Trustees of the Rahimtulla Waljee Hirjee Charitable Trust v Mayer and Others (Civil Appeal No. 19 of 1954) [1955] EACA 136 (1 January 1955)

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal and Briggs, Justice of Appeal

## TRUSTEES OF THE RAHIMTULLA WALJEE HIRJEE CHARITABLE **TRUST, Appellants (Original Landlords)**

#### $\boldsymbol{\nu}$

# (1) SHANKER DASS MAYER, (2) HARBANSLAL SOHANLAL (3) MO-HAMEDALI ABDULLA GULAMHUSSEIN, (4) HAIDER ALI, (5) POPAT TEJA, (6) KASSAMALI ESMAIL JIVRAJ, Respondents (Original Lessees) Civil Appeal No. 19 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Holmes, J.)

## Landlord and Tenant-Structural repairs-Statutory Tenant-Whether statutory tenant can be liable for structural repairs—Increase of Rent (Restriction) Ordinance, sections 23 $(1)$ and 28.

The lease of certain hotel premises contained, in clause 3 thereof, the following repairing covenants: - "That the Lessees will during the said term keep the interior of the said buildings including all doors windows and Lessors' fixtures in a good and tenable state of repair and condition ...."

The Lessees held over as statutory tenants.

By section 23 (1) of the Increase of Rent (Restriction) Ordinance: — "A tenant who, under the provisions of this Ordinance, retains possession of any premises, shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Ordinance ....

By section 28 (formerly section 27) of the said Ordinance: $-$ "For the purpose of this Ordinance it shall be deemed to be the obligation of the landlord of any premises to maintain and keep the premises in a state of good structural repair $\ldots$ "

It was, inter alia, argued for the Appellants/Landlords, that the covenants in the lease included the obligation on the part of the lessees to do structural repairs, which the lessees, although statutory tenants were still obliged to do, section 28 aforesaid not being intended to override the express provisions of a contract imposing obligations, but merely laying down a rule where no appropriate terms are to be found in the contract of letting, that section 28 was ambiguous and was in conflict with section 23 $(1)$ aforesaid.

Held $(22-12-54)$ —(1) The said covenants included the contractual requirement on the part of the lessees to do internal structural repairs, but the point was not material because any covenants in a lease requiring the lessee to do structural repairs is inconsistent with the provisions of section 28 aforesaid and not binding on a statutory tenant.

(2) There is no ambiguity in section 28 aforesaid. It is not in conflict with section 23 (1) aforesaid. It is "for the purposes of this Ordinance" i.e. for all purposes of the Ordinance one of which purposes is the applica "so far as the same arc consistent with the provisons of this Ordinance"), to the consideration of which terms of a contract of tenancy are still to be binding on the statutory tenant.

(3) Quaere-the effect of section 28 aforesaid on repairing covenants in a lease during the contractual tenancy.

Appeal dismissed.

Cases referred to: Lurcott v. Wakely and another (1911) 1 K. B. 905; Proudfoot v. Hart (1890) 25 Q. B. D. 42; Taylor v. Webb (1937) 2 K. B. 283; Jones v. Joseph and another (1918) 87 L. J. K. B. 510.

#### Hunter for appellants.

### Madan for respondents.

SIR NEWNHAM WORLEY. (Vice-President).—This is an appeal from a judgment of the Supreme Court of Kenya sitting in appellate jurisdiction on two decisions. of the Central Province Rent Control Board. As it is a second appeal, we can consider questions of law only on the basis of the findings of fact made by the Supreme Court or by the Rent Board. Further, where there is no finding of fact on a matter canvassed before us, it is only exceptionally that this Court in a second appeal will make a finding to fill the lacuna, at least in the absence of consent of counsel.

For an understanding of the questions raised on the appeal it is necessary to set out the prior history of this litigation which, as is so often the case in rent restriction matters affecting business premises, has been prolonged, confused and largely futile. The appellants (whom I will for convenience call the landlords) are the proprietors of premises situated in Nairobi, known as the Central Hotel. Victoria Street, which were leased to the respondents (whom for convenience I shall call the lessees) on a lease for a term of five years, which expired on the 30th September, 1949. The only terms of the lease to which I think it is necessary to refer at this stage are the repairing covenants contained in clause 3, which are as follows: $-$

"3. That the Lessees will during the said term keep the interior of the said building including all doors, windows and Lessors' fixtures in a good and tenantable state of repair and condition and will keep the grounds. surrounding the same clean and free from rubbish and will also keep the said premises in a good state of repair and condition fair wear and tear only excepted and will at the expiration or sooner determination of the said term quietly yield and deliver up to the Lessors the said leased premises with the Lessors' fixtures which are now or at any time during the said term shall be therein or thereon in as good and tenantable a state of repair and condition as the same are now in, fair wear and tear and any damage thereto by fire tempest flood or other irresistible force only excepted."

