[1955] EACA 18

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MAHON, J. (Tanganyika)

# (1) SHANKERDASS MAYER, (2) HARBANSLAL SOHANLAL, (3) MOHAMEDALI ABDULLAH GULAMHUSSEIN, (4) HAIDERALI POPAT TEJA, (5) KASSAMALI ESMAIL JIVRAJ,

## Appellants (Original Respondents) ν.

# TRUSTEES OF THE RAHIMTULLA LALJI HIRJI CHARITABLE TRUST,

Respondent (Original Appellant)

## Civil Appeal No. 16 of 1952

(Appeal from the decision of H. M. Supreme Court of Kenya, Harley, Ag. J.)

"Event"—Costs—Special order depriving successful party of—"Determination" Rule in Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd.—Rent Restriction

(Enforcement of Determinations and Orders of the Board and Appeals from the Boards Determinations and Orders to the Supreme Court) Rules of Court, 1950, rule 11—Civil Procedure Ordinance, section 27 (1)—Increase of Rent (Restriction) Ordinance, 1949, section 7.

On appeal from the Central Rent Control Board to the Supreme Court, the appellants (then respondents), successfully took the point that the appeal was incompetent there having been no "determination" by the Board, but the trial Judge, in dismissing the appeal, ordered each party to bear its own costs stating: "I do not order costs to follow the event, because I doubt if there is any event. By taking his technical objection respondent in the present appeal has prevented all argument on the merits...". The appellants appealed, but there was no crossappeal against the ruling on the preliminary objection.

By rule 11 aforesaid: "The Supreme Court may make such order as to costs of the appeal as shall seem just", and by section 27 (1) aforesaid: "Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or Judge and the court or Judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the court or Judge has no jurisdiction to try the suit shall be no bar to the exercise of such powers: provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or Judge shall for good reason otherwise order".

The Supreme Court Judge considered that Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd. was authority for the proposition that a decision which is not enforceable by execution or otherwise is not a "determination" within section 7 of the Increase of Rent (Restriction) Ordinance, 1949.

Held (16-2-53).—(1) There was an "event", viz. the Judge's decision that the appeal was<br>incompetent which was an effective and conclusive determination of the question before him.

(2) Neither under rule 11, nor under section 27 (1) aforesaid, was there a proper exercise of discretion in depriving the successful party of its costs. Under the section<br>there was no "good reason" for a special order and under the rule the order could not be is said to "seem just". That a successful preliminary objection shuts out a consideration of a case on its merits cannot constitute good cause to deprive a successful party of his costs.

(3) (Semble)—Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd., did not establish as a proposition of law that there can be no "determination" of a triable issue by a court or statutory tribunal unless as a result, a party is left with something capable of positive enforcement.

#### Appeal allowed.

Cases referred to: Slatford v. Erlebach (1912) 3 K. B. 155; Hem Singh v. Mahant<br>Basant Das (1936) 1 A. E. 356; Ritter v. Godfrey (1920) 2 K. B. 47; Donald Campbell &<br>Co. Ltd. v. Pollak (1927) A. C. 732; Home Marine Insurance C

### Nazareth for appellants.

## Hunter for respondents:

SIR BARCLAY NIHILL (President).—The respondents in this case appealed to the Supreme Court of Kenya against a decision of the Central Rent Control Board dated 11th January, 1951. On the appeal coming on for hearing the present appellants, who were then respondents, took a preliminary objection on the ground that the appeal was incompetent. This objection succeeded but the learned Judge in dismissing the appeal ordered that each party should bear its own costs. It is against that order that the appellants now appeal to this Court. No cross appeal has been entered against the Judge's ruling on the preliminary objection. This is perhaps unfortunate because, as I shall indicate later, I think the learned Judge misunderstood the effect of a judgment of this Court given in Gulmohamed v. Sheikh Bros. Ltd., 18 E. A. C. A. 42. However as it is, we have not to consider whether the learned Judge was in fact right in treating the appeal before him as incompetent, but only whether he made a proper use of his discretion when he deprived a successful party of his costs.

The appellants are statutory tenants holding over in premises owned by the respondents known as the Central Hotel in Victoria Street, Nairobi. Since 30th September, 1949, when the lease expired, the respondents have been trying to get back possession of their property, but as is usual in these cases the tenants have been able to use the machinery provided by the Rent Restriction Ordinance to fight, so far with success, a long delaying action. On 25th August, 1950, the tenants were told by the Board that they would have to give up possession by 31st December, 1950, unless before that date they had done everything reasonably possibly to bring the premises into a proper state of repair. Soon after this, the Medical Officer of Health for Nairobi served a notice on the respondents as the landlord requiring them to abate a nuisance and listing a formidable list of repairs required, many of them structural in character. This led to a dispute between the parties as to what repairs should be effected by each side and the Board was asked to adjudicate. No doubt this suited the tenants very well for it enabled them to remain in possession after 31st December, 1950.

