent it to selected tenants at a rent to be assessed. Before the Supreme Court the appellant contended: -

- (1) that only one day's notice to show cause was granted; - (2) that there was no fair hearing in accordance with the principles of substantial justice. No evidence was heard relevant to issues arising under section 5 (1) $(h)$ $(i)$ ; - (3) that the Board acted as its own witness; - (4) that the reasons for the Board's decision were never communicated to the appellant and were written after the determination by the tribunal.

Held (22-10-51).—(1) The substantial requirements of justice had been violated at the hearing of the notice to show cause.

(2) The Board had misconceived its powers under section 5 (1) $(h)$ and it may not take over a house itself and go into possession as was ordered. The Board cannot allocate until it has found a suitable tenant to whom allocation is to be made at such rent as may be fixed.

Cases referred to: Damji Devji v. Noronha, 18 E. A. C. A. 54 (C. A. No. 64 of 1950); Sheikh Noordin Gulmohamed v. Sheikh Bros., Ltd., 18 E. A. C. A. 42 (C. A. No. 51/50) Desai Blockin Toolsain Sandolande Violande Violande Blockin St. Cont. No. 31, 2015 1951;<br> *& Others v. Sultan Ali, C. A. No. 448 of 1951; Pither v. Tonkin, C. A. No. 519 of 1951;*<br> *Dalip Singh Karam v. Anderji Nathwani, 24 (1) K.* Singh v. Vir Singh, 24 (1) K. L. R. 45 (C. A. No. 954 of 1949); R. v. Brighton & Area Rent Singh, A. V. Bingh, C. A. No. 282 of 1950; General Council of Medical Education, etc. v. Spackman (1943) 2 A. E. R. 337; Local Government Board v. Arlidge (1915) A. C. p. 120; Spackman v. Plumstead Board of Works (1885) 10 A. C. p. 229.

### Nazareth for Appellant.

No appearance for Respondents.

JUDGMENT.—This is an appeal from a determination made by the Central Rent Control Board under section 5 (1) $(h)$ (i) of the Increase of Rent (Restriction) Ordinance, 1949, which provides that the Board shall have power-

"to allocate to any suitable tenant at such rent as the Central Board or the Coast Board, as the case may be, may fix, any house or portion thereof which without good cause has been left unoccupied for a period exceeding

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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."

The Board has been made respondent in the appeal. It received a copy of the Memorandum of Appeal and was duly served with a notice under Order XLI r.11 of the Civil Procedure (Revised) Rules, 1948, such Order being made applicable by rule 12 of the Increase of Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950. There was no appearance on behalf of the respondent and no declaration filed; the appeal has accordingly been heard ex parte under Order XLI r. 14 (2).

On the 30th January, 1951, the appellant received the following communication from the Secretary of the Board-

It having come to the notice of the Board that your house on Plot No. 1225, Chambers Road, Nairobi, has been vacant for more than a month, you are hereby called upon to appear at 9.30 a.m. on the 31st January, 1951, before this Board, and show cause why the house should not be taken over under the provisions of section 5 (1) $(h)$ of the Increase of Rent (Restriction) Ordinance, 1949, and rented to a suitable tenant at a rent to be assessed by the Board."

The appellant at the time does not appear to have made any protest as to the short notice given to him. He attended before the Board on the 31st January, 1951. The brief record of the proceedings, supplied to this Court under rule 8 of the Rules aforesaid, may be quoted in extenso. The appellant was heard, it is alleged in answer to questioning, and the following notes give the substance of what-he said-

"Has had house re-decorated. Not quite ready yet. Electric light not yet on. Wants house for own occupation. House empty from August (about)."

It was then intimated to the appellant as follows—

"Board will refrain from taking over if you undertake to occupy it within 14 days and hand over hired premises you are now in to landlord (not to anybody else and thus cause further cases before Board). Do you agree? "

The answer is recorded—

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"Sir.

"No. I do not agree to hand over to landlord. Repairs to house in this case will be finished in 14 days."

Thereupon the Board made its determination in the following terms—

"Board will take over house and rent it to tenants to be selected by the Board from 1.2.51 or from when repairs are finished, at a rent to be assessed by the Board."

