Ram and Another v Fernandes (Civil Appeal No. 86 of 1955) [1956] EACA 38 (1 January 1956)

## APPELLATE CIVIL

#### Before SIR OWEN CORRIE. J.

#### SONI RAM AND ANOTHER, Appellants

# J. A. FERNANDES, Respondent

## Civil Appeal No. 86 of 1955

Landlord and Tenant-Increase of Rent (Restriction) Ordinance, 1949-Central Rent Control Board—Jurisdiction—Determination of collateral question on which jurisdiction depends—"Business premises" or "dwelling-house"—let for business, trade or professional purposes, or as a place of residence finding let as a place of residence—Proceedings in Resident Magistrate's Court to recover agreed rent—Rent assessed by Central Rent Control Board<br>—Irrecoverability of excess, if premises let as a place of residence (controlled)-not if premises let for business, etc. (decontrolled)-Estoppel by previous judgment of Board—Res judicata—whether Resident Magistrate precluded from making own finding—Estoppel against statute—by previous judgment of either tribunal.

The appellant sued the respondent for Sh. 2,300 being rent owed under a verbal agreement in 1951 by which the respondent was to pay Sh. 700 per month for seven rooms or stores. The respondent did not dispute that the agreement had been made and that he had paid only Sh, 500, but he relied on an assessment of the Central Rent Control Board made in 1954 by which the rent was assessed at Sh. 214 per month with effect from 1st July, 1954. The appellant asserted that the premises had been let as stores or business premises. The respondent claimed that they had been let as a dwelling-house and relied on the fact that Central Rent Control Board have regarded them as such as it made the order.

The magistrate refused to go behind the Board's order and investigate its validity, ruling that it could be attacked only on an appeal from it or a review. Accordingly he dismissed the claim.

The appellants appealed on the grounds that there could be no estoppel by a previous judgment of the Board operating so as to defeat a claim for rent either for a period the subject or not the subject of specific adjudication by the Board, that while the Board was entitled to enquire into the facts to decide whether or not it had jurisdiction, its finding did not bind the Resident Magistrate, who could not on the facts before him, have found, as did the Board (on the material before it) that the premises were controlled as having been "let" as a place of residence.

The respondent argued that the Board's decision was binding on the Magistrate's Court as that Court was not superior to the Board.

Held (8-6-56).—(1) The Increase of Rent (Restriction) Ordinance, 1949, did not invest the Central Rent Control Board with exclusive jurisdiction conclusively to make a finding on the collateral issue on which its jurisdiction depended, namely, whether the premises were

let for business or residence, so as to bind the Courts in subsequent proceedings.

(2) The Magistrate was not precluded from and was under a duty to make his own finding on the facts before him untrammelled by any previous decision of the Board.

(3) A previous judgment of the same tribunal or court, if shown either by facts (accepted and found) or otherwise, to be contrary to the provisions of a statute, cannot operate, to create an estoppel, or as res judicata.

v.

Cases cited: Duchess of Kingston's Case, Sm. L. C., Vol. ii, p. 642; Attorney-General Cases cited: Duchess of Kingston's Case, Sm. L. C., Vol. 11, p. 642; Attorney-General<br>for Trinidad and Tobago v. Eriche' and Others, (1893) A. C. 518; Dalip Singh v. A. O.<br>Nathwani, (1952) 25 K. L. R. 81; Heptulla Bros. Ltd. v

Judgment set aside and case remitted to the magistrate for hearing and determination.

Khanna for appellants.

Carvalho for respondent.

Reported by: D. N. Khanna, Esq., Barrister-at-law.

JUDGMENT.—This is an appeal against the judgment of the Resident Magistrate's Court, Nairobi, given on 6th October, 1955, in Civil Case No. 2594 of 1955.

By that judgment the Resident Magistrate dismissed the appellants' claim for Sh. 2,300 in respect of the arrears of rent for seven rooms or stores let to the respondent in 1951, at a monthly rent of Sh. 700.

The material facts as set out in the judgment are as follow: —

"The amount of rent agreed at the time of letting in 1951, is not in dispute, and it is common ground that the defendant has only paid Sh. 500 towards the rent in January, 1955, and has paid nothing at all since.

The plaintiff's claim is, therefore, clear, and is based on the fact that agreed rent is due and that the premises in question, being business premises and let as stores, they are not subject to rent control or other interference.