The lessees held over as statutory tenants under the Increase of Rent (Restriction) Ordinance, 1949, but before the expiration of the lease, on 12th September, 1949, the landlords had by notice in writing to the lessees (p. 6 of the record) determined the lease and demanded immediate possession on the grounds that part of the premises had been sublet in breach of the contract, and further that the premises had been allowed to fall into a very poor state of repair, again in breach of contract. The landlords thereafter applied to the Central Rent Control Board on these two grounds for an order for recovery of possession. In the proceedings before the Rent Board some evidence was led on the question of subletting but the matter does not seem to have been pursued, for no reference is made to it in any of the subsequent decisions of the Board. It is not in dispute that the premises were in a bad state of repair at that time, and on 25th August, 1950, the Board made the following decision:

"The Board upon the advice of the Chairman found that there had been a breach of the repair clause in the agreement on the part of the respondents, but on the question of reasonableness, the Board did not consider that they should make a peremptory order against the respondents in the circumstances. The Board however ordered respondents to deliver up possession to the landlord on 31st December, 1950, this order to lapse and be of no effect if by

that date the respondents satisfy the City Council and the Board that they have done everything reasonably possible to bring the premises into a proper state of repair. Liberty to apply in this respect. Costs Sh. 500 to be paid by respondents to the claimants. The Board made no order as to the future performance of the covenants in the lease, leaving this to rest on the existing agreement."

By this decision the Board clearly held that the lessees were in breach of their covenants to repair although the order did not state what precisely were the obligations of the lessees under those covenants or in what respect they had been broken. There was however no appeal from that decision by either party.

Next, on the 20th of September, 1950, i.e. before the date fixed for the Board's order to become effective, the Medical Officer of Health of the Nairobi Municipal Council served on the landlords a notice requiring abatement of nuisance and specifying twenty-three items of repairs to be done within twenty-eight days from service of the notice (p. 38A-38C of the record). The landlords sent on this notice to the lessees, who replied on 7th November, 1950, repudiating their liability to execute all of the items as some were purely structural. The lessees, however, expressed their willingness to do those which they were legally bound to do. As the parties could not agree on which repairs were the responsibility of the landlords and which of the lessees, the latter, by letter dated 17th November, 1950, applied to the Central Rent Control Board for a decision on this dispute. On 5th January, 1951, the landlords in turn applied to the Board for a decision as to whether or not the premises should be given up to them in pursuance of the Board's order of 25th August, 1950. After further hearing the Board on 11th January, 1951, made its second decision (p. 43 of the record), the basis of which was that for the purpose of determining what repairs were to be done by the lessees and what by the landlord, the governing section was section 27 of the 1949 Ordinance (now section 28 of the Revised Edition of 1st January, 1954). That section reads as follows: -

"28. For the purposes of this Ordinance it shall be deemed to be the obligation of the landlord of any premises to maintain and keep the premises in a state of good structural repair and in a condition suitable for human habitation and it shall be deemed to be the obligation of the tenant of any premises, other than a tenement house, to maintain the premises in the same state, fair wear and tear and damage arising from irresistible force excepted in which the premises were at the commencement of the tenancy."

The Board found that the terms and conditions of the original contract of tenancy which required the tenant to do structural repairs were not consistent with section 28 and therefore, by reason of the provisions of section 23 (1) of the Ordinance, were not binding on the lessees. They further held (and Mr. Hunter has not contested the correctness of this part of the decision) that the order of 25th August, 1950, requiring the tenants to do everything reasonably possible to bring the premises into a proper state of repair could only have been intended to refer, and did only refer, to what the lessees were legally liable to do, and that the Board did not intend to order that the tenants should carry out obligations put by law on the landlord. The Board postponed for further hearing the determination of which repairs were the liability of the landlords and which of the lessees. From that decision the landlords appealed to the Supreme Court, but the matter was remitted to the Board for a determination on the facts.

