Wali and Another v Mohamed (Civil Appeals Nos. 58 and 59 of 1950) [1951] EACA 15 (1 January 1951)

## **COURT:OF APPEAL FOR EASTERN AFRICA**

Before SIR BARCLAY NIHILL, President, LOCKHART-SMITH, Ag. Vice-President, and MODERA, Puisne Judge (Kenya)

## (1) HAJE ABDUL WALI and (2) MUTAHER KASIM, Appellants (Original Defendants)

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## SHAHADAT FAKIR MOHAMED, Respondent (Original Plaintiff)

## Civil Appeals Nos. 58 and 59 of 1950

(Appeal from the decision of H. M. Supreme Court of Aden—Rudd, J.)

Aden Rent Restriction Ordinance 1947 S. 10 (1) (d)—Currency of permit for reconstruction of premises.

The appellants are tenants of adjoining premises, the respondent landlord. The landlord sued for ejectment alleging in the plaint that he had obtained the necessary permit for reconstruction from the P. W. D. The "alleged permission" was not admitted in the written statement. In the rejoinder it is alleged that the letter granting permission is attached, but the letter did not form part of the Record. The Executive Engineer gave no evidence as to the date of when an alleged extended permit expired.

**Held** (17-2-51).—(1) That the Court could have called for the production of the document claimed to be a valid permit.

(2) Even if there had been an admission on the pleadings it would still be for the Court to satisfy itself that the permit was still current.

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Appellants not present, unrepresented.

Respondent not present, unrepresented.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—The two appellants are tenants of adjoining premises in Aden owned by the same landlord. In both cases the landlord sought and obtained from the Supreme Court of Aden an order for possession under section 10 (1) (d) of the Aden Rent Restriction Ordinance 1947 (Ordinance 12 of 1947). The learned Judge who granted the Orders heard the evidence in the two cases together and gave one judgment. We have therefore consolidated the two appeals. It is not incumbent on us to consider the reasonableness of the learned Judge's decision, because it is clear from the record that there was no evidence before him on which he could be satisfied that the necessary permit for the "alteration, reconstruction or demolition" was in existence. By the terms of paragraph $(d)$ of section 10 (1) it is a prerequisite to the exercise of jurisdiction that a Judge should first be so satisfied. From the terms of the judgment it is evident that the learned Judge did not address his mind to this requirement for he states that "the only issue is whether it is reasonable in the circumstances to give possession to the plaintiff for reconstruction of the premises". From the pleadings it can be seen that both appellants in their written statement of defence did not admit that the respondent was in possession of the necessary permit. In his rejoinder the respondent attached a letter purporting to contain the permission but this document was not produced at the hearing and does not form a part of the record for us. At the hearing an Executive Engineer of the Public Works Department of Aden gave evidence (P. W.2), but unfortunately for the respondent his evidence does not establish

that on 9th August, 1950 (the date of the hearing), a permit from the proper authority was still in being. This witness deposed-

(a) that a Building Permit 1511 had issued on 6th September, 1948;

(b) that a fresh building permit had issued on 23rd February, 1949;

(c) that on 31st January, 1950, an extension of the permit was granted.

He did not give and was not asked by anyone to give, evidence as to the date when the extended permit expired. It was unfortunate I think that the learned Judge did not at this stage call for the production of the document which the respondent claimed to be a valid permit. He did not do this, however, which means that he did not in fact satisfy himself that he possessed jurisdiction to make the orders. There had been no admission by the appellants on the pleadings and even had there been it would still have been the Judge's duty, in my opinion, to satisfy himself that the permit was still current. The words "has obtained the necessary permit" used in sub-paragraph $(d)$ are admittedly somewhat loose but I consider that the only reasonable construction to place on them, is that at the date on which the Judge deals with a landlord's application for a possession order, the latter must be in possession of a permit, by the terms of which he can lawfully proceed with the work of "alteration, reconstruction or demolition" if the order is granted. That a landord could not do so under an expired permit seems obvious.

As this point is fatal to the respondent we have not considered in these two cases whether the appellants were in fact served with valid notices of the termination of their contractual tenancies. In the event, however, of the landlord wishing to start again it would be well I think that his legal advisers should study the terms of the judgment given by this Court in Aden Civil Appeal No. 48 of 1950.

The appeal is allowed with costs, and the orders for possession are set aside. LOCKHART-SMITH (Ag. Vice-President).—I concur.

MODERA, $J.-I$ concur.