[1950] EACA 1

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

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and THACKER, J. (Kenya)

## ALLA DITTA OURESHI, Appellant (Original Plaintiff) ν.

## (1) NGARA PROVISION STORE, (2) HIRJI & CO., (3) R. H. GUDKA, (4) NGARA TRADING STORE, (5) KARIBU HOTEL, (6) KENYA CHEMICAL INDUSTRIES, Respondents (Original Defendants)

## Civil Appeal No. 69 of 1951

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

Landlord and Tenant-Business premises-Order for possession to rebuild conditional on grant of new leases—Whether "reasonably equivalent to terms of old tenancy"—Party cannot approbate and reprobate—Kenya Increase of Rent (Restriction) Ordinance, 1949, sections 1 (2) (b), 5 (1) (k), 16 (1) (f) and $(k)$ .

The Central Rent Control Board had made an order for possession against the respondents who were statutory tenants of certain shops in the suit premises to enable the landlord to rebuild. The order was made under section 16 (1) $(k)$ of the Increase of Rent (Restriction) Ordinance, 1949, and the Board imposed a condition that the landlord should grant to the respondents leases of shops in the new building for seven years at rents to be assessed by the Board. The landlord had taken the full benefit of the order in that he had obtained possession and was in the course of rebuilding when he appealed against the condition imposed by the Board on the ground that it would result in the tenants obtaining something which was not "reasonably equivalent to the terms of the old tenancy" within the meaning of section 16 (1) $(k)$ . His appeal was dismissed by the Supreme Court.

Held (4-4-52).—Taking into account the benefits the landlord was obtaining and the financial loss to the respondents there were no sufficient grounds in existence to enable the Court to find that the condition imposed was so unreasonable as to amount to an excess of jurisdiction by the Board so as to entitle the appellant to relief.

(2) The landlord having taken the full benefit of the order could not subsequently be heard to complain of it.

Appeal dismissed.

Cases referred to: Central Rent Control Board Case No. 86 of 1951; Johnson v. Newton Fire Extinguisher Co. Ltd. (1913) K. B. 111; Harris v. Minister of Munitions (1921) L. T. R. 489; Evans v. Bartlam (1937) A. C. 473.

Goodbody for appellant. Respondent No. 1 in person. Holland for respondent No. 2. Morgan for respondent No. 3. Respondent No. 4 in person. Sirley for respondent No. 5. Amin for respondent No. 6.

NIHILL. President.—This is an appeal by a landlord against a decision of the Central Rent Control Board. The matter came before the Board in the following way. The landlord applied to the Board for an order for recovery of possession under section 16 (1) $(k)$ of the Increase of Rent (Restriction) Ordinance, 1949. The respondents to that order were shopkeepers and they are also respondents to this appeal. All of them occupied business premises in the building which the landlord desired to pull down and rebuild. Some time before the application came before the Board the old building had suffered from a fire which had badly damaged some but not all of the shops occupied by the respondents. It is not in dispute that prior to the application valid notices to quit were served on all the respondents and that at the date of the application they were all holding over as statutory tenants. The Board heard the application and listened to the respondents' objections and came to the conclusion that it was a proper case for a possession order under section 16 (1) $(k)$ . The Board however imposed certain conditions on the landlord, the material one for the purposes of this appeal being the following:-

"(d) the six tenants of the six shops at present on the premises are to be readmitted as soon as the shops are ready for occupation, on a lease for seven years, at a rent to be assessed by the Board, but they will not be permitted to sub-let or assign the premises without prior written permission of the landlord."

It can be assumed, I think, that the Board in imposing its condition purported to act within the compass of section 16 (1) $(k)$ and not by virtue of any general powers to impose conditions which it may have under section 5 (1) $(k)$ . Under section 16 (1) $(k)$ a Board has the power when making an ejectment order to order the landlord to readmit into the reconstructed or rebuilt premises any old tenants dispossessed by the ejectment order and to impose terms for the new tenancies of a kind which must be reasonably equivalent to the old tenancy. Mr. Morgan for the third respondent has called our attention to a decision of the Central Rent Control Board in a case where the Standard Bank of South Africa was given an order for possession under section 16 (1) $(f)$ and $(k)$ on conditions which flowed not from anything contained in section 16, but from the view the Board took of the provisions of section 5 (1) $(k)$ . (Central Rent Control Board Case No. 86 of 1951.) I have read this decision with great interest but since, for the purposes of determining this appeal, it is unnecessary to do so, I express no opinion as to the correctness or otherwise of that decision. In the Standard Bank case it should be observed that it was not possible for the Board to arrange for the grant of new tenancies because the nature of the reconstruction or rebuilding made this impracticable. In the present case it is practicable and I would say this that in my opinion where the Board decides to require a landlord to grant a new tenancy, the conditions imposed must conform to the requirements of section 16 (1) $(k)$ . Now the yardstick to be applied under section 16 (1) $(k)$ is that the terms of the new tenancy shall represent something reasonably equivalent to the terms of the old tenancy. It is just here that the appellant argues that the Board has gone wrong. The respondents, although some of them had been the appellant's tenants for many years, had never enjoyed a lease, but had been content to carry on as tenants from month to month. Furthermore, by the time the application to eject them reached the Board, they were no longer contractual tenants at all but statutory tenants enjoying security only so long as the Rent Restriction legislation applicable to business premises continued to remain in force. Certainly at first sight then there seems to be considerable force in the argument that the Board by changing their status into leaseholders for a term of years, and seven years at that, have quite patently imposed terms on the landlord, which bear no reasonable relationship to the terms of the old tenancies.