After a further hearing the Board on 24th June, 1952, made its third decision (pp. 52-55 of the record) by which they decided that all the twenty-three items required to be done by the Municipality were structural repairs and that the landlords were legally liable to do them. From these two decisions or orders the landlords appealed to the Supreme Court on 21st July, 1952, in Kenya Supreme Court Civil Appeal No. 65 of 1952 (record p. 118) and it is from the judgment of the Supreme Court on that appeal that the present appeal has been brought to this Court. In that judgment the learned Judge on first appeal held-

- (1) that the second and third decisions of the Board were in conflict with the Board's own first decision of 25th August, 1950, and that the Board thus improperly constituted itself a Court of Appeal from its own order; - (2) that in considering which of the repairs were the liability in law of the lessees, it was unnecessary to decide whether the question was governed by section 28 or by section 23; because $\frac{1}{2}$ - (3) there was no inconsistency between the terms of the lease and section 28 of the Ordinance since the repairing covenants of the lease did not oblige the lessees to do any structural repairs either to the inside or outside of the premises; - (4) accordingly, the relevant applicable section of the Ordinance was section 23 and not section 28, and the Rent Control Board was correct in its first decision in speaking of the breach of the repairing covenants, and wrong when it impliedly held in the later decisions that the first decision was erroneous; - (5) that the Board was wrong in holding in its third decision that all the work demanded in the abatement of nuisance notice was structural work: - (6) that the items in the said notice for which the lessees were liable under the repairing covenants were items Nos. 5, 6, 8, 10, 11, 15, 16, 17, 18, 19 and 20; and that the lessees had executed all these repairs apparently satisfactorily with the exception of items Nos. 6 and 15, where repairs had been done but not satisfactorily; - (7) that the remaining items were clearly incumbent on the landlords under the terms of the lease; - (8) that the Board had no jurisdiction nor had the Supreme Court any jurisdiction to order the landlords to carry out these works or any of them; the sanction for failure to do repairs being the Board's power to do them itself either at the landlord's expense or by recouping themselves from the rent; - (9) that the Board's third decision of 24th June, 1952, must be reversed and the second decision of 11th January, 1951, be confirmed; - (10) that the lessees had done everything reasonably possible to bring the premises into a proper state of repair by executing the repairs incumbent upon them as above mentioned, and that the conditions laid down by the Board in its first decision of 25th August, 1950, for the cancellation of the provisional ejectment order had been fulfilled; - (11) accordingly, that the said ejectment order be cancelled; - (12) that the landlords bear three-quarters of the taxed costs of the appeal to the Supreme Court and the lessees the other quarter.

The main grounds set out in the memorandum of appeal to this Court are: the learned Judge erred in holding that the covenants in the lease excused the tenants from doing any structural repairs, and that he should have held that those covenants were such as to include structural reparis and that the tenants were still bound by the said covenants; further that the learned Judge erred in holding that the tenants had done everything reasonably possible to bring the premises into a proper state of repair to the satisfaction of the City Council and the Central Rent Control Board. After hearing Mr. Hunter's arguments in support of these grounds of appeal, this Court was unanimously of opinion that the appeal failed, and we dismissed it with costs without calling upon counsel for the respondent-lessees. I shall now set out the considerations which led meto come to this conclusion.

