[1950] EACA 95

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), BRIGGS and BACON, Justices of Appeal.

## (1) BHAGWANJI PREMCHAND, (2) CHUNILAL BHARMAL. (3) VIRCHAND MULJI, (4) MRS. JASMA BEN, Appellants (Original Defendants)

ν.

## (1) J. M. GOMES, (2) A. M. SANTIGO, (3) M. A. FERNANDES, Respondents (Original Plaintiffs)

Civil Appeal No. 33 of 1955

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

Procedure—Separate defences before Rent Board—Joint appeal to Supreme Court—Devolution of statutory tenancy on death—Counsel required to give undertaking as to costs-English Rules of the Supreme Court, Order XVII, rule 1—Kenya Rules of the Supreme Court, Order XLI, rule 27—Eastern African Court of Appeal Rules, 1954, rules 11, 52 and 74 (5)—Kenya Civil Procedure Ordinance, section 27.

The appellants were sued jointly with the tenant firm of the suit premises for possession and mesne profits. They were described in the plaint as "occupiers" of the premises. The appellants filed separate but substantially idential defences and were represented before the Rent Control Board by one advocate. Possession was ordered and on appeal to the Supreme Court they filed a single memorandum of appeal and were again represented by one advocate. When the appeal was called on the respondents' advocate without notice submitted as a preliminary objection that a joint appeal was not competent. The appellants' advocate protested but his opponent argued that it was not compulsory but only a matter of etiquette to give notice of a preliminary objection. The Supreme Court allowed the objection, but gave leave to file separate memoranda of appeal. The appellants appealed but before the hearing the third appellant had died and at the date of the hearing no personal representative of his estate had been appointed, although his widow had applied for representation, and her advocate applied that she should be joined as an additional appellant both as administratrix-ad-litem of her husband's estate and in her personal capacity, as being statutorily entitled as his widow to the statutory tenancy vested in him prior to his death. It was submitted for the respondents that the appeal as far as the third respondent or anyone claiming under him was concerned must abate.

Held (8-3-56).—(1) The widow's rights, although in practice wholly contingent on the success of the appeal, were sufficiently substantial to prevent this from being *actio personalis* and the appeal did not abate on the de

(2) The preliminary objection was a waste of clients' money and the time of the Court and no useful purpose could be served by taking it as, in view of the order of the Supreme Court, after separate memoranda had been filed in all probability the appeals would have been consolidated.

Appeal allowed with costs. Proceedings remitted to the Supreme Court for hearing. Counsel for the respondent required to undertake that his clients should not have to bear the costs of the preliminary objection or of the appeal or alternatively to show cause under<br>rule 11 of the Eastern African Court of Appeal Rules, 1954.

Cases referred to: Ex parte Stead, in re Mundy, 15 Q. B. D. 338; George & Co. v. Pritam's Auto Service, (1955) 22 E. A. C. A. 233; Basant Kaur v. Ratian Singh, E. A. C. A. Civ. App. No. 95 of 1952; Mohamed Ibrahim v. Noor Fatima, Kenya Supreme Court Civ. App. No. 19 of 1953; Keeves v. Dean, (1924) 1 K. B. 685; Soloman v. Orwell.

(1954) 1 A. E. R. 874; Mills v. Allen. (1953) 2 A. E. R. 534; American Economic Laundry (1954) 1 A. E. R. 874; Mills v. Allen, (1953) 2 A. E. R. 534; American Economic Laundry Ltd. v. Little, (1950) 2 A. E. R. 1186; (1951) 1 K. B. 400; Gheewalla v. Akerhielm. E. A. C. A. Civ. App. No. 84 of 1953; Lovibond v. V Meia and others, (1955) 22 E. A. C. A. 125; Sherrin v. Brand. (1956) 2 W. L. R. 131.

Nazareth, $Q. C.,$ for appellants.

Khanna for respondents.

'[Editorial note.—See infra p. 189.]

