Premchand and Others v Gomes and Others (Civil Appeal No. 52 of 1953) [1956] EACA 6 (1 January 1956)

# APPELLATE CIVIL

#### Before EDMONDS. J.

# BHAGWANJI PREMCHAND AND OTHERS, Appellants

## J. M. GOMES AND OTHERS, Respondents

#### Civil Appeal No. 52 of 1953

# Landlord and Tenant—Increase of Rent (Restriction) Ordinance, 1949, section 16 (1)—Title of applicants—Order for possession of whole when part under Ordinance—Reasonableness matter for Board.

Proceedings were brought before the Central Rent Control Board for possession by the landlords/respondents, the trustees for a Goan association, against the tenants, to whom the Society let certain premises in 1933, and the subtenants (present appellants). The Board gave vacant possession after considering submissions that the head tenants were no longer in occupation; that the tenants were irregular and in arrear in payment of rent and that the premises were reasonably required by the members of the Society.

Held (12-6-56).—(1) That since the Rent Control Board is a body exercising judicial functions informally, applications to the Board do not require to be in any prescribed form; and that, as regards a society or similar body, applications may be presented by any person or persons having the authority of such body.

(2) That when any part of premises are sublet after the operative date of the Ordinance (1941), the remainder having at any time previously been sublet, the landlord is entitled to an order for possession of the whole premises against both head and subtenant, subject to a consideration of the question of reasonableness.

Cases cited: Sherrin v. Brand, (1956) 1 C. A. 194 and (1956) 2 W. L. R. 131; Francis Jackson Developments Ltd. v. Hall and Another, (1951) 2 K. B. 488; Ismail Mohammed<br>Chogley v. Jagat Singh Bains, (1955) 22 E. A. C. A. 27, (1955) 3 A. E. R. 148, and (1955) 1 W. L. R. 877; McIntyre and Another v. Hardcastle, (1948) 1 A. E. R. 696; Shariff Adarus Bin<br>Hussein Sagaaf v. Akberali Karim Khaku and Another, (1955) 22 E. A. C. A. 344; Coplans<br>v. King, (1947) 2 A. E. R. 393; Bhagwanji Premchand Others, $(1956)$ 23 E. A. C. A. 9.

### Nazareth, O. C., for Appellants.

Khanna for Respondents.

$\ddagger$

Reported by: R. H. Lownie, Esq., Resident Magistrate.

JUDGMENT.—This is an appeal from a decision of the Central Rent Control Board, at Nairobi, ordering the appellant to give the respondents vacant possession of certain premises situate on Plot No. 1418/36, Chambers Road, Nairobi. As a preliminary to argument on the merits of the appeal the Court was addressed on a motion, by the widow and administratrix of the third appellant, who had died subsequent to the order of the Board, that the widow be joined as appellant in substitution of and/or in addition to her deceased husband. Mr. Khanna, for the respondents, argued again, as he did before the East African Court of Appeal, that the appeal, so far as the third appellant was concerned, had abated, as a consequence of his death. He argued, with somewhat surprising conviction, that the determination of the Board, being final and conclusive, the order of the Board in this case terminated the tenancy, and that, as the third appellant died subsequent to that final and conclusive order, he was not a tenant at the time of his death and his widow could not be said to fall within the definition of "tenant" in section 2 of the Ordinance. In her case, Mr. Khanna argued, the Board's order was final, irrespective of whether that order was correct, and could not be upset on appeal. His attention was drawn to the lengthy and learned consideration given to this very question by Briggs, J. A., in Bhagwanii Premchand and Others v. J. M. Gomes and Others (Civil Appeal No. 33 of 1955) between these parties (since reported at 23 E. A. C. A. 95), but Mr. Khanna's retort was that that decision was obiter and not binding on this Court. He then read out at great length from *Sherrin v. Brand.* (1956) (1) C. A. 194 and (1956) (2) W. L. R. 131 and, although this case had been considered by Briggs. J. A., he argued that it supported his contention. I do not propose to set out at any length the reasons for my rejection of his argument, save to say, firstly, that Mr. Khanna appears to have overlooked the proviso to section 7 of the Increase of Rent (Restriction) Ordinance and the effect which such proviso has upon the "finality and conclusiveness" of the Board's determination, the effect of such proviso being to hold in abeyance the determination of the Board pending the decision on appeal; secondly, I would add that the Sherrin case does not deal with the rights of a widow or member of a tenant's family in respect of an *appeal* from a Board's decision; and, thirdly, I would invite Mr. Khanna's serious study of the principles governing this question which<br>Briggs, J. A., set out in his judgment in Civil Appeal No. 33 of 1955, with particular reference to the fourth. It was for these reasons that I allowed the joinder of the third appellant's widow, as an appellant.

