[1951] EACA 42

## COURT OF APPEAL FOR EASTERN AFRICA

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

## SHEIKH NOORDIN GULMOHAMED, Appellant (Original Appellant-Landlord)

$\mathbf{v}$ .

## SHEIKH BROTHERS LIMITED, Respondent (Original Respondent-Tenant) Civil Appeal No. 51 of 1950

(Appeal from decision of H. M. Supreme Court of Kenya-Modera, J.)

Appeal from Rent Control Board to Supreme Court on refusal of Board to hear— Whether final.

The landlord of certain premises applied to the Central Rent Control Board for an order for recovery of possession. The Board commenced hearing the application but declined to proceed further on the ground that the proceedings were a misuse of the Board's functions. The landlord appealed to the Supreme Court under section 7 of the Increase of Rent (Restriction) Ordinance, 1949. The Supreme Court dismissed the appeal on the ground that no appeal lay as the decision of the Board was not a determination within the meaning of section $7$ .

The question whether $\bar{a}$ further appeal lay was argued.

Held (22-6-51).—(1) An appeal to the Supreme Court from the Rent Control Board is not final and a further appeal lies to the Court of Appeal for Eastern Africa.

(2) There being no determination by the Board no appeal lay under section 7 of Increase of Rent (Restriction) Ordinance, 1949.

Cases followed: Hem Singh v. Malant Bas Das (1936) 1 All E. R. 356; Secretary of State for India in Council v. Chelekani Rama Rao and others (1916) L. R. 61 Ind. App. 158; Maung Ba Thaw v. Ma Pin (1934) L. R. 61 Ind. App. 158.

Cases distinguished: Rangoon Botatoung Co. v. Rangoon Collector (1912) L. R. 39, Ind. App. 197; Secretary of State for India in Council v. Hindusthan Co-operative Insur-<br>ance Society Ltd., (1931) L. R. 58 Ind. App. 259; Ahmed Kassam v. Shah Zaverchand Virpal and another, 13 E. A. C. A. 35.

Cases cited: Hari Singh v. General Workshop 18 E. A. C. A. 4 (E. A. C. A. Civil App. 36/50); Damji Davji & 2 others v. G. H. C. Noronha (Civil App. 64/50) 18 E. A. C. A. p 54; Nat. Telephone Co., Ltd. v. Postmaster General (1931) A. C. 546.

Appeal dismissed.

O'Brien Kelly for appellant.

Stephen, Mahmoud with him, for respondent.

JUDGMENT (delivered by LOCKHART-SMITH, J. of A.).—This is an appeal from. a judgment of the Supreme Court of Kenya dismissing an appeal to that Court from a decision of the Central Rent Control Board.

The present appellant, as the landlord of certain controlled premises, madeapplication to the Board for an order for recovery of possession of the same, alleging against the tenants, the present respondents, a number of breaches of the tenancy agreement and in particular that rent due had not been paid; that<br>the tenant had been guilty of conduct, of which instances were specified, which was a nuisance or annoyance to adjoining occupiers; and that on other grounds, including the commission of acts of waste, and the fact that the landlord. required the premises for his own use, it would be reasonable to make an orderagainst the tenants for possession.

The Board commenced the hearing of the application, but, on it becoming apparent that the tenants intended to resist it on the grounds that any rent due had been covered and settled by contra items of account between the parties, and that a protracted review of accounts might be necessary before the true position as to rent could be ascertained, the Board made the following pronouncement: —

"The Board declines to proceed further with the hearing on the ground that the nature of the defence, and what has come out in evidence as to the family relationship and business relations between the parties show that these proceedings are a misuse of the Board's functions.

Assuming the rent was incurred as a debt, the question whether or not it has been paid could only be settled by a protracted review of the accounts paid, decisions made item by item on debits and credits, on any one of which the Board, dealing with matters far outside its normal scope, might be right or wrong, and even if the result showed a general debit thought by the Board to be due to the respondent amounting to or exceeding the rent claimed, the Board would never look upon it as a reasonable basis for an order for an ejectment. Rent Control was not instituted to give a cheap form of tribunal for the decision of commercial cases, but to protect tenants from exorbitant rent and give them security in their occupancy. If we are wrong, then the plaintiff can get us set right by order of mandamus from the Supreme Court, but until we get that we shall not proceed.

