[1951] EACA 54

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), LOCKHART-SMITH (Ag. Vice-President), and THACKER (Ag. Chief Justice, Kenya)

# (1) DAMJI DEVJI. (2) LALJI JETHA, (3) RATTANSHI BHURA, Appellants (Original Defendants)

ν.

## G. H. C. NORONHA, Respondent (Original Plaintiff)

Civil Appeal No. 64 of 1950

(Appeal from decision of H. M. Supreme Court of Kenya—Connell, Acting Judge) Increase of Rent (Restriction) Ordinance, 1949-Jurisdiction of Supreme Court to

entertain proceedings.—Whether 1949 Ordinance has retrospective effect.

The plaintiff-respondent brought a suit for recovery of possession and for payment of arrears of rent in respect of premises to which the provisions of the Kenya legislation dealing with Rent Restriction applied. The plaintiff-respondent obtained the order prayed for on the ground that no contractual tenancy still existed and that as the first appellant had gone out of possession he had no protection under the Rent Restriction Ordinance as a statutory tenant.

On appeal the question whether the Increase of Rent (Restriction) Ordinance, 1949, had taken away from the Supreme Court of Kenya jurisdiction to entertain a suit to which the Ordinance applied, was considered. Further whether the Supreme Court's jurisdiction possessed under the 1940 Ordinance still attached to suits instituted but not determined before the 1949 Ordinance came into force was also considered.

Held (22-6-51).—(1) Since the enactment of the Rent (Restrictions) Ordinance, 1949, came into force the jurisdiction of the Supreme Court of Kenya has been ousted by the Central or Coast Rent Restriction Boards when proceedings arise out of a dispute between a landlord and tenant;

(2) In the case of suits instituted before the coming into force of the 1949 Ordinance no power is conferred on the Supreme Court to grant an order for recovery of possession.

Appeal allowed.

Cases discussed: G. K. Dagamwalla v. K. E. Rajwani, S. C. C. C. 147 of 1949; K. E. Rajwani v. G. K. Dagamwalla, Civil Appeal 64/49; Santa Singh v. Valji Lalji Parmar, Civil Appeal 55/49; Puramchand & Neth Raj v. Sheikh Gulama Pappeal 35/49, Futurnichana & Iven Kaj v. Sheikh Guanhanomea and two others, S. C. Civil C. 200 of 1949; Faturna Bachoo v. Majothi Kara Juma Bolia, 13 E. A. C. A. 50; Inglis v. De Barnard (1841) III (1899) Probate 236.

### Bhandari for appellants.

Nazareth for respondent.

#### Somerhough, Deputy Public Prosecutor (Kenya) appears as Amicus Curiæ.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This is an appeal from a judgment given by the Supreme Court of Kenya in suit for recovery of possession and for payment of arrears of rent. It is not in dispute that the suit premises are premises to which the provisions of the Kenya legislation dealing with Rent Restriction apply, and the consent of the appropriate Rent Control Board was obtained before the plaint was filed. The Plaintiff, who is the respondent to this appeal, obtained the order prayed for on the ground that no contractual tenancy still existed, and that as the first appellant had gone out of possession he had no protection under the Rent Restriction Ordinance as a statutory tenant. A number of points material to the ordinary law as between landlord and tenant have been argued before us but before considering such of these as may be necessary for the determination of this appeal it is essential to discuss the question of jurisdiction and to decide whether the enactment of the Increase of Rent (Restriction) Ordinance 1949 has taken away from the Supreme Court of Kenya the power to entertain a suit of this character in respect of premises to which the Rent Restriction Ordinance applies. If the answer to this be in the affirmative the further question will arise as to whether on the date on which this suit was determined by the Supreme Court the provisions of the 1949 Ordinance applied to it or whether the jurisdiction which the Supreme Court undoubtedly possessed under the 1940 Ordinance still attached to suits instituted but not determined before the 1949 Ordinance came into force. If the answer to this further question is in the negative then this appeal must succeed.

Although no point as regards jurisdiction was raised in the Memorandum of Appeal the Court decided that it could not ignore it and for this reason we ordered the reopening of the hearing in order that we might call on the Attorney General to state his view as amicus curia as to the effect of the 1949. Ordinance with particular reference to Section 31 thereof. In accordance with our request Mr. Somerhough appeared on behalf of the Attorney General and we are indebted to him for his able and lucid argument.

It should I think be stated that when the present suit first came up for hearing before the Supreme Court of Kenya the defendant's counsel, Mr. Schermbrucker, submitted that the Court had no jurisdiction to hear it but after legal argument Mr. Schermbrucker withdrew his objection. In a very brief order the trial Judge, Keatinge, Acting J., declared that he was satisfied that on the authorities as they stood the Court had jurisdiction and he directed the case to stand over for hearing at a future date. Subsequently the case was tried by Connell, Acting J., and in the light of what had gone before it is not surprising perhaps that the issue of jurisdiction was not again raised or referred to in the judgment of the learned trial Judge.

From the notes taken by Keatinge, Acting J., I gather that Mr. Nazareth, who has appeared for the respondent in this appeal argued that the judgments given by this Court in the Eastern Africa Court of Appeal. Civil Appeals 55/1949 and 64/1949 constitute authority for his submission that the jurisdiction of the Supreme Court had not been impaired by the 1949 Ordinance, and it would seem that his argument convinced both Mr. Schermbrucker and the learned Judge. A very careful study of the Judgments given by this Court in these two appeals has convinced me that his submission was wrong and that so far $a_s$ this Court is concerned the question is still one at large untrammelled by authority.