Turning now to the merits of the appeal, it will be convenient to set out the facts upon which the Board based its decision. The landlords/respondents described themselves in their application to the Board as the trustees of the Nairobi Goan Tailors' Society. Sometime in 1933 the Society (which was then called the Nairobi Tailors' Society) rented the building on Plot No. 1418/36, Chambers Road, which consists of ten living-rooms and offices, to Shah Bharmal and Brothers. Subsequently between 1933 and 1948, the latter, whom I shall call the head-tenants, sublet all ten rooms at different times to the respective appellants. It is common ground that there was no covenant against subletting. On 28th February, 1952, the respondents served notice to quit upon the head-tenant and sub-tenants and on 24th July of that year filed an application with the Central Rent Control Board claiming possession of the premises upon the grounds—

- (a) that the head-tenants were no longer in personal occupation of the premises and had unlawfully assigned, sublet or parted with the whole of the premises to the four occupiers (the appellants); - (b) that the head-tenants and the sub-tenants were irregular and in arrear $(a, b)$ in payment of the rent; and - $(c)$ the premises were reasonably required for occupation by members of the Society and alternative accommodation was available.

The head-tenant and the appellants contested the claim on the ground that the named respondents had no title to bring the claim, that the sublettings were lawful, that the rent was not in arrear, that the Society were not entitled to possession on the grounds that the premises were required for occupation of some of its members, and that the alternative accommodation was not reasonably equivalent to that occupied. In the result the Board made an order for possession, after giving consideration to each of the three grounds upon which the respondents based their application.

The head-tenant was not in occupation of the premises at the time and has not appealed against the decision of the Board. It is the sub-tenants who appeal, and their memorandum attack the Board's findings on all grounds, but, at the hearing of the appeal, it was conceded by Mr. Khanna that the non-payment of rent by the head-tenant was not a ground upon which he could seek eviction of the sub-tenants. The grounds of appeal which were argued may be summarized as follows: —

- (i) That the proper parties were not before the Board, the named respondents having no title to the premises. - (ii) That the sub-tenants, who became such before 1st December, 1941, are protected by the Ordinance. - (iii) That, if they are not so protected, then in making their decision, the Board excluded the issue of reasonableness. - (iv) That, alternatively, if it did not exclude the issue it misdirected itself thereon.

On the issue as to the respondents' title to bring this action, it is argued by Mr. Nazareth that the only and proper parties to sue on behalf of the Society are the trustees named in the assignment to the landlords. A copy of the deed of assignment was submitted to the Board (exhibit 8) and it therein appears that the premises were assigned "unto the purchasers in their aforesaid capacities as president, vice-president, honorary treasurer, honorary secretary and vice-secretary of the Nairobi Tailors' Society . . . to hold the same unto the purchasers as joint tenants in such respective capacities as aforesaid and as trustees for the said Nairobi Tailors' Society ...". In the preamble to the deed the five office-bearers are named, but only two were joined as parties to the application to the Board. Mr. Nazareth addressed me at considerable length upon the principle that, in actions respecting land, all persons in whom the title is vested must be before the Court, that a plaintiff must have the legal title in himself, and referred me to numerous authorities in support of what, in a formal court of law, may well be of paramount necessity. But I do not think that these principles necessarily apply to a rent restriction board which, time and again, has been held to be a body exercising judicial functions informally. Of course, as has been as frequently pointed out, there is a limit to the degree of informality. But it is my view that in a case such as this, where the applicant in effect is a society or similar body of persons, provided the Board is satisfied that the parties purporting to appear for, on behalf of, and at the instance of, the society have in fact the formal authority of its members, it may entertain an application irrespective of whether the legal or equitable title is vested in these parties. I drew the attention of learned counsel to the case of Francis Jackson Developments Ltd. v. Hall and Another. (1951) 2 K. B. 488 in which, at page 493, there appears the following passage in the judgment of Denning, L. J.:-

