[1955] EACA 80

## ORIGINAL CIVIL

### Before CRAM, Ag. J.

### SHIVRAM KANJI JAGAN, Plaintiff

#### $\mathbf{v}$

# LALJI JINA, Defendant Civil Suit No. 746 of 1955

Jurisdiction—Proper forum—Civil Procedure and Practice—Civil Procedure<br>Ordinance, Cap. 5, section 12—Courts Ordinance, Cap. 3, section 17—Suit to recover possession of land and arrears of rent by landlord-Whether "value of the subject-matter in dispute" to be interpreted from viewpoint of plaintiff-landlord or of defendant-tenant—Necessity to state value on the plaint of the unsatisfied claim.

A landlord instituted a suit in the Supreme Court for possession of a plot of land, at Isiolo, let to the defendant at a monthly rental of Sh. 25; for arrears of rent of Sh. 320 and for mesne profits at the rate of Sh. 3 per diem. Ex facie of the plaint appeared: —

"For the purpose of jurisdiction-the-value of the subject-matter of the suit exceeds the sum of Sh. 480 and the value of the same for Court fees is Sh. 480."

On an application for leave to serve out of the jurisdiction the Court required the plaintiff to show cause why the suit should not be transferred to a subordinate court as the proper forum.

Held (6-10-55).—(1) The value to be taken into consideration on an issue of jurisdiction or of proper *forum* was the value of the subject-matter the plaintiff-landlord was seeking to recover and not what the defendant-tenant may lose. The landlord was seeking to recover the possession of his land and this value was the interpretation "value of the subject-matter in dispute" intended by section 17 of the Courts Ordinance, Cap. 3.

(2) The proper forum was ordinarily demonstrated by the value of the unsatisfied claim as stated in the plaint, without affidavit, but the landlord had shown not the<br>value of the subject-matter to him but the value to his tenant. The suit fell within<br>the pecuniary jurisdiction of a subordinate court an court within the local limits of whose jurisdiction the land was situate.

(3) The hearing was adjourned to enable the landlord to amend his plaint to show the value to him of the subject-matter in dispute on condition that he paid all costs thrown away.

Cases cited: Moolla Mahomedali Alibhai v. Khoja Gulamhussein Virji, (1914) 5<br>E. A. L. R. 198; Fernandes v. Joseph & Son, (1918) 8 E. A. L. R. (E. A. C. A.) 99; Meghji<br>Lakhamshi & Bros. v. Furniture Workshop, (1954) 1 A. E. R. 273 P. C

RULING.—The plaintiff-landlord instituted a suit in the Supreme Court for possession of a plot at Isiolo, let to the defendant at a monthly rental of Sh. 25 and for arrears of rent of Sh. 320 and mesne profits at the rate of Sh. 90 per month. Paragraph 11 of the plaint stated that "for the purpose of jurisdiction, the value of the subject-matter of the suit exceeds the sum of Sh. 480 and the. value of the same for court fees is Sh. 480".

On an application for leave to serve out of the jurisdiction the Court required the plaintiff to show cause why the suit should not be transferred to a subordinate court, as the appropriate forum.

In Moolla Mohamedali Alibhai v. Khoja Gulamhussein Virji, (1914) 5 E. A. L. R., 198, Ehrhardt, J., ruled that to found jurisdiction the capital value of the premises sought to be recovered was irrelevant because what the landlord was seeking to recover was not the ownership but the usufruct of the property and concluded that the value was some multiple of the annual value or rental. He $added :=$

"... it is for the plaintiff to put a value on the subject-matter of an action subject to the condition that if he overvalues it he will only be entitled to recover costs on the lower court scale..."

That case, however, was expressly overruled so far as the irrelevancy of capital value was concerned in Fernandes v. Joseph & Son, (1918) 8 E. A. L. R. (E. A. C. A.), 99, by the Court of Appeal which held that the value to be taken into consideration is the value the landlord is seeking to recover and not what the tenant may lose, what the landlord was seeking to recover was possession of his house, presumably in perpetuity and this was the proper interpretation of the "value of the subject-matter in dispute" contained in section 19 of the Courts Ordinance, 1907. But the Court of Appeal affirmed that jurisdiction was founded upon the value of the unsatisfied claim as stated in the plaint.

The phrase "value of the subject-matter in dispute" is enacted in section 17 of the Courts Ordinance, Cap. 3, and should receive the same interpretation.

An analogous case is Meghji Lakhamshi & Bros. v. Furniture Workshop, (1954) 1 A. E. R., 273 P. C., where the Privy Council interpreted the phrase "the matter in dispute" appearing in Article 3 $(a)$ of the Eastern African (Appeal to Privy Council) Order in Council, 1951, in relation to a landlord's appeal, to mean the capital value of the plot of land in dispute and the "value" must be looked at from the point of view of the appellant. The result was that an appeal might sometimes lie where the landlord was the appellant although in the same case there could be no appeal by the tenant. The true test was the value of the property and not the value of the claim in question as the factor which determined jurisdiction. It is to be observed that the Court of Appeal for Eastern Africa had granted leave to appeal on affidavits to the effect that the plot in question exceeded £500 in value.

The Board affirmed the correctness of the decisions of the Court of Appeal for Eastern Africa in the cases of Popatlal Padamshi v. Shah Meghji Hirji, (1952) 19, E. A. C. A. 15, and Ismail Mohamed Chogley v. Jagat Singh Bains, (1955) 22, E. A. C. A. 27, 62, tenant cases laying down the obverse of the principle, and cited with approval Macfarlane v. Leclaire, (1862) 15 E. R., 462, 604 P. C., and Allan v. Pratt, (1888) 13 Appeal Cases, 780, where like interpretation was given to the phrase "value of the subject-matter in dispute".

The plaint discloses a claim for Sh. 480 plus Sh. 3 per diem mesne profits from 1st August, 1955, and the plaintiff-landlord, expressly, puts forward these figures to found jurisdiction. The landlord is seen to put forward as the "value of the subject-matter in dispute" the value to the tenant and not to himself and the suit as instituted falls within the jurisdiction of a subordinate court within the local limits of whose jurisdiction the land was situate, and mandatorily has to be brought there in accord with section 12 of the Civil Procedure Ordinance and, unless amended, will be ordered to be transferred as provided for by section 18 of that Ordinance.

The plaintiff at the adjourned hearing, submitted that if the ruling were against him he should have leave to adjourn his application in order to amend his plaint on the issue of the value of the subject-matter and the Court accordingly gives such leave and adjourns the hearing for seven days for that purpose. In my view, jurisdiction ought to be accepted ex facie, of the unsatisfied claim as stated in the plaint without affidavit, but, of course, where a plaintiff overvalues the subject-matter he may find himself entitled, if successful, to recover costs on the lower court scale only.

The costs thrown away by the hearings or adjournment or amendment on. the issue of jurisdiction to be paid by the plaintiff.

Order accordingly.