Nevertheless after a consideration of all the circumstances of this case I have come to the conclusion that no sufficient ground exists on which this Court could find that the conditions imposed represent an excess of jurisdiction by the Board so as to entitle the appellant to relief. It is not in dispute that in this instance the Board addressed its mind very thoroughly to all the These were somewhat exceptional. circumstances before reaching a decision. There can be no doubt that approval of the landlord's scheme to pull down and rebuild rather than to repair the portions of the building damaged by the fire. meant immediate financial loss to the respondents who have to wait for the new building to be completed before resuming business. Then there is the factor that such portions of the new building as are let out as business premises, will. it would seem, be released from the control of the Ordinance by reason of the provisions of section 1 (2) (b). It was therefore not within the competency of the Board to carry over the respondents' status as statutory tenants to the new buildings, for all the respondents are shopkeepers. If then no lease at all had been provided for, the respondents would have had no security beyond a monthly tenancy on entry into the new building. On the other side of the picture the landlord has obtained substantial advantages. He has been able to erect a<br>three-storey building in place of a single one. On the ground floor he will have eleven business premises instead of six, and five of these will be outside any control as regards the fixing of rents. This fact brings me to another consideration which may or may not have been in the mind of the learned Judge who heard the appeal in the Court below. He makes no direct reference to it, yet I regard it as most important. There can be no doubt, in fact it is conceded, that the appellant has taken the full benefit of the Board's order; it is the accompanying conditions that he now seeks to attack. It is well established that the Courts will not usually allow a party to both approbate and reprobate; one application of this rule is that a party who has taken the benefit of an order or award cannot subsequently be heard to complain of it. (See Johnson v. Newton Fire Extinguisher Co. Ltd., (1913) K. B. 111 and Harris v. Minister of Munitions, (1921) L. T. R. 489.) In both these cases the Court of Appeal in England upheld a preliminary objection that the appellant who had accepted and acted on an award could not be heard in appeal against the award or a part of it. So also in a House of Lords case (Evans v. Bartlam, (1937) A. C. 473) where on the facts the principle was held not to apply, Lord. Atkin, at page 479, expressed himself as follows: -

"I find nothing in the facts analogous to cases where a party having obtained and enjoyed material benefit from a judgment has been held precluded from attacking it while he still is in enjoyment of the benefit."

I do not go so far as to say that the appellant in the instant case could not succeed if he could persuade us that the conditions imposed by the Board were so unreasonable as to amount to an excess of jurisdiction. For the reasons given above for my part he has not been able to do that. I am left then with the position, that although the appellant did enter his appeal without delay, he proceeded to take full advantage of the order for ejectment and he is now reaping or is within sight of reaping considerable material benefit thereby. Had he thought the conditions imposed too onerous he should have stayed his hand pending the determination of his appeal.

Mr. Goodbody has argued a further point which if it possessed substance might also entitle the appellant to succeed. At the time the Board made its order the Rent Restriction Ordinance by virtue of which the Board functions was due to expire in about nine months unless it was renewed in a manner provided for by section $1$ (1). We are informed that since the date of the Board's decision, i.e. 12th March, 1951, the Legislative Council has by resolutions

extended the life of the Ordinance until the end of 1954. Even so it is argued the Board cannot impose conditions which may remain operative after a date when this restrictive legislation may have ceased to exist.

I can find no authority to assist me in considering this submission, which is not surprising, in view of the many unique features which have been introduced into Rent Restriction legislation in Kenya. Speaking for myself, however, I do not hesitate in rejecting the argument, for its acceptance would involve such a fetter on the Board's discretionary powers as to nullify its activities. The Board cannot very well engage endlessly on speculation regarding the date of its termination and apply probabilities or improbabilities when considering the character of any conditions it thinks reasonable to impose. Whether such conditions will remain effective after the Ordinance has ceased to apply to the premises in question is another matter on which I now venture no opinion.

On the view that I take $(a)$ that the conditions imposed by the Board were not so unreasonable as to constitute an abuse of the powers given to the Board under section 16 (1) $(k)$ and $(b)$ that it does not now lie with the landlord to object to conditions from the imposition of which he has gained a benefit, it is not necessary for me to review the case of each respondent separately or to rule on the preliminary point taken by Counsel for the fifth respondent, I would dismiss the appeal with costs to each respondent.

WORLEY, Vice-President.—I agree that for the reasons given in the judgment of the learned President which I have had the advantage of reading, this appeal fails and must be dismissed with costs.

THACKER, J.—I agree with the judgment of the learned President and have nothing to add.