Both the judgments of this Court referred to above were given on the same day, namely 13th February, 1950, and both were appeals from judgments of the Supreme Court of Kenya. Civil Appeal 64 of 1949 was an appeal from a judgment of Bourke, J., given in Kenya Supreme Court Civil Case No. 147 of 1949. In that case the Plaintiff had instituted a suit for an order for recovery of possession of a portion of a shop belonging to the Plaintiff. Bourke, J. dismissed the suit on the ground that the provisions of the Rent Restriction Ordinance, 1949, applied to the suit and that by the provisions of that Ordinance the Supreme Court had no jurisdiction to entertain it. I quote the concluding passage from his judgment:-

"Since the coming into force of the 1949 Ordinance a special jurisdiction is conferred upon a newly constituted tribunal and this Court has become a Court of Appeal from decisions of such tribunal. It may seem hard that the plaintiff should be put to expense, but, if my view of the matter be correct,

$\dot{i}$

one must assume that such cases were not overlooked by the Legislature, and conclude that the wisdom which devised the new machinery for the determination of such cases foresaw the inconvenience that would be caused to those litigants whose cases were pending before the Courts and considered that the general need in the public interest overrode such factor in individual instances "

On appeal, this Court held that the trial Judge had misconceived the position in thinking that any tenancy had been created. In the view of Graham Paul, C. J., who gave the leading judgment it had not been established that there ever had been a letting of the suit premises with the result that the provisions of the Rent Restriction Ordinance, 1949, did not apply. Accordingly, and here I quote from the judgment: -

"The Ordinance not applying, the Rent Control Board had no jurisdiction and the claim was properly brought in the Supreme Court. For these reasons I find it unnecessary to consider the several other questions raised in the appeal which in my view arise only if the 1949 Ordinance could be said to apply to the facts of this case. As regards the other items of the prayer of the Plaint these were not dealt with by the Court below for the reason that the Court below held that the 1949 Ordinance applied and that these were matters for the Rent Control Board and not for the Supreme Court. In this for the reasons I have given I think the Court below was in error."

Both the other members of the Court concurred with the judgment of the learned Chief Justice of Tanganyika and Rudd, J. expressed himself satisfied that the relation between the parties was consistent only with a licence and not a tenancy.

I have said enough I think to show that the case was remitted to the Supreme Court for further hearing not on the grounds that the learned Judge was<br>necessarily wrong in his view that the 1949 Ordinance had taken away the jurisdiction of the Supreme Court to hear a suit for recovery of possession of premises to which the Ordinance applied but on the ground that the learned Judge was wrong in thinking that the 1949 Ordinance applied at all. The question whether in a case to which the 1949 Ordinance did apply jurisdiction had been removed from the Supreme Court was neither reviewed or decided.

I now come to Civil Appeal 55 of 1949. This was a judgment on an appeal from a suit brought in the Supreme Court of Kenya in which the Plaintiff had asked for an order for possession and arrears of rent. It is clear from the judgment of Thacker, J., which is dated the 1st November, 1949 (Civil Case 630 of 1948), that the jurisdiction issue was never raised. This again does not much surprise me because at the date of the institution of the suit the Supreme Court under the provisions of the then obtaining Rent Restriction Ordinance had undoubted jurisdiction to entertain it. The 1949 Ordinance, which for the first time introduced the unique and revolutionary provision that certain Rent Control Boards in the Colony should have the power, inter alia, of making orders for possession did not come into force until the 6th September, 1949. Had the jurisdiction issue been raised, then the further question as to whether the 1949 Ordinance acted retrospectively would have arisen also. In point of fact neither question was taken.

At the hearing of the appeal before this Court the issue as to jurisdiction was argued along with other grounds, but in the three judgments of the learned Chief Justices, Graham Paul, Edwards and Rudd no mention is made of this issue, the appeal being dismissed because their Lordships were of the view that there was nothing unlawful or unreasonable about the orders made by the Court below. It must be admitted, that if the trial Court had no jurisdiction to entertain the suit

or make an order for possession then such an order was unlawful so that it does not surprise me that Mr. Nazareth has argued that since this Court found that there was nothing unlawful about the order, the inference is irresistible that this Court rejected the argument that the Court of trial had no jurisdiction. I should find it difficult to resist this submission but for one passage in the judgment of the learned Chief Justice of Uganda which reads thus: -

"The appellant's advocate at the hearing of this appeal, attempted to raise new points which, in my view, he cannot require this Court to entertain."

Rudd, J., concurred with the judgment of the learned Chief Justice of Uganda. I consider that the above-quoted passage shows that the Court did not address its mind to the question of jurisdiction because it had not been raised before Thacker, J., in the Supreme Court, and was introduced for the first time on appeal. Whether this Court was right in so shutting out the issue is one matter, that the Court did in effect do so is another and I think it is clear that the Court did so. For this reason I am not prepared to agree that the judgments of this Court in Civil Appeal 55 of 1949 provide any authority for the submission that this Court has already decided that under the 1949 Ordinance the Supreme Court possesses a concurrent jurisdiction with the Central and Coast Rent Control Board to issue orders for the recovery of premises to which the provisions of the Ordinance apply. This Court has now had the advantage of hearing full argument on this issue and we have given the matter our close attention and consideration to it. I have had the advantage of reading the judgment about to be delivered by my brother the learned Justice of Appeal and of discussing its terms with him. For the reasons which he will state at length and with which I fully concur, I am of the opinion that since the enactment of the 1949 Ordinance the Supreme Court of Kenya has no jurisdiction to give an order for the recovery of possession of premises controlled by the Ordinance in an area under the jurisdiction of the Central or Coast Rent Restriction Board when the proceedings arise out of a dispute between a landlord and tenant. Again for the same reasons as will be given by my learned brother I am of the opinion that section 13 (3) of the Interpretation and General Clauses Ordinance (Cap. 1 of the Laws of Kenya, 1948) cannot be called in aid to confer power on the Supreme Court to grant an order for recovery of possession in the above circumstances in the case of suits instituted before the coming into force on the 6th September, 1949, of the new Ordinance.

Having answered the two questions as to jurisdiction and the retrospective effect of the 1949 Ordinance in the way I think they must be answered I am relieved from the necessity of determining the other points raised during the hearing of this appeal as they do not now arise. The appeal will be allowed with costs and judgment for defendant entered with costs in substitution for the judgment entered by the Court below.

I would add that this judgment as well as the judgment about to be delivered by my learned brother have been seen by my learned brother, Thacker, J., and I have been asked by him to say that he is in complete agreement.

LOCKHART-SMITH, Justice of Appeal.—This is an appeal from a decision of the Supreme Court of Kenya giving judgment in favour of the plaintiff (the present respondent) for the recovery of vacant possession of certain premises specified in the plaint and for the payment of certain sums in respect of such premises by way of rent or mesne profits.

Preliminary issues of great importance were raised by this Court in the course of argument and, in deciding these issues, we have had the benefit not only of

arguments by counsel for the parties to this appeal, but also by Mr. Somerhough, representing the Attorney General, who has been good enough to assist the Court as amicus curiæ.

