[1951] EACA 71

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, LOCKHART-SMITH, Justice of Appeal, and AinLey, J. (Uganda)

S. S. PATEL, Appellant (Original Defendant)

$\boldsymbol{v}$

(1) A. A. PIRANI and (2) M. H. AMLANI, Respondents (Original Plaintifis)

## Civil Appeal No. 13 of 1951

(Appeal from decision of H. M. High Court of Uganda—Low, J.)

Suit for recovery of rent—Standard Rent—Judgment in terms of Standard Rent— Rent Board's proceedings fixed without tenant having appeared before it-Whether Standard Rent binding on tenant for purposes of suit.

In 1946 prior to occupation by the tenant the landlord of a flat applied to the Kampala Rent Control Board to fix the standard rent. The landlord was aggrieved by the decision of the Board and appealed to the High Court who, in December, 1947, directed the Board to reassess the standard rent. The Board reassessed the standard rent in August, 1948. The appellant had prior to the reassessment become the tenant and by the terms of his tenancy agreement had contracted to pay the original standard rent and any new standard rent the subject of the reassessment. The appellant knew that an appeal was pending but knew nothing of the proceedings before the Board in 1948 and received no notice and therefore had no opportunity of presenting his case to the Board.

On a sult being brought in 1949 the appellant in his defence averred that the decision of the Board was void and not binding on him. The learned Trial Judge rejected this defence, holding his duty on the claim was to give judgment for the amount of the Standard Rent then owing and that if the defendant thought fit he could attack the decision of the Board.

Subsequent to delivery of the judgment the defendant obtained a writ of certiorari quashing the Board's proceedings at which the standard rent was reassessed.

Held (3-7-51).-(1) The High Court rightly gave judgment on a claim for rent based on the Standard Rent and such Standard Rent was the reassessed rent.

(2) The fixing of a Standard Rent by the Board was a decision in rem and not in personam.

Appeal dismissed.

Authorities considered: Rex v. Spackman (1943) 2 A. E. L. R. p. 337.

C. B. Patel with A. G. Mehta for appellant.

Verjee, Senior, with Verjee, Junior, for respondents.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This is an appeal from a judgment given by the High Court of Uganda on a suit brought for the recovery of rent. The plaintiffs who are the respondents to this appeal have been since the 18th February, 1949, the registered proprietors in equal shares of the suit premises. These premises consist of a block of flats erected in 1946 of which the appellant is the tenant of Flat No. 4. In 1946 it became necessary for the then landlord, an Indian contractor named Kalsi, to apply to the Rent Control Board to fix a standard rent. This was done, with the result that the rent due in respect

of the flat now occupied by the appellant amounted to Sh. 192/50 per month. At the time this first Standard Rent was fixed no tenants were in occupation of any of the flats. The landlord Kalsi was aggrieved by the decision of the Board as he considered the rent far too low in relation to the amount spent on the construction of the flats. He therefore appealed to the High Court who directed the Board to reassess. This process took a long time. The appeal was entered in October, 1946, heard and determined in December, 1947, but it was not until the 9th August, 1948, that the Board made its reassessment and fixed what has been called the second Standard Rent. In the meanwhile the appellant had become the tenant of Flat No. 4 under the terms of the tenancy agreement (exhibit A 1). From this document it is clear that although the appellant contracted to pay the first standard rent, i.e. Sh. 192/50 per mensem he knew well that an appeal was pending and that he undertook to pay the new standard rent if and when revised. The second standard rent when fixed turned out to be greatly in excess of the first. In fact the rent was raise from Sh. 192/50 to Sh. 355/- per mensem. Nevertheless the appellant could have had no defence to the suit save for one factor. He alleged in his defence, and it was conceded, that he knew nothing about the proceedings before the Board in 1948; he received no notice, and therefore had no opportunity of presenting his side of the case to the Board. Because of this he averred that the decision of the Board in fixing a revised Standard Rent was void and not binding on him. The learned trial Judge rejected this defence on the ground that even if the proceedings before the Board were open to objection, his duty on the claim was to give judgment for the amount of standard rent then owing, and that if the Defendant thought the decision of the Board could be attacked on some ground which would involve its annulment he should pursue such remedies as might be open to him. We were informed at the hearing of this appeal that this is what the present appellant has subsequently done and that he was successful in obtaining a writ of certiorari quashing the Board's proceedings at which the second standard rent was fixed. It is not abundantly clear how matters now stand and I am not sure whether a new standard rent has yet been definitely and finally fixed. What is clear however is this, and Mr. Verjee so concedes, that in the final result the landlord cannot recover more than the standard rent which is ultimately and finally fixed for these premises. Thus it may be that the sum adjudged owing by the appellant to the respondent by way of rent by the judgment under appeal will subsequently have to be adjusted but it does not flow from this that the judgment of the learned trial Judge on the date then before him was wrong. Mr. Patel for the appellant has argued stoutly that it was, since the trial Judge would not consider whether the decision of the Board was *ultra vires* on the grounds of natural justice and it has been submitted that had he done so he would inevitably have come to the same conclusion as the High Court reached when certiorari proceedings were before it. For myself I am quite unable to accept this argument. What the learned Judge had before him at the trial was a claim by the landlord for rent, and the rent payable was the then legal standard rent, that is to say the rent fixed by the Board at the second assessment made on 9th August, 1948. At the time the suit was heard that was the rent to which the landlord was entitled and none other. How could the learned Judge come to any other finding merely on the hypothetical assumption that there might have been some irregularity in the proceedings of the Board on 9th August, 1948? The date of the learned Judge's judgment is the 27th June, 1950. At that time no appeal or any other proceedings attacking the regularity of the Board's decision were in existence. The case of Rex v. Spackman (1943), 2 A. E. L. R. page 337 was cited to us by Mr. Patel but it does not in my opinion assist him in the least. There a medical practitioner was struck off the Medical Register by the British General Medical Council for infamous conduct in a professional respect. He subsequently obtained an order of certiorari after taking the matter to the Court

