[1952] EACA 317

## APPELLATE CIVIL

#### Before WINDHAM, J.

#### MOHAMED ABDULLA JHETAM, Appellant (Original Applicant)

ν.

# HASSAN MIAN JHETAM, SALEH MIAN JHETAM, IBRAHIM PARKER, Respondents (Original Respondents)

### Civil Appeal No. 10 of 1952

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant Conditional order—Whether Board can make—Tenant out of possession—Shifting of onus—Intention to return or a corpus possession.

A landlord appealed against the decision of the Central Rent Control Board making a conditional eviction order on the grounds that it had no power to do so and further that the tenant was out of occupation and had not proved his intention to return and was therefore not entitled to the protection of the Ordinance.

Held (15-12-52).—(1) The Board has no power to make conditional orders and all orders must be final orders whether postponed in operation or not.

(2) Where a tenant was out of occupation for a sufficient time the burden shifts upon him to rebut the presumption of cesser of possession.

(3) In order to rebut the presumption the tenant must show not only he always intended to return but also an outward and practical expression of that inward intention.

(4) The tenant not being entitled to the protection of the Ordinance the Board had no discretion to refuse his unconditional eviction.

Appeal allowed.

Cases cited: Valji v. Dinshaw Byramjee & Sons, 25 (1) K. L. R. 86; Kishen Singh v. Metha and Others, C. A. No. 17 of 1952 (E. A. C. A.); Brown v. Brash (1948) 1 A. E. R. 922; Wigley v. Leigh (1950) 1 A. E. R. 73; Devji Hamir v. Morl Tommis (1952) 1 A. E. R. 725; Trustees of Tayebi Club v. Pathak, C. A. No. 118 of 1952;<br>Tara Singh and Another v. Harnam Singh (1944) 11 E. A. C. A. 24; Skinner v. Geary (1931) 2 K. B. 545.

D. N. Khanna for appellant.

S. C. Gautama for respondent.

JUDGMENT.—This is an appeal by a landlord against a decision by the Central Rent Control Board making what it called a "conditional eviction order" against the first respondent (tenant) and the second and third respondents (occupiers) of one room and kitchen constituting a dwelling-house within the meaning of the Increase of Rent (Restriction) Ordinance, 1949. The first respondent admitted in evidence having received notice to quit, and it was at no time argued that it was not a valid one. He was accordingly holding over as a statutory tenant.

The order of the Board was brief and was in the following terms: —

"The Board having considered this case in all its aspects, including that of reasonableness, has come to the conclusion that a conditional Eviction Order should be passed. The applicant will get vacant possession forthwith upon breach of any of the following conditions: -

- (1) All rent due up to date must be paid by 7th February, 1952. - (2) In future the rent must be paid regularly in arrears by the 7th of each month.

- (3) The Africans occupying the so-called kitchen must be confined to the use of one of the lavatories and the other two reserved exclusively for the tenants. - (4) Not more than six boys must occupy the room in question.

The parties will bear their own costs."

The grounds of appeal argued before me were two. First, that the Board had no power to make such a conditional order, but that it should either have ordered or refused eviction categorically, subject only to a possible suspension of the order or postponement of its operation to a specific date under section 16 (5) of the Ordinance. Secondly, it is argued that the evidence established that the first respondent was out of occupation of the premises, and that since he had not proved an intention to return he was not entitled to the protection of the Ordinance, so that the Board should have made an unconditional order for his eviction, as also for the eviction of his employees the second and third respondents, who on the evidence were shown to be not sub-tenants but mere licensees.