The defendant, on the other hand, claimed that he had obtained the lease of the premises in question in the first place, for dwelling purposes and had used them as such with the knowledge and agreement of the plaintiff ever since; and that in 1954, the Central Rent Control Board made an assessment of the plaintiff's premises, which included that part of it let to the defendant. The apportionment of assessed rent for the rooms in question being fixed at Sh. 214 per month, with effect from 1st July, 1954."

In support of his case, the plaintiff called evidence to show that the rooms in question were, in fact, stores, and were described as such in the plans for the building, which had been passed by the City Council; and further, that it was an offence against the Nairobi Municipal By-laws to use them for dwelling purposes.

The learned magistrate, after observing that: "It may well be that the said rooms or stores in question are indeed business premises, over which the Board had no jurisdiction and it may further be that one or both parties to this suit have contravened the Municipal By-laws by using the premises for dwelling purposes" continued: —

"It appears to me, however, that it is not for this Court to rule upon<br>the validity of the Board's order. The only manner in which this order can be attacked is on appeal or, possibly, on a review."

## Accordingly, the case was dismissed.

By his Memorandum of Appeal the appellant argues that the Board's action in assuming jurisdiction was *ultra vires* and should, therefore, have been disregarded by the Magistrate; paragraphs 4 and 5 of his Memorandum are as follow: $\div$

"No estoppel by a previous judgment of the Board could operate against the statute, so as to defeat a claim for rent for the period, not the subject of specific adjudication by the Board.

<sup>1</sup> S. No estoppel or *res judicata* could arise, where the tribunal lacked *the disjurisdiction* and was incompetent to have dealt with the matter at all." In the

The appellant relies, in the first place, on the rule laid down in the *Duchess*: of Kingston's case, referred to in the judgment of the Privy Council in Attorney-General for Trinidad and Tobago v. Eriche' and others, (1893) A. C. 518 at page 523, in a passage cited in *Dalip Singh v. A. O. Nathwani*, (1952) 25 K. L. R. 81 at page 82. The quotation from the judgment of the Privy Council is as follows:—

"In the Duchess of Kingston's case, Sm. L. C., Vol. ii, p. 642, which is constantly referred to for law on this subject, it is laid down that in order to establish the plea of res. judicata the Court whose judgment is invoked must have had jurisdiction and have given judgment directly upon the matter in question; but that if the matter came collaterally into question in the first Court, or were only incidentally cognizable by it, or merely to be inferred by argument from the judgment, the judgment is not conclusive." $\sim$

The powers of the Rent Control Board were considered by the Privy Council in Heptulla Brothers Limited v. Jhambhai Jeshangbhai Thakore (Privy Council Appeal No. 13 of 1955), in which it was held that: $\rightarrow$

"The Board have in any particular case to be satisfied that a relationship of landlord and tenant does exist as a preliminary to bringing the Ordinance into operation, but that is a function merely incidental to the application of any section of the Ordinance that is invoked and not a power conferred by any section of the Ordinance."

The Privy Council proceeded to cite a passage from the judgment of Lord Esher, M. R., in *The Queen v. Commissioners for Special Purposes of the Income*<br>Tax (1888) 21 Q. B. D. 313 at 319: $\vdots$ 'When an inferior Court or tribunal or body, which has to exercise the

power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect) say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction,' which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more...."

The judgment of the Privy Council proceeds: —

"In their Lordships' opinion the present case falls within the first of the two types of cases mentioned by Lord Esher. The question of the relationship of landlord and tenant cannot, therefore, be made res judicata by a finding of the Rent Control Board, if a superior Court decides that the facts $\frac{1}{2}$ to constitute that relationship do not exist." $\frac{1}{2}$

For the respondent, however, it is argued that a Magistrate's Court is not a superior Court in relation to the Rent Control Board which, within the limits of its jurisdiction, has a status equivalent to that of a Magistrate's Court; and hence, that a decision of the Board is binding upon the Magistrate's Court. $\cdot\colon$

$t$ : This is an argument which cannot be accepted. Indeed, it is clear that where the question of jurisdiction defined by statute is involved, the magistrate would not be estopped from determining the question by an earlier judgment of his own Court in which no express decision upon the question had been given.