The preliminary questions to be decided are—

- (a) whether the Supreme Court has jurisdiction, under the Increase of Rent (Restriction) Ordinance, 1949, to entertain proceedings under the Ordinance for the recovery of premises to which the Ordinance applies and for the payment of arrears of rent in respect of such premises; - (b) if the Supreme Court has no such jurisdiction under the Ordinance of 1949, has that Ordinance retrospective effect so as to put an end to proceedings of a like nature instituted under the repealed Increase of Rent and of Mortgage Interest (Restriction) Ordinance, 1940, under which the Supreme Court had, as is common ground, jurisdiction to entertain such proceedings.

Mr. Nazareth submits that these issues have already been determined by this Court, which is bound to follow its own earlier decisions. He points out that the Supreme Court has considered its jurisdiction in the present proceedings. Mr. Schermbrucker, then leading counsel for the appellants, submitted at the outset of the hearing in the Court below that the Court had no jurisdiction, and relied on the decision of Bourke, J., in Civil Case No. 147 of 1949. Mr. Nazareth, in the Supreme Court, in reply to Mr. Schermbrucker submitted that, in Civil Appeal No. 64 of 1949 (the appeal from Bourke, J.'s judgment) the issue as to jurisdiction was raised and fully argued, but was not decided by this Court, as the appeal was allowed on other grounds. In Civil Appeal No. 55 of 1949, which was brought from a judgment of Thacker, J., and was heard shortly after Civil Appeal No. 64 of 1949 this Court would have been bound, Mr. Nazareth contended, to allow the appeal if it had taken the view that the Supreme Court had no jurisdiction. The point as to jurisdiction was again taken in the Memorandum of Appeal, but was only briefly argued, as it had already been fully argued in the earlier appeal, and the arguments put forward at the earlier hearing were adopted at the later. Mr. Nazareth also referred to a ruling by de Lestang, J., in Civil Case No. 200 of 1949.

On these submissions Keatinge, Ag. J., made an order for the hearing of the present case to proceed, expressing himself satisfied that on the authorities as they stood at that moment the Supreme Court had jurisdiction.

In Civil Case No. 147 of 1949 Bourke, J., held, in effect, and inter alia, that by virtue of section 31 of the Ordinance of 1949 (which section is considered fully later in this judgment) the Supreme Court could not exercise jurisdiction in a suit for the recovery of possession of controlled premises situated in the area of the Coast Board, as exclusive jurisdiction in such proceedings in respect of such premises was conferred by the Ordinance on the Board; and further that the power which the Court possessed under the former Ordinance to exercise such jurisdiction was not saved by virtue of section 13 (3) of the Interpretation and General Clauses Ordinance (Cap. 1) so as to enable the Court to make an order for recovery of possession in proceedings instituted under the former Ordinance.

On appeal (Civil Appeal No. 64 of 1949) this Court decided that the tenant had failed to bring himself within the protection of the Ordinance of 1949 because he had failed to prove a letting. The Ordinance did not, therefore, apply, and for this reason the appeal was allowed.

The learned Acting President (Graham Paul, C. J.) observed in the course of his judgment, with which Edwards, C. J., and Rudd, J., concurred, that "the Ordinance not applying, the Rent Control Board had no jurisdiction, and the claim

was properly brought in the Supreme Court". From this it might perhaps be inferred that the learned Acting President was of the opinion that if the Ordinance had applied, the claim would have been properly brought and before the Board only. But I do not think that such an inference would be correct because the learned Acting President continued:-

"For these reasons I find it necessary to consider the several other questions raised in the appeal which in my view arise only if the 1949 Ordinance could be said to apply to the facts of the case." The "other questions raised" in fact included the issue of the Supreme Court's jurisdiction to entertain the proceedings.

At the end of the learned Acting President's judgment, the following passage $appears:$

"As regards the other items of the prayer of the plaint (i.e. other than the prayer for an order that the defendant leave the plaintiff's shop and be ejected therefrom with his belongings) these were not dealt with by the Court below for the reason that the Court below held that these were matters for the Rent Control Board and not for the Court. In this for the reason I have given, I think the Court below was in error."

The reasons given were, as stated, that the tenant had not proved a letting, and that the Ordinance had, therefore, no application. This Court never decided that Bourke, J.'s opinion as to the lack of jurisdiction of the Supreme Court was wrong. The question of jurisdiction although raised in the Memorandum of Appeal, and argued before this Court, was never decided one way or the other because, in view of the grounds on which this Court allowed the appeal it became unnecessary to decide it.

In my opinion, therefore, there is nothing in this Court's decision in Civil Appeal No. 64 of 1949 which in any way precludes the Court as at present constituted from reaching a conclusion unfettered by precedent on the preliminary issues which have been stated.

The position as regards Civil Appeal No. 55 of 1949 is considerably more difficult. The appeal was brought from a judgment of Thacker, J., in Civil Case No. 630 of 1948, in which proceedings the issue of the jurisdiction of the Supreme Court was never raised. The issue was, however, specifically raised in the Memorandum of Appeal filed in Civil Appeal No. 55 of 1949 and was dealt with by counsel for the appellant at the outset of his argument on appeal.

The issue is nowhere dealt with in the judgments delivered by the Members of this Court who heard the appeal, and who were identical with those who heard Civil Appeal No. 64 of 1949. From the mentions in the learned Acting President's judgment of both the 1940 and 1949 Ordinances, it may perhaps be inferred that he thought that where proceedings had been commenced, as the proceedings then under consideration were, under the 1940 Ordinance, they could be continued under the 1949 Ordinance, but he never referred to the question whether the 1949 Ordinance had ousted the jurisdiction of the Supreme Court, whether with or without retrospective effect. Edwards, C. J., took the view that the 1949 Ordinance applied to the case, but added that even if he was wrong in that view the effect, so far as that case was concerned, was the same, as the wording of the relevant sections of the two ordinances was similar. He also omitted to make any reference to the issue of the jurisdiction of the Supreme Court to entertain the proceedings, but he did say that he had not entertained other points taken by the appellant's counsel because they were new points taken for the first time on appeal. Rudd, J., concurred, merely adding an observation which is irrelevant for the purposes of the present appeal.

Mr. Nazareth has again urged, and I agree, that if this Court had been of the opinion in Civil Appeal No. 55 of 1949 that the Court below had no jurisdiction, it must have allowed the appeal. Since, Mr. Nazareth argues, the issue, although raised in the Memorandum of Appeal and argued before the Court is nowhere referred to in the judgments, it must be the case that the Court was of the opinion that the Supreme Court in fact had jurisdiction. He refers to the references to section 16 of the 1949 Ordinance in the judgments both of the Acting President and of Edwards, C. J., section 16 deals with the restrictions placed by the Ordinance on the making of orders for the recovery of possession of any premises to which the Ordinance applies, and is discussed later in this judgment. The Acting President considered that whether section 16 $(a)$ of the 1949 Ordinance or the comparative provisions of the former Ordinance applied to Civil Case No. 630 of 1948, the order for possession by the Supreme Court was rightly and reasonably made. Edwards, C. J., thought that, with regard to the Supreme Court's order for possession, there was nothing in section 16 of the 1949 Ordinance which made the order bad. It must, therefore, be assumed, Mr. Nazareth submits, that this Court considered that the Supreme Court had jurisdiction to make the Order.

When an appellate tribunal of the nature of this Court has had raised and argued before it so vital an issue as the jurisdiction of the Court from which the appeal is brought, other instances, if any, must be rare indeed of the Tribunal failing to deal specifically with that issue in its judgment or judgments. I cannot find, and scarcely expected to find, any authority which affords any guidance as to the effect of such omission.

The failure of this Court as constituted in Civil Appeal No. 55 of 1949 to deal with the issues as to jurisdiction then before it has caused me some embarrassment in considering the same issues, but, speaking for myself, I am not prepared to concede, in the absence of any express decision, that it must be inferred that this Court decided in the earlier appeal that the Supreme Court had jurisdiction. I do not think that such an inference can be regarded as bringing the doctrine of judicial precedent into play so as to preclude us from reaching a decision untrammelled by authority on the same issue. Indeed I agree with the learned President that there are clear indications that the Court refused to address its mind to the question of jurisdiction because that issue was introduced for the first time on appeal.

Mr. Nazareth also referred, both in the Court below and in this Court, to a ruling by de Lestang, J., in Civil Case No. 200 of 1949, in which the learned Judge decided that the jurisdiction of the Supreme Court to try suits filed while the 1940 Ordinance was still in force was not taken away by the enactment of the 1949 Ordinance but was presumed by section 13 (3) of the Interpretation and General Clauses Ordinance (Cap. 1). The learned Judge was not concerned with the question whether the jurisdiction of the Supreme Court had been taken away completely in respect of suits filed under the 1949 Ordinance, but nevertheless expressed the opinion that, having regard to the presumption against ousting the jurisdiction of Superior Courts, any difficulties which might arise under the 1949 Ordinance if in fact it conferred concurrent jurisdiction on the Supreme Court and the Board would hardly be sufficient to take away the jurisdiction of the Supreme Court which was conferred by Order in Council. This ruling, though entitled to respect, is not, if course, binding on this Court.

In my opinion, therefore, there is no authority which debars this Court from considering and deciding the preliminary issues in this appeal.

The jurisdiction of the Supreme Court stems from Article 4 of the Kenya Colony Order in Council, 1921, the relevant provisions of which are as follows:

"4. (1) There shall be a Court of Record styled His Majesty's Supreme Court of Kenya (in this Order referred to as "the Supreme Court") with full jurisdiction, civil and criminal, over all persons and over all matters in the Colony.

(2) Subject to the other provisions of this Order, such civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in conformity with the Civil Procedure and Penal Codes of India and the other Indian Acts which are in force in the Colony at the date of the commencement of this Order and subject thereto and so far as the same shall not extend or apply shall be exercised in conformity with the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the twelfth day of August, 1897, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and Justices of the Peace in England according to their respective jurisdiction and authorities at that date save in so far as the Civil Procedure and Penal Codes of India and the other Indian Acts in force as aforesaid and the said common law doctrines of equity and the statutes of general application and the said powers, procedure and practice may at any time before the commencement of this Order have been or hereafter may be modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of His Majesty in Council, or by any Ordinance or Ordinances for the time being in force in the Colony:

Provided always that the said common law doctrines of equity and the statutes of general application shall be in force in the Colony so far only as the circumstances of the Colony and its inhabitants permit and subject to such qualifications as local circumstances render necessary."

Mr. Somerhough concedes that, despite the wide wording of paragraph (1) of the Article, the local legislature may, by virtue of paragraph (2) oust or limit the jurisdiction of the Supreme Court by Ordinance. He has referred us to English authorities which, he claims, establish the principle that in England any legislation which purports to oust the unlimited jurisdiction of the Superior Courts must do so in express terms, but I do not find it necessary to examine such authorities in detail, but only to observe that, even in England, the jurisdiction of the Superior Courts "may certainly be taken away, by implication" (Maxwell, Interpretation of Statutes, 9th edition, pages 136/137, and authorities there cited). Mr. Somerhough does not contest, however, that the local legislature may oust or limit the jurisdiction of the Supreme Court by necessary implication. He instances section 5 of the Civil Procedure Ordinance (Cap. 5), which provides that any court (an expression so defined by the Ordinance as to include the Supreme Court) shall have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. He contends, however, that on a true construction of the Ordinance of 1949 there is no ouster of the jurisdiction of the Supreme Court in proceedings arising under the Ordinance either expressly or by necessary implication.

Mr. Nazareth submits that paragraph (1) of Article 4 of the Order in Council is absolute so far as the local legislature is concerned, and that the jurisdiction of the Supreme Court can only be ousted or limited by a further Order of His Majesty in Council or by an Act of the Imperial Parliament. Any purported ouster or limitation of such jurisdiction by local legislation should, Mr. Nazareth contends, be held by the Supreme Court to be *ultra vires* the constitution of the Colony. The local legislature may by Ordinance "modify, amend, or replace" the Indian Acts, common law, doctrines of equity, statutes of general application,

powers, practice and procedure specified in paragraph (2) of Article (4), but it cannot oust or limit the full jurisdiction conferred on the Supreme Court by paragraph (1). Section 5 of the Civil Procedure Ordinance, Mr. Nazareth suggests, refers to the limitation of the jurisdiction of Courts subordinate to the Supreme Court, and does not affect the full jurisdiction of the Supreme Court.

I am unable to accept these arguments. In Fatuma Bachoo v. Majothi Kara Juma Bolia (13 E. A. C. A. 50), a Mahommedan woman married by Mahommedan law or custom had sought to obtain the dissolution of her marriage in the Court of the Resident Magistrate, Dar es Salaam. The learned Magistrate held that he had no jurisdiction to entertain the suit, and was upheld on appeal by the High Court of Tanganyika. In a second appeal to this Court it was agreed that if the High Court had jurisdiction to entertain the suit, the Resident Magistrate's Court also had jurisdiction by virtue of the Courts Ordinance, 1941. (Now Cap. 3.)

The Solicitor General of Tanganyika appeared for the appellant, and mainly relied on Article 17 of the Tanganyika Territory Order in Council, 1920, paragraphs (1) and (2) of which are very nearly identical with paragraphs (1) and (2) of<br>Article 4 of the Kenya Order in Council. Sheridan, C. J., said: — "The basis of the learned Magistrate's judgment and of that of the learned Chief Justice was that Article 17 (2) of the Order in Council placed a general restriction on the exercise of the jurisdiction given to the Court by Article 17 (1).... The Order in Council to which I have referred is similar to that in force in Kenya and Uganda, and to the best of my knowledge the construction placed upon it by the Magistrate and the Chief Justice is one which has always been put on it." Whitley, C. J., and Pearson, J., after both first inclining to think that the full jurisdiction conferred on the High Court of Tanganyika by Order in Council would extend to the dissolution of Mahommedan marriages, both finally agreed that the appeal should be dismissed. and in the result it was unanimously held that Article 17 did not confer jurisdiction on the High Court to dissolve such marriages.

This decision goes only to show that the "full" jurisdiction conferred on the Superior Court by paragraph (1) must be regarded as qualified by paragraph (2). It does not touch the question whether such jurisdiction may be further limited by the local legislature.

In a number of cases, however, the legislature of this Colony has purported to limit the full jurisdiction of the Supreme Court, and perhaps the best example is to be found in section 12 of the Expulsion from Proclaimed Areas Ordinance (Cap. 58) which reads as follows: $-$

"12. No Court of law in the Colony shall have any jurisdiction to review, quash, reverse or otherwise interfere with any proceeding, act or order had, done or made under this Ordinance."

This Ordinance was originally enacted as Ordinance No. 11 of 1935 and was amended by Ordinance No. 17 of 1944. Both Ordinances must, presumably, have been laid before His Majesty for "our approval, disallowance or other direction thereupon" as required by Clause XXXVI of the Royal Instructions of the 29th March, 1934. The Power of disallowance of Ordinances, to be signified through one of His Majesty's Principal Secretaries of State, was, at the relevant date, reserved to His Majesty by Article IX of the East Africa Order in Council, 1906: Article VIII of the Kenya Protectorate Order in Council, 1920, and Article XI of the Letters Patent for the Colony of Kenya of the 11th September, 1920. Neither Ordinance has been disallowed, for both appear in the current edition of the Laws. Mr. Nazareth contends that His Majesty's power of disallowance is purely negative, and that the failure to exercise it cannot be prayed in aid in establishing that an Ordinance purporting to limit the full jurisdiction of the Supreme Court is intra vires the local legislature. I do not think that this is so. In Inglis v. De Barnard (1841) III Moore 425 (13 E. R. 172) consideration was given by the Privy Council to the law of St. Lucia as regards the Registration of Deeds, which consisted of an Order of His Majesty in Council and an Ordinance made by the Governor framed for the purpose of carrying the Order in Council into effect, and in pursuance of the power conferred by such Order. The Right Honourable Dr. Lushington said (E. R. page $175$ ):-

"There has been some discussion at the Bar whether the Ordinance does not go beyond the Order in Council, and it has been contended that the Ordinance would be inoperative and yoid *quoad* such excess: but we are of the opinion that the Ordinance having been passed in pursuance of authority conferred by the Order in Council, a copy of such Ordinance having of course been transmitted to the Government at home, and no disapproval or alteration having taken place, such Ordinance must be considered as duly authorized by the Order...."

Similarly, in the present case, the fact that an Ordinance has been laid before His Majesty in pursuance of one of the Constitutional Instruments of the Colony. and has not been disallowed by His Majesty under the powers reserved to him under other Constitutional Instruments, may in my view, be taken into account in deciding whether the Ordinance is *ultra vires* the local legislature under yet another Constitutional Instrument.

These considerations reinforce my opinion, which indeed I think is justified by the plain language of Article 4 itself, that whilst paragraph (1) of the Article gives the Supreme Court full jurisdiction over all persons and all matters in the Colony, that jurisdiction must be exercised within the framework of the law. Such framework is provided by paragraph (2), and the local legislature is competent to modify, replace or amend the framework by Ordinance, and in particular to oust or limit the jurisdiction of the Supreme Court, either by express provision or by necessary implication.

Then does the Ordinance of 1949 effect such ouster or limitation? By section 2 (1) the expression "court" is defined to mean, unless the context otherwise requires, a subordinate court of the first class.

Section 31 of the Ordinance reads as follows: —

"31. (1) The court shall have jurisdiction to deal with any offence under this Ordinance or with any claim or other proceedings arising under this Ordinance (including suits for recovery of possession) as to which jurisdiction or power is not specifically conferred by this Ordinance on the Board, notwithstanding that by reason of the amount of penalty, claim or otherwise the case would not but for this provision, be within the jurisdiction of the Court.

(2) If a person takes proceedings under this Ordinance in the Supreme Court which he could have taken in the court he shall, if successful, only be entitled to recover costs on the subordinate court scale.'

It is common ground that subsection (1) ousts the jurisdiction of "the court" i.e. of subordinate courts of the first class—in cases as this, because, by section 5 (1) (f) "power" to make orders for the recovery of possession and for the payment of arrears of rent is "specifically conferred" on the Central Board in its area within which the premises the subject of the suit are situated.

The difficulty arises on the proper construction of sub-section (2). Mr. Somerhough submits that the Supreme Court derives its jurisdiction from the Order in Council, and that, quite apart from the Ordinance, it has jurisdiction to make orders for the recovery of possession as under, for example, Order 20 r. 12 of the Civil Procedure (Revised) Rules, 1948. There is nothing in sub-section (2) which expressly ousts the jurisdiction of the Supreme Court, and nothing from which such ouster must necessarily be implied. On the contrary, the mention of the Supreme Court in the subsection clearly indicates that the jurisdiction of the Supreme Court is to continue. Mr. Nazareth adopts these arguments.

