[1946] EACA 13

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## EAST AFRICAN HOTELS LIMITED, Appellants (Original Defendants) $\mathbf{v}$

## **THEODAR ANTONI KOENIG, Respondent (Original Plaintiff)** Civil Appeal No. 18 of 1946

(Appeal from decision of H. M. Supreme Court of Kenya)

Inn-keeper—Breach of contract—Defence (Control of Hotels) Regulations, 1943 -Eviction of lodger without Controller's permission-Damages.

By Regulation 8 of the Defence (Control of Hotels) Regulations, 1943, it is provided that no person who resides in an hotel shall, except with the permission of, or under the order of, the Authority or at his own request be required by the proprietor of such hotel to give up his residence in such hotel.

The respondent was a lodger at the appellants' hotel on monthly terms. On the 14th of a month the appellants gave the respondent notice to vacate the hotel by the end of the month. The respondent having failed to do so the appellants forcibly evicted him from the hotel. The respondent successfully brought an action for damages for breach of contract and obtained Sh. 1,500 by way of general damages. The appellants appealed.

*Held* $(21-8-46)$ .—(1) The eviction of the lodger constituted a breach of contract.

(2) Where a plantiff as a direct result of a breach of contract suffers severe and prolonged discomfort and inconvenience he is entitled to reasonable amount of damages.

(3) (Per Graham Paul, C. J.) The notice was illegally given in breach of Regulation 8 of the Defence (Control of Hotels) Regulations and was a nullity in law. It did not have<br>the effect of terminating the monthly contract.

Appeal dismissed.

Cases referred to: Hobbs and Wife v. The London and South-Western Railway Co. 44 L. J. N. S. Q. B. 49; George v. Mitchell & King (1943) 1 A. E. R. 233.

Schermbrucker for the Appellants.

Shapley for the Respondent.

SIR JOSEPH SHERIDAN, C. J.—The plaintiff had a contract with the defendant under which he was entitled to board and accommodation together with the usual amenities enjoyed by permanent residents under such contracts at Sh. 330 p.m. In ordinary circumstances this contract could be terminated by either party giving the other fifteen days' notice. This right on the part of the defendant was restricted by Regulation 8 of the Defence (Control of Hotels) Regulations, 1943, which provides:-

"No person who resides, or may thereafter reside, in any hotel shall, except with the permission of, or under the order of, the Authority or at his own request, be required by the proprietor of such hotel to give up his residence in such hotel. The provisions of this Regulation shall apply to a lodger, notwithstanding that, at the date of the coming into force of these Regulations, such lodger has been given notice to quit by the proprietor."

There is no question that the defendant in the present case deliberately flouted the regulation and as his Counsel admitted threw the plaintiff out nor can it be resisted that his reason for doing so was that he resented a letter $(Ex. 2)$ which the plaintiff had addressed to him on behalf of his fellow guests and himself complaining of the poor quality and cooking of the food served to the guests. In my opinion inasmuch as the defendant's action was not authorized by the Authority appointed under the regulations or with the consent of the plaintiff the defendant committed a breach of contract, for in my view the learned Judge was right in considering that the statutory restriction should be read into the contract. The case of *George v. Mitchell and King* (1943) 1 A. E. R. 233 on which the appellant's Counsel relied is, as $\mathbf{I}^*$ read it, an authority supporting the respondent's case. The plaintiff sued the defendant for damages and recovered the sum of Sh. 477 and Sh. 1,500 for special and general damages respectively.

As to the special damages an argument was addressed to us that no award should have been made, as it was open to the defendant to have altered the terms of the plaintiff's residence and charged him at the rate of Sh. $16/50$ per day. I do not think that he could have done so and I agree with the learned Judge in holding that he could not.

As to the general damages as they were based on discomfort and inconvenience it was contended that if anything they should have been nominal. I do not agree. There is ample authority for the view that damages whether special or general based on inconvenience can be recovered. (Hobbs and Wife v. The London and South Western Railway Co. 44 L. J. N. S. Q. B. 49.)

Once that is clear the questions arise (1) were the damages claimed in this case too remote? and (2) were they excessive? As to $(1)$ 1 am of the opinion that the damages suffered should be held to have been within the contemplation of the parties in the event of there being a breach. As to (2) it cannot be said that the Judge proceeded on a wrong principle in assessing the damages or that they are unreasonable. I would dismiss the appeal with costs.

SIR NORMAN WHITLEY, C. J.—I have had the advantage of reading the judgment of the learned President and I agree with his conclusion and his reasons therefor.

SIR G. GRAHAM PAUL, C. J.—This appeal raises no controversy as to facts and the facts are simple. By contract the appellants were bound to supply the respondent with the ordinary amenities of hotel residence in their hotel in Nairobi at the monthly inclusive terms of Sh. 330 per month. By letter dated 14th April, 1944, the appellants gave the respondent notice "to vacate your room and the hotel by 30th April, 1944". On 1st May, 1944, the respondent having failed to vacate in terms of the notice, the appellants took *brevi manu* possession of the respondent's room in the hotel and removed his baggage and effects from the room. He was in fact evicted from the hotel on 1st May, 1944.

In consequence of this eviction the respondent brought the present action for damages for breach of contract and for trespass to the respondent's person and goods. The learned trial Judge awarded him damages as follows: -

| | | | | | Sh. | |-------------------|-----|---------|----------------|-----|----------| | Special damages | . . | $\cdot$ | . . | . . | 477.15 | | General damages | . . | $\cdot$ | $\overline{a}$ | | 1,500.00 | | Trespass to goods | | . . | . . | | $20.00$ |

From that judgment the appellants appeal to this Court.

