Singh v Singh (Civil Appeal No. 954 of 1949) [1950] EACA 45 (1 January 1950)

## APPELLATE CIVIL

### Before de LESTANG. J.

## **BATTAN SINGH, Appellant (Original Tenant)**

# VIR SINGH, Respondent (Original Head Tenant)

## Civil Appeal No. 954 of 1949

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

Increase of Rent (Restrictions) Ordinance, 1949—Section 7—Appeal on point of law or mixed fact and law-Rent Control Board-Executive Officer with powers delegated under section 5 (5)—Quasi-judicial body—Principles of natural justice to be applied—Opportunity to parties to be heard—Application heard ex parte-Service of summons-Proof-Specific application for possession—Necessity for—Recorded evidence—Necessity for—Absence of Rules regulating Board's proceedings.

By an order, dated 7th December, 1949, of the Executive Officer of the Rent Control Board, to whom powers had been delegated under section 5 (5), Increase of Rent (Restrictions) Ordinance, 1949, the appellant, sub-tenant of certain premises in Nairobi, was ordered to vacate the same by 15th December, 1949, and deliver vacant possession to his head tenant, on whose complaint these proceedings were initiated. There was no specific application for possession. By a letter dated 28th November, 1949, both parties were notified of the date of hearing of the complaint, on which date the appellant failed to attend, and the complaint was heard ex parte. On the proceedings, the Investigating Officer made the entry "Tenant absent, served". At the hearing, respondent gave evidence on oath as to the correctness of his complaint, which he had made in writing against the appellant, but there was no other evidence taken.

Against the above order the appellant appealed on the grounds—

(i) that no notice of the proceedings had been served on him;

(ii) that no evidence to substantiate the facts was heard;

(iii) that there were no grounds for the order for possession; and

- (iv) that the Executive Officer had not considered whether the order was reasonable. - Held (18-4-50).—(i) That the Rent Control Board, and the Executive Officer under his delegated powers, are quasi-judicial bodies which must be guided by the principles of natural justice which will not allow a person to be prejudiced without being given the opportunity of appearing and putting forward his case, but although there was no evidence of the service<br>of notice on appellant, the law does not require the Board to record all evidence in writing, and the question of service is one of fact, on which no appeal lies.

(ii) That the Board having accepted the sworn evidence of the respondent in support of his complaint, it is not for the Court to say the Board was wrong.

(iii) That although no specific application for possession was made to the Board, in the absence of rules regulating the proceedings before the Board, it is impossible to say<br>that a definite application for a definite remedy must be made, though it would be advisable to do so.

(iv) That there is nothing in the record to show that the Executive Officer had failed to consider the question of reasonableness, and the evidence being all one way, and having been accepted, it could not be said that the Excutive Officer was wrong in the exercise of his discretion.

Appeal dismissed.

#### Mackie-Robertson for appellant.

D. N. Khanna for respondent.

JUDGMENT.—This is an appeal by a tenant of premises to which the Increase of Rent (Restrictions) Ordinance, 1949, applies against the decision of the Rent Control Board ordering him to give up possession of the premises to the landlord.

The appeal is brought under section 7 of the Ordinance which provides that an appeal shall lie only on a point of law or of mixed fact and law.

There are four grounds of appeal and I shall deal with them *seriatim*.

The first is that "the Rent Control Board erred in fact and in law in proceeding to hear the respondent's application *ex parte* when no notice of the proceedings had been served upon the appellant". It is common ground that the Rent Control Board whether it acts itself or delegates its powers to its Executive Officer as it did in this case under section 5 (3) of the Ordinance is a quasi-judicial tribunal and it is settled law that every judicial or quasi-judicial tribunal must apply the fundamental principles of natural justice and 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. If, therefore, it was a fact that the appellant was never notified of the hearing by the Rent Control Board then the Board's decision would have had to be set aside. On perusing the Board's file of the proceedings. before it I find, however, this entry by the Investigating Officer: ---

### "Tenant absent, served."

This is a finding of fact by the Board that the appellant was served and no appeal. lies against such a finding.

It is contended that there was no evidence to support such a finding. It is true that there is no recorded evidence but since there is nothing in the law which requires the Board to record all the evidence in writing it does not follow that there was no evidence of service. Indeed, there is on the file a copy of a letter dated 28-11-49 and addressed to both appellant and respondent informing them of the date of the hearing. It may very well be that the Board relied partly on its. letter as being evidence of service.

The first ground therefore fails.

The second ground is that: "The Executive Officer erred in law in making the order appealed from without hearing evidence to substantiate the facts alleged in the application before him". In answer to this ground of appeal it is sufficient to point out that the respondent gave evidence on oath, in the course of which he swore to the correctness of the complaint he had made in writing against the appellant. It appears that the Board accepted his evidence as true and it is not for this Court to say that the Board was wrong in so doing, especially as the appellant had left default. In such a case the Board might very well be satisfied with formal proof.

The third ground is that: "The Executive Officer erred in law inasmuch as the application discloses no grounds whatsoever on which an order for recovery of possession might be made". It is true that no specific application was made to the Board and in the absence of rules regulating the proceedings before the Board it is impossible to say that a definite application for a definite remedy must be made, although it would be advisable to do so. A complaint was made to the Board, which it investigated in the absence of the tenant and found proved, and as it had the power to make the order which it made this Court cannot interfere unless clearly satisfied that it was wrong. This is not the case.

The fourth ground is that: "The Executive Officer erred in fact and in law in failing to consider or after consideration in finding it reasonable to make such an order". There is nothing on the Board's file to show that the Board failed to consider the question of reasonableness. It must be remembered that the law protects the good tenant and not the bad one. The evidence being all one way and the Board having accepted it I am unable to say that it was wrong in the exercise of its discretion.

The appeal is therefore dismissed with costs.