of Appeal on the ground that there had not been "a due enquiry" within the meaning of section 29 of the Medical Act, 1858. Can it be suggested that Dr. Spackman would have had a defence to criminal proceedings had he practised as a doctor, although unregistered, before an order was made on the General Medical Council directing further inquiry? or that the Court trying the charge could rightly have considered the arguments on which subsequently Dr. Spackman was able to have the order of the General Medical Council set aside? Clearly the answer is no to both these questions. This really concludes the matter but I have one further observation to make. Whilst in no way calling into question the correctness of the decision of the High Court of Uganda in directing still further consideration by the Board, it is I think important to realize that the fixing of a standard rent by the Board was a decision in rem and not in personam. It was not a decision under which any obligation was imposed on the appellant to pay a sum of money. It is a fact that the appellant had contracted to pay the standard rent as revised, by the document exhibit A 1 but this was no concern of the Board. The Board's duty was to fix a standard rent having regard to the provisions of the Rent Restriction Ordinance in respect of these premises. The Board's decision did not and could not *per se* compel the appellant to remain a tenant of the premises if he found the. standard rent beyond his means. As I have already observed, Mr. Verice concedes that the respondent will have no right to retain anything more by way of rent than the standard rent and Mr. Patel too must concede that so long as his client remains a tenant of the premises he too must pay the standard rent. It would seem therefore that the present conflict really revolves round the issue of costs. It is to my mind entirely just that the respondent should succeed in that conflict because in point of fact the appellant had no defence to the suit for recovery of rent. Had he taken earlier steps either by way of appeal against the Board's decision or by application for a high prerogative writ he might have put the appellant out of Court, but he had not done this at the time the respondent's suit was heard, with the result that the Court which tried the suit had no option save to give the judgment which it did.

I would dismiss this appeal with costs.

$\mathcal{A}$

LOCKHART-SMITH, J. of A.—I have had the advantage of reading the judgment of the learned President in this appeal. I concur and have nothing to add.

AINLEY, J. (Uganda).—I have had the advantage of reading the judgment of the learned President, and I respectfully agree with him that this appeal must be dismissed.

The facts and circumstances of the case have been fully set out by the learned President and 1 need not repeat them. The short question is whether the learned trial Judge was justified in his refusal to consider the defence that the proceedings of the Kampala Rent Board relative to the fixing of the standard rent of the premises in question were so objectionable that the Board's decision was a mere nullity.

I consider that the learned Judge's refusal was proper. The Board had jurisdiction to fix a standard rent and they had fixed a standard rent. The time for appeal against their decision was long past, and when the learned Judge heard the suit no proceedings of any kind impugning the decision were pending.

What in effect the learned Judge was asked to do by the appellant was to review the proceedings of the Board and to declare that their decision could not stand. It is quite clear to my mind that the learned Judge was entitled to do no such thing. For the Court to have acted as the appellant wished the Court to act would have been to assume control and powers of correction over a properly constituted authority acting, on the face of things, within its jurisdiction. It is true that the

High Court has certain powers of correction over Rent Boards. Appeal lies to the High Court, and no doubt the High Court can exercise control by way of certiorarity In this case, however, the time for appeal was past and the necessary foundation $\sim$ for the exercise of the High Court's powers to bring up and quash the Board's decision by way of certiorari had not been laid. For the Court to have assumed in this suit power to nullify the Board's decision would in my view have been most improper. The jurisdiction for so acting had not been founded.

In my view the learned Judge had no option save to regard as the standard rent that which the Board had declared to be the Standard Rent and accordingly his judgment for the amount claimed was correct.

I express no views as to what the position will be if subsequent proceedings lead to some alteration of the Board's last finding. I can see manifold difficulties arising, but the solution of these difficulties in advance is not necessary to the decision of this case. I content myself with saying that in my opinion this appeal should be dismissed with costs.