JUDGMENT (prepared by Briggs, J. A.).—This is an appeal by four appellants by leave from an order of the Supreme Court of Kenya made on a preliminary objection raised on an appeal by them from an order of the Central Rent Board. The respondents are the landlords of certain premises at Plot No. 1418/36,. Chambers Road, Nairobi, of which a firm called Shah Hemraj Bharmal and Bros. were the tenants. The landlords sued the tenant firm and the four appellants jointly, describing the appellants as "occupiers". They pleaded that the tenants were no longer in occupation but had "unlawfully assigned, sub-let or parted with the whole of the premises to the four occupiers above named". They claimed possession, mesne profits, etc. Separate defences were filed by the first, thirdand fourth appellants, but they were in substantially identical terms and all alleged, inter alia, sub-tenancies created prior to 1940. The third appellant, however, admitted that as regards two rooms his subtenancy dated only from 1948. The second appellant apparently pleaded in the same terms as the first and fourth, but his defence has been mislaid and no copy of it is available. At the hearing the four appellants were represented by a single advocate. The Board on 18th September, 1953, made an order, the operative part of which is ... "the Board... ordered that vide attached." Annexed to this is a two-page "decision" signed by the Deputy Chairman which orders possession against all five respondents by 31st October, 1953, orders the head-tenants to pay certain sums for rent, and gives costs against all the respondents. There is no finding as to the portions of the building occupied by any sub-tenant. There is a general finding that the head-tenants have sublet part of the premises after 1st December, 1941, the remainder being already sublet, and it is on this ground that possession is given against them. The order against the subtenants is said to follow automatically. I express no opinion whatever on the merits of this order. From it the four appellants appealed, or purported to appeal, jointly to the Supreme Court. Again they were represented by one advocate and they filed a single memorandum of appeal. It is important to note that all the seven grounds of appeal, some of which are sub-divided, were common to all four appellants. It is conceivable that on certain views of the facts the Supreme Court might arrive at different decisions affecting different appellants, but there is no reason to suppose that this is likely to happen.

When the appeal to the Supreme Court was called for hearing, and with no preliminary notice whatever to counsel for the appellants, Mr. Khanna for the respondents took the preliminary objection that a joint appeal was not competent and each appellant should have filed a separate appeal. When Mr. Nazareth protested, Mr. Khanna claimed that there was no necessity to give notice, and that Mr. Nazareth must argue the point as best he could. Mr. Nazareth was granted an adjournment of an hour to meet this distinctly involved point. He again protested and Mr. Khanna in reply contended that it was not compulsory, but only a matter of etiquette, to give notice of a preliminary objection. He seemed to think that this entitled him wholly to disregard the practice. He added, according to the learned Judge's note: "Somewhat courteous and polite—practice not so here. Party must be on his guard".

I confess that I am shocked that any advocate of Kenya should use such words. If they were correct, I think the bar of Kenya would be one to which few counsel who value the traditions of their profession would wish to belong. I am not only satisfied that Mr. Khanna is wrong as to the existing practice, but I would go further and say that, if he were right, the practice must forthwith be changed so as to make him wrong. Mr. Khanna relied on-one may almost say flaunted—the case of Ex parte Stead, in re Mundy 15 Q. B. D. 338, as authority that, however little his action might be approved, he could not be deprived of costs. That case was decided in 1885, when the new procedure of the High Court in England was still a novelty. It is to be noted also that notice was in fact given soon after counsel's briefs were delivered. We doubt whether the case would now be treated as binding in England in the unlikely event of a deliberate breach of the rule requiring notice. In view of rule 70 it would certainly not be followed in this Court.

