[1950] EACA 8

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR NEWNHAM WORLEY (Vice-President), BRIGGS, Justice of Appeal, and Lowe, J. (Tanganyika)

#### SHAH RAMJI KANJI, Appellant (Original Respondent)

v.

### (1) MAHERALI HIRJI & CO., (2) POPAT JADAVJI, Respondents (Original Appellants)

#### Civil Appeal No. 94 of 1953

# (Appeal from the decision of H. M. High Court of Tanganyika, Mahon, J.)

Landlord and Tenant-Whether undertaking to give possession can operate as notice to quit—Jurisdiction of Rent Restriction Board—Tanganyika Rent Restriction Ordinance (No. 16 of 1951), sections 8 (3), 17 (1) (c) and (i) and $(2)$ .

The appellant had obtained an order for possession of certain premises against the respondents from the Rent Restriction Board of Moshi, the respondents having, by letter from their advocates, agreed to give possession when a new building which they were erecting, was ready. The respondents' appeal from the order was allowed by the High Court of Tanganyika and the appellant then appealed. The principal grounds of appeal were that the learned Judge had misdirected himself in considering a point which had not previously been argued, that he failed to consider whether the agreement contained in the advocates' letter operated as an estoppel against the respondents from pleading lack of notice and that he had failed to consider whether that letter had terminated the tenancy.

Held (22-12-53).-(1) That the advocates' letter did not constitute a notice to quit as required by section 17 (1) (c) of the Rent Restriction Ordinance (No. 16 of 1951) of Tanganyika and that the contractual tenancy of the respondents was not thereby terminated.

(2) That Counsel having stood mute on a matter of "conditional jurisdiction" when presenting his client's case to the Board and again when he is arguing that case on first appeal, he is estopped from asserting during the hearing of a second appeal that the contractual tenancy still exists.

[*Editorial Note*:—The application for leave to appeal to the Privy Council is reported as (1954) 21 E. A. C. A. 66 and the decision of the Privy Council at p. 103 *infra*.]

Appeal allowed. Order of the Board restored with a variation.

Cases referred to: John Bennett and another v. Grogan and another, 11 E. A. C. A. 29; de Vries v. Sparks, 17 L. T. R. 441; Standingford v. Bruce, 134 L. T. R. 282; (1926) 1 K. B. 466; Colonial Boot Company v. Dinshaw Byramjee and Sons, 19 E. A. C. A. 125; Popatlal Padamshi v. Shah Meghji Hirji, 19 E. A. C. A. 15.

#### Donaldson for appellant.

Reid for respondents.

Lowe, J.—The appellant is the landlord of certain premises at Plot No. 10 Block H, Section III, Moshi, of which the respondents are, for all practical purposes, the tenants. On or about the 27th of June, 1952, the appellant made application to the Rent Restriction Board of Moshi asking for an order of ejectment of the respondents, the appellant stating that he required the premises to enable him to demolish the existing building on the plot and to erect a new building consisting of shops on the ground floor and residential quarters on the first floor. This building was to be carried out in accordance with a plan.

produced to the Board, numbered 16/51, and approved by the Moshi Township Authority on the 26th of April, 1951. On the face of it, the application appeared to be based mainly on an agreement in writing being a letter dated September. 1950, from the advocates for the respondents, to vacate the premises before the 31st of July, 1951, on completion of their new building. The application stated that the respondents had failed to vacate the premises although their new building had been completed.

The respondent opposed the application at the hearing before the Board on the 10th of September, 1952, but the Board made an order that the respondents deliver vacant possession of the premises to the applicant, the present appellant, within six months and that on delivery of vacant possession the applicant was to demolish the existing building within three months and commence rebuilding within a period of six months thereafter. The respondents appealed against that order to the High Court of Tanganyika and on the 9th of December, 1952, judgment was delivered in Dar es Salaam allowing the appeal with costs to the then appellants, the respondents in this Court. The appellant has now appealed to this Court against the judgment of the High Court of Tanganyika. Amongst the grounds of appeal, the following appear to be of prime importance in this $appcal:$ —

- (1) That the learned Judge erred in directing himself to a point which had not been argued in the proceedings before the Rent Restriction Board. - (4) The learned Judge erred in failing to consider whether or not the agreement between the respondents and the appellant expressed in the letter of September, 1950, operated as an estoppel against the respondents from pleading lack of notice. - (5) The learned Judge failed to consider whether the respondents had by their letter of September, 1950, terminated the tenancy as from 31st July, 1951.

It will be convenient to deal with grounds 4 and 5 first. The letter of September, 1950, was before the Board, having been produced on behalf of the present appellant; it was also before the learned Judge on first appeal; the letter which is addressed to the then advocate for the appellant and signed by the advocate for the respondents, reads as follows: -

"With reference to your application to the Rent Restriction Board and our discussion vesterday, we write you on behalf of Maherali Hirii to confirm that the building on Plot No. 25, Block D, Section III, Moshi, is progressing and that a contract has been entered into with Domur Construction Limited for the completion of the building before the 31st July, 1951. Our client has agreed to vacate the above building as soon as the new building is complete.