"The Act of 1949 does not require an application to a rent tribunal to be in any prescribed form. It contemplates that applications under the Act will often be made by tenants who have no lawyers to advise them and no regulations by their side; and for this very reason it does not prescribe any formalities. It gives the Minister power to make regulations with regard to proceedings before rent tribunals, and that, no doubt, includes power to give directions as to the form which applications should take. But the Minister has no power to impose formal conditions of validity on an application, when Parliament itself has required none. The regulations must, therefore, be construed as directory and not imperative, for otherwise the Minister would be exceeding his powers. So construed, it follows that an application to a rent tribunal is not a nullity, even though the name of the landlord is wrongly given."

True, the facts were rather different from those in the instant case. In that case the tenant was the applicant and it was the tenant who cited the wrong person as landlord, having reasonable cause to believe that such person was the proper landlord. But the principle is there, the principle that our Ordinance, like the English Act, does not require an application to a rent tribunal to be in any prescribed form, and that it contemplates that applications under the Ordinance will often be made by parties who are not represented by lawyers and for this reason does not prescribe any formalities. The application in the instant case is in effect one by the Society, by the members of the Society, and provided there is authority for the application, that is the only concern of the Board. Exhibit 1 is a translation of an extract of the minutes of the annual general meeting of the Society held on 20th July, 1952. It reads as follows:—

"This annual general meeting passes resolution today to the effect that the Chambers Road building should be made vacant and given to the Society's members, and we hereby give full power to the trustees to endeavour to the best of their ability through the Rent Control Board."

Evidence was given by A. M. Santiago, the second of the respondents, and the evidence was unchallenged, that trustees of the Society are elected every year in accordance with the Society's constitution, and that he and the other two respondents were elected as such at the general meeting of the Society on 13th July, 1952. It was as a consequence of this evidence that the Board proceeded to hear the application, and in my view they were justified in so doing. I must therefore reject the first ground of appeal.

Turning to the second ground, the following is an extract from the decision of the Board:-

"Under section 16 (1) (i) of the Ordinance, the landlord is entitled to possession if the tenant has, without the consent in writing of the landlord, sublet part of the premises since 1st December, 1941, the remainder being already sublet. The tenant has so acted; and we find that the landlord is therefore entitled to possession against him; and under the latter part of the same section, where the landlord is entitled to or has obtained an order against the tenant, he may elect to have a similar order against the subtenants, and the Supreme Court has held that this option is for the landlord to exercise."

And later, in the ninth paragraph, appears this: $\rightarrow$

"The landlords having expressed their desire for a similar order against $\frac{1}{2}$ the sub-tenants they are also ordered to give vacant possession by the same date."

Mr. Nazareth submits that the sub-tenancies created before 1941 are protected and that any order under section 16 (1) (i) can only be made to apply to those created subsequent to 1941, and then only subject to consideration of reasonableness. I shall deal later with the question of whether an order under the "option" clause of subsection (i) must be subject to section 16 (2), and shall presently confine my consideration to the first part of Mr. Nazareth's submission and to the meaning to be applied to the wording of subsection (i). Section 16 (1) (i) provides as follows: $-$

"No order for the recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless-

$(i)$ the tenant has, without the consent in writing of the landlord, at any time between the 1st day of December, 1941, or the prescribed date, whichever is the later, and the commencement of this Ordinance, assigned or sublet the whole of the premises, or sublet part of the premises, the remainder being already sublet."

Mr. Nazareth urges that there are two limbs to the subsection, the first contemplating one assignment of the whole of the premises to one person,

and the second, separate assignments to different people; that as regards the first, a landlord may at his option, whether the letting was otherwise lawful or not obtain possession of the whole of the premises as against the occupier (Ismail Mohammed Chogley v. Bains, (1955) 22 E. A. C. A. 27, (1955) 3 A. E. R. 148, and 1955 1 W. L. R. 877), but that as, regards the second limb, the landlord may obtain possession of only that part of the premises let subsequent to 1st December, 1941. Mr. Khanna submits just the opposite, but also argues that there was no finding by the Board as to when the ten rooms had in fact been sublet. As to this latter submission I do not agree. The whole evidence of the respondents was to the effect that eight rooms were sublet prior to 1941, and two rooms in 1948. The landlords/respondents challenged in crossexamination that any sublettings had occurred before 1941, but in his closing address to the Board Mr. Khanna did not put this any longer in issue. Indeed from the Chairman's note of his address it is clear that he based his argument solely on the premises that the subletting of the two rooms in 1948 entitled the landlord to claim all ten rooms under the provision of section 16 (1) $(i)$ . It is true that the Chairman of the Board in his decision does not discuss the question of whether the eight rooms were in fact let prior to 1941, but I think that it can be taken from the wording of paragraph 5 of the decision that so far as the Board was concerned the matter was not in question, or that, even if it was, the Board was satisfied with the appellants' evidence that there had been eight sublettings before 1941. In paragraph 5 of the decision the Chairman states that "the tenant has so acted" in subletting part of the premises since 1941. The reference to "part" is clearly to the two rooms. There is evidence to support this finding of fact and it is thus not open to this Court to interfere in such finding.

Now, as to Mr. Nazareth's submission regarding the effect of the option clause, or what he describes as the second limb of the first paragraph of section 16 (1) (i). Mr. Khanna argues that the subletting of part of the premises after 1st December, 1941, the remainder being already sublet, brings in its train the right of the landlord to claim possession of the whole. He argued that even if the subletting of the eight rooms was lawful, the subsequent subletting of the remaining two rooms in 1948 made the whole unlawful. He added that, had the head-tenant retained only one of the rooms, the sublease of the others would have been protected. If I understand Mr. Khanna correctly, he relied upon the *Chogley case* as support for his contention, but, so far as I have been able to understand the decisions of both the Privy Council and the East African Court of Appeal, the only situation considered was that where there had been one subletting of the whole of the premises. However, I am of the opinion that Mr. Khanna's submission is correct, and I think there is some support for the view I take to be found, by analogy, in the following passage from the judgment of the learned Vice-President of the Court of Appeal in the Chogley case (at page 32): $-$

"There can be no doubt that the first limb (here the learned Judge refers to the whole of that part of subsection (i) of section 16 (1) of the Ordinance down to the first semi-colon as the first limb) was intended to enable and does enable a landlord to obtain a possession order in a case where the tenant had, between the prescribed dates, parted with possession of the entire premsies even though, at the time when he did so, there was nothing either in the contract of letting or in law to prevent him doing so."

When the learned Judge speaks of the tenant parting "with possession of the entire premises". I take this to refer not only to the situation where the entire premises are leased to one person by one transaction, but also to the situation where, part of the premises having already been leased, the entirety becomes leased by the ultimate act of leasing the remainder. The preamble to section 16 (1) sets out that "no order for the recovery of possession of any premises ... or for the ejectment of a tenant therefrom shall be made unless' etc. I think it is stating the obvious to say that the reference to any premises is a reference to premises as a whole, and that the right which is given to a landlord by subsection (i) in the event of the tenant subletting part of the premises, the remainder being already sublet, is a right to recover possession as against the head-tenant of the whole of the premises. For, as a consequence of that event, the head-tenant becomes non-occupying and without the protection of the Ordinance. As I have said, I think I am stating the obvious, and indeed there was no argument by Mr. Nazareth against the view that, in either of the events mentioned in the first limb of subsection (i), a landlord is entitled to an order of possession of the whole premises as against the head-tenant. But I have set out this obvious deduction from the wording of the subsection in order the more clearly to relate the meaning of the option clause to the subsection. That clause reads as follows: -

"A landlord who has obtained or is entitled to obtain an ejectment order on this ground may at his option either obtain a similar order against the occupier or may regard such occupier as his tenant."