However, the preliminary objection was sustained. The learned Judge appears to have considered, though no submission to that effect was ever made to him. that embarrassment might result from the joinder in the event of one tenant alleging a subtenancy created prior to 1st December, 1941, and another a subtenancy created after that date. He suggested that it would be unfair that each appellant should be allowed to submit "a two-pronged allegation, in fact under the cover of one memorandum of appeal". The learned Judge overlooked in this case, as he has done previously in others (see George v. Pritam's Auto Service, E. A. C. A. Civil Appeal No. 74 of 1954, and S. J. Gheewalla v. Baron Akerhielm, E. A. C. A. Civil Appeal No. 84 of 1953), the undoubted right of a party to lay his case in the alternative, and he ignored the fact that all four appellants relied primarily on a subtenancy created before the critical date, but also secondarily, by necessary implication, on a subtenancy created after it. Since counsel did not raise the question of embarrassment, the Court should not have relied on it. In any event it was without validity.

Mr. Khanna had argued the matter on the footing that the joinder was contrary to law, and Mr. Nazareth on appeal to us had to deal with it on that basis; but before the hearing in this Court, a new issue appeared, for the third appellant had died. When the case was called on no legal personal representative of his estate had yet been appointed, though his widow, Mrs. Gibi Lalji, had applied for representation. Mr. Nazareth on her behalf applied that she should be joined as an additional appellant both as administratrix-ad-litem of her husband's estate and in her personal capacity, as being statutorily entitled as his widow to the statutory tenancy vested in him prior to his death. Mr. Nazareth filed an affidavit setting out the facts of the death and that the widow was residing with her husband in the premises in suit when he died. Mr. Khanna objected to the joinder on the ground that the appeal, so far as it concerned the third appellant or anyone claiming under him, must in any event abate. In order to avoid possible duplication of proceedings we allowed the joinder, without prejudice to the question of abatement, and then heard argument on that question. I would add that in joining the widow in her two-fold capacity we were acting by analogy with the English Order XVII, rule 4, and the practice thereunder whereby the orders for joinder may be made by the Court of Appeal when an appeal is pending. Order XVI, rule 46 is also in point in these circumstances.

As regards abatement. Mr. Khanna referred to Basant Kaur v. Rattan Singh, E. A. C. A. Civil Appeal No. 95 of 1952, unreported, which shows that an appeal will abate where the action was personal to the deceased appellant, and to Mohamed Ibrahim v. Noor Fatma, Kenya Supreme Court Civil Appeal No. 19 of 1953, unreported, where the Supreme Court refused an application by an administrator to be joined as party to an appeal in circumstances similar to these on the ground that the statutory tenancy could not vest in him as such, but expressly reserved the question whether the widow, in whom the tenancy might vest, would have the right to be joined if she so desired. In that case it appears that she refused to be joined. Mr. Khanna also cited Keeves v. Dean, (1924) 1 K. B. 685: Soloman v. Orwell, (1954) 1 A. E. R. 874; Mills v. Allen, (1953) 2 A. E. R. 534; American Economic Laundry Ltd. v. Little, (1950) 2 A. E. R. 1186, (1951) 1 K. B. 400; Lovibond v. Vincent, (1929) 1 K. B. 687; Salter v. Lask, (1925) 1 K. B. 754; Hodge v. Marsh, (1936) 1 A. E. R. 848; Smith v. Williams, (1922) 1 K. B. 158; Nadarajan Chettiar v. Walauwa Mahatmee, (1950) A. C. 481; Fazal Jiwan v. Purshottam. (1948) 15 E. A. C. A. 38; Maxwell v. Viscount Wolseley, (1907) 1 K. B. 274; James v. Morgan, (1909) 1 K. B. 564 and Moody v. Bosegood, (1952) A. C. 61. He also referred to the English Order XVII, rule 1. Rule 52 of the E. A. C. A. Rules, 1954, section 27 of the Kenya Civil Procedure Ordinance, Megarry, 10th ed., p. 225 et seq. and 26 Hailsham 116 §228. Mr. Nazareth referred to Garijah v. Niaz. (1941) 2 Cal. 556; Jagat Singh Bains v. Chogley, (1949) 16 E. A. C. A. 27, Mulla on Civil Procedure, 12th ed., 1227, Order XLI, rule 27 (Kenya) and E. A. C. A. Rules, 1954, rule 74 (5). From some of these authorities and elsewhere I derive the following principles: $-$

