[1945] EACA 3

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and MARK WILSON, Acting C. J. (Tanganyika)

### **HABIBKHAN SIDIKHAN, Appellant (Original Appellant and Defendant)**

# MERAJ DIN AHAMED BUX, Respondent (Original Respondent and Plaintiff) Civil Appeal No. 12 of 1944

(Appeal from decision of H. M. Supreme Court of Kenya)

Landlord and tenant—Action for possession of premises—The Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, section 8 (1) (a)— Reasonableness of order for possession neither raised nor considered by lower court—Point raised for first time on appeal—Costs.

In a suit brought by a landlord against his tenant for inter alia vacant possession of premises to which the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, applied on the ground of non-payment of rent by the tenant, the Court made an order for possession. The question whether it was reasonable to make such an order was not considered by the Court and was raised for the first time on appeal to the Supreme Court. The tenant appealed.

Held $(20-2-45)$ .—(1) An order for possession is not to be made unless in addition to one or more of the conditions set out in paragraphs $(a)$ to $(i)$ of section 8 (1) of the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, being present, there

is the further condition that the Court considers it reasonable to make such an order.

(2) Where an appellant is successful on an appeal upon a point not adjudicated upon in the court below the general rule is that he will not be allowed his costs.

Order for vacant possession set aside with costs in the Court of Appeal. Each party to pay his own costs in the Magistrate's Court and Supreme Court.

The following cases were referred to: Shrimpton v. Rabbits 131 L. T. 478, Goddard v. Jeffreys 46 L. T. 904, Dye v. Dye and Another 13 Q. B. 147, Chard v. Jervis 9 Q. B. D.<br>178, North London & General Property Co. v. May (1918) 2 K. B. 439, Ex parte Walton<br>in re Levy 17 Ch. D. 746, Paterson & Others v. Provos 2 K. B. 161.

## Khanna (Hassan with him) for the Appellant.

C. A. Patel for the Respondent.

SIR JOSEPH SHERIDAN, C. J.—The only question arising for consideration in this second appeal is whether, in a suit brought by a landlord against his tenant for inter alia vacant possession of premises to which the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, applied, an order for possession was rightly made. The relevant portion of the relevant section reads:-

"8 (1) No order for the recovery of possession of any dwelling-house to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless:

(a) Any rent lawfully due from the tenant has not been paid ...; or (b), (c), (d), (e), (f), (g), (h) and (i), which do not arise, and in any such case as aforesaid the Court considers it reasonable to make

such an order.'

It is complained in this appeal that the learned Magistrate who made the order failed to consider the essential question of its reasonableness as required by what may be called the proviso at the end of the sub-section. It is common ground that the question of reasonableness was never mentioned in the proceedings at the trial and nowhere does a reference to it appear in the judgment. The question was raised for the first time on appeal from the trial Court to the Supreme Court. That appeal was dismissed, the learned Judge holding that it had to be assumed that the question of reasonableness had been considered. I find it difficult to agree with this conclusion. It was imperative for the landlord before obtaining an order for possession to prove the prerequisite in section 8 (1) $(a)$ of the Ordinance, but it was equally essential that the Court should be satisfied positively that it was reasonable to make an order for possession in the circumstances of the case. As to this I refer to the case of Shrimpton v. Rabbits 131 L. T. 478, where Swift, J., in considering a case under the Increase of Rent and of Mortgage Interest (Restrictions) Act, 1920, which for the purpose of this case is identical with the local Ordinance, stated (at p. 478): $-$

"No order for possession can be made in regard to a dwelling-house to which the Act applies unless one or more of the conditions set out under the letters (a), (b), (c), (d), (e), (f), (g), (h) or (i) has been complied with. But the existence of one or more of these conditions does not entitle a landlord to the possession of the premises. There is a further general condition inserted by the legislature into this section, and provided that one of the other conditions is existing, the order is not to be made unless in addition to that one or more conditions being present there is the further condition that the Court considers it reasonable to make such order to give such judgment. So that although a landlord were to prove that conditions (a), (b), (c), (d), (e), (f), (g), (h) and (i) were every one existing he would not be entitled to an order giