Salim v Salim (Civil Appeal No. 60 of 1954) [1955] EACA 288 (1 January 1955)

Full Case Text

## COURT OF APPEAL FOR EASTERN AFRICA.

Before Sir Newnham Worley (Vice-President), Sir Kenneth O'Connor, Chief Justice (Kenya) and SIR ENOCH JENKINS, Justice of Appeal

SHEIKH ABDULHADI BIN SALIM (as executor of the estate of Omar bin Abed (deceased)), Appellant (Original Appellant) $\nu$ .

## MAYA BINTI SALIM, Respondent (Original Respondent) Civil Appeal No. 60 of 1954

$\mathcal{L}(\mathcal{L})$

$\sim$

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

Landlord and Tenant—Rent Control Board—Jurisdiction to order vacant possession for breach of covenant in lease containing forfeiture clause—Increase of Rent (Restriction) Ordinance, 1949, sections 5 (1) $(f)$ and $(n)$ , 16 (1) $(a)$ and 16 (2)—Evidence—Admission of testimony relating to written agreement —Indian Evidence Act, section 91—Registration of Titles Ordinance, section 40—Stamp Ordinance, section 39—Effect of notice to quit when a forfeiture of lease is incurred—Effect of receipt of rent after knowledge of breach— Waiver-Indian Transfer of Property Act, section 112.

The respondent/landlord leased certain premises to a tenant with a covenant against sub-letting without consent, and the lease contained a forfeiture clause. The tenant having sub-let without the required consent, the landlord gave notice determining the lease at a future date, and, the notice not being complied with, applied to the Coast Rent Control Board for vacant possession and other relief, and the Board, holding that it had the requisite jurisdiction and finding the breach of lease proved and the lease lawfully terminated, made an order in favour of the landlord.

The appellant appealed (inter alia) on the grounds (a) that the Board had no jurisdiction as it had no power to grant relief against forfeiture, (b) that the Board acted on inadmissible evidence and $(c)$ that if there had been a breach of covenant it had been waived.

In respect of (b), this related to the evidence, oral and documentary, of an agreement between the tenant and one M. M. under which the latter occupied the premises. Inter alios, M. M. gave evidence orally of the agreement, and it was contended that this offended the rule as to exclusion of oral by documentary evidence as provided by section 91 of the Indian Evidence Act. An unstamped. copy of the agreemeent was admitted in evidence, and it was contended that this evidence was inadmissible because the agreement was void for want of registration under section 40 of the Registration of Titles Ordinance and that it was not stamped as required by section 39 of the Stamp Ordinance. The agreement contained a provision that "the purchaser agrees to sign proper agreement of lease or tenancy whenever called upon to do so by the vendor". $\mathcal{L}(\mathcal{L})$

As to $(c)$ it was contended that if there had been a breach of covenant, it was waived and the right to forfeit the lease lost, by the failure to exercise, immediately, the right of re-entry; alternatively or in the addition, by the acceptance of rent after knowledge of the breach. The first limb of the argument was based on the proposition that "the giving of a notice to quit recognizes the continuance of the tenancy up to that day". The second limb rested (inter alia) on the fact that the landlord's rent collector continued to accept rent from the

tenant after he knew that M. M. had gone into occupation and that the landlord's attorney was, at the date of the hearing before the Board still receiving rent from the tenant.

Section 5 (1) (f) and (n) of the Increase of Rent (Restriction). Ordinance provides: "... the Coast Board in its area shall have power to do all things which it is required, or empowered to do by or under the provisions of this Ordinance, and in particular shall have power— $(f)$ subject to the provisions of section 16 of this Ordinance to make either or both of the following orders that is to say—(i) an order for the recovery of possession of premises whether in the occupation of the tenant or of any other person; and (ii) an order for the recovery of arrears of rent, mesne profits or service charges; $(n)$ to exercise jurisdiction in all civil matters and questions arising under this Ordinance;"

Section 16 (1) (a) of the same Ordinance provides: "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 $(a)$ any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under this Ordinance) so far as the same is consistent with the provisions of this Ordinance has been broken or not performed:"

Section 16 (2) of the Ordinance reads: "In any case arising under subsection (1) of this section no order for the recovery of possession of premises shall be made unless the.... Coast Board...considers it reasonable to make such an order.'