I think the meaning and intention is now made quite clear. The ejectment order which the landlord is entitled to obtain and obtains against the head-tenant is in reference to the whole premises, and it must follow, in my view, that a similar order, affecting the occupier or occupiers, can only refer to the whole premises and all occupiers. The force of this is borne out by this further passage from the opinion of the learned Vice-President in the Chogley case (at page $39$ ):-

"... if the legislature thought it right to protect a landlord against a head-tenant who has assigned or sublet the whole of the premises, they may well have thought it right to give the landlord the opportunity to rid himself if he wished of the assignee or subtenant who has got into occupation without his consent. The following passage from the judgment of Evershed, M. R., in the *Regional Properties case (supra* at page 637), though referring to assignments, is equally applicable to the intention of the legislature with respect to sublettings: 'It is plain that during the term of contract of tenancy the tenant can assign or underlet without asking the landlord's consent if there is no prohibition against this in the contract. But what Parliament has said is that, whether or not the landlord's consent to an assignment is made necessary under the contract, such consent to an assignment is still necessary because it is fair that the Court should have power to make an order for possession against an assignee who is unknown to and not approved of by the landlord'."

In the circumstances of the instant case, therefore, so long as the headtenant remained in occupation of part of the premises, were it only one room, the landlord had no right under the Ordinance to interfere with the sublettings which had been effected before the commencement of the Ordinance, the reason being that the head-tenant was still in possession and directly responsible to him; but once this tenant sublet his remaining holding, the landlord was entitled to obtain an order ejecting all sub-tenants on the grounds that they were unknown to and not approved by him—subject always to consideration of reasonableness, which I shall deal with later in this judgment. Perhaps I should treat with two further observations of Mr. Nazareth's in regard to this ground of appeal. He sought to support his argument that the order could not be made to relate to the sub-tenancies created before 1st December, 1941, by instancing the hypothesis of those tenancies or some of them having been created with the consent of the landlord, and he asked how could the legislature possibly have intended that a landlord should obtain an order of ejectment in such circumstances? The short answer to this is, I think, that, if indeed the landlord should elect to ask for an order against such sub-tenants, he would be hard put to it to persuade the Board, under section 16 (2), of the reasonableness of his application. The other submission was that had the legislature intended that the option clause should affect all occupiers both before and during the prescribed dates, the plural and not the singular would have been used in the clause. I cannot agree. The singular quite clearly must include the plural, and was so intended to do. I accordingly hold that the subletting of the two rooms, the remainder being already sublet, no matter when, entitled the landlord/ respondents to an order for possession of the whole premises both as against the head-tenant and the sub-tenants.

I now come to the third ground of appeal, namely that the Board failed to consider the question of reasonableness when making its order for possession against the appellants. For easy reference, I will repeat the latter part of paragraph 5 of the Board's decision:-

"... under the latter part of the same section, where the landlord is entitled to or has obtained an order against a tenant, he may elect to have a similar order against the sub-tenants $\ldots$ and an order if he desires it cannot be withheld under section 16 (2)."