- (1) A statutory tenancy, being a personal right, ordinarily disappears, when an absolute order for possession is made against the tenant, with effect from the date on which possession is ordered. - (2) If on appeal the absolute order is set aside, the statutory tenancy should not be regarded as having revived at the time of the appellate order, but as having been continuously in existence throughout. - (3) If the absolute order is not subject to appeal at the time of the death, no rights pass to the widow or other relative, for the statutory tenancy has determined for all purposes. - (4) If an appeal against the absolute order is pending (and perhaps if it is still possible, but not yet pending), the legal personal representative may be interested, if any monies have been ordered to be paid by the deceased, since they are still payable out of his estate (see Dean v. Wiesengrund, (1955) 2 K. B. 120), and a widow fulfilling the requirements of the definition in section 2 of the Increase of Rent (Restriction) Ordinance, 1949, may also be interested, in that the statutory tenancy, if held on appeal to be still alive, will have vested in her, by operation of law. Her position is analogous to that of the old heir-at-law. In such a case the statutory tenancy has what I may call a conditional continuation of existence pending disposal of the appeal. - (5) The normal rule is that appeals do not abate on death. They do so in matrimonial matters, and under the maxim actio personalis moritur cum persona. For this purpose a "personal action" is one where the cause of action depends for its existence on the continuing life of the party. cf. Basant Kaur v. Rattan Singh, where the claim was for maintenance as a widow. Wharton's Law Lexicon, 14th ed., 22, seems to show that the maxim does not apply to actions arising ex contractu, unless the contract was of a purely personal nature, e.g. to marry, to write a book, or to paint a picture.

$\mathbf{I}$

(6) In this case the widow's rights, though in practice wholly contingent on the success of the appeal, are sufficiently substantial to prevent this from being actio personalis. Whether the statutory tenancy which would vest in her if the appeal succeeded should be regarded as a continuation of her husband's statutory tenancy, or as a new and distinct one created by law for her, is really immaterial. The latter appears to be the better view, but in either case the new right is closely connected with the old. A successor to a statutory tenancy in these circumstances. has been held entitled to continue proceedings to which his deceased predecessor was a party, whether as plaintiff or defendant. Salter v Lask, Lask v. Cohen, (1925) 1 K. B. 584.

If these principles are correct it follows that this appeal did not abate on the death, and $I$ so hold.

Turning now to the substantive appeal, I would first remark that the learned trial Judge did not strike out the joint appeal which he considered irregular<br>but gave leave to file within 14 days' separate memoranda of appeal. If Mr. Khanna had considered the Privy Council's decision in Hodges v. Delhi and London Bank, (1900) I. L. R. 23 All. 137, he must have realized that the learned Judge would be obliged in justice to do this, and should then have realized further that in all probability the four appeals would have been consolidated, which would have led him to the conclusion that no useful purpose could be served by taking the preliminary objection, even if it were well founded and succeeded. I would apply to this case what I said recently in *Bawa Singh* Melaram v. C. M. Patel, E. A. C. A Civil Appeal No. 99 of 1955, namely:-

"So long as counsel insist on taking trifling and purposeless points of this kind as if they were of fundamental importance, so long will clients' money and the time of the Court be wasted. We have pointed out before, and I stress again, that rules of procedure and practice are made to facilitate and to reduce the cost of litigation. If counsel abuse the rules so as wantonly and unnecessarily to obstruct litigation and increase its cost, there is at least one way in which this Court can show its disapproval."

This passage had the approval of the other members of the Court. I consider the whole of the preliminary objection to have been a clear waste of clients' money for which Mr. Khanna is responsible, and I would ask him for an undertaking that his client should not have to bear any of the costs thereof, whether incurred by him directly or ordered to be paid to the appellants. If the undertaking is not given, I would direct Mr. Khanna to show cause under rule 11. I would point out that I arrive at this conclusion as regards the objection before the Supreme Court before considering, and without reference to, the merits of the appeal.