Section 91 of the Indian Evidence Act provides: "When the terms of a contract...have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract... except the document itself, or secondary evidence of its contents, in cases in which secondary evidence is admissible under the provisions hereinbefore contained."

Section 40 of the Registration of Titles Ordinance reads: "When any land is intended to be leased for any term exceeding twelve months, the proprietor... shall execute a lease in the Form H. in the First Schedule, and every such instrument shall, for description of the land intended to be dealt with, refer to the grant or certificate of title of the land, or shall give such other description as may be necessary to identify such land: Provided always that no lease for the period above specified shall be valid unless registered."

Section 39 of the Stamp Ordinance provides: "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon, registered or authenticated by any such person or by any public officer unless such instrument is duly stamped: Provided that...'

Section 112 of the Indian Evidence Act reads: "A forfeiture under section 111, clause $(g)$ , is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting: Provided that the lessor is aware that the forfeiture has been incurred: Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver."

*Held* (25-3-55)—(1) The Rent Control Board had jurisdiction to determine the application in exercise of its powers under section 16 (1) (a) and section 5 (1) (f) and (n) of the Increase of Rent (Restriction) Ordinance, 1949.

(2) As the agreement between the appellant and M. M. did not set out the terms of the final agreement between the parties, section 91 of the Indian Evidence Act was inapplicable.

(3) The said agreement being, not a lease, but an agreement for a lease, it was not ceptatrable under section 40 of the Registration of Titles Ordinance, but even if it were ineffectual for want of registration, this did not debar the admission of other evidence of the subletting.

(4) As the document tendered in evidence was but a copy, it did not require to be\* stamped

(5) Semble.-The effect of the giving of a notice to quit when a forfeiture of lease is incurred, depends on the intention with which the notice was sent.

(6) For the acceptance by a rent collector of rent to operate as a waiver of a breach of covenant in a lease, it must be shown, not only that he had knowledge of the breach, but that he, as agent, had authority to grant a new lease.

(7) Acceptance of rent after the institution of proceedings is not a waiver of the right to forfeit a lease but acceptance thereof prior thereto may so operate.

Appeal dismissed.

Cases referred to: Attorney-General Fiji v. Bailey (1950) 37 All 1. Register Apl. p. 73; Abrahams v. MacFisheries (1925) 2 K. B. 18; Branch and others v. Bennett's Dairies Ltd. and others 44 T. L. R. 605; Chaplin v. Smith (1926) 1 K. B. 198; Creery v. Summersell and another (1949) Ch. 751; Cobb and another v. Lane (1952) 1 A. E. 1199; Chenbasapa and another v. Lakshman 18 Bom. 369; Chidambaram Chettiar and another Chenbasapa and another v. Lakshman 18 Bom. 369; Childambaram Chettiar and another v. Moyyappan and others (1946) Mad. 672; Doe d. v. Payne (1815) 171 E. R. 410; Dinomoyi Debi v. Roy Luchmiput Singh (1879/80) 7 1. A. 8; Damod Shivji Jetha (1948) 23 (1) K. L. R. 6; Loewenthal v. Vanhoute (1947) 1 A. E. 116; Magnay v. Knight (1840) 133 E. R. 615; Marche v. Christodoulakis and another (1948) 64 T. L. R. 466; Meghij Karman v. Karamshi Devraj 20 E. A. C. A. 47; Norman v. Simpson (1946) K. B. 158; Nagara Garage v. Ranchhod Pitamber and others 17 E. A. C. A. 77; Miller v. K. B. 158; Nagara Garage v. Kanchnoa Filamber and others 11 E. A. C. A. 11; Miller v. Babu Madho Das (1896) 23 I. A. 106; Peebles v. Crosthwaite (1897) 13 T. L. R. 198; R. v. Drucquer and another (1939) 2 K. B. 588; R. v. Fulham H others (1882) 4 All. 462; Secretary of State for India v. Kuchwar Lime & Stone Co. Ltd. (1937) 65 1. A. 45; Thaji Beebi and others v. Tirumalaiappa and others (1907) 30 Mad 386; Venkatagiri v. Raghava (1886) I. L. R. 9 Mad. 142.

Khanna and Hassan for appellant.

Cleasby and C. A. Patel for respondent.

