Pirbhai v Vogue (Civil Case No. 104 of 1952 (Mombasa)) [1952] EACA 285 (1 January 1952)

## ORIGINAL CIVIL

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$\mathcal{A}^{\mathcal{A}}$ Before CONNELL, J. $\overline{f_{\text{max}}(x)} = \overline{f_{\text{max}}(x)}$

## GULAMALI PIRBHAI, Appellant (Original Landlord)

$\mathbf{u} = \mathbf{v}$

## MAISON VOGUE, Respondent (Original Tenant)

## Civil Case No. 104 of 1952 (Mombasa)

Increase of Rent Restriction Ordinance, section 13 (1) $(a)$ —Meaning of standard rent as at the commencement of the Ordinance.

The landlord of certain business premises determined the tenants contractual tenancies by notices to quit issued on 30th August, 1951, and on the same date issued notices under section 13 of the Ordinance claiming increases of rent as from 1st October, 1951, the date when the standard rent was to be paid.

The Rent Board declined to allow the increases and the landlord appealed.

The Increase of Rent Restriction Ordinance, 1949, as amended by Ordinance 20 of 1951, section 13 (1) provides—

"A landlord may, by notice in writing to the tenant, increase the rent of any premises as follows—

- (a) in the case of business premises by an amount not exceeding 20 per centum of the standard rent as at the commencement of this Ordinance. - Held (8-9-52).—The increase permitted by section 13 (1) (a) could only be claimed in respect<br>of the standard rent as fixed or as it existed at the commencement of the Ordinance, i.e. on 6th September, 1949. Appeal dismissed.

Cases referred to: Austin v. Greengrass, 1944 L. J. K. B. 463. Gover v. Field. 1944 L. J. K. B. 129; Lazarus Barlów v. Regent Estates, 1949 2 A. E. R. 118, 122.

Cleasby for appellant.

Respondent absent served.

JUDGMENT.—Both this appeal and the original application are in the nature of a friendly test action in which it is agreed that each side will bear its own costs and the respondent agrees to pay the increased rent if the appeal is decided against him.

The result of the appeal must affect a large number of tenancies. It arises in this way: $-$

The landlord, Gulamali Pirbhai, has some ten tenants of shops and offices; their contractual tenancies were determined by notices to quit issued on 30th August, 1951. On the same date notices claiming increase of rent as from 1st October. 1951 (the date from which standard rent was to be paid) were issued in respect of each tenancy under section 13 of the Increase of Rent (Restriction) Ordinance.

The new 1949 Ordinance came into force on 6th September, 1949.

The Rent Board declined to allow the increases asked for by the landlord, following a number of decisions of their own Board.

The answer as to whether the increases claimed are lawfully allowable depends on the interpretation of section 13 (1) $(a)$ of the Ordinance, which reads as follows: $-$

13. (1) A landlord may, by notice in writing to the tenant, increase the $13$ . rent of any premises as follows: -

(a) (Ord. $20/51$ , section 4, page 169.) in the case of a dwelling house, by an amount not exceeding 10 per centum, and in the case of business premises, by an amount not exceeding 20 per centum, of the standard rent *as at* the commencement of this Ordinance;

Provided that where such rent has previously been increased under the provisions of any Rent and Mortgage Interest (Restrictions) Ordinance in force before the commencement of this Ordinance, the increase now permitted shall be limited to such sum as is required to make the total increase up to 10 per centum of 20 per $\cdot$ centum of the standard rent; $\cdot$

The words to be construed, of course, are "standard rent as at the commencement of this Ordinance". One has heard of the phrase "as from"; it is somewhat inelegant but perhaps expressive as trying to pin down the starting point of some action. The words "as at" are not nearly so lucid but, I think, it is the Court's duty to avoid as far as possible dialectics and hair splitting and try and arrive at the intention of the section.

Mr. Cleasby argues that on the authority of a number of English cases and a Kenya decision in the Court of Appeal for Eastern Africa it is well established that a building must always have had a notional standard rent attached to it, and therefore whatever standard rent. "as at the commencement of the Ordinance" may mean, it follows that the premises in question must have had a standard rent attached to them in 1948 when the buildings were completed and that that standard rent must be the same as the standard rent fixed in October, 1951, and could therefore be increased by 20 per cent.

It is as well to examine some of the cases cited by Mr. Cleasby.

In Austin v. Greengrass 1944 L. J. K. B. 463 the landlord inserted in his rent book the standard rent of the whole house. He had not inserted the standard rent of the ground floor as required by regulation 4. It was held that an offence had been committed though the standard rent of the ground floor had not been fixed.

In Gover v. Field 1944 L. J. K. B. 120 for some period previous to the fixation of standard rent under the new Statute of 1939 the tenant had paid more than the new standard rent. It was held that the tenant could recover all previous payments in excess of the new standard rent as the 1939 Statute operated retrospectively. The passage much relied on by Mr. Cleasby is this: "there was always from 1st September, 1939, a standard rent applicable to the whole house and there must accordingly always have been a standard rent attaching to any room which could be ascertained though no-one knew what it was until an application was made to fix it".

The phase "judgment in rem" was considered at some length by Evershed, L. J. in Lazarus Barlow v. Regent Estates 1949 2 A. E. R. at page 122, where the learned Lord Justice adopted the definition in Halsbury as meaning "the judgment of a Court of competent jurisdiction determining the status of a person or thing ... (as distinct from the particular interest in it of a party to the litigation)".

Doubtless in the instant case the Rent Board did determine the "status" of the rent of the premises from 1st October, 1951. The question is, is it to be considered that they determined that status retrospectively for the purpose of enabling the landlord to increase the rent?

Doubtless it is retrospective for the purpose of enabling the tenant to recover excess of standard rent or excess of permitted increases; but section 11 and 21 make the Ordinance retrospective for this purpose in any event.

The argument of retrospectivity is not quite in point as regards permitted increases as section 13 (1) (a) shows that increase may be claimed only "by an amount not exceeding 20 per cent of the standard rent as at the commencement of the Ordinance".

In my view though the question is one of some difficulty the legislature intended only that 20 per cent increase should be claimed "of the standard rent as fixed or as it exists at the commencement of the Ordinance." i.e. on 6th September, 1949. To hold otherwise would, I think, ignore the purpose of the amendment altogether.

I agree that this result may be unfair to landlords; it is up to them or their legal representatives to have the section amended, or in the present case the landlord may of course decide that a higher tribunal may take a different view from the view I have expressed. $\frac{1}{2} \left( \frac{1}{2} \right) \frac{1}{2}$

In the result I adopt the learned Chairman's reasoning and the appeal must be dismissed. $\sim$

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