The application is dismissed without costs."

The landlord did not apply for a mandamus, but appealed to the Supreme Court under section 7 of the Increase of Rent (Restriction) Ordinance, 1949, which, as amended by Ordinance No. 41 of 1949, reads as follows: -

"7. Except as hereinafter provided, where any question is, under the provisions of this Ordinance, to be determined by a Rent Control Board, the determination by such Board shall be final and conclusive:

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."

The Supreme Court dismissed the appeal on the ground that, as the decision of the Board was not a "determination" within the meaning of section 7, no appeal lay thereunder. The learned Judge considered that "determination" as visualized in the section connoted a power to enforce, and that in the so styled judgment of the Board there was nothing which could be enforced. He indicated that in his view determination meant determination on the merits, which enabled one of the parties to enforce it by execution or otherwise. He was fortified in<br>this opinion by the fact that section 34 (3) of the Ordinance enabled the Supreme Court to make rules for enforcing determination of the Board.

The first question which we have to decide is whether a further appeal can in any circumstances be brought to this Court. Counsel for both parties are agreed that a further appeal does lie, but Mr. O'Brien Kelly, for the appellant, has very properly brought to our notice the decision of this Court in Ahmed Kassam v. Shah Zaverchand Virpal and another, 13 E. A. C. A. 35, in which it was held that the decision of a Court sitting in appeal from a determination of the Rent Control Board was not a decree within the meaning of the Civil Procedure Ordinance and that no appeal lay therefrom.

In the first place it should be noted that at the date of this decision (1946) the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, which was repealed by the Increase of Rent Ordinance, 1949, was still in force. There are very substantial points of distinction between the two Ordinances. By the repealed Ordinance, the principal function of any Board established thereunder was to investigate complaints relating to tenancies made to it either by a tenant or a landlord (section 5). It is true that where any dispute arose between any landlord and his tenant relating to a tenancy to which the Ordinance applied, no proceedings arising out of such dispute could be instituted in any court of law except with the written consent of the Board, (section 4), but, once such consent was obtained, the subsequent proceedings were entirely a matter for the courts. (See section 11.) The Board, in the determination of any matter, was empowered to take into consideration any evidence which it considered relevant to the subject of the inquiry before it, notwithstanding that such evidence would not be admissible under the law relating to evidence. (Section 3 (6).)

Under the present Ordinance the Central Board has power itself to make orders for the recovery of the possession of premises and for the payment of arrears of rent. (Section 5 (1) $(f)$ .) It has power to award costs of proceedings before it, and to direct that costs shall be taxed upon the Supreme Court scale or upon the scale applicable to a subordinate court. (Section 5 (1) $(m)$ .) It is enabled to exercise jurisdiction in all civil matters and questions arising under the Ordinance. (Section 5 (1) $(n)$ .) The power of the Board to act on less than legal evidence has disappeared, as has also the necessity for obtaining the Board's consent before rent restriction proceedings are instituted in a court of law. The Board, however, retains the power which its predecessor possessed to administer oaths, to order persons to attend and give evidence or to produce and give discovery of documents, in like manner as in proceedings in the Supreme Court. (Section 5 (1) $(l)$ .) A duly authenticated copy of any determination or order of the Board may be filed in the court by any party to the proceedings before such Board, or by the Board, and on such notice being filed and notice of such filing. being served on the Board by any party filing the same such determination or order may be enforced as a decree of the Court. Finally, this Court has recently held, in Civil' Appeal No. 64 of 1950, that, by virtue of section 31 of the 1949 Ordinance as read with section 5 of the same, the Central and Coast Boards have, in their respective areas, exclusive jurisdiction to deal with any claim or other proceeding arising under the Ordinance as to which jurisdiction or power is specifically conferred by the Ordinance on such Boards, and that the jurisdiction both of the Supreme Court and of first class subordinate courts to entertain such proceedings has been ousted. Section 5 specifically confers extensive powers and jurisdiction on the Central and Coast Boards, as has already been indicated, with the result that each such Board is within it's own area, the sole tribunal, at least in the great majority of cases, to which a person seeking to make a claim or bring proceedings under the Ordinance can resort. The Central and Coast Boards have had conferred upon them, to all intents and purposes, the status and attributes of a court, save in the matter of the enforcement of their determinations and orders, in which the assistance of a first class subordinate court must be invoked.