Mr. Bhandari maintains that the jurisdiction of the Supreme Court to entertain proceedings under the Ordinance is ousted in areas in which the Central Board or the Coast Board have jurisdiction. Subsection (2) of section 31, he submits, does not have the effect of preserving the jurisdiction of the Supreme Court in such proceedings in such areas. It merely provides that a person who takes proceedings in the Supreme Court which he could have taken in "The court"i.e. a subordinate court of the first class-shall only be entitled to recover costs on the subordinate court scale. A person could bring proceedings under the Ordinance for recovery of possession and arrears of rent in a subordinate court of the first class in an area where no Rent Control Board had been established, or in any area where a Board other than the Central Board or Coast Board had been established, such other Boards not having had specifically conferred upon them the power to entertain such proceedings (see section $6$ (4)). But in the areas served by the Central Board or Coast Board, a person could not bring such proceedings in a first class subordinate court, because, by section 31 (1), as read with section 5 (1) $(f)$ the jurisdiction of first class subordinate courts is taken away. The only intelligible construction to be put upon subsection (2) of section 31 is, therefore, Mr. Bhandari submits, that it relates only to the position where it is possible to institute proceedings either in the Supreme Court or in a first class subordinate court. It cannot have any relation to the position where it is impossible to bring the proceedings in a first class subordinate court, as is the case in areas served by the Central or Coast Boards. If it had been the intention to penalize in costs persons who brought proceedings in the Supreme Court which they could have brought before the Board, the words "or before the Board" would have been inserted after the words "in the court", and the omission to do so reinforces the argument that the Supreme Court's jurisdiction is ousted in areas served by the Central or Coast Boards.

Mr. Somerhough has pointed out that section 31 of the Ordinance of 1949 is based on subsection (2) of section 17 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, of the United Kingdom, and submits that the primary object of the local section was to remove the pecuniary limits of jurisdiction of first class subordinate courts just as the English subsection removes the pecuniary limits of jurisdiction of county courts, and it is true that the local section closely follows its English model save for the important difference created by the introduction of the words "as to which jurisdiction or power is not specifically conferred by this Ordinance on the Board" in subsection (1), and the lesser distinction that a person in England who takes proceedings in the High Court which he would have taken in the County court is deprived of costs altogether, whereas under the local subsection (2) the penalty for bringing proceedings in the Supreme Court which could have been brought in a first class subordinate court is the reduction of recoverable costs to the subordinate court scale.

In Gill v. Luck, 40 T. L. R. 38, it was held that section 17 (2) of the Act of 1920 did not operate so as to give the county court exclusive jurisdiction. A person was still entitled to bring his proceedings in the High Court, but at his own risk as to costs. (See also Russoff versus Lipovitch, L. R. (1925) 1 K. B. 628) Atkin,

L. J., observed, however, that he was satisfied that it was the intention of the Legislature that cases arising under the Act should ordinarily go to the county court, and Mr. Somerhough suggests that it was equally the intention of the local legislature that cases arising under the Ordinance should ordinarily go to the Board or the first class subordinate court, whichever was applicable as the case might be.

Now the pecuniary limits of jurisdiction of subordinate courts of the first class having been removed as regards proceedings arising solely under the Ordinance of 1949 by subsection (1), such courts can entertain any such proceedings so long as they arise in respect of premises in areas outside the areas of the Central and Coast Boards, in which latter areas jurisdiction to the exclusion of subordinate courts has been conferred upon the two Boards. In all such proceedings so arising. therefore, any person bringing the proceedings in the Supreme Court will only be entitled to recover costs on the subordinate court scale.

In respect of premises in the areas of the Central and Coast Boards, however. no person can bring proceedings in a subordinate court of the first class as to which jurisdiction or power is specifically conferred on the Board. He can bring them before the Board, but if the arguments of Mr. Somerhough and Mr. Nazareth are correct, he can also, at his option, alternatively bring them in the Supreme Court in every case. If this is so, then the somewhate remarkable result appears to follow that in all cases he can recover costs on the Supreme Court scale. The Central or Coast Boards, however, in proceedings brought before them, may award the costs of such proceedings and direct them to be taxed upon the Supreme Court scale or upon the scale applicable to a subordinate court. (Section 5 (1) $(m)$ .) It might well happen therefore that, once this position became generally appreciated, every landlord seeking recovery of possession and arrears of rent in respect of premises in the areas of the Central and Coast Boards would automatically bring his proceedings in the Supreme Court so as to avoid the risk of being awarded costs on the lower scale only, with the result that the Supreme Court would be the sole tribunal actually deciding proceedings under the Ordinance in respect of such premises, and that the Central and Coast Board themselves would remain in idleness. It seems to me that Mr. Bhandari is on firm ground in suggesting that it is a necessary implication that the legislature cannot have intended such a result.

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But the matter does not end there. The restrictions on a landlord's right to possession of controlled premises are set out in Section 16 of the Ordinance of 1949. This section is obviously derived from comparative provisions in England, the first of which was enacted as section 5 of the Act of 1920. In Gill versus Luck (supra) the Court of Appeal, whilst holding that the county court had not exclusive jurisdiction, were of the opinion that the court in which the proceedings to recover possession were brought had no power to make an order unless the provisions of paragraphs (a) to (g) of sub-section 1 of section 5 were complied with and the Court thought it reasonable to make the order. In England, of course, these considerations would apply equally whether the proceedings were brought in the High Court or the county Court. But in construing section 16 of the local Ordinance we are faced with the difficulty that "court" is defined to mean a subordinate court of the first class. Mr. Somerhough concedes that this definition is operative throughout section 16. Mr. Nazareth contends that the definition only applies where the context does not "otherwise require", and submits that the context does otherwise require in section 16, and that the expression "the court" ought accordingly to be construed so as to include the Supreme Court.

In my opinion this argument is untenable. There is nothing in the context which requires the interpretation for which Mr. Nazareth contends. On the contrary, the context clearly requires that "court" should mean a subordinate court of the first class.

When therefore section 16 places restrictions on "the Central Board, the Coast Board or the Court, as the case may be", such restrictions do not apply to the Supreme Court. Let us take section 16 $(1)$ $(e)$ $(i)$ and section 16 $(2)$ as two of the many examples afforded by the section. These provisions read respectively as follows: $\leftarrow$

- "(1) (e) (i) the dwelling-house is reasonably required by the landlord for occupation as a residence for himself or for his wife or minor children, or for any person bona fide residing, or to reside with him, or for some person in his whole time employment or in the whole time employment of some tenant from him or for the occupation of the person who is entitled to the enjoyment of such dwelling-house under a will or settlement, and (except as otherwise provided by this sub-section) the Central Board, the Coast Board or the court, as the case may be is satisfied that alternative accommodation, reasonably equivalent in all respects, is available at the time that the order takes effect;" - $(2)$ in any case arising under sub-section (1) of this section no order for the recovery of possession of premises shall be made unless the Central Board, the Coast Board, or the court, as the case may be, considers it reasonable to make such an order."