That decision is signed and dated and appears upon the record together with the matter preceding it in long-hand. There then occurs as follows in typescript-

"The Board considers that its reasons for giving this decision should be set out briefly. The wood and iron house now occupied by Jamal Pirbhai, in Government Road, has been the subject of a former case before the former Rent Control Board and the Courts and is now said to be pending in appeal before the Privy Council.

It belongs to an Indian, Harnam Singh.

The building in the present case is a commodious one and Jamal Pirbhai got possession of it in case 171 of 1949 on the grounds that he 'wants to live in it himself' (page 7, Case $171/49$ ) and 'the house I live in is rented and a case is before Court against me for vacant possession' (page 7). 'I bought the house for residential purposes' (page 7). 'I thought I might go and live there myself' (page 7). 'It would be a hardship on me not to get the premises' (page $7$ ).

'I do not want vacant possession just to make money' (page 8). The house in this case is a very large dwelling-house in excellent condition, in great contrast to the very old wood and iron house now rented and which the tenant says he refuses to give up to the landlord.

The Board considers the attitude of Jamal Pirbhai most unreasonable. He got possession of the big house on the grounds that he wanted it himself; he has let it lay vacant for several months—true, it has been redecorated; and he now refuses the Board's offer to refrain from taking it over if he will occupy it (as he said he wanted to do) and give the landlord of the rented house his own house back. The Board considers this a suitable case for taking over the premises: it will provide suitable accommodation for quite a number of people."

These reasons are also signed by the Chairman and dated 31st January, 1951.

On the 6th February the Board took steps to have its determination enforced by the Magistrate's Court by applying for a warrant authorizing the bailiff to put the Board into vacant possession of the house which "had been taken over" by it. These proceedings in execution were in due course stayed upon application by the appellant to this Court.

I tabulate shortly the objections taken on this appeal to the manner in which the Board conducted the proceedings: $\mathcal{L}^{\mathcal{A}}$

- 1. Only one day's notice to show cause was granted to the appellant though no urgency was apparent. - 2. There was no fair hearing in accordance with the principles of substantial justice; no evidence was heard relevant to issues arising under section 5 (1) (h) (i). The appellant was simply questioned and then put to an arbitrary and illegal election. - 3. The Board acted as its own witness in the matter as appears from the "reasons" given for its decision. - 4. Such "reasons" were never communicated at any time to the appellant nor was any opportunity given to him to question or explain matters raised therein. They were apparently written after the actual determination by the tribunal was given.

It seems probable that questions bearing upon procedure will continue to arise on appeal in Rent Control cases until regulations, as apparently envisaged under section 34 of the Ordinance, are made prescribing—"the manner in which Rent Control Boards shall conduct their business, and the matter which shall be taken into account by Rent Control Boards in exercising their powers under (the) Ordinance". These tribunals perform very important functions and, at any rate in the case of the Central and Coast Boards, they are accorded far wider powers than the similar tribunals in England from whose decisions, moreover, there is no right of appeal. The Central and Coast Boards deal with claims which in England would be adjudicated upon by the County Court or the High Court and which formerly, under the 1940 Ordinance, were decided by the Supreme Court or a Subordinate Court (and see Damji Devji v. Noronha, E. A. C. A. C. A. No. 64 of $1950$ ).

I quote from a recent decision of the Court of Appeal for Eastern Africa in Sheikh Noordin Gulmohamed v. Sheikh Bros, Ltd. Civil Appeal No. 51 of 1950-