SIR NEWNHAM WORLEY (Vice-President).—This is an appeal from a decision of the Supreme Court of Kenya sitting at Mombasa dismissing an appeal from a determination of the Coast Rent Control Board (hereinafter referred to as "the Board"). Being a second appeal, it can be entertained only on questions of law.

The appellant in both appeals is the executor of the deceased lessee of the suit premises and the respondent is the owner and lessor of the premises. I shall refer to them for convenience as tenant and landlord respectively. The determination complained of is an order made by the Board on 8th August, 1953, on the landlord's application requiring the tenant to vacate the suit premises within the period limited and on the conditions imposed by the Board as set out in the formal Order dated 20th August, 1953.

By a registered lease made on 12th July, 1934, the landlord leased the suit premises to the tenant's testator for a term of 75 years beginning from 1st January, 1934, at the monthly rental of Sh. 150. The suit premises consist of a plot of land in Salim Road, Mombasa, 0.071 acre in extent, with a single storey building thereon, said to be 45 to 50 years old. It was originally a dwelling-house

and, as I understand, was let as such. It has since been converted into a restaurant and a verandah has been added, but nothing turns on the change of user. The lease contained a covenant against sub-letting without the written consent of the lessor and a forfeiture clause. I set them out in extenso: -

"The lessee will not during the said term transfer assign or sub-let the premises or any part thereof hereby leased or any part thereof or otherwise by any act or deed or procure the same property or any part thereof transfer or assign or sub-let without the consent in writing of the lessor or her transferees first had and obtained but such consent shall not be unreasonably withheld by the lessor:

Provided always that if the said rents or premiums hereby reserved or any part thereof shall be unpaid for the space of twenty-one days next after any of the days hereinbefore appointed for the payment thereof (whether the same shall have been lawfully demanded or not) or if default shall be made in the performance or observance of any of the covenants conditions or agreements on the part of the lessee herein contained then and in such case it shall be lawful for the lessor or any person or persons duly authorized by her in that behalf unto and upon the said demised premises or any part thereof in the name of the whole to re-enter and the same to have again repossessed and enjoy as in her first and former estate, anything herein contained to the contrary notwithstanding and thereupon the term hereby created shall cease without prejudice to any right of action or remedy of the lessor in respect of any antecedent breach of any of the covenants by the lessee hereinbefore contained."

In or about September, 1952, it came to the knowledge of the landlord through her attorney, Sherifa Lyall, that one Mohamed Mujahid was in occupation of the greater part of the suit premises and carrying on the restaurant business therein. On 13th November, 1952, the landlord's advocates gave the tenant written notice to quit, the material parts of which read as follows:—

"The premises on Plot No. 377, Section II, Mombasa belonging to our client above-named were leased by her to Omar bin Abeid in the year 1934 for a term of 75 years subject to the covenants stipulated in the instrument of lease. The lessee covenanted with our client, the lessor, inter alia, not to transfer assign or sub-let the said premises or any part thereof without the consent in writing of the lessor or her transferee first had and obtained.

Our client has now learnt that the said premises have been sub-let to Mr. Mohamed Mujahid of Mombasa who is in occupation thereof and carrying on the business of a restaurant therein under the style of 'Coronation Hotel', since some time in the later part of 1951. No consent was sought from or given by our client at any time to the said or any other sub-letting.

Our client has therefore instructed us to give you notice, which we hereby do, determining the said lease on 30th November, 1952. Unless therefore, vacant possession of the said premises is delivered to our client on the said date, our instructions are to institute the necessary proceedings against yourself as well as the said sub-tenant or any other person found in occupation of the said premises or any part thereof."

## A copy was sent to Mohamed Mujahid.

The tenant having failed to comply with this notice, the landlord applied to the Board on 20th January, 1953, for an order for vacant possession, mesne profits and costs. He cited the tenant as first respondent and Mohamed Mujahid as second respondent. The grounds set out in the application were (a) the breach

of covenant alleged in the notice to quit and $(b)$ that the landlord proposed to erect on the plot a new and bigger building. The respondents in reply disputed the jurisdiction of the Board and denied the alleged breach, though they admitted that the second respondent was in occupation of and carrying on business in the premises.

After hearing evidence and the submissions of advocates for the parties, the Board rejected the submission that it had no jurisdiction and found "a breach of the lease proved; that the lease was lawfully terminated; and that it is reasonable to give the landlord possession". They accordingly made an order against both respondents for vacant possession on the conditions set out in the order referred to above. The second respondent was apparently satisfied with the assurance given him that he would be considered for accommodation in the proposed new building and has not appealed. The tenant's appeal to the Supreme Court was dismissed, the Board's findings being upheld.

The grounds of the tenant's appeal to this Court were in substance: —

- (1) The Board had no jurisdiction to entertain and determine the application. - (2) If it had jurisdiction, then it acted upon inadmissible evidence. - (3) Assuming the evidence as received to have been admissible, it did not establish a breach of the covenant against under-letting. - (4) If there was a breach of covenant, it was waived and the power to forfeit the remainder of the term was lost by the notice to quit, and/or by acceptance of rent after September, 1952.

I will deal with these points in that order.

On the first point, Mr. Khanna's arguments were so irrelevant and misconceived that I find it difficult to do them justice. He said, correctly, that no inferior court or tribunal has jurisdiction to order recovery of land or defeasance of a title to land unless it is expressly empowered to do so. He then spent a great deal of time referring to various provisions of the Registration of Titles Ordinance (Cap. 160) and the Crown Lands Ordinance (Cap. 155) in an endeavour to show that the tenant was a lessee from the Crown and that his lease could only be forfeited as provided in section 83 of the latter Ordinance. The short answer to this is that the landlord has a registered freehold title, that although the tenant's interest in the term of 75 years is registered in accordance with Part VII of the Registration of Titles Ordinance, that does not make it a Crown lease and he is not a "proprietor" as defined in section 2 of that Ordinance. The Board's order for recovery of possession can be entered in the register under section 43.

Mr. Khanna further sought to support his point of jurisdiction by the argument that, in the instant case, the principal subject of the demise was the land, the house standing thereon being merely subsidiary to that demise. He rested his argument upon the recitals in the lease (exhibit 2) where the parcels are described (in the common form) as "the said piece of land together with a house standing thereon" and on clause 3, which contains covenants to pay rates and taxes; clause 6, which contains covenants to repair, and clause 10, which contains a covenant to rebuild. The argument has only to be stated to be rejected.

Lastly, he argued that the Board could not have jurisdiction in this case because it had no power to grant relief against forfeiture. The answer to this is twofold. In the first place, if the legislature has conferred upon the Board jurisdiction generally to adjudicate between lessors and lessees of premises it is for the legislature to decide whether or not the Board should have all or only some of the powers which the Supreme Court possesses, whether at common law or by statute, in similar cases. In the second place, the possible hardship to the tenant envisaged by Mr. Khanna, if debarred from applying for relief against forfeiture is, in practice, negatived by the provisions of section 16 (2) of the Increase of Rent (Restriction) Ordinance, 1949, that the Board shall not make an order for recovery of possession under sub-section (1) unless it appears to the Board reasonable to make such an order.

In brief, I have no doubt at all that the Board had jurisdiction to determine the application in the instant case in exercise of its powers under section 16 (1) (a) and section 5 (1), paragraphs $(f)$ and $(n)$ of the Ordinance.

As to Mr. Khanna's second point, that the Court acted upon inadmissible evidence, this relates to the evidence, documentary and oral, of the agreement between the tenant and Mohamed Mujahid under which the latter occupied the premises. The oral evidence was given by Mr. Lyall, husband of Sherifa Ahmed, the landlord's attorney; by Mbarak bin Abed, the landlord's rent collector; and by Mohamed Mujahid himself who testified that he had been the tenant of Omar Abed since June, 1948, at a rental of Sh. 300 a month, that since July, 1952 (that is apparently since Omar bin Abed left for Mecca where he died), he had paid the rent to Sheikh Abdulhadi, and that he had made an agreement with Omar for a five-year tenancy. According to the record of the proceedings before the Board, a copy of this written agreement was produced by Mr. Joshi, advocate for Mohamed, at the request of Mr. Sharma, advocate for the landlord. Mr. Doshi, advocate for the tenant, objected to the production of a copy which did not, on the face of it, show that the original was stamped or registered. The objection was overruled and the copy agreement produced admitted in evidence as exhibit A. In the appeal to the Supreme Court objection was again taken to the admissibility of this document on the ground that it was void for want of registration under section 40 of the Registration of Titles Ordinance. The learned Judge in the court below, however, felt that quite apart from the documentary evidence in exhibit A, there was ample uncontradicted oral evidence that there had been a sub-letting. Before us, Mr. Khanna founded his argument on three statutory provisions, namely: —

- (1) Section 91 of the Indian Evidence Act. - (2) Section 40 of the Registration of Titles Ordinance - (3) Section 39 of the Stamp Ordinance (Cap. 259).

