Trustees of Tayebi Club v Pathak (Civil Appeal No. 118 of 1952) [1952] EACA 195 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAHON, J. (Tanganyika)

THE TRUSTEES OF TAYEBI CLUB, Appellants (Original Defendants) $\mathbf{v}$ .

> D. G. PATHAK, Respondent (Original Plaintiff) Civil Appeal No. 118 of 1952

(Appeal from decision of H. M. Supreme Court of Kenya-Connell, J.) Increase of Rent (Restriction) Ordinance, 1949—Section 16 (1) (i)—Landlord proceeding against occupier or where tenant dead—Meaning of "entitled to obtain an order for possession" considered.

The monthly tenant of certain premises occupied them until February, 1947, and then left them and went to India where she died in about 1948.

After the tenant had left the premises, one Thakershi was discovered to be occupying them. The landlord gave notice to quit to the tenant in April, 1947, and served a copy on the occupant. Subsequently Thakershi vacated and the present respondent went into occupation of the premises.

After some abortive proceedings under the 1940 Ordinance, the landlords applied in November, 1949, to the Coast Board citing the tenant and the present respondent as respondents. This application was dismissed in May, 1950, but on appeal the order of the Board was set aside in November, 1951, on the ground that the record of proceedings had disappeared and a rehearing was ordered.

In January, 1952, the application came on for rehearing and the Board noted the former tenant was dead and treated the matter as between the appellants and the present respondent only. The application was granted on section 16 (1) (i) of the 1949 Ordinance, the proviso to which in 1952 differed from that in existence at the 1950 hearing. The Board held that the proviso was wide enough to give it jurisdiction to make an order against the occupier and accordingly gave the appellants an order for possession with mesne profits.

The appeal to the Supreme Court was allowed on the ground that the tenant should have been joined in the proceedings before the Board and as she was dead the appellants should have procured the appointment of an administrator ad litem under section 38 of the Indian Probate and Administration Act.

Held $(27-11-52)$ .—(1) That it is not necessary in every case under the proviso to section 16 (1) (i) for the applicant to joint the tenant when seeking an order against an occupier. If he can satisfy the Board without joining the tenant it may make an order against the occupier.

(2) The Board had failed to consider the relationship between the appellants' former tenant and Thakershi. The alternative portion of section 16 (1) (1) relates only to actions of a tenant subsequent to the coming into force of the present Ordinance. It being<br>clear that the tenant was already dead at this time, the appellants were unable to show that the former tenant had assigned or sub-let the premises, and the appeal accordingly had to be dismissed.

Cases referred to: Dalip Singh v. Anderji, (1950) 24 K. L. R. 49, Hill v. Hasler, (1921) 3 K. B. 645, Brown v. Draper, (1944) 1 A. E. R. 246, Tara Singh & Another v. Harman Singh, (1944) 11 E. A. C. A. 24.

O'Brien Kelly for appellant.

A. R. Kapila for respondent.

JUDGMENT (delivered by SIR NEWNHAM WORLEY (Vice-President)).—This appeal provides yet another instance of the snares and pitfalls which await a landlord who desires to obtain possession of premises subject to the control of the Increase of Rent Restriction Ordinance. Owing to the complexities of this legislation, its inadequacies and frequent emendations, the respondent, whose case appears to be wholly without the least scintilla of merit, has succeeded in keeping the appellants out of their property for four years while paying no rent and, in the event, appears likely to continue to do so for some few months longer.

The appellants are the trustees of a charitable organization whose principal asset is a house in Crawford Street, Mombasa. The first floor of this is a dwelling-house and some fourteen or more years ago the appellants let it to an Indian widow, to whom I shall hereafter refer to as the tenant or the former tenant. On or about 7th February, 1947, the tenant left for India, leaving in occupation of the first floor flat, one Thakershi Kalidas. She never returned and it is agreed that she died somewhere in India in or about the year 1948. There is no direct evidence as to the arrangement made between her and Thakershi, but there is, on the record, correspondence from which it might be inferred that he was in possession as a caretaker.

In April, 1947, the appellants discovered Thakershi on the premises and on 14th of that month they served a notice to quit on the tenant by affixing it to the premises, and also served a copy of the notice on Thakershi. The notice expired on the last day of the month and, assuming its validity, the contractual tenancy terminated on that day and a statutory tenancy came into existence. Subsequently Thakershi vacated the premises and the present respondent went into occupation. It is not very clear when this happened, as the respondent has never vouchsafed this information, but the appellants found him there in March, 1948. At that time the reespondent was living in the flat with his family, but has since moved out. According to the evidence, the flat is kept locked in the daytime and two of the respondent's clerks sleep there at night.

The appellants' first step was to obtain permission from the Rent Control Board established under Ordinance No. XII of 1940 to institute action in Court for ejectment, but before these proceedings came to fruition they had to be dropped because that Ordinance was repealed by the present Increase of Rent (Restriction) Ordinance No. 22 of 1949, which omitted to enact any saving for pending proceedings. The appellants were mulcted in costs. Before this happened the appellants' present advocates, on 14th February, 1950, wrote to the respondent challenging his right of occupancy and calling on him to establish that right. To this the respondent replied that he was in lawful occupation but, with the impudence which has characterized his conduct throughout these proceedings, he did not condescend to give any information as to this alleged right nor has he yet done so. In the meantime the appellants had made application to the Coast Board constituted under the present Ordinance, citing the tenant and the present respondent as respondents to their application. This application was filed on 9th November, 1949 (the Ordinance having come into force on 6th September of that year), by which date, it is agreed, the former tenant was dead. The application was dismissed in May, 1950, with costs, for reasons which I shall refer to later; but on appeal by the appellants, the order of the Board was<br>set aside on 20th November, 1951, on the ground that the record of proceedings had disappeared. The matter was remitted for rehearing and it was ordered that the costs of the appeal should follow the result of the rehearing.

On 9th January, 1952, when the application came on for rehearing the Board noted that the former tenant was dead and it was treated as a matter between the appellants and the present respondent only. Evidence was led for the

appellants, but none for the respondent, his advocate preferring to rest on a submission which had found favour with the previous Board. The application before the Board was grounded on section 16 (1) (i) of the 1949 Ordinance, which reads: -

"(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 sub-let the whole of the premises, or sub-let part of the premises, the remainder being already sub-let; or, at any time after the commencement of this Ordinance, has, without the consent in writing of the landlord, assigned, sub-let or parted with the possession of the premises or any part thereof."

At the time of the Board's decision in May, 1950, this paragraph was followed by the following provision: --

"A landlord who wishes to obtain an ejectment order on this ground may have the option of obtaining a similar order against the occupier or having the occupier as his direct tenant."

The appellants were asking the Board to regard the respondent as an occupier, but the Board, following the ruling of the Supreme Court of Kenya in Dalip Singh v. Anderji, (1950) 24 K. L. R. 49, held that any order against him as an occupier must be subsidiary to an order made in the same proceedings against the tenant.

The respondent's advocate at the second hearing put forward the same objection but, in the meantime, the second paragraph cited above had been repealed and re-enacted by section 6 (a) of the Increase of Rent (Restriction) (Amendment) Ordinance No. 34 of 1951, and the paragraph now reads: $-$

"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."

The Board, in its second decision given in January, 1952, accordingly rejected this submission, holding that the amendment introducing the words "or is entitled to obtain" was made to meet the Supreme Court ruling and that the current wording of the second paragraph was wide enough to give the Board jurisdiction to make an order against the occupier in the rare eventuality which had arisen in the instant case. They therefore gave the appellants an order for possession with effect from 1st February, 1952, with mesne profits at Sh. 32 a month from April, 1948, up to the end of January, 1952, and awarded them costs assessed at Sh. 300, including therein the costs of the first appeal to the Supreme Court.

The respondent appealed from this order to the Supreme Court, and on 1st September, 1952, the appeal was allowed with costs and the costs of the proceedings before the Board. The learned Judge's reason for allowing the appeal was that he considered the former tenant should have been joined in the proceedings before the Board and that, as she was dead, the appellants should have procured the appointment of an administrator *ad litem* under section 38 of the Indian Probate and Administration Act. He considered the construction of the second paragraph of paragraph (1) as now enacted, but came to the conclusion that the words "is entitled to obtain", presuppose the words "is legally entitled to obtain", which he further construed as meaning "entitled by due process of law after making the tenant or his representative a party". It is of course indisputable that the entitlement must be one which the law will recognize. that is to say, the applicant-landlord must show the existence of circumstances which would, if the tenant were a party, entitle him to an order under one or

more of the paragraphs of sub-section (1) of section 16. But, with due respect, I am unable to agree with the further gloss which the learned Judge has put upon the words of the paragraph and which to all intents and purposes nullify the effect of the entitlement which depends upon the facts, with the right to resume possession, which depends upon the Board's order: the former is, to use the terms of civil procedure, the cause of action which must come into existence before proceedings are begun; the latter is the decree which recognizes the rights of a party and sanctions their enforcement.