In the first case, the Supreme Court, not being included in the expression "the court", need not be "satisfied" as to alternative accommodation, and in the second need not "consider it reasonable" that an order should be made.

Mr. Somerhough suggests that the Supreme Court would be bound by those provisions of section 16 which do not mention "the court"-for example by scetion 16 (1) $(a)$ , which merely provides, as one of the alternatives specified in the section, that no order for recovery of possession or ejectment of a tenant shall be made unless any rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy (whether under the contract of tenancy or under the Ordinance) so far as the same is consistent with the provisions of the Ordinance has been broken or not performed. That may well be true, but it does not get over the difficulty created by the other provisions of the section, such as those quoted above. Mr. Somerhough further suggests, if I have understood him, that a like difficulty may be got over in England by the High Court remitting a case to the county court, and that, similarly, the Supreme Court here might remit proceedings to the Central or Coast Boards or to the court. But the difficulty does not exist in England. It is not disputed that in section 5 of the Act of 1920, and in the provisions which have from time to time replaced it, "the court" includes the High Court. Whilst it is true that in England the Master may, as he did in Russoff $v$ . Lipovitch, L. R. (1925) 1 K. B. 628, remit a claim arising out of the Act to a county court, this is done not because of any lack of jurisdiction of the High Court, but for purposes of convenience (see the judgment of Atkin, L. J., at pages 639-640) and moreover in pursuance of an express power of remittal to the county court conferred upon the High Court from time to time by the County Courts Act.

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If, then, it be accepted that the restrictions imposed by section 16 of the 1949 Ordinance do not apply to the Supreme Court, and if, as Mr. Somerhough and Mr. Nazareth contend, the Supreme Court has jurisdiction under the Ordinance, absurd results follow. No landlord in his senses would bring proceedings for recovery of possession of controlled premises and for payment of arrears of rent before the Central or Coast Boards in their areas if, by bringing his proceedings in the Supreme Court, he could put forward his claim without any restrictions. All such proceedings would naturally be brought in the Supreme Court, the objects of the Ordinance would be defeated, and it would become entirely meaningless. Mr. Bhandari is fully justified on this ground alone, in my opinion, in submitting that by necessary implication the jurisdiction of the Supreme Court is outsided.

Mr. Bhandari also relies on the amendment of sections 7 and 34 of the 1949 Ordinance by Ordinance No. 41 of 1949. The proviso to section 7 of the principal Ordinance as originally enacted read as follows: -

"Provided that an appeal from any such determination shall lie on any point of law, or of mixed fact and law—

(a) from the Central Board or the Coast Board, direct to the Court of Appeal for Eastern Africa; and

(b) from any other Rent Control Board, to the Supreme Court."

The proviso has now been repealed and replaced as follows: -

"Provided that an appeal from any such determination shall lie on any point of law, or of mixed fact and law, to the Supreme Court."

Sub-section (3) of section 34 as originally enacted empowered the Supreme Court to make rules prescribing, *inter alia*, the time within which appeals might be brought and the procedure to be followed and the fees to be paid in respect of any appeal to the Supreme Court or the Court of Appeal for Eastern Africa from any decision or determination of the Board. The words "or the Court of Appeal for Eastern Africa" have been deleted from section 34 (3).

Mr. Bhandari submits that these amendments emphasize the fact that the Supreme Court has no longer any original, but only an appellate, jurisdiction under rent control legislation, and he derives some support for this view from Bourke, J.'s judgment in Civil Case No. 147 of 1949. I do not think, however, that there is any force in the submission. The amendments are more consistent with an intention to remove the somewhat anomalous position whereunder an appeal lay from a Rent Control Board direct to this Court, and there is, of course nothing unusual in the Supreme Court having concurrent original jurisdiction with subordinate tribunals and at the same time exercising appellate jurisdiction over such subordinate tribunals. As Mr. Somerhough points out, if Mr. Bhandari's argument is right, it logically follows that the appeal to this Court is taken away by the amendments. This is not so, in my opinion, because the appeal to this Court is conferred by other legislation. This point will be dealt with fully in a judgment shortly to be delivered in another appeal already heard by this Court, and it is unnecessary for me to elaborate it here.

Taking all these factors into consideration, I am of the opinion that the original jurisdiction of the Supreme Court to deal with any claim or other proceedings arising under the 1949 Ordinance has been ousted in respect of premises within the areas of the Central and Coast Boards and in respect of which jurisdiction or power has been specifically conferred by the Ordinance on the Board.

It may be, of course, that an action for the recovery of the possession of premises may still lie in the Supreme Court in certain circumstances. In Joslowitz v. Burstein L. R. (1948) 1 K. B. 408, the facts were that the plaintiff had entered into a tenancy agreement for the letting of certain premises to the defendant, with a term that the defendant should not assign or sublet the premises except with the written consent of the plaintiff, and with liberty to the plaintiff to determine the tenancy and to re-enter upon the premises in the event of the defendant failing to observe and perform any of the terms of the agreement. The plaintiff alleged a breach of the agreement in that the defendant had sublet the premises without the written consent of the plaintiff, that the plaintiff had served the defendant with a notice under section 146 of the Law of Property Act, 1925, requiring him to remedy the breach, but that the defendant had failed to do so, and that the defendant was entitled to re-enter upon the premises. The plaintiff claimed possession of the premises, damages for the breach of contract and mesne profits.

The defendant by his defence denied that the subletting of the premises was in breach of the agreement, and alleged that it was with the verbal consent of the plaintiff's husband who was her duly authorized agent, and that the plaintiff had waived the necessity of the defendant obtaining the written consent of the plaintiff to the subletting.

Croom-Johnson, J., held that the plaintiff was entitled to recover possession, but that the action was not a proceeding arising out of the Rent Restriction Acts. It was a common law action to recover possession as on forfeiture of the demised premises.