That the learned Judge considered the question raised in grounds 4 and 5 of the Memorandum of Appeal is apparent from the judgment in which the following occurs:-

"It is alleged and was established that in September, 1950, the appellants agreed in writing to vacate the premises on completion of a new building being erected for them, but did this undertaking operate to terminate the tenancy?"

and later in his judgment-

"After fully considering the matter I am of the opinion that the undertaking given by the appellants did not operate to terminate the lease."

The learned Judge did not, however, record any of the reasons which led him to the conclusion.

Counsel for the respondents referred this Court to the case of John Bennett and another v. Grogan and another, 11 E. A. C. A. 29, in support of his argument that the letter of September, 1950, did not operate as a notice to quit. It is true that in that case it was held "That an agreement between the landlord and tenant that the tenant shall give vacant possession by a certain date is not a notice to quit within the meaning of section 11 (1) (c) of the (Kenya) (Consolidated) Ordinance". That section corresponds to section 17 (1) $(c)$ of the Tanganyika Rent Restriction Ordinance, No. 16 of 1951. In all such cases the Court must, of course, look at the express or implied terms of the agreement itself and the circumstances in which it was made. In any event, the case of Bennett v. Grogan was finally decided on the question as to whether or not the Supreme Court of Kenya had acted "reasonably" in making an order for possession. It will be noted that the Supreme Court of Kenya was the Court of first instance in that case, the matter not having been before any Rent Restriction Board.

In the course of his judgment in that case the then learned Chief Justice of Kenya cited with apparent approval the case of de Vries v. Sparks, 17 L. T. R. 441 which I find, if I might say so with respect, to have dealt very ably with the question as to whether or not an agreement to vacate can operate as a notice to quit. The facts in that case are very much in point in this case as is the learned judgment.

During the course of his judgment Salter, J., at p. 442 referred with approval to a case of Standingford v. Bruce, 134 L. T. R. 282; (1926) 1 K. B. 466, in which Shearman, J., said: "The words 'notice to quit' have a technical meaning". Salter, J., later went on to say:-

"In the first place, I think it was not a notice to quit at all, but merely an agreement made between the parties that the common law tenancy then subsisting should determine at the latest on the 25th September. I think that a notice to quit and an agreement to surrender or determine a tenancy are essentially different in their nature. An agreement depends on the consent of the parties, whereas a notice to quit differs altogether, in that it is a notice given by one party to the other to exercise a right given under the contract, whether the other party likes it or not."

In the penultimate paragraph of his judgment Salter, J., referring to the "agreement to vacate" with which he was concerned said:-

"Further, if the agreement is to be regarded as a notice to quit, it is invalid for two reasons; first, because it was not a notice that expired on a fixed date, the words being 'on or before the 25th September'; and secondly, because there was no evidence to show that it expired on the day of the week on which the tenancy commenced, as is requisite in the case of a weekly tenancy."

The "agreement to vacate" which is before this Court cannot be said to be a "notice to quit" for the same reasons except that the respondents' tenancy appears to have been a monthly one. The letter merely says that a contract has been entered into for the completion of a new building "before the 31st of July, 1951" and that the respondents had agreed to vacate the premises of the appellant "as soon as the new building is complete".

The respondents had here a wide choice of dates on which they might have vacated, for, had the building been completed on, say, the 10th of July, 1951, or on the 31st of December of that year, the completion date would have been the date of vacation and thus the date of the determination of the tenancy. It is difficult indeed to imagine how a landlord, in such circumstances, could plan the future of his premises, whether they were to be demolished, sold or

re-let. I find that the letter of September, 1950, did not constitute annotice to quit as required by section 17 (1) $(c)$ of the Rent Restriction Ordinance (No. 16 of 1951) of Tanganyika and that the contractual tenancy of the respondents was not thereby terminated.

I now come to ground number one of the Memorandum of Appeal: 'That the learned Judge erred in directing himself to a point which had not been argued in the proceedings before the Rent Restriction Board." I would agree that in normal circumstances such an assertion might be correct but what is the High Court to do when it finds that Counsel on both sides have failed to raise or argue some element, the presence or absence of which goes to the root of one aspect of the Board's jurisdiction in such a matter as was before the Rent Restriction Board of Moshi in this case. It has been held on many occasions by this Court that in such a case the Court, and whether it be this Court or the High Court of Tanganyika in its appellate jurisdiction makes no difference, is entitled to apply its mind to that essential issue of jurisdiction. In the instant case neither Counsel raised before the Board or the High Court the question of the Board's jurisdiction to make an order, neither does it appear from the records that Counsel for the respondents, even by implication, disputed that his clients submitted to that jurisdiction. As I see it the jurisdiction of the Board can be said to be of a dual nature, in that it has a "fundamental jurisdiction" to entertain any lawful application in respect of certain premises which are within the area under its jurisdiction and to determine the question before it; it has also, however, a "conditional jurisdiction" to make certain orders only when a condition has been fulfilled. A relevant and typical example of the "conditional" jurisdiction" of the Board arises in this case. The Board's power to act under section 17 (1) (i) of the Ordinance and make an order for possession is conditioned on it being satisfied that the contractual tenancy in question has been determined and that the tenant is "holding over"; in other words that the<br>tenant has become a "statutory tenant". That, I think is now well settled law.