In his argument in support of these grounds of appeal Mr. Hunter for the landlords accepted the learned Judge's view that section 23 of the Increase of Rent (Restriction) Ordinance, 1949, was the governing section in this matter and that there was nothing in the terms and conditions of the repairing covenants which was inconsistent with other provisions of that Ordinance; but he differed from the learned Judge's view that the repairing covenants did not place upon the lessees any obligation to do structural repairs. He referred us to a number of English authorities as well as to Foa's Landlord and Tenant, 7th Ed., and Woodfall on Landlord and Tenant, 25th Ed., in support of his argument that the obligation to repair always involves renewal where the thing affected is a subordinate part of the whole structure, as in the case of a roof, a floor or a wall, and repair is restoration by renewal or replacement of subsidiary parts of the whole (*Lurcott v. Wakely* (1911) 1 K. B. 905); and again in support of his. argument that the exception for fair wear and tear only renders the tenant free from liability for such dilapidations as are caused either by normal operation of natural causes, such as wind and weather, or by the tenant and other persons on the premises with his consent, in the course of fair or reasonable user of the premises for the purposes for which they were let (see Woodfall op. cit. p. 766). In the instant case, he said, the dilapidations and the filthy state of the premises which caused the issue of the nuisance notice and the subsequent closure of the premises under a magistrate's order were caused not by proper use, but by improper user. No doubt there was a great deal of evidence to show that the lessees' manager had allowed the premises to get into a filthy condition and had been prosecuted to conviction on two occasions on this count. But, nevertheless, there has never been any finding by the Board or the Supreme Court on this issue. Such a finding cannot, I think be necessarily inferred from the Board's first decision of 25th August, 1950, and, as I indicated at the outset of this judgment, I do not think that this Court should at this stage make any such finding. I accept as a general proposition of law Mr. Hunter's argument as to the effect of a repairing lease and, with deference, agree with him that the learned Judge on first appeal took an incorrect view of the effect of the repairing covenants in this case as regards the lessees' contractual liability to do internal structural repairs. But the point is, in my opinion, immaterial to the decision, because I am quite clear that any covenants in the lease which required the lessees to do structural repairs are inconsistent with the provisions of section 28, and are therefore not binding on them as statutory tenants.

Mr. Hunter has argued that section 28, which was introduced into the legislation for the first time in 1949, was not intended to override express provisions of a contract imposing obligations to repair but was intended merely to lay down a rule, similar to that found in section 108 (m) of the Indian Transfer of Property Act, where no appropriate terms are to be found in the contract of letting. He has argued that a construction which interferes with contracts should not be adopted unless the words of the Ordinance necessarily require such a.

construction, and that, where the legislature intended that the provisions of the Ordinance should override a contract freely entered into, they specifically so provide in clear terms (such as "notwithstanding any agreement to the contrary"). Such an intention, he said, could not be read into the expression "for the purposes of this Ordinance" with which section 28 begins. I am unable to accept this argument, nor can I accept his further argument that there is any ambiguity in this section. I cannot see any limitation such as has been suggested, to the scope of section 28. "For the purposes of this Ordinance" must mean for all purposes of this Ordinance, and one of those purposes must be the application of section 23 (1) to the consideration of which of the terms and conditions of the contract of tenancy are to be still binding on the statutory tenant. It is not a case of reconciling conflicting sections in the same Ordinance, since the general obligations of a statutory tenant under section 23 are limited by the words "so far as the same are consistent with the provisions of this Ordinance". We are not primarily concerned with the objects of legislation, but it is worth observing that section 28 may in certain circumstances further the general object of protecting sitting tenants. In the first place, it is common knowledge that there are many dilapidated premises in Nairobi and other towns of the Colony which their owners would gladly see demolished could they but get vacant possession. In such cases the owner might but for section 28 adopt the policy of doing nothing himself and obstructing the tenant from doing anything to prevent the premises falling into an uninhabitable condition. Secondly, section 28 will have the effect of preventing a landlord entering into a contract of tenancy imposing upon his tenant what may be the wholly intolerable burden of doing structural repairs, thus giving him a weapon by which to determine the contract of letting and obtain vacant possession. No doubt this construction of section 28 may in some cases impose a hardship on the landlord, but that is no rare thing in the application of rent restriction legislation.

In my view, therefore, whilst I hold that the learned Judge erred in thinking that there was no conflict between the repairing covenants in this case and section 28, he came in the end to the correct conclusion on the matter before him. He classified the repairs to be done into structural and non-structural, and found as a fact that the lessees had substantially performed the work which they were legally obliged to do. I do not read paragraph 2 of the memorandum of appeal to this Court as an appeal against the learned Judge's classification of the repairs; but if it were so intended then it is not one which this Court is competent to entertain, for that classification must depend upon questions of fact or at best mixed fact and law, which are excluded from this appeal. Once it is accepted that section 28 is the governing section, that is an end to this appeal.

I desire only to add this: that I have confined my consideration of section 28 to the case of a statutory tenancy, i.e. to the circumstances of the case before us. I desire to express no opinion as to the effect of that section on repairing covenants in a lease during the currency of a contractual tenancy.

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

BRIGGS, $J. A.-I$ also agree.