The statutory provisions governing appeals give little indication as to when and how appellants may bring a joint appeal. In section 65 of the Civil Procedure Ordinance the operative words are "an appeal shall lie". Sections 5 and 7 of the Increase of Rent (Restriction) Ordinance, 1949, contain the same words. It may be noted that sections 66 and 72 of the Civil Procedure Ordinance, which govern appeals to this Court, contain the same words again. There is nothing directly relevant in Order XLI, which prescribes the procedure on appeals from subordinate Courts to the Supreme Court, and which, by virtue of the Increase of 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 (G. N. 1156 of 1950), is applicable to appeals from the Rent Board. Mr. Khanna pressed on us certain Indian authorities, of which Annamalay Chettiar v. Pitchu Ayyar, (1905) 28 Mad. 122, is an example, based

on section 544 of the old Indian Code, which was similar to Order XLI, rule 3. I think these cases depend on the special provisions and wording of the section and are of no assistance on general questions of joinder. I note the provisions of Order XLI, rules 17 and 27, which were cited to us, but again derive no assistance from them.

The only relevant Privy Council decisions of which I am aware are Hodges v. Delhi and London Bank (supra) and Karunapejjalage v. Wellawa, A. I. R. (33) 1946 P. C. 48. In the first case two persons were sued jointly. They had raised entirely different defences at first instance, though there was one ground common to both, on which the trial Judge dismissed the suit. This part of the decision was reversed on first appeal and judgment was entered against both. Lord Hobhouse said (p. $142$ ):-

"The appellants in this case were defendants in the suit brought by the respondent bank. They had different defences and their reasons in support of the appeal are different. For defendants so situated to join in a single appeal is an irregular proceeding and might easily result in inconvenient consequences. But they have been allowed to lodge separate cases and their Lordships have heard them by separate counsel; and as matters turn out the misjoinder in appeal will not cause any embarrassment."

The second case raised the issue of joinder directly. At first instance 11 defendants were originally sued. They filed a joint defence and were represented by the same proctor. In the course of the suit it was discovered that a twelfth person was a necessary party. He was joined, and elected to adopt the defence of the other defendants and to be represented by the same proctor. The plaintiff succeeded and the 12 defendants appealed jointly to the Supreme Court of Ceylon. A preliminary objection was taken (i) that there should have been two appeals, and (ii) that the single petition of appeal was inadequately stamped. The objection was allowed and the appeal dismissed, and the appellants appealed to the Privy Council. It is hardly surprising to find that the appeal was allowed. Their Lordships said: $-$

"There is nothing in either of these sections or in the Stamp Ordinance which prevents parties all of whom have the same interest and who appear by the same proctor from giving one notice of appeal; there is only one appeal in such a case, not as many appeals as there are appellants."

"In their Lordships' opinion, this is not a matter in which one need have recourse to some accepted practice: the fact is that in such a case there is one appeal and one only."

They distinguished cases where defendants had severed their defences and employed different proctors. They overruled a decision, where it was held that appeals must be separate, on the ground that the defendants had appeared by a single proctor. They did not decide, but inclined to the view, that where a joint appeal was irregular the effect of the Stamp Ordinance might be overcome by paying the extra fee and applying curative sections. They inclined also to the view that where the Court has once accepted a joint petition as sufficiently stamped, it may be improper for the appellate Court to take or give effect to an objection as to the sufficiency of the stamp. Such a course might, they thought, lead to miscarriage of justice. Compare sections 96 and 97 of the Kenya Civil Procedure Ordinance, on the Supreme Court's power to allow a deficiency of fees to be remedied, and to make orders necessary for the ends of justice.