This Court, then, must consider whether or not the Board, in making the order for possession in this case, acted against its "conditional jurisdiction": there is no doubt that it was within its "fundamental jurisdiction" in entertaining the petitioner's application. The Board is empowered by section $8$ (3) of the Ordinance to take into consideration "any evidence which it considers relevant to<br>the subject of the inquiry before it, notwithstanding that such evidence would not be admissible under the law relating to evidence".

It is a practice with many Boards to take advantage of this necessary and sensible provision by acting on their own knowledge of certain facts, or on the knowledge of particular members. On occasions a Board might accept admissions, specific or implied, of either advocate appearing before it. I think it is clear that Boards are entitled so to act. Counsel for the respondents appeared before the Board at the hearing of the application in this case; learned Counsel for the appellants, although informing the Board that he did not wish to call any evidence addressed the Board at some length and put in a plan of a new building which his clients proposed to have erected on the site of the premises occupied by the respondents. He also informed the Board that his client wished to demolish the existing building. This was not challenged by counsel for the respondents and the Board apparently took counsel's statement as "evidence" for their subsequent consideration.

I might mention here that learned Counsel for the appellants informed this Court that at least one application in connexion with the premises occupied by the respondents had been before the Board previously, though that former application was made under a different section of the Ordinance from that which

founded the application in this case. This fact was not denied by Counsel for the respondents. We do not know what evidence the Board heard or recorded on the previous application as the records were not before this Court. The Board was entitled to take cognizance of relevant evidence in the previous hearing, had it so wished, and act on the knowledge of any relevant facts which had emerged; it probably did so. However, whatever the Board did in that connexion, quite apparently it was satisfied that it had jurisdiction to make the order it did make. The question now arises as to whether or not that order was a valid order. The learned Judge in his judgment has made it clear, having decided, quite rightly I consider, that the letter of September, 1950, did not operate as a notice to quit. that in his view the contracted tenancy had not been terminated in any other way. With respect, I do not think he was entitled to assume that in view of the conduct of the parties and the action of the Board in determining the application and making the order for possession. The Board, by making the order. must have been satisfied that there had been a determination of the contractual tenancy and I do not think it can be said that, in reaching that conclusion, it considered only the letter of September, 1950. There is nothing in the order of the Board to show that such was the case. In any event Counsel for the respondents, by his conduct, acquiesced in the action of the Board. In this connexion I have had the benefit of reading the judgment of the learned President of this Court in the case of *Colonial Boot Company v. Dinshaw Byramjee &* Sons, Civil Appeal No. 1 of 1952. During the course of his judgment the learned President said: -

"It is clear that the advocates for both parties argued their cases both before the Board and in the Court below on the basis that the appellants were statutory tenants who had no protection other than that afforded them by the Rent Restriction Ordinance. That being the case I can see little difference on the facts between this case and the Popatlal case (Civil Appeal 32 of 1951), where this Court refused to allow the validity of the notice to quit to be reagitated on appeal to this Court when the party concerned had admitted its validity at an earlier stage in the litigation. The only difference perhaps is that whereas in *Popatlal's case* the admission was express, in this case it is implied by the conduct of the parties."

It seems to me that the same principle applies to this case. If Counsel for the respondent elects to stand mute on a matter of "conditional jurisdiction" when presenting his client's case to the Board and again when he is arguing that case on first appeal, he is estopped from asserting at this late stage that the contractual tenancy still exists.

Learned Counsel for the appellant made application to this Court for permission to produce further evidence in the form of documents. It will have become apparent that I do not consider it necessary for this Court to consider making any order in that connexion and for my part I would leave the matter undecided as I do not think that the admission or exclusion of such documents would now make any difference to this appeal.

I am satisfied that the Board considered whether or not it would be reasonable for it to make the order for possession as it was required to do by section 17 (2) of the Ordinance and that it came to the conclusion that it was. I can see no reason to doubt the correctness of that finding of fact.

For the reasons I have given I would allow this appeal with costs to the appellant in this Court, in the Court below and in the hearing before the Board. The effect of this would be to restore the order of the Board but in view of the time it will have taken the appellant to regain possession of his premises it is

necessary to make some variation in the Board's order. I consider that in the circumstances it would be reasonable to require the respondents to deliver vacant possession of the premises to the appellant within three months from the date hereof, but in other respects the order to remain undisturbed. For my. part I would so order.

WORLEY, Vice-President.—I also agree. The appeal is allowed and the order of the Board restored subject to the variation that it will take effect in three months from to-day. There will be an order for costs in the terms proposed in the judgment which has just been read by Lowe, J.

BRIGGS, J. A.-I agree.