In Ahmed Kassam's case supra, the then Rent Control Board had, under the provisions of the Ordinance of 1940, given permission to a landlord to increase the rent of the premises in dispute, and recorded their decision as follows: "After having perused the title deeds of this plot, the Board resolved to determine the market value of the premises at the figure of Sh. 23,580, and resolved authority should be given to the landlords, after giving the tenant not less than three calendar months' notice in writing, to increase the rent with effect from a future date to a sum not exceeding 10 per cent of this ascertained market value at the prescribed date, 31st December, 1940."

The tenant appealed to a subordinate court of the first class. Section $3(7)$ of the 1940 Ordinance provided that where any matter was under the provisions of the Ordinance to be determined by the Board, or where the Board's consent to any act was required, the determination of the Board, or the decision of the Board to give or refuse, its consent, should be final and conclusive, provided that an appeal should lie to the Court from any such determination or decision on a<br>point of law but not on a question of fact. "Court" was defined by section 2 to mean the Supreme Court, and, notwithstanding the provisions of the Courts Ordinance, 1931, relating to the jurisdiction of Magistrates, any Magistrate holding a subordinate court of the first class. This Court held, and we see no reason to differ to-day, that this definition meant that a person appealing from a determination of the Board might prefer his appeal before either the Supreme Court or a First Class Magistrate.

The first appeal was in fact made to a First Class Magistrate, and was dismissed. Presumably the appellant, having elected to appeal to a First Class Magistrate, could not, under the Ordinance, have preferred a further appeal to the Supreme Court. But an appeal was in fact made to, and entertained by, the Supreme Court, by virtue, it seems, of section 65 of the Civil Procedure Ordinance (now Cap. 5) which, by sub-section (1) provides that "an appeal shall lie from the decrees or from any part of the decrees and from the orders of all subordinate courts to the Supreme Court".

The judgment of this Court in Ahmed Kassam's case then proceeded to consider the definitions in section 2 of the Civil Procedure Ordinance of the expressions "decree", "suit", "prescribed" and "rules", and the provisions of section 72, which are, so far as is material, respectively as follows:-

"'decree' means the final expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final;

'suit' shall mean all civil proceedings commenced in any manner prescribed:

"prescribed" means prescribed by rules;

'rules' means rules and forms made by the Rules Committee to regulate the procedure of courts;

72. (1) Save where otherwise expressly provided in the body of this Ordinance or by any other law for the time being in force, an appeal shall<br>lie to the Court of Appeal from every decree passed in appeal by the Supreme Court, on any of the following grounds, namely—

(a) the decision being contrary to law or to some usage having the force $(a)$ of law;

(b) the decision having failed to determine some material issue of $(b)$ $law$ . . . . .."

The Judgment then proceeds as follows:—

"The difficulty confronting Counsel in relying on this provision is that the decree passed by the Supreme Court, if it may be described as a decree, was not a decree within the meaning of the Civil Procedure Code. On this aspect of the case our view is that no appeal lay from the Magistrate's decision to the Supreme Court and that no appeal lies to this Court, and that on that ground alone his appeal must fail."

It appears that the word "Ordinance" should have been substituted for "Code" in this passage, and the meaning of the passage is not as clear as one might have wished, but I understand the ratio decidendi to have been that, in view of the definitions already referred to, there was no decree which could found an appeal from the First Class Magistrate to the Supreme Court under section 65 of the Civil Procedure Ordinance, or an appeal to this Court from the Supreme Court under section 72.