Now with regard to this first ground, I think the Board were going beyond any powers conferred on them by the Increase of Rent (Restriction) Ordinance, 1949, in making the operation of their eviction order conditional upon the breach, at some future time, of a condition imposed by them. An eviction order of the Board must be final, in the sense that its operation must not be dependent on the happening of any event in the future. A postponement of its operation to a specified date or for a specified period is of course permissible, under section 16 (5), and is in a different category, since such an order will operate automatically upon that date or upon the efflux of that period. But there is nothing automatic about a conditional order such as the Board has here imposed; for the question whether one of the four conditions imposed has been broken would have to be decided by the Board or in some other manner, and the breach might well be denied by the tenant. In short, there is no finality in the order; and finality there must be. Nor would section 5 (1) $(k)$ of the Ordinance, which empowers the Board to "impose conditions" in any order made by it, cover the fulfilment or nonfulfilment of some condition in the future, such as this eviction order is made dependent upon. It was held by Bourke, J., in this Court in Valji v. Dinshaw Byramjee & Sons, 25 (1) K. L. R. 86, and again by the Court of Appeal for Eastern Africa in Kishen Singh v. Metha and Others, C. A. No. 17 of 1952, that the Board could not make its eviction order conditional upon the landlord finding suitable alternative accommodation for the tenant at some time subsequent to the order, and that section 16 (1) $(k)$ would not cover the imposition of such a condition. The reasoning in those judgments, with which I respectfully concur, applies equally to the conditions imposed by the Board in the present case. I therefore hold that the Board erred in law, and went beyond its powers, in making the conditional eviction order which it did.

A decision of this appeal upon this first ground alone would, however, entail a remitting of the case to the Board to enable it either to make an unconditional eviction order or to refuse eviction. It therefore becomes necessary to consider the second ground of appeal, under which it is urged for the appellant that on the evidence before it the Board was wrong in refusing to make an unconditional eviction order.

The first respondent was admittedly not in occupation of the premises when the application before the Board was filed in October, 1951, and when the case was heard in January, 1952. He had been in occupation, and then he had gone to India for a month or two, leaving members of his staff in occupation, and

on his return these members of his staff, including the second and third respondents, remained in occupation and prevented him from reoccupying the premises himself. The first respondent admitted this in evidence. The second and third respondents gave no evidence. The following are the passages from the evidence of the appellant (landlord) and the first respondent relevant to the recent occupation of the premises by the respondents. The appellant said:-

"He went again to India in 1948, perhaps November. When he went he locked the room. When he returned he went with his family to live in Pangani and left the room locked. Before he went in November, 1948, I asked him to vacate the room. He demanded Sh. 3,000 to do so. I did not agree. The room remained locked for three or four months after his return. After that, two people, the third respondent and one Ali Chogley, used to sleep there. Ali left after two or four months and third respondent is still there, and after an interval of possibly two or three months the second respondent came there. It was in 1949 second respondent came there. I am not quite sure. First respondent did not take my permission before introducing them. Second respondent is still there."

The first respondent said in evidence: —

"I went to India in 1946 for marriage. My dairy staff used to stay in the room. I returned in 1947 and reoccupied the room. I came alone. I went to India again in November, 1948. The room was again occupied by my staff. I came back in December, 1948, with my wife. I could not go back to the room as my staff was there. Second and third respondents now live in the room. They are members of my staff. Second respondent came in March or April, 1949. Third respondent came in 1948. Mohamed Abdullah never objected to my bringing them in. I never asked Sh.s 3,000 to vacate the room. My boys have lived in the kitchen since 1940. They are dairy boys. . . . Second and third respondents are members of my staff and not my sub-tenants. They do not pay any rent to me for this room. The licensees lived with me up to 1948 when I left finally...."

Now the general position is laid down in Skinner v. Geary (1931) 2 K. B. 545, that the protection of the Rent Restriction Acts will not be extended to a statutory tenant who is out of possession of the premises from which it is sought to evict him. This general principle has been modified by more recent decisions in which the expressions "out of possession" or "out of occupation" have been interpreted in the light of common sense, so that it has been held that a not unduly long absence from the premises coupled with an intention to return to them will not be held to be a going out of possession or of occupation. I refer to such cases as Brown v. Brash (1948) 1 A. E. R. 922, and Wigley v. Leigh (1950) 1 A. E. R. 73, and in this country to *Devii Hamir v. Morley*, 17 E. A. C. A. 18, which latter decision was upheld in the Privy Council. In Brown v. Brash, however, two qualifications, very important in the practical application of these guiding principles, were laid down. First, it was held that where the tenant has been out of occupation for a sufficiently long period the burden shifts upon him to rebut the presumption that his possession has ceased. Secondly it was emphasized that in order to rebut that presumption the tenant must not only satisfy the Court (or other Tribunal) that he always intended to return, but he must also show a "corpus possessionis", that is to say some outward and practical expression of that inward intention. In the words of Asquith, L. J., in his judgment in that case, at page 926, the presumption of cesser of possession may be averted "if he couples and clothes his inward intention with some formal outward and visible sign of it, i.e. installs in the premises some caretaker or representative, be it a relative or not, with the status of a licensee and with the function of preserving the premises for his own ultimate home-coming".

