[1952] EACA 136

# COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and WINDHAM, J. (Kenva)

### NAIROBI PRINTING PRESS. Appellants

$\mathbf{v}$

# DINSHAW BYRAMJEE & SONS, Respondents Civil Appeal No. 6 of 1952

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

Landlord and tenant-Notice to quit-Addressed to executors of late tenant and to business-Prior assignment by executors to themselves and two others-Whether good notice.

The original tenant of the respondents owned and carried on the business known as Nairobi Printing Press. He died in 1947 and the respondents addressed a notice to quit to "The Executors of the Estate of D. L. Patel deceased. Nairobi Printing Press, Nairobi". Prior to this notice the executors assigned the business to themselves and two others and such assignment and notice were prior to the coming into force of the Rent (Restriction) Ordinance, 1949. The sufficiency of the notice was argued before the Board, but not on appeal to the Supreme Court. It was raised before the Court of Appeal for Eastern Africa as was also the informality of the Board's proceedings. A further argument was adduced before the Court of Appeal for Eastern Africa that the words in section 16 (1) $(k)$ "the landlord requires possession of the premises to enable the reconstruction or rebuilding thereof to be carried out" cannot apply where it is the landlord's intention to pull down the existing premises and erect an entirely new building.

*Held* $(18-8-52)$ .—(1) The appellant could not be heard on appeal on a point not challenged in the Supreme Court.

(2) In the absence of statutory rules governing the Board's procedure nothing done or omitted to be done could reasonably be held to amount to a denial of natural justice.

(3) To pull down old premises and to replace them by a new edifice on the same site is in fact rebuilding.

Appeal dismissed.

Cases referred to: Colonial Boot Co. v. Dinshaw Byramjee & Sons, C. A. 1/52; Harihar Banerji v. Roy, 45 Indian Appeals, 222; Aden Civil Appeal No. 48 of 1950.

### D. N. Khanna for appellant.

#### Nazareth for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is a second appeal from a decision of the Kenya Central Rent Control Board dated 21st December, 1949. By that decision the respondents, whom I will hereafter call the landlord, were granted an order for possession against the appellant (hereinafter called the tenant) under 16 (1) $(k)$ of the Increase of Rent (Restriction) Ordinance, 1949. The order was made conditional on the tenant being offered suitable premises in the new building for a term of not less than 18 months. It is material to note that the original tenant of the premises was a Mr. D. L. Patel who carried on there as sole proprietor, a business known as the Nairobi Printing Press. Mr. D. L. Patel died in 1947 before any step had been taken by the landlord. On the 23rd October, 1948, the landlord wrote exhibit A which purported to be a notice to quit and which was addressed to "The Executors of the Estate of D. L. Patel deceased, Nairobi Printing Press, Nairobi".

On or about the 1st February, 1948, the executors had transferred the printing press business to four persons, that is, to themselves and two other persons known as A. H. Patel and Mrs. E. D. Patel. The executors are K. H. Patel and Mrs. J. D. L. Patel, a widow of the original tenant.

One of the grounds of appeal is that there has been no valid determination of the contractual tenancy because the notice to quit was not addressed to the proper parties. Mr. K. H. Patel in his evidence said that the transfer of the business from the estate of the deceased D. L. Patel took place in January or February, 1948, that is, about eight months before the issue of the notice to quit (exhibit A). Mr. Khanna has submitted that there is no evidence that in October, 1948, the occupiers of the premises, that is to say, the four partners in the business known as the Nairobi Printing Press, did receive notice to quit and he has called in aid section 106 of the Indian Transfer of Property Act which applies in Kenya as it stood before the amending Act of 1929. This section inter alia provides that a notice under the section, that is to say a notice terminating a lease of immovable property, must be either tendered or delivered personally to the party intended to be bound by it. The landlord issued exhibit A to the executors of the late D. L. Patel because they were the legal representatives of his deceased tenant but he also added the description "The Nairobi Printing Press". Mr. Khanna has argued that the four partners who came into occupation after the death of D. L. Patel are assignees and therefore notice should have been given to them.

From my study of the "pleadings" submitted to the Board and the evidence I think it is correct to say that whilst there was no express provision against subletting or assignment there never was any formal assent given by the landlord to any assignment of the lease to the four partners of D. L. Patel's legal representatives, although there may have been knowledge on the part of the landlord as to the new composition of the Nairobi Printing Press.

It should be noted that Mr. Khanna's submission could not be put forward at all if section 28 of the 1949 Rent Restriction Ordinance applied to the letter, exhibit A. As it is, the date of that letter was prior to the coming into force of the 1949 Ordinance so that the 1940 Ordinance (with amendments up to 1948) applies, not the 1949 Ordinance. Now prior to the 1949 Ordinance, the Rent Restriction legislation in Kenya contained no restriction on the right to assign or sub-let premises without the written consent of the landlord in the absence of a convenant to the contrary. It must, I think, therefore, be conceded that the four partners of the firm known as the Nairobi Printing Press, were, after the 1st February, 1948, in the position of assignees of the contractual tenant. Whether section 106 of the Transfer of Property Act departs from the English principle that in the case of two or more joint lessees, a notice to quit given to one of them is sufficient for all is a matter on which a great deal might be said and argued. Speaking for myself I do not see that it does, but I do not decide the point because I am firmly of the opinion that, in the circumstances of this appeal, the Court should not entertain Mr. Khanna's point at all, since it was never taken or argued in the Court below. The sufficiency of the notice was argued before the Board, and to cite from the decision the Board came to the following finding: —

"Then the tenancy was terminated by the notice of 23rd October, 1948. We are satisfied the present occupiers received that notice, and it does not matter that it was not formally addressed to them."