I see nothing in these decisions to conflict with the rules which this Court laid down in Helen Chronopoulos v. Kassim, E. A. C. A. Civil Appeals Nos. 63, 64 and

65 of 1954, unreported, and in Channan Singh and another v. Chanan Singh and Handa, E. A. C. A. Civil Appeal No. 17 of 1953, unreported, that prima facie a single appeal should spring from a single decree. For this purpose there is no distinction between a decree and an order. If the cases to be made by appellants are: substantially different, they should, as a matter of obvious convenience, film separate appeals, for they are not in truth acting jointly, but separately. In this case the Rent Board made a single order, though Mr. Khanna was constrained to argue that it was five different orders. The order proceeded, so far as I can see, on identical grounds against all the four appellants, and their objections to it were also identical. If the Board had made five separate orders in one case, it would in my view have been acting irregularly. It might have given different grounds of decision in each case and in that event separate appeals might have been convenient and even necessary, but as matters stand I have no doubt that a joint appeal was regular and proper. It is true that the defences were severed, in the sense that they were separate documents; but this is immaterial. Their substance was identical, save for one minor detail, and the same advocate presented all four defences.

I think the point at which Mr. Khanna's argument really fails is that he uses the word "joint" in the wrong sense. He suggests that the interest of the appellants must be a "joint" interest in the narrow sense that they are, for example, joint owners of the same property. Even if the Indian authorities lay that down. and I do not think they do, I would not accept it as law in Kenya. All that is required is that the appellants should act "jointly", in the loose sense that they put forward substantially similar contentions. Their proprietary interests involved in the case may well be distinct and separate. Mulla, op. cit. p. 358, states the matter succinctly thus: "It is irregular for defendants with different defences to a suit and with different grounds for appeal to join in a single appeal, *aliter* where the defence is the same.

Since I drafted the foregoing, the report has come to hand of the recent and important case of Sherrin v. Brand, (1956) 2 W. L. R. 131, and I wish to refer shortly to it. The order for possession there was made subject to a condition that it should not be enforced so long as certain payments of money were regularly made, and should cease to be enforceable when the whole of the monies had been paid. The tenant defaulted on the payments and died. No steps had then been taken to enforce the order for possession. It was held that the order was not a final order for possession, and neither the order itself nor the tenant's default had determined the statutory tenancy, which was therefore "transmitted" to the defendant; but she took the tenancy subject to the incidents attached to it at the time of the death, including the obligations imposed by the order. Certain points are of direct importance here, first the decision (see pp. 140 and 152) that, where an absolute order for possession at a future date is made, a statutory tenancy, unlike a contractual tenancy, does not determine as at the date of the order, but only on the date on which possession is to be given. Secondly, the stress laid on the right of the defendant to receive, or as Romer, L. J., says, to claim "by succession" whatever the deceased had at the date of his death, even though it was not an ordinary clear contractual tenancy. The Master of the Rolls deprecates the use of the word "succession" and explains that the "tenant" entitled by statute to retain possession includes an appropriate member of the tenant's family, which seems to suggest a single continuing right of occupation vested by law in two different persons successively. Thirdly, and most important, that a statutory tenancy may pass to a widow, although it has been adversely affected by an order, made in respect of it, and which would, if matters were allowed to take their normal course, result in its extinction. I would only add that, so far as the decision in Sherrin $v$ Brand is directly applicable to this case, it appears to me to support the conclusions at which I had already arrived.

I would allow this appeal, set aside the order of the Supreme Court, and remit the first appeal to the Supreme Court for hearing. I think the appellants in this Court should have the costs both of this appeal and of the preliminary objection in the Supreme Court. I have dealt already with the way in which the costs of the preliminary objection should in my opinion be borne. The appellants were obliged to appeal from the order made on the preliminary objection, and the costs of the appeal as regards the respondents spring from Mr. Khanna's original error in raising the preliminary objection. I would therefore make the same order in respect of them as in respect of the costs of the preliminary objection, namely that Mr. Khanna be required either to give an undertaking or to show cause under rule 11.

SINCLAIR, Vice-President.—I agree.

BACON, J. A. I also agree.