Now in the present case learned counsel for the respondents has urged that from the very fact that the Board made its eviction order conditional and not absolute, an implied finding by the Board must be presumed to the effect that the first respondent had never parted with possession, since only upon such a finding would the respondent be entitled to the protection of the Ordinance and to any treatment less harsh than an unconditional order to vacate. But clearly no such presumption can be made. In the first place this would be to presume that the Board was incapable of erring in law on the point. Secondly, such a finding that the first respondent had never parted with possession, even if it had been made, would not have been warranted by the evidence, no matter which of the two parties had been believed on those few points relevant to this issue wherein their testimony had conflicted, as I shall presently show.

For if one piece of evidence was vital in this case on this particular issue, it was the first respondent's admission that on his last return from India, at the end of 1948, he was unable to go back to the room because his staff, including the second and third respondents, were now there. This was quite incompatible with his having left his staff there, upon setting out for India, in the capacity of caretakers "with the function of preserving the premises for his own ultimate homecoming". In any event he gave no evidence that he had left them there in such a capacity. And I think that by the time the case came for hearing before the Board his absence from the premises, which had amounted to well over three years, was sufficient to raise the presumption of cesser of possession and to throw on him the burden of rebutting that presumption. In Dixon v. Tommis (1952) 1 A. E. R. 725, the burden of so proving animus revertendi and corpus possessionis was held to be on the tenant (who in that case discharged it) upon an absence of three years.

On the evidence before them, therefore, I hold that the Board could not have found, even had they appreciated the importance of finding, that the first respondent had not given up possession of the premises and that he was accordingly entitled to protection under the Ordinance. From his own admissions he failed to discharge the onus thrown upon him by his three years' absence from the premises, and I hold that he was not entitled to protection under the Ordinance. The Board appear to have been under the impression that even if he was not entitled to protection, they still retained a discretion to refuse to order his eviction unconditionally, in exercise of their discretionary powers under section 16 (2) of the Ordinance, which provides that in any case arising under section 16 (1) no order for the recovery of possession of premises shall be made unless the Board considers it reasonable to make such an order. This appears from the Chairman's record where, immediately after recording the argument of learned counsel for the landlord that only a tenant in possession can claim protection, he adds, in parentheses, clearly recording his own views, the following words: "(But the words of section 16 (2) are absolutely mandatory and so the Board must apply the criterion of reasonableness before it can make any order at all under section 16 (1). The wording allows no escape from its provisions.)".

If this was the view of the Board it was erroneous. It was clearly laid down by the Court of Appeal for Eastern Africa in Trustees of Tayebi Club v. Pathak, C. A. No. 118 of 1952, following their earlier decision in *Tara Singh and Another* v. Harnam Singh (1944) 11 E. A. C. A. 24, that the provisions of section 16 (2) have no application to a case in which the tenant is held not to be protected by section $16$ (1).

The appeal must therefore succeed as against the first respondent. And so far as concerns the second and third respondents, neither of them gave evidence.

Of the two parties who did give evidence, the appellant said of them that "first respondent did not take my permission before introducing them", while the first respondent said "second and third respondents are members of my staff and not my sub-tenants", and proceeded to refer to them as licensees. On the evidence, that is clearly what they were; and as such they, too, were not entitled to any protection under the Ordinance.

For all these reasons the appeal must be allowed with costs against all three respondents, both here and below. The order of the Board is set aside. The second and third respondents are ordered to vacate the premises, and the first respondent is ordered to deliver up formal possession thereof to the appellant, within one month of to-day. The first respondent is further ordered to pay to the appellant Sh. 252 arrears of rent as prayed and mesne profits at Sh. 42 per month from 1st October, 1951, until delivery up of possession.