Now, despite the submission of Mr. Khanna supporting the Board's view that reasonableness is not to be considered when applying the provisions of the option clause, all the authorities are against him. In Chogley's case the learned Vice-President of the Eastern Africa Court of Appeal repeatedly referred to the need to consider "reasonableness" and concluded his opinion in these words: "In pursuing his optional remedy against the occupier, the landlord can rely upon the ground, namely the fact of subletting, assigning or parting with possession, as the case may be, which would found his case against his tenant; subject always, however, to consideration of reasonableness as affecting matters personal between the landlord and the occupier." This opinion was supported by the Privy Council in the judgment delivered by Lord Radcliffe in the *Chogley* case at page 882: "As there was a subletting of the whole of the premises without the consent, and the premises were in the appellant's occupation, the respondent's right to ask for an order against him would seem to be clearly established, subject to any point arising as to 'reasonableness' under section $16(2)$ ."

In the instant case, therefore, the Board was bound, before making an order under the option clause, to consider whether such order was reasonable. Mr. Nazareth argues that the Board deliberately excluded any such consideration, and that the reference to factors having a bearing on reasonableness in the eighth paragraph of its decision is related only to the other two grounds upon which the landlords' claim to possession was based, namely rent in arrear and the premises being reasonably required for occupation by members of the Society. That the Board gave its consideration to all the grounds on which the landlord relied for his claim to possession is clear, but I do not think it can, in the result, be said that the Board excluded consideration of reasonableness in respect of the first ground. It declared that it would not withhold an order under the option clause on grounds of reasonableness, but it did in relation to the other grounds of the landlords' claim go on to consider the question. Had it not misdirected itself, by saying it would exclude consideration of reasonableness, and had it considered whether an order under section 16 (1) (i) was reasonable, it would have set out the same factors bearing upon the question which it did set out in its eighth paragraph in relation to the other two grounds of the respondents' claim to possession.

But Mr. Nazareth then argues, that even if the Board did consider the question of reasonableness, it misdirected itself when taking into consideration that the premises were required for occupation by some of the members of the Society, He submits that an application for possession could not be granted under section 16 (1) (e) (i) if the premises were required by only one or some of the members of the Society, and that, consequently, in view of this express exclusion, it was not open to the Board, when considering the question of reasonableness, to take this factor into account or to give it any weight. It would appear from the authorities on the subject, and I refer particularly to McIntyre and Another v. Hardcastle, (1948) 1 A. E. R. 696, that, had the Society based its claim for possession under section 16 (1) (e) (i), the claim might have been rejected on the grounds that the premises were not required for occupation by all the landlords, that is to say, by all the members of the Society, but I do not think that the Board was debarred, when considering reasonableness, from taking into account, as one of the factors, the convenience and requirements of the members of the Society. In Shariff Adarus Bin Hussein Sagaaf v. Akberali Karim Khaku and Chhana Morar, (1955) 22 E. A. C. A. 344, the learned President said at page $345:$ —

"I know of no case where it has been laid down that a circumstance affecting the interests of the landlord is not a proper circumstance to take into account because it may be somewhat remote from those factors which could be classified as strictly 'residential' reasons, such as size of family<br>and the like. In fact all the authorities tend to show that a Court in judging the question of reasonableness has the widest discretion to consider every factor and circumstance likely to be affected by the making of the order."

The provisions of section 16 (1) (i) are quite distinct from those of section $\mathbf{16}$ (1) 16 (1) (e) (i), and under the former there is the express provision that, subject to the consideration of reasonableness, the landlord is, where the letting has been without consent, entitled to possession of the premises as against the occupier or sub-tenant who is unknown to him. The landlord is, therefore, entitled, subject to the question of reasonableness, to obtain possession of the premises and to put in a tenant of his own choosing, and, in considering the question of reasonableness, I am of the opinion that the Board could have due regard, inter alia, to the claim or convenience of some of the members of the Society.

Now the question of reasonableness is one for the Board and one with which this Court will not interfere unless there is an error in law (Coplans v. King, (1947) 2 A. E. R. 393). In my view there has been no misdirection in law and, therefore, no grounds for this Court to interfere with what was a finding of fact by the Board, after due consideration of all the factors affecting reasonableness.

In the result, therefore, all grounds of appeal must fail and the order of the Board giving possession of the premises to the landlords/respondents as against both the head-tenant and the sub-tenants/appellants should stand.

The appeal is dismissed with costs.