On the tenants' application coming on for hearing the Board, presided over by a lay chairman, boldly decided certain legal issues, for it resolved-

(a) that it had jurisdiction to hear "a summons for directions" by a tenant;

$(b)$ that despite a clause in the lease requiring the tenant to "keep the interior" of the said building including all doors and windows in a good and tenantable state of repair", in so far as this might have involved a structural repair it was not binding on the tenant because of the provisions of section 27 of the Rent Restriction Ordinance, 1949.

Having reached these interesting and possibly correct conclusions, the Board adjourned the hearing for inquiry into what repairs were the liability of the landlord and what the tenants. Nothing was said about the Board's previous conditional order which expired on 31st December. The landlord appealed to the Supreme Court against this decision on three grounds—

(a) that the Board had no jurisdiction to hear the application;

- (b) that the Board was wrong in its view as to the applicability of section 27 of the Ordinance to a repairing lease; - (c) that the Board had erred in ignoring its previous order.

The learned Judge in the court below did not consider $(b)$ and $(c)$ for the reason already stated that he accepted the preliminary objection that there had been no "determination" by the Board of the matter before it and therefore no appeal lay. He then made an order depriving the party which had succeeded on the preliminary point of his costs because apparently it seemed to him that his own decision did not amount to a "determination" of any question or questions before him. To quote the learned Judge in full, he said: $-$

"I do not order costs to follow the event, because I doubt if there is any event. By taking his technical objection respondent in the present appeal has prevented all argument on the merits, and by so doing he is likely to cause much unnecessary delay and expense. I therefore order that each party bear its own costs of this appeal."

As regards the learned Judge's first reason I feel constrained to say, with the very greatest respect, that it does not make sense to me. The question before the learned Judge on the preliminary objection was whether an appeal lay and his decision that it did not, amounted, I should have thought, to an effective and conclusive determination of the question before him. Neither does one need a legal dictionary to arrive at the ordinary and accepted meaning of the word "event". Surely the "event" in this case was the total rejection of the appeal. In respect of the second reason, a Judge has a discretion to make a special order as regards costs, and where discretion has been exercised judicially and not on some wrong principle an appeal court will not interfere. We have listened to argument as to whether the learned Judge exercised his discretion under the proviso to section 27 (1) of the Kenya Civil Procedure Ordinance or under rule 11 of the Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules of Court, 1950. Rule 11 is as follows: -

"The Supreme Court may make such order as to the cost of the appeal" as shall seem just."

I think this was the rule applicable but in any case it matters little for in my opinion it is difficult to defend the Judge's order under either the section or the rule, Under the section there must be "a good reason" for a special order and under rule, the Court may make any order as to costs as "shall seem just".

If I am right in my view that in this case the reasons given by the Judge are not good and sufficient ones I do not think the order can be defended as a just one under the rule.

ì

I have already dealt with the Judge's first reason and I now come to his $\mathbf{I}$ second: Again with respect I find it difficult to follow the reasoning. It can never be held against a party that he has taken some point unless it can be shown that his action involved some illegitimate use of the machinery of justice and clearly that is not the case here. The argument that there had been no "determination" by the Board so as to create a right of appeal was certainly not a frivolous one

for in the result it so impressed the learned Judge that he held that the point was a good one. On the basis of that finding it is difficult also to sustain the charge that the party taking the point did something "likely to cause much<br>unnecessary delay and expense". He took the point at the earliest possible opportunity and thereby saved the time of the court which otherwise might have heard an incompetent appeal. It is probable that the learned Judge knowing the background of the case appreciated and possibly rightly, that the preliminary objection was just another opportunity seized by the tenants' legal advisers to delay an order for possession, but that, with respect, was not a factor he was entitled to take into account, for it goes far outside the matter before him. In Hartland-Mahon v. Joseph Wood (E. A. C. A. Civil Appeal 24 of 1951) the learned Vice-President dealt exhaustively with the relevant English decisions, and pointed out that the mere opinion of the court that a successful party had not behaved well was not by itself sufficient to justify a court in depriving a party of his costs nor could the legitimate use of the machinery of justice ever constitute a good cause. As I have already pointed out there was certainly nothing illegitimate per se about the preliminary objection and the learned Judge found that it was good in law. Why then did he deprive the tenant respondent of his costs? Presumably only because the success of the objection had shut out a consideration of the appeal on its merits, which according to the Judge's ruling it would have been illegitimate for him to hear. This cannot in my view constitute "a good cause" so that this Court is in a position to consider whether the trial Judge made a proper use of his discretion. In my opinion he did not.