"Under the present Ordinance the Central Board has power itself to make orders for the recovery of the possession of premises and for the payment of arrears of rent. (Section 5 (1) $(f)$ ). It has power to award costs of proceedings before it, and to direct that costs shall be taxed upon the Supreme Court scale or upon the scale applicable to a Subordinate Court. (Section 5 (1) $(m)$ .) It is enabled to exercise jurisdiction in all civil matters and questions arising under the Ordinance. (Section 5 (1) $(n)$ .) The power of the Board to act on less than legal evidence, has disappeared, as has also the necessity for obtaining the Board's consent before rent restriction proceedings are instituted in a Court of law. The Board, however, retains the power which its predecessor possessed to administer oaths, to order persons to attend and give evidence or to produce and give discovery of documents, in like manner as in proceedings in the Supreme Court. (Section 5 (1) ( $l$ ).) A duly authenticated copy of any determination or order of the Board may be filed in the Court by any party to the proceedings before such Board, or by the Board, and on such notice being filed and notice of such filing being served on the Board by any party filing the same such determination or order may be enforced as a decree of the<br>Court. Finally, this Court has recently held, in Civil Appeal No. 64 of 1950, that, by virtue of section 31 of the 1949 Ordinance as read with section 5 of the same, the Central and Coast Boards have, in their respective areas, exclusive jurisdiction to deal with any claims or other proceeding arising under the Ordinance as which jurisdiction or power specifically conferred by the Ordinance on such Boards, and that the jurisdiction both of the Supreme Court and of first class subordinate Courts to entertain such proceedings has been ousted. Section 5 specifically confers extensive powers and jurisdiction on the Central and Coast Boards, as has already been indicated, with the result that each such Board is within its own area, the sole tribunal, at least in the great majority of cases, to which a person seeking to make a claim or bring a proceedings under the Ordinance can resort. The Central and Coasts Boards have conferred upon them, to all intents and purposes, the status and attributes of a Court, save in the matter of enforcement of their determinations and orders, in which the assistance of a first-class subordinate Court must be invoked.'

It may be added, to complete the picture, that there is provision for appeal to the Supreme Court from a determination or order of a Rent Control Board (section 7 and section 9 (5)); and that it is provided that the Chairman of the Central and Coast Boards shall be a barrister or solicitor, or an Advocate of the Supreme Court of Kenya, in each case of not less than five years' standing, or shall be a person who has held high judicial office (section $4(2)$ ).

There are two important remarks in the passage just quoted. The first concerns the question of proof and is—"The power of the Board to act on less than legal evidence has disappeared". Earlier in the judgment the Court pointed out that<br>under the 1940 Ordinance—"The Board in the determination of any matter was empowered to take into consideration any evidence which it considered relevant to the subject of the inquiry before it, notwithstanding that such evidence would not be admissible under the law relating to evidence (section 3 (6)". It would accordingly seem to be recognized by the Court of Appeal, if not laid down in so many terms, that the Board in determining any matter requiring a finding on fact is empowered only to act upon evidence that is not less than legal evidence, in other words it is bound to apply the law relating to evidence. I am of opinion that this authority overrides what was held by Campbell, Ag. J., in Desai and Others v. Sultan Ali, C. A. No. 448/51, namely that the Board may decide matters on its own knowledge and information.

The other important pronouncement is that—"the Central and Coast Boards have had conferred upon them, to all intents and purposes, the status and attributes of a Court, save in the matter of enforcement of their determinations and orders, in which the assistance of a first-class subordinate Court must be invoked". That being so, it would seem necessary or at least eminently desirable that such Boards should, in determining their procedure, acknowledge and follow, or be bound by regulations to follow, some degree of traditional formality in procedure characteristic of the manner and methods in which a Court conducts its business. In Pither v. Tonkin. Civil Appeal No. 519 of 1951, Harley, Ag. J., said this:

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"Although what follows is obiter, yet I consider that some comment should be made on the degree of formality or informality which the Rent Control Board should observe in its procedure. In England Reg. 8 (1) of the Landlord and Tenant (Rent Control) Regulations, 1949, provides that 'the procedure at a hearing shall be such as the tribunal may determine'. From this Lord Goddard, C. J., concludes: 'Obviously, therefore, the intention of Parliament was that the procedure of these tribunals should be as informal as possible' (R. v. Brighton and Area Rent Tribunal (1950) 2 K. B. 410 at page 240). It does not follow that proceedings in Kenya may be equally informal. In Kenya the Legislature has seen fit, to emphasize the equality of the Board, and the similarity of its procedure, with the Supreme Court. (See sections 5 (1) (1) (m) and (n) of the 1949 Ordinance and the Rules of Court made by virtue of section $34$ .)

The Chairman of the Control Board must be an experienced lawyer (S. 3 Ord. 22/49) and the orginal intention of the 1949 Act was that appeals from the Control Board should lie direct to the Court of Appeal for Eastern Africa (section 7).

It would seem therefore that there is a limit of the degree of informality with which the Board may conduct its proceedings, and in my view that limit was reached and overshot by the Board when on 2nd May it noted its decision in the case under review."

