Werrot and Company and Another v African Highland Timber Company and Others (Civil Appeal No. 99 of 1955) [1950] EACA 85 (1 January 1950)

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), BRIGGS and BACON, Justices of Appeal

## BAWA SINGH MELARAM T/A WERROT AND COMPANY, Appellant (Original Plaintiff)

## (1) C. M. PATEL, (2) M. S. PATEL, (3) C. C. PATEL, (4) S. M. PATEL, (5) R. M. PATEL $T/A$ THE AFRICAN HIGHLAND TIMBER COMPANY,

# Respondents (Original Defendants) Civil Appeal No. 99 of 1955

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

Landlord and Tenant-Business premises-Effect of the Increase of Rent (Restriction) Ordinance, No. 22 of 1949, sections 1 (2) 11 and 21—Ordinance No. 8 of 1953, section 2—Interpretation and General Clauses Ordinance, section 13 (3)—Eastern African Court of Appeal Rules, 1954, 3rd Schedule, rule 11.

The appellant sued in the Supreme Court for the recovery of rent paid in respect of business premises in excess of the standard rent fixed by the Rent Control Board. The standard rent was fixed in May, 1954, and the proceedings were instituted on 27th September, 1954. The Increase of Rent (Restriction) Ordinance ceased to apply to business premises on 25th December, 1954. In September, 1955, the Supreme Court ruled on a preliminary point of law that since the Ordinance was a temporary one, and *qua* the suit premises had not been repealed, but had expired, the right of action, if any, to recover the excess rent died with it and there was no jurisdiction to hear the suit, which was accordingly dismissed with costs.

Held (5-3-56).—On a true construction of the Ordinance it was never intended to destroy subsisting civil rights in connexion with business premises when they ceased to be controlled.

Appeal allowed. Proceedings remitted to the Supreme Court for hearing.

Cases referred to: R. v. Valabhdas Vasanji, 4 E. A. C. A. 37; B. E. A. Timber Co. v. I. S. Gill, Kenya Supreme Court Civ. App. No. 34 of 1955; R. v. Wicks. (1946) 2 A. E. R. Sun Hensy Supports Services of Proportions of Proceedings of the Mess, (1989) 11:181-181, 1953. Solar Hensy Supports of Proportion of Proportion of the Mess (1989) 11:181, 1953. Spens Magnita, (1999) 19 East 19, 297, Penagopata v. Penandalany, 39 Penal (1999) 1864 1975, Penagopata v. Daniji Devji, (1954) A. C. 49; Hough v. Windus, 12 Q. B. D. 224; R. v. Ellis, 125 L. T. 397; Steavenson v. Oliver, (1841) 8 M

#### Ganatra for appellant.

Nowrojee for respondent.

[Editorial Note.—Counsel for both parties required to give undertakings in respect of costs unnecessarily incurred.]

BRIGGS, J. A.—This is an appeal from the dismissal of a suit brought in the Supreme Court of Kenya by the appellant for the recovery of rent alleged to have been paid to the respondents as his landlords in excess of the standard rent fixed by the Rent Board in respect of his business premises. The standard rent is said to have been assessed in May, 1954, and the suit was filed on 27th September, 1954, the claim being brought under sections 11 and 21 of

the Increase of Rent (Restriction) Ordinance, No. 22 of 1949. By virtue of the proviso to section 1 (2) of that Ordinance, introduced as an amendment by section 2 of Ordinance No. 8 of 1953, the Ordinance ceased to apply to any business premises in the Colony with effect from the 25th day of December. 1954. The defences, filed in 1955, raised numerous issues which are not now snaterial, but in September, 1955, the defendants raised three preliminary points of law. The first objection was overruled and the third was not dealt with. The second was that, since the Ordinance was a temporary one and, $q_{ua}$ these premises, had not been repealed, but had expired, the right of action, if any, to recover these moneys died with it and there was no jurisdiction to hear the suit. The learned Judge upheld this submission and dismissed the suit with costs. The plaintiff appeals.