It is impossible in my opinion to say that there was no evidence before the Board to support this finding. The tenant's counsel had admitted the receipt of the notice. It was addressed not only to the Executors of the Estate of D. L. Patel (deceased) but to the "Nairobi Printing Press" as well. The executors were two of the four partners of this firm and were in occupation of the premises.

If this finding was wrong in law it should have been challenged in the Court below. Instead the tenant abandoned the point and went to appeal on other grounds. In my opinion he should not now be heard. The situation would be otherwise if the alleged error by the Board was patent on the face of the record but that is by no means the case here.

In Aden Civil Appeal No. 48 of 1950, to which I made reference in my judgment, in the Colonial Boot Company case, this Court intervened because in that case on the face of the record it was clear that no evidence had been tendered of a notice to terminate the contractual tenancy and that the Court had confused another statutory notice, required by the Ordinance in certain circumstances, with a notice to quit.

In Mulla's commentary on the Transfer of Property Act (2nd edition at page 586) the learned author in the paragraph headed "Form and construction of notice to quit" makes this comment which is certainly apt to the circumstances of the instant case:—

"The rule has been to make lame and inaccurate notices sensible where the recipient cannot have been misled as to the intention of the giver. A liberal construction is therefore put upon a notice to quit in order that it should not be defeated by inaccuracies either in the description of the premises or the name of the tenant or the date of expiry of the notice. The Privy Council has said that these English authorities are applicable to cases arising in India and that 'they establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conservant with all those facts and circumstances; and further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis quam pereat'." (See Harihar Banerji v. Roy (45 Indian Appeals $222$ ).

In the instant case the four partners in the business known as the Nairobi Printing Press are certainly not strangers ignorant of all the facts and circumstances touching the premises they occupy; two of them are executors of the deceased tenant, all are closely connected with him by blood or marriage, and they are described as being beneficiaries under the will. Clearly such considerations are referred to in the passage above quoted were in the learned Chairman's mind, when he observed that it did not matter that the notice was not addressed to the four present occupiers by name. In fact, the position is this. The Board properly considered the status of the tenant on which their jurisdiction to make any order depended and it came to a certain conclusion. If that order was based on a wrong view of the law, and I am far from saying that it was, it should have been traversed when the appellant went to appeal in the Court below.

Grounds three and four of the memorandum of appeal can be classified generally as alleging informality inconsistent with natural justice; and the appellant's submissions here are very similar to those put forward in the Colonial Boot Company case on which this Court recently gave judgment. (See Civil Appeal No. 1 of 1952.) As in that case, so in this, I am completely satisfied that throughout the proceedings before the Board, nothing was done, or omitted

to be done, which could in reason be held to amount to a denial of natural justice, and that, until this Board's procedure is governed by statutory rules, is the only test a Court of Appeal can apply. At the hearing, both the tenant and the landlord were represented by counsel, the Board was properly constituted, and witnesses were examined and re-examined. Mr. Khanna's chief complaints are: —

(a) that the Chairman alone signed the Board's decision;

(b) that the Board did not assemble when the decision was given; and

(c) that the three members of the Board did not cast their votes in public.

As I said in the Colonial Boot Company case it is absurd to suggest that the validity of a Board's decision can be impugned merely because every member who attends the hearing does not sign the decision or write separate judgments. In this case we have the Chairman's signature to the decision and a formal document under the hand of the secretary signed "By order of the Board". certifying and setting out the material parts of the decision.

As regards voting procedure, I have nothing to add to what was said in the Colonial Boot Company case. Section 4 (4) of the Ordinance lays down no requirement that voting shall be in public or in the presence of the parties, or that there need be voting at all unless there is disagreement.

I will refer to one further point which has been argued by Mr. Khanna and may be said to arise from his first ground of appeal. Again it is a new point, not taken in the Court below, or at the hearing, and being such I doubt whether we should consider it at all. Since, however, Mr. Khanna has put it on the footing that the Board acted in excess of jurisdiction in granting an order under section 16 (1) $(k)$ , perhaps it should be disposed of.

Briefly, the argument is this, that the words "the landlord requires possession of the premises to enable the reconstruction or rebuilding thereof to be carried out", cannot apply, where it is the intention to pull down the existing premises and to erect on the site an entirely new building. The erection of a new building it is submitted is not a reconstruction of an old one, neither is it a rebuilding unless the actual material pulled down is used again to construct the new edifice.

I should require express authority before I could agree to this ingenious submission, which if correct, would place a most undesirable fetter on landlords who want to make better use of valuable sites. In my opinion, it would be the negation of common sense and a violation of the usual and normal meaning of the verb "to rebuild" to hold that the pulling down of old premises and their replacement by a new edifice on the same site is in fact not a rebuilding. One speaks of the rebuilding of the City of London after the Great Fire in exactly this sense.

Accordingly in my view then this appeal fails on every ground and should be dismissed with costs.

I have referred more than once to my judgment in the Colonial Boot Company case and it was appropriate to do so because the landlord in this case was the respondent in that, and the plot the subject of both appeals was the same (viz. 209/566, Government Road, Nairobi). Whether this long-suffering property owner is still prepared to embark on his plan for a bigger and better building, I know not, but in any event perhaps it is not too much to hope that both $\mathbf{I}$ these cases, as well as others that have come before this Court recently, will be studied by those whose duty it is presumably to watch the operation of this legislation and to gauge its effect on the development of the City of Nairobi.

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As my learned brothers have read this judgment and are in agreement with<br>it, it follows that this appeal is dismissed with costs and the orders of the Board and of the Supreme Court will stand. Again we are prepared to give some indulgence to the tenant who has fought this long battle. The order for ejectment will not take effect until 30th September, 1952.

SIR NEWNHAM WORLEY (Vice-President).—I concur and have nothing to add. WINDHAM, J. (Kenya).)—I concur and have nothing to add.