On the other hand in Dalip Singh Karam v. Anderji Nathwani, Civil Appeal No. 966 of 1949, Nihill, C. J. (as he then was) after referring to the observation of - de Lestang, J., in another Rent Control Appeal—Battan Singh v. Vir Singh, Civil Appeal No. 954 of 1949—based upon the principle that every judicial or quasijudicial 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, went on to consider R. v. Brighton and Area Rent Tribunal Ex parte Marine Parade Estates (1936) Ltd. (supra) and to say, referring to Rent Control Boards and to the present Ordinance of 1949-

"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 then I 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."

And in Lachmandas Deviditta v. Atma Singh, Civil Appeal No. 282 of 1950, Thacker, J., said-

"It should not be forgotten that this Board is not a Court or law and that the proceedings of the Board do not necessarily involve a hearing like that of a Court. Its procedure can be of the most informal nature. (See Brighton and Area Rent Tribunal ex parte Marine Parade (1936) Ltd. (Sup)."

It has, however, now to be recognized that the Central and Coast Boards bear, to all intents and purposes, the status and attributes of a Court. They differ considerably, as I have said, from the equivalent Boards in England in the extent of their jurisdiction and the difficulty of the questions which they are called upon to resolve; and they are far removed in character from such tribunals as were the subject of consideration in General Council of Medical Education, etc., v. Spackman 2 A. E. R. (1943), page 337, Local Government Board v. Ardidge, (1951) A. C., page 120, and Spackman v. Plumstead Board of Works (1885), 10 A. C., page 229, in which "natural justice" was held to be the sole test of the appropriate procedure. But applying that test to the present case it seems to me apparent that the substantial requirements of justice have been violated. The appellant was required. to show good cause why his "house should not be taken over under the provisions of section 5 (1) (h)" and he was given no adequate opportunity of being heard and stating his case and views upon this. There is no contest as to what is said to have happened and which appears to be borne out by the record. The appellant was asked a few questions and then put arbitrarily to a choice combined with the threat that if he did not adopt the course put to him he would lose possession of his premises. The appellant did not agree to act upon this course and forthwith the Board proceeded, without any consideration of "good cause", to implement the unpleasant alternative given by determining that it would "take over house and rent it to tenants to be selected by the Board from 1.2.51 or from when repairs are finished at a rent to be assessed by the Board". But in so far as the appellant may be said to have been allowed to attempt to show good cause, it appears from what he said in answer to question that he was making the case that the house was left unoccupied because it was being refitted and was not yet ready for occupation; and from the terms of its decision the Board seems to have accepted it that the house was in an unfinished condition, for it proposes to allocate it to tenants to be selected as from a future date specified or from the date the repairs are finished—apparently by the appellant, and at a rent to be assessed at a future date. Further, from the "reasons" entered upon the record subsequently to its decision, which I see no reason to doubt in the absence of any contest of the allegation were never put to the appellant so that he might state his views upon them, it is evident that the Board acted upon material that was never given as legal evidence before it, but upon information or personal knowledge gleaned in some way known best to the Board and from reference to the record in another case file.

But apart from all this the Board has misconceived its powers under section 5 (1) (h). If no good cause is shown for leaving a house unoccupied for a period exceeding one month, the Board is enabled to allocate the house to a suitable tenant at such rent as it may fix. It is not provided under section 5 (1) (h) that the Board may "take over" a house itself and go into possession as was ordered and sought to be done through execution in this case. Obviously the Board cannot allocate until it has found a suitable tenant to whom allocation is to be made at such rent as may be fixed. There was no tenant determined upon and no rent fixed when the Board, quite wrongly, decided to put itself into possession with the object of allocating at a rent to some suitable tenants in the future. If a house is in an unfinished condition the Board may cause the house to be finished in all respects and rendered fit for habitation, but the Board did not act upon this provision in the instant case, and the Board may, *inter alia*, direct the tenant to whom the house *has been allocated* to pay rent in order to defray the cost of finishing and rendering fit for habitation. (Section 5 (1) $(h)$ (ii).)

For all these reasons the determination of the Board was clearly bad and is hereby set aside. I make no order as to costs.

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