The respondents raised two preliminary objections to the appeal, that in breach of rule 56 of the rules of this Court the decree had not been extracted before the appeal was lodged, and that in breach of rule 62 (4) (e) a copy of the decree had not been included in the record. On the same day as notice was given of intention to take these objections the appellant filed a motion for leave to incorporate a copy of the decree in the record and for an order that the delay and omission be excused. It is not clear which of them gave rise to the other. The motion and preliminary objections were heard together. The facts, so far as one could ascertain them from a somewhat rambling affidavit and the statements of counsel, were that the appellant had changed his legal advisers twice after the judgment and for this reason the decree was requisitioned late, on 20th December, while the last day for filing the record was 28th December. The requisition was, however, marked urgent, and the draft decree was sent to Mr. Nowrojee for approval on behalf of the defendants on 22nd December. This allowed ample time to extract and incorporate the decree, but Mr. Nowrojee's office apparently mislaid or overlooked the draft and it has not been seen since. It appears that it is the practice of the Supreme Court on sending draft decrees for approval to endorse a note that unless the draft is returned amended within four days the decree will be sealed in terms of the draft. Mr. Nowrojec argued that this practice absolved counsel from his normal duty of approving or amending the draft decree and returning it promptly. I do not agree with this submission. Other reasons apart, mere courtesy to the Registrar requires counsel to deal with such drafts in a regular and prompt manner. The decree was ultimately extracted and was produced to us.

This seems to me a shocking example of an approach by practitioners to a detail of procedure, which unfortunately is only too common in Kenya, but which in my opinion is so misguided and wrong-headed as to be almost unprofessional. In Uganda or Tanganyika, where the existence of the decree is a condition precedent to the appeal, the position would of course have been different; but in Kenya it was unthinkable that the appeal should be dismissed merely for lack of the decree in these circumstances. Both counsel must have realized this. Indeed, it was admitted at the hearing. The proper course was a telephone call and an informal oral agreement to treat copies of the decree as duly incorporated in the record and hand them in at or before the hearing. Even an exchange of letters was unnecessary. So long as counsel insist of taking trifling and purposeless points of this kind as if they were of fundamental importance, so long will clients' money and the time of the Court be wasted. We have pointed out before, and I stress again, that rules of procedure and practice are made to facilitate and to reduce the cost of litigation. If counsel abuse the rules so as wantonly and unnecessarily to obstruct litigation and increase its cost, there is at least one way in which this Court can show its disapproval. In allowing the motion and dismissing the preliminary objections we expressed the view that the costs of them ought not to fall on the lay clients.

We, therefore, called on both counsel either to undertake that no part of the costs of the proceedings in question should be charged to their clients, or to show cause why an order should not be made under rule 11 of the taxation rules (3rd Schedule, E. A. C. A. Rules, 1954). The undertakings were given and must be incorporated in the order to be drawn up on the general appeal.

The appeal itself raises a point of considerable general importance, namely, to what extent did accrued rights and causes of action arising from the former rent control of business premises survive after that control ceased. If the effect of the proviso to which I have referred was merely that the Ordinance was repealed *pro tanto* as regards business premises, the provisions of section 13 (3) of the Interpretation and General Clauses Ordinance would admittedly keep in existence the rights and right of action, if any, on which the plaintiff relies. It is, however, contended that even before amendment the Increase of Rent (Restriction) Ordinance, 1949, was a temporary Ordinance (see section 1 (1)) and that its character as such was not affected by the amending proviso; that it expired in its application to business premises on 25th December, 1954; and that thereafter it must be treated as if it had never existed, in the sense that all rights and obligations arising under it in connexion with business premises were automatically then expunged.