I now come to the use made by the learned Judge of the judgments given by this Court in Civil Appeal No. 51 of 1950. As there has been no appeal against his ruling on the preliminary objection that there had been no "determination" by the Board what I have to say is obiter to the present appeal but I do feel constrained to say that in my opinion the learned Judge has generalized too readily from the judgments so as to infer that Civil Appeal No. 51 of 1950 has established as a proposition of law that there can be no "determination" of a triable issue by a court or statutory tribunal, unless as a result a party is left with something capable of positive enforcement. Put like this the proposition is obviously untenable and it could never have been the intention of this Court to endorse anything so absurd. I have read the judgment in this case with care. The main point in the appeal was whether in a Rent Restriction matter an appeal lay to this Court from a judgment of the Supreme Court of Kenya, and this point was dealt with at length in the judgment of Lockhart-Smith, J., then Justice of Appeal. The second point taken was that assuming a right of appeal lay since there had been no determination of the question before the Board, the appeal to the Supreme Court of Appeal was itself incompetent. Modera, J., had so held, and this Court was unanimous in the opinion that he was right. On the facts of that case no other view was possible, but it must not be supposed that in so deciding this Court necessarily endorsed every expression used by Modera, J., in his judgment. It is the result that matters and in the result the Judge was right.

I would allow this appeal with costs and grant the appellant the costs of his appeal in the court below.

SIR NEWNHAM WORLEY (Vice-President).—I have had the advantage of reading the judgment prepared by the learned President with which I entirely agree, and only wish to add a few observations on the question of the meaning of "determination".

The learned Judge on first appeal (Harley, Ag. J.) considered that the judgment of this Court in civil appeal. Sheikh Noordin Gulmohamed v. Sheikh Bros. Ltd., 18 E. A. C. A. 42, is authority for the proposition that a decision which is not enforceable by execution or otherwise is not a "determination" within the meaning of section 7 of the Increase of Rent (Restriction) Ordinance, 1949 (No. 22 of 1949); but when the judgments are carefully studied it is clear that the case is no authority for such a proposition.

One of the two issues in that appeal was whether Modera, J., in the Supreme Court had correctly decided that the action of the Rent Control Board in declining to proceed with an application and dismissing it with costs was not an appealable "determination". This Court was unanimous that the decision of Modera, J., was, in the circumstances, correct but it must not be assumed, as Harley, Ag. J., appears to have assumed in the instant case, that this Court thereby adopted and approved every reason and every dictum in the judgment of Modera, J., which was under consideration.

In that case Modera, J., had said: "As I understand it a determination as visualized in the section (section 7) of this Ordinance connotes a power to enforce and there was in the so styled judgment of the Board no determination which could be enforced... by execution or otherwise". It is possible that Modera, J., had in mind the words of Lush, J., delivering the judgment of the Court of Queen's Bench in Burnaby v. Earle (1874) L. R. 9 Q. B. D. 490 at p. 493 when he said:

"Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, so far as he is concerned, may be properly said to be determined in his favour."

But the learned Judges of the Queen's Bench were there considering the special facts of a particular case and were certainly not intending to state any general and exhaustive rule as to what constitutes the "determination" of a cause. Nor in my opinion did Modera, J., intend to do so. As Lord Greene, M. R., said in Maitland v. Raisbeck and another (1944) L. R. 1 K. B. 689 at p. 692:

"It often happens that in the case of a judgment delivered *ex tempore* on special facts the language of a Judge who is thinking of those facts is couched in words which, if taken out of their context, appear to have some general application."

Observations of that kind must always be read in the light of the particular case then before the Judge, and that, in my view, is how the dictum of Modera, J., should be read.

But on any view, Harley, Ag. J., was wrong in supposing that this dictum had been approved and adopted by this Court at a ratio decidendi for its decision on the appeal. Lockhart-Smith, J. A., (with whom Nihill, P., concurred) merely sets out the dictum of Modera, J., in the narrative part of his judgment, without saying whether he approves or disapproves of it. Later, much later, in the judgment he merely says that he agrees that in fact there was no "determination" by the Board and that the decision of Modera, J., was therefore right. It was therefore not necessary for him to consider the correctness or otherwise of the dictum in question. It is only in the judgment of Thacker, J., that I can find any passage which indicates approval of the reasons given by Modera, J., for his decision. Even if this be construed as expressly approving Modera, J.'s definition of "determination", it is the view of only one member of the court.

I agree therefore that this appeal must be allowed and with the order for costs proposed by the learned President.

MAHON, J.—I have had an opportunity of reading the two judgments just delivered. I respectfully concur in the views expressed and have nothing to add.