The most fundamental and comprehensive point raised for the appellants in this Court is that the action was really based on a breach by the appellants of Regulation 8 of the Defence (Control of Hotels) Regulations, 1943, which is in the following terms: -

"No person who resides, or may hereafter reside, in any hotel shall, except with the permission of, or under the order of, the Authority or at his own request, be required by the proprietor of such hotel to give up his residence in such hotel. The provisions of this Regulation shall apply to a lodger, notwithstanding that, at the date of the coming into force of these Regulations, such lodger has been given notice to quit by the proprietor'

and that the action for breach of contract was therefore misconceived, the proper action, if any, being an action on the case for the infringement of a right or protection given to the respondent by statutory enactment.

In these days when the realm of private contract has been so widely invaded by Emergency Legislation it is not always easy to determine in particular cases whether the remedy of a wronged plaintiff is by action on the contract or by action on the case. Each case must necessarily depend on its own facts and circumstances and upon the particular enactment in question.

It is not I think contested that under the contract in question in this case the appellants but for Regulation 8 had the right to give the notice which in fact they did give, and to enforce it on expiry of the period of the notice as in fact they did. The only question upon this part of the case is as to the effect of Regulation 8 on this particular contractual right of the appellants. It is to my mind quite clear that the Regulation, whether it is regarded as a term imported by statute into the contract, or as an enactment entirely outside the contract, had the effect in law of taking away the right of the appellants to excercise this particular contractual right without the permission of the Hotel Control Board which it is admitted they never obtained. Regulation 8 made it illegal for the appellants to do the precise things which they did, namely to require by notice, and to enforce by *brevi manu* action, the giving up by the respondent of his residence in their hotel. The notice thus illegally given was a nullity in law and the respondent was in my view entitled to treat it as such. The result was that on 1st May when he was ejected from the hotel the respondent had with the appellants a subsisting contract for residence in the appellants' hotel on "monthly" terms, and it appears to be quite clear that his eviction was therefore a breach of that subsisting contract.

That is my view of the law on this point. That view was strenuously opposed by appellants' advocate in this Court and his opposition was based mainly on the authority of George v. Mitchell & King (1943) 1 A. E. R. 222 but I have been unable to find in the actual decision in that case or in the judgments of the learned Judges anything to support the appellants' advocates contention. In fact George v. Mitchell & King seems to me to be an authority against the main contention of the appellants' advocate. That was a case under the Essential Works (General Provisions) Order 1942 which by Article 4 forbade the employers to terminate the plaintiff's contract of service except with the permission of a National Service Officer, which was refused. The employers gave notice to terminate without the necessary permission and in regard to that notice Mackinnon L. J. in his judgment said (p. 238) $\cdots$ the notice was ineffective and his contract of employment continued". I regard that statement as a direct confirmation of the view I have expressed as to the complete legal ineffectiveness of the notice in the present case.

It was further argued by appellants' advocate that instead of giving the notice to quit the hotel, and enforcing it, his clients could under their contract have given a 15 days' notice that as from 30th April the respondent would be charged "daily" instead of "monthly" terms. That—according to the appellants' Counsel, and he may be right—would not have been contrary to Regulation 8. If they had done this and if the respondent had agreed to "daily" terms a new contract might have eventuated, with of course different contractual rights. But in fact that position

never arose because of the action in fact taken by the appellants and therefore I consider that it is entirely unnecessary and irrelevant to speculate what the legal position would have been if the material facts had been entirely different. The same consideration applies to the argument for the appellants that in the assessment of the special damages "daily" rates which were not in any contract between the parties should be considered and not "monthly" rates which were in fact and in law the rates in the subsisting contract at the date of the breach.

In my opinion there was on 1st May, 1944, a clear case for a claim of damages for breach of contract against the appellants. Next must be considered the *quantum* of the damages awarded by the Court below. As regards the special damages awarded the only criticism for the appellants is that the special damages should have been calculated with reference to the "daily" and not the "monthly" rates. I have already disposed of that criticism.

As regards the general damages claimed and the Sh. 1,500 awarded on this head of the claim the argument for the appellants, as I understand it, is that only nominal damages can be awarded on this head. I find myself unable to accept that proposition. If a breach of contract is proved against a defendant, and nothing more, the plaintiff is entitled to nominal damages under his claim of general damages. But where not only a breach of contract but also very severe and prolonged discomfort and inconvenience, as a direct result of the breach of contract, is proved, the Court must on a claim for general damages endeavour to assess a reasonable amount of damages to recompense the respondent. What the respondent suffered in this connexion was of course largely due to considerations outside the terms of the actual contract, namely the necessity of the respondent living reasonably near his place of employment and the acute shortage at the material times of hotel or other similar accommodation in Nairobi. But these special circumstances giving rise to what the respondent suffered as a result of the breach of contract were well known to both parties at the date of the contract and at the date of the breach. They were special circumstances within the contemplation of both parties in making their contract and in the appellants' breach of contract. In that position of the facts the appellants must in law be taken to have broken their contract with their eyes open to the special consequent hardship on the respondent, and must therefore recompense the respondent for such hardship.

It may be said that it is difficult to assess accurately at a monetary figure the hardship suffered by the respondent but that the amount of damages is difficult to assess does not deprive the respondent of his right to damages. The Court must just make the best assessment possible in the circumstances.

The learned trial Judge sitting as Judge and Jury, with all the facts clearly before him has assessed the general damages at Sh. 1,500. Sitting as a Judge on appeal I cannot say that on the evidence such an assessment was so excessive or unreasonable as to justify an appeal court in interfering with the judgment of the trial Judge on this point.

In my view the appeal should be dismissed with costs.