Mr. Ganatra and Mr. Nowrojee cited a number of authorities, of which I may mention R. v. Valabhdas Vasanji, 4 E. A. C. A. 37, Osborne's Concise Law Dictionary, B. E. A. Timber Co. v. I. S. Gill, Kenya Supreme Court Civil Appeal No. 34 of 1955, unreported, R. v. Wicks, (1946) 2 A. E. R. 531, 62 T. L. R. 674, Wicks v. D. P. P., (1947) A. C. 362, Bennett v. Tatton, 34 T. L. R. 591, Maxwell on Statutes, 10th ed. 213 and 231, Spenser v. Hooton, 37 T. L. R. 280, P. K. Swamy, A. I. R. 1953 Mad. 451, Marsh v. Higgins, (1850) 19 L. J. N. S. 297, Venugopala v. Krishnaswamy, 30 A. I. R. (1943) Federal 24, Noronha v. Damji Devji, (1954) A. C. 49, Hough v. Windus, 12 Q. B. D. 224, R. v. Ellis, 125 L. T. 397, 31 Hailsham 512, section 666, and Craies on Statute Law, 5th ed. 377 segq. I hope I may be pardoned for saying that I find little assistance in most of these. The general rules applicable to the expiration of a temporary statute and its effect on subsisting civil rights are to be found in Steavenson v. Oliver, (1841) 8 M. & W. 234 (151 E. R. 1024), stated by the Court of Criminal Appeal in R. v. Wicks to be "the leading authority" on this matter, though the Court queried certain dicta therein not material in this case. The Lord Chief Justice cited with approval the following passage from the judgment of Baron Parke at p. 241:—

"There is a difference between temporary statutes and statutes which are repealed: the latter (except so far as they relate to transactions already completed under them) become as if they had never existed: but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction."

The House of Lords approved and upheld the decision of the Court of Criminal Appeal. It must be remembered that both in England and in Kenya the effect at common law of a repeal has now been changed by provisions in that behalf in a statute dealing with interpretation.

It is, therefore, a pure question of construction, to be determined by consideration of the statute itself, whether or not it was intended that subsisting rights and causes of action created by it should be expunged when it expired quoad business premises, as I assume, for the sake of argument, it did. In many statutes of this kind there are special provisions dealing with this question, but in this statute, and in the one under consideration in *Steavenson v. Oliver*, there are none. But what was the method of approach there to the question of construction? Lord Abinger, C. B., said at the outset of his judgment: "It is

by no means a consequence of an Act of Parliament's expiring, that rights acquired under it should likewise expire". He deals with the question of a penalty incurred and continues: "The case of a right acquired under the Act is stronger". Alderson, B, said: "But I apprehend that, on the true construction of these Acts of Parliament, those parts of the 6th Geo. 4, which explain the provisions of the 55 Geo. 3, are in their own nature permanent and effectual, notwithstanding the final clause, which makes the Act temporary. Independently, however, of this consideration, I agree in the opinion already expressed by my Brother Parke". Rolfe, B., said: "I think that although in one sense this Act is not in force, yet it is still permanent as to the rights acquired under it". In face of all this it seems impossible to contend that one should lean towards a construction expunging civil rights. I think on the other hand that one might, if necessary, lean towards a construction preserving them, but I see no necessity for this here. I think on a true construction of the Increase of Rent (Restriction) Ordinance it was never intended to destroy subsisting civil rights in connexion with business premises when they ceased to be controlled. The continuation in force of the Ordinance for other purposes supports me in this view. In my view it is not necessary to decide whether the Ordinance has expired or was repealed pro tanto. In either event, accrued civil rights under it will survive and can be enforced. The case of Steavenson v. Oliver was apparently not brought to the notice of the learned Judge below, and he appears to have thought that it was a rule of general application that proceedings of this kind must abate. He relied on the passage in Hailsham cited above which, unless it is interpreted as dealing with criminal proceedings, appears to be too widely expressed, and to conflict with *Steavenson* $v$ . Oliver and $R$ . $v$ . Wicks. I need only add that the judgment of de Lestang J., in B. E. A. Timber Co. v. I. S. Gill supports me in my conclusion, though the point with which he dealt was not not precisely the same as the one before us.

I would allow this appeal with costs, save that there will be no costs of the motion and preliminary objections before us, set aside the judgment of Harley, Ag. J., so far as it deals with this issue and the decree based thereon, order that the defendants do pay the costs of the preliminary objections in the Supreme Court in any event, and order that the suit be remitted to the Supreme Court for hearing, the third preliminary point, which was not disposed of, to be dealt with at the general hearing of the suit.

SINCLAIR, Vice-President.—I agree.

BACON, J. A.—I also agree.