In support of his arguments he cited a number of English, Indian and local decisions, but I do not propose to examine them in detail for the reason that their relevance depends upon certain assumptions as to the nature of the document exhibit A which were, in my view, incorrect.

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As to section 91 of the Evidence Act, which embodies the rule conveniently known as the exclusion of oral by documentary evidence, its application to this case depends on the assumption that exhibit A sets out the terms of the final agreement between the parties. But that is not so, for by clause $4(g)$ it is provided that "the purchaser agrees to sign proper agreement of lease or tenancy, whenever called upon to do so by the vendor".

So, likewise with the argument as to invalidity based on section 40 of the Registration of Titles Ordinance. That section speaks only of a lease, as does also section 107 of the Indian Transfer of Property Act which, as amended up to the year 1907, applies to Kenya. Exhibit A is, in my view, only an agreement for a lease and therefore not registrable. In order to be registrable a lease must be executed in the form prescribed in section 40 of Cap. 160.

Finally, as to the stamp objection, exhibit A is only a copy of a copy according to the evidence and there is no evidence at all whether the original was stamped or not.

But, further, I accept Mr. Cleasby's argument that whether or not exhibit A. was inadmissible because it was unstamped or a copy, the landlord's case is not prejudiced by its exclusion, for he had established a breach of the covenant by oral evidence before exhibit A was ever mentioned or produced during the evidence of the second respondent before the Board: Magnay v. Knight (1840) 1 Man. & G. 944: 133 E. R. 615. Further, even if exhibit A were ineffectual for want of registration, he was not debarerd from giving other evidence of the sub-letting: Venkatagiri v. Raghava (1886) I. L. R. 9 Mad. 142.

I think, therefore, that the Board and the Supreme Court were both entitled to accept the oral evidence of sub-letting, even if the document exhibit A were tobe held inadmissible.

Thirdly, Mr. Khanna contended that no breach of the covenant against sub-letting had been proved. So far as this is a question of fact, there are concurrent findings of the Board and the Supreme Court that the premises had been sub-let and these findings cannot be challenged in this appeal except on the ground that, as a matter of law, the evidence does not establish a sub-letting. He argued, correctly enough if I may presume to say so, on the authority of such cases as Peebles v. Crosthwaite, (1897) 13 T. L. R. 198 C. A., and Chaplin v. Smith, (1926) L. R. 1 K. B. 198 C. A., that a covenant against sub-letting is not broken merely by permitting another person to use the premises so long as the head lessee retains the legal possession. But these cases were decided on sets of fact very different indeed from those disclosed by the evidence in the instant case. Mr. Cleasby accepted the onus of proving that there had been a sub-letting and the conferment by the tenant of a legal estate on another person, but cited *Hindly v. Rickarby* $(1803)$ 5 Esp. 4: 170 E. R. 718 as authority that evidence showing another person is in ocupation prima facie as tenant will transfer the onus to the defendant. For my part, 1 think that the case was clearly one where the tenant parted with possession to Mohamed and that no reason has been shown which would justify intereference with the concurrent findings of the Board and the Supreme Court. on this point.

There remains Mr. Khanna's fourth point, namely, that if there had been a breach of the covenant against sub-letting it was waived and the right to forfeit: the lease lost by the failure to exercise immediately the right of re-entry; alternatively or in addition, by the acceptance of rent after knowledge of the breach. The argument rests upon section 112 of the Indian Transfer of Property Act which reads as follows: –

"A forfeiture under section 111, clause $(g)$ , is waived by acceptance of" rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:

Provided that the lessor is aware that the forfeiture has been incurred:

Provided also that, where rent is accepted after the institution of a suit. to eject the lessee on the ground of forfeiture, such acceptance is not a waiver."