$\sim$ Mr. O'Brien: Kelly submitted that the provisions of the Indian Code of Civil Procedure comparative to those of the local Civil Procedure Ordinance cited above were to all intents and purposes of precisely the same effect. He referred<br>to the definitions of "decree", "prescribed" and "rules" in section 2 of the Indian Code. There was no definition of suit, but on any reasonable construction on the Indian Code the expression must impliedly bear the same meaning as was expressly attributed to it by definition by the local Ordinance. Section 72 of the latter was clearly derived from section 100 of the Indian Code.

I am prepared to accept the proposition that the position under the provisions of the Civil Procedure Ordinance which was considered by this Court in Ahmed Kassam's case cannot be materially distinguished from the comparative position obtaining under the Indian Code.

On this basis, Mr. O'Brien Kelly referred us to Hem Singh v. Malant Bas Das (1936) 1 All E. R. 356, a decision of the Privy Council (where it was held that a further appeal lay) to which this Court was never referred in Ahmed Kassam's case, and which, Mr. O'Brien Kelly submits, must have led to a different decision by this Court had it been cited. In these circumstances, the Court in the present appeal should not regard itself as bound to follow its decision in Ahmed Kassam's case. (See, on this point, the judgments of this Court in Civil Appeal No. 36 of 1950, not yet reported.)

In Hem Singh's case the question was whether a further appeal lay to His Majesty in Council from a decision of a Division of the High Court of Lahore determining an appeal from a tribunal established under the Sikh Gurdwaras Act, 1925. (Punjab Act VIII of 1925.)

This Act is not available here, but it appears from their Lordships' judgment that it enabled the setting up of a tribunal to decide whether religious institutions should be declared to be Sikh Gurdwaras, and that by section 12 (9) the tribunal was given the same powers as are vested in a court by the Indian Civil Procedure Code. The final expression of the tribunal was described by the Act as a decree or order.

In other words there appears to have been little distinction between the tribunal and an ordinary court subordinate to the High Court of Lahore, save that the jurisdiction of the former was, of course, limited to the determination of the matters assigned to it by the Act.

A preliminary objection was taken before the Board by counsel for the respondents. He did not dispute the proposition laid down in National Telephone Co. Ltd. v. Postmaster General (1931) A. C. 546, that: "when a question is stated to be referred to an established court without more, it ... imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches", but he submitted that the case was governed by the decision of the Privy Council in *Rangoon* Botatoung Co. v. Rangoon Collector (1912) L. R. 39 Ind. App. 197.

The latter case related to an award of compensation by a collector, in respect of certain lands compulsorily acquired under the Indian Land Acquisition Act, 1894. Certain persons interested did not accept the award, and under the provisions of the Act required the collector to refer the matter to the Chief Court of original jurisdiction of the district. Section 54 of the Act conferred a right of appeal from the award of the Chief Court to the High Court in the following terms: $-$

"Subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under this Act."

Two judges of the Chief Court of Burma heard the references, and sat not only as the Chief Court, but also as the High Court to which an appeal was conferred by the Act. They dismissed the references with costs, and an attempt was made to prefer a further appeal to the Privy Council.

Their Lordships held that a special and limited appeal had been given by the Land Acquisition Act to the High Court, and that no further right of appeal had been given or could be implied. Their Lordships could not accept the argument that when once the claimant was admitted to the High Court he had all the rights of an ordinary suitor, including the right to carry an award made in arbitration as to the value of land taken for public purposes up to the Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction. It was impossible to conceive anything more inconvenient than that a Court in England should be called upon to review the determination of arbitrators as to the value of a piece of land in India—a mere question of fact without the advantage of any local knowledge.