The facts in that case had some similarity to those in the present case, and it has been suggested that the present case might be regarded as a common law suit for the ejection of trespassers. But in Joslowitz v. Burstein the learned Judge attached great importance to the consideration that the Rent Restrictions Acts were never pleaded. There was no claim arising out of the Act, and no defence arising out of the Act. It was not until after the learned Judge had held that the plaintiff was entitled to possession, that Counsel for the defendant contended for the first time that the claim was one arising out of the Rent Restriction Acts, with the object of reducing the plaintiff's costs to the county court scale.

Croom-Johnson, J., did not demur from the view expressed by all the learned Lord Justices in Russoff $v$ . Lipovitch that an action for the recovery of premises to which the Act applies is a claim or proceeding arising out of that Act, or any of the provisions thereof, because in that case the tenant was setting up that he was entitled to the protection of the Statute, and was what is called a statutory tenant.

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$\mathcal{I}$

It is not disputed that the premises in the present case are premises which are subject to a standard rent under the provisions of both the repealed and the present Ordinances. They are, in common parlance, "controlled premises". The plaint in the present proceedings was unmistakably framed on the assumption that they lay under the Ordinance. Paragraph 6, for example, avers that the first appellant became a statutory tenant on the expiration of the contractual tenancy by effluxion of time; paragraph 8 avers the "reasonableness" of making an order for recovery of possession which, under both Ordinances (sections 11 (1) and 16 (2) respectively) the Court is required to consider, and paragraph 10 avers that the consent of the Rent Control Board, which, under section 4 of the repealed Ordinance, was a condition precedent to any proceedings in any court of law, had been obtained. The defence itself is intituled (quite gratuitously, as the plaint is not similarly intituled) "In the Matter of Increase of Rent and Mortgage Interest (Restrictions) Ordinance", and pleads in the alternative that all three appellants had become the statutory tenants of the respondent. I do not think, therefore, that *Joslowitz* $v$ . *Burstein* has any application to the present case.

In my view, therefore, the present proceedings are "a claim or other proceeding arising out of this Ordinance". They are in respect of premises situated within the area of the Central Board, and are proceedings "as to which jurisdiction or power is specifically conferred by this Ordinance on the Board", and consequently the Supreme Court had, for the reasons already given, no jurisdiction to entertain them unless it can be held that the 1949 Ordinance did not operate retrospectively, and that the Supreme Court still retains the jurisdiction which it had under the 1940 Ordinance to make orders for the recovery of possession of controlled premises and for the payment of arrears of rent in the case of proceedings instituted while that Ordinance was still in force.

Mr. Bhandari submits that the 1949 Ordinance only affects matters of procedure and not vested rights. A landlord still has his remedy, but he can only exercise it in cases such as the present, before the Central Board. The Ordinance therefore operates so as to preclude the Supreme Court from making an order for recovery of possession even in proceedings instituted before the 1949 Ordinance came into force. Section 13 of the Interpretation and General Clauses Ordinance (Cap. 1) (which closely follows section 38 of the Interpretation Act, 1889) has no application. Mr. Bhandari relies upon Remon y, the City of London Real Property Company, Ltd., L. R. (1921) 1 K. B. 49 and The "Ydun" L. R. (1899) Probate 236. In the former case the Court of Appeal held that the Increase of Rent and Mortgage Interest (Restrictions) Act of 1920 entitled a person to retain possession of premises within the scope of the Act as against his landlord even although, at the date when the Act came into force, they were no longer "let", as the contractual tenancy had been validly determined by notice to quit before that date. In the latter case it was held that the Public Authorities Protection Act, 1893, operated retrospectively, Vaughan Williams, L. J., observing (at page 246) that there was abundant authority that the presumption against retrospective construction had no application to enactments which affected only the practice and procedure of the Courts.

Mr. Nazareth strongly contends that, even if the jurisdiction of the Supreme Court has been ousted in cases such as the present (which he denies) by the Ordinance of 1949, the jurisdiction of the Court under the Ordinance of 1940 remains unimpaired, and the Court may still, in proceedings instituted under the former Ordinance, make an Order for the recovery of possession of controlled premises and for the payment of arrears of rent.

Mr. Nazareth has cited to us a number of cases illustrating the principle for which he contends, and has also referred to the statement of that principle in the 5th chapter of the 9th edition of Maxwell on the Interpretation of Statutes. I do not deny the strength of the principle, or that it requires express words or necessary implication in a statute to preclude its operation.

It seems to me, however, that when the Ordinance of 1949 has, as I have decided, ousted by necessary implication the jurisdiction of the Supreme Court in the areas of the Central and Coast Boards in any claim or other proceedings as to which jurisdiction or power is specifically conferred on these newly created<br>tribunals, it is impossible to say, in the absence of some saving, that the Supreme Court may nevertheless still continue to exercise the jurisdiction which it formerly had if the proceedings were commenced before the Ordinance of 1949 came into force.

Mr. Nazareth also relies on section 13 (3) of the Interpretation and General Clauses Ordinance, Cap. 1, which reads as follows: -

"(3) Where an Ordinance repeals any other enactment, then, unless the contrary intention appears, the repeal shall not—

- (a) revive anything not in force or existing at the time at which the repeal takes effect; or - (b) affect the previous operation of any enactment so repealed or anything $(a, b)$ duly done or suffered under any enactment so repealed; or - (c) affect any right, privilege, obligation or liability acquired, accrued or $\frac{1}{2}$ incurred under any enactment so repealed; or - (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or - (e) affect any investigation, legal proceedings, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or

punishment as aforesaid, and any such investigation, legal proceeding, or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance had not been made."

But, in my opinion, this sub-section does not help Mr. Nazareth's argument, because I share the view of Bourke, J., in Civil Case No. 147 of 1949 that a contrary intention does appear in the Ordinance of 1949. Section 35 of the Ordinance repeals the Ordinance of 1940, but declares the latter to have continued in full force and effect until the commencement of the 1949 Ordinance, i.e. until the date directed by the Governor, by notice in the Gazette, under section 1 (1). If it had been the intention of the legislature that the Supreme Court should continue to exercise its jurisdiction under the Ordinance of 1949 beyond that day, surely such intention would have been expressed in section 35.

As it was not so expressed I fail to see how the Supreme Court can after the coming into force of the 1949 Ordinance make an order which by the provisions of that Ordinance it has been deprived of its jurisdiction to make.

In my opinion, the Supreme Court had no jurisdiction to give the judgment appealed against. I would allow the appeal with costs, set aside the judgment in the Court below, and substitute a judgment for the defendant with costs.