For the first limb of his argument, he relied upon a proposition stated at p. 726of Mulla's Transfer of Property Act, 3rd Ed. (1949) as follows: "The giving of a. notice to quit at a future day amounts to a waiver because the giving of the notice recognizes the continuance of the tenancy up to that day". But the report of the Indian decision upon which this is based is not available to us here; and Mr. Khanna very properly referred us to the English case of Loewenthal $v$ . Vanhoute, (1947) 1 All E. R. 116, at p. 117. Denning, J. (as he then was), there said: $-$

"The law is well settled now that, when a forfeiture of a lease is incurred." the lease is voidable and not void, and in those circumstances the giving of a notice to quit may recognize the subsistence of the lease, and may, therefore, waive the forfeiture, but in the case where a tenancy is determined by a notice to quit, the position is entirely different."

In my opinion, the question in each case must be one of intention, with what intention was the notice sent. In the case of Marche v. Christodoulakis and another, (1948) 64 T. L. R. 466, cited by Mr. Khanna, the notice sent to the tenant (who had sub-let in breach of covenant) was merely a notice to quit at the end of the term and was held to have affirmed the tenancy. In the instant case the notice set out the breach and expressed the landlord's intention to determine the lease at the date named, i.e. seventeen days from the date of the notice. Let us pose the question put by Harman, J., in *Creery v. Summersell and another* (1949) 1 Ch. 751 at p. 761: "Has there in the present case been such an unequivocal act by the plaintiff affirming the existence of the lease as to amount to an election to treat it as continuing after knowing of the breaches committed?" To that question the answer can only be: There has not. I have considered this so far as possible as a question of law: but I must point out that waiver is largely a question of fact. It was not pleaded by the tenant in his reply filed in the proceedings before the Board and, so far as it is a matter of fact, cannot now be canvassed in this appeal.

Mr. Khanna rested the second limb of his argument on waiver on the evidence that Mbarak bin Abed, the landlord's rent collector, continued to accept rent from the tenant after he knew that Mohamed had gone into occupation; and also on a statement by Sherifa, the landlord's attorney, that she was at the date of the hearing before the Board still receiving rent from the tenant. He also argued that Mr. Lyall, Sherifa's husband who managed the property, received rent after knowledge of the breach and sought to establish that he was a substituted attorney under the power given to Sherifa.

As to receipt of rent by the rent collector, it is not sufficient to show that he had knowledge of the breach: it must also be shown that he as agent, had authority to grant a new lease. Mulla op cit., p. 727. Or, as it is put in Woodfall on Landlord and Tenant 25th Ed., p. 1000, "authority to waive a forfeiture". The passages cited rest upon the authority of dicta in Doe d. Nash v. Birch (1836) 1 M. & W. 402: 150 E. R. 490. Although *obiter* they appear to have been generally accepted as representing the law: see, e.g. Creery v. Summersell (supra) at p. 761. In the instant case, there was no evidence at all that Mbarak had any authority other than to collect rents.

As to the alleged appointment of Sherifa's husband as substituted attorney there is no evidence of their either and it was never suggested before the Board. Sherifa's evidence was that her husband managed the property on her behalf but had no power to grant or negotiate leases. All the evidence is to the effect that as soon as Mr. Lyall learnt from the rent collector of the breach of covenant he communicated with Sherifa, who gave instructions for the lease to be determined by notice.

Acceptance of the rent after the institution of the proceedings is not a waiver: the notice expired on 30th November, 1952, and proceedings were instituted on 20th January, 1953. Waiver could therefore only be established by the tenant showing that rent was received in the intervening months by Sherifa. This is a question of fact and there is no finding on it by the Board for the very good reason that the point was never taken or argued there. It was not made a ground of appeal in the Supreme Court although it would appear from the judgment (p. 19 of the record) to have been raised and rejected. The appellant cannot ask this Court at this stage to make a new finding of fact.

In my view, therefore, this appeal fails on all grounds and should be dismissed with costs. The Board ordered that vacant possession should be given "three months after the date of approval of the plans for the new building, the said approval to be reported to the Board and plans produced and notice thereof served by the Board on the tenant". We were not informed whether or not this approval has been given. If it has not yet been given, the Board's order can stand without amendment. If it has, then I would order that vacant possession be given in one month from the date of this judgment. The conditions subsequent imposed in the Board's order can stand.

SIR KENNETH O'CONNOR, C. J.-I agree and have nothing to add.

SIR ENOCH JENKINS, J. A.-I also agree and have nothing to add.