In Hill v. Hasler, (1921) 3 K. B. 643, Lord Sterndale, M. R. said, at page 652, "the words 'entitled to obtain possession' seem to me to mean having a legal right to possession... and if he was in a position to obtain an order for possession from the Court I think he was 'entitled to possession'". Both the learned Master of the Rolls and Atkin, L. J. rejected the construction that those words "entitled to possession" meant "entitled to possession under an order of the Court". That case turned upon the construction of section 3 (1) of the Increase of Rent and Mortgage Interest (Restrictions)) Act of 1920 (which corresponded to section 16 (1) of the current Kenya Ordinance), but in my view the construction adopted is equally applicable to the words we now have to construe: $-$

"Where a word has been construed judicially in a certain legal area, it is right to give it the same meaning if it occurs in a statute dealing with the same general subject matter, unless the context makes it clear that the word must have a different construction."

Per Somervell, L. J. in *Beaman v. A. R. T. S.*, 1949 1 All E. R. 465, at page 470.

I am therefore unable to agree with the construction placed upon the second paragraph by the learned Judge, namely, that in every case where the applicant seeks an order against an occupier he must join the tenant or former tenant as a party. I do not say that it could never be necessary to do so: there may be cases in which the facts are such that without such joinder he could not satisfy the Board that the tenant had deprived himself of the protection of the Ordinance; for example, if the occupier is a licensee of the statutory tenant as in Brown v. Draper, (1944) 1 All E. R. 246. But if he can so satisfy the Board without joining the tenant, I think the words of the paragraph as now enacted are, as the Board held, wide enough to empower them to make an order against the occupier. The provisions of section 16 (2) have no application to a case in which the tenant is held not to be protected by section 16 (1): see Tara Singh & Another v. Harman Singh, (1944) 11 E. A. C. A. 24.

The appellants' difficulties do not, however, end here. In its decision the Board did not consider the relationship between the appellants' former tenant and Thakershi, because it was satisfied that the tenant had "parted with the possession of the premises." But, with respect, it seems that the Board overlooked the duality of paragraph (1). The alternative or second half of the paragraph, which contains these words relates only to actions of a tenant done subsequent to the coming into force of the present Ordinance, i.e. subsequent to 6th September. 1949, and it is clear beyond dispute that whatever the former tenant did in respect of the suit premises must have been done prior to that date, for she died in 1948. Mr. O'Brien Kelly has conceded that in order to bring himself within the scope of the paragraph and show himself entitled to an order, he must show that the former tenant either assigned or sub-let the whole or part of the premises and this, he confesses, he is unable to do. Moreover, as Mr. Kapila has pointed out, the appellants were not at any material time "entitled to an" ejectment

$\overline{I}$

order" against their tenant, for in truth she was dead before they filed their application and her statutory tenancy had already been terminated by her death. Mr. O'Brien Kelly was not prepared to argue that if the respondent is a mere trespasser the Board has power under section 5 (1) $(f)$ to make an order against him and I express no opinion on this point.

The result therefore is that although in my view the decision now appealed from was wrong in law in so far as it depended on a mistaken interpretation of the second paragraph of section 16 (1) (i), yet, in view of the appellants' advocates admissions on the facts, we have no choice but to dismiss the appeal and confirm the order of the Supreme Court so far as it sets aside the order for possession made by the Rent Board.

As counsel have expressed a wish to address us further on the question of costs, I refrain at this stage from dealing with that aspect of this matter.

SIR BARCLAY NIHILL (President).—I am in full agreement with the judgment delivered by the learned Vice-President. The learned Judge was wrong in law in the construction he put on the wording of the second paragraph of section 16 (1) (i), but the Board was also wrong on the facts in supposing that the landlord could be entitled to an ejectment order against a tenant who was no longer alive and whose contractual tenancy had been determined.

The appeal must be dismissed and the order of the Supreme Court below confirmed, but we will hear counsel before making any order as to costs.

MAHON, J. (Tanganyika).—I agree and have nothing to add.