In the somewhat later case of Secretary of State for India in Council v. Chelekani Rama Rao and others, (1916) L. R. 43 Ind. App. 192, a question arose under the Madras Forest Act of 1882, which is also unavailable locally. It appears from their Lordships' judgment, however, that it empowered the Governor in Council to constitute any land at the disposal of the Government a reserved forest, and to appoint a forest settlement officer to inquire into and determine the existence, nature and extent of any rights claimed by or alleged to exist by any person in or over such land. The forest settlement officer was required by the Act to make an inquiry and to record evidence, and then to pass an order specifying the particulars of the claim and admitting or rejecting it wholly or in part. In the event of rejection of the claim wholly or in part the Act conferred a right of appeal to the District Court in respect of such rejection only.

Two claims were rejected by a forest settlement officer, and, on appeal to the District Court, these rejections were upheld. On a further appeal to the High Court, which was not provided for by the Act itself, the decisions of the District Courts were reversed and varied by decrees of the High Court.

On a preliminary point before the Board, an objection was taken that the decision of the District Court was final. The decision was not a decree within the meaning of the Code of Civil Procedure, and therefore the provisions of the Code as to appeals to the High Court from District Courts did not apply. The proceedings by way of appeal to the High Court were, therefore, incompetent.

Their Lordships repelled the objection, and stated their opinion that when proceedings of the character in issue reached the District Court, that Court was appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code applied. Their Lordships distinguished the earlier Rangoon Botatoung Co. case, and it may be of interest to note that three members of the Board in that case-Lord Shaw of Dunfermline, Sir John Edge and Mr. Ameer Ali-were also members of the Board in the later case. The Rangoon case did not enounce a principle which formed a precedent for excluding all appeals from the decision of the District Court in such cases. The decision in the Rangoon case was due to the fact that "the proceedings were from beginning to end ostensibly and actually arbitration proceedings. In view of the nature of the question to be tried and the provisions of the particular statute, it was held that there was no right to carry an award made in an arbitration as to the value of land further than to the Courts specifically set up by the statute for the determination of that value. The merits of the present dispute are essentially different in character. The claim was the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seised of a dispute of that character,

it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation."

In Maung Ba Thaw v. Ma Pin (1934) L. R. 61 Ind. App. 158 the respondent had applied to a District Court to be placed on the schedule of creditors required in an insolvency under the Provincial Insolvency Act, 1920. The District Court rejected the application. Section 4 (2) of the Act provided that the decision of the District Court was to be final, subject only to a limited appeal to the High Court under section 75 $(r)$ . Such an appeal was brought, and the appellant preferred a further appeal to the Privy Council from the decision of the High Court. It was contended that such further appeal did not lie, but their Lordships rejected this contention and followed Chelekani's case supra.

On the other hand, in Secretary of State for India in Council v. Hindusthan Co-operative Society, Ltd., (1931) L. R. 58 Ind App. 259, the Rangoon Botatoung Co. case was, in effect, followed and confirmed. A tribunal appointed under the local Calcutta Improvement Act, 1911, had made an award of compensation in respect of land compulsorily acquired. Act XVIII of 1911 of the Governor in Council provided for a limited right of appeal to the High Court from the award of the tribunal. This right was exercised, but both parties were dissatisfied with the High Court's decision, and preferred further appeals to His Majesty in Council. Since the Rangoon case, the Land Acquisition Act, 1894, therein referred to had been amended by Act XIX of 1921, under which every award of the Court under the principal Act was deemed to be a decree, and the statements of the grounds of the award a judgment, within the definitions of "degree" and "judgment" respectively contained in the Indian Code of Civil Procedure, the amending Act also introduced a new section which gave in terms a right of appeal to His Majesty in Council from any decree passed by the High Court on appeal from an award of the Court. It was contended that these amendments should be read into the local Calcutta Act, but the Board rejected the contention, and advised His Majesty that the appeals were incompetent and should be dismissed.

In Hem Singh's case, the Board followed Chelekani's case and Maung Ba Thaw's case, and refused to accept the argument of counsel for the respondents that the Rangoon case decided the matter.

It will be observed that in none of the decisions of the Privy Council which have been referred to in this judgment did their Lordships direct their attention to the definitions which were the basis of this Court's decision in Ahmed Kassam's case. These definitions still seem to us to present a real difficulty, and it appears that this difficulty was appreciated by the former Legislature of British India in enacting the amending Act XIX of 1921 already referred to. It is possible that if this aspect of the matter had been more fully argued in what I may call the "Hem Singh" group of authorities, a different conclusion might have been arrived at. Be that as it may, it must, in my opinion, now be regarded as well settled that once a matter has arrived at an established court by way of appeal, the ordinary legislation dealing with further appeals from that Court must be<br>held to apply, unless excluded by special legislation, or unless the case can be brought within the principle laid down in the *Rangoon* group of authorities.

Neither group was cited to this Court in Ahmed Kassam's case, but if both had been cited, it is not unlikely that the Judges who then composed the Court might have held that the Rangoon group applied, as the matter in dispute was a decision in the nature of an arbitration by the then Rent Control Board. In view, however, of the vast changes which have been made since Ahmed Kassam's case in the jurisdiction, powers and duties of the Central Board, there can now be no doubt, in my opinion, that the Hem Singh group applies with the result that an appeal to the Supreme Court from a determination of a Rent Control Board under section 7 of the 1949 Ordinance as amended is not final, and that a further appeal lies to this Court.

In the present case, however, I agree with the opinion of my Brother Thacker, whose judgment I have had the advantage of reading, that there was in fact no "determination" by the Central Board of the question which they were required to determine. I agree also, therefore, that the judgment of Modera, J., in the Supreme Court was right and that the present appeal should be dismissed.

I would observe, however, that the application before the Central Board not only asked for an order for possession and for payment of arrears of rent, but also alleged other matters which, under section 16 of the 1949 Ordinance, may, subject to the provisions thereof, justify the making of an order for the recovery of the possession of any premises to which the Ordinance applies.

It is not disputed that the premises in issue are premises to which the Ordinance applies and are within the area of the Central Board, and it is obvious that the application was a "claim or other proceeding arising under this Ordinance". The Central Board has had power "specifically conferred" upon it to make the order applied for in the application and is, therefore, as this Court has already decided, the only tribunal having jurisdiction to grant the remedy which the present appellant seeks. The Board, in refusing to hear and determine the appellant's application, has declined to exercise the exclusive jurisdiction which the legislature has conferred upon it, and which the appellant has the right to invoke. Speaking for myself, I cannot see how, in these circumstances, proceedings by way of prerogative writ to compel the Board to hear and determine the application could fail to succeed.

At the same time, I have every sympathy with the attitude of the Board in this case. It does indeed seem most inappropriate that such a tribunal should be required to deal with such cases as the present, which, in my opinion, ought clearly to be a matter for the Courts. But the legislature has seen fit to decree otherwise, and there is no more to be said.

I would dismiss the appeal with costs.

SIR BARCLAY NIHILL, President.—I concur in the judgment just delivered by the learned Justice of Appeal and for the same reasons. The appeal is dismissed with costs.

THACKER, Ag. C. J. (Kenya).—There are two points which arise on this $appcal: -$

- (1) Whether an appeal lies to this Court from the judgment of the Supreme Court in its appellate jurisdiction or not; and - (2) on the hypothesis that such an appeal does lie to this Court, was the learned Appellate Judge in the Supreme Court right in dismissing the appeal before him on the ground that the Board had not determined the question before it.

As to the first question, it is obvious that this is by no means an easy point to decide, and for reasons which I deal with later, it is not necessary to decide the point. On the hypothesis that such an appeal does lie in this particular case, I should answer the second question by saying that I agree with the judgment of the learned Appellate Judge in the Supreme Court that there was no determination by the Board of the question before it, and I agree with the reasons contained in his judgment.

The question or questions which were before the Board were not as I see it determined by them. No decision or determination was given. The Board contented itself by saying that it considered that it was not the proper tribunal before which the particular dispute should be brought.

As I see it, there was not a determination by the Board of the question or questions before it.

For myself I would dismiss the appeal before this Court with costs. Whether there be any other form of remedy available to the appellant such as a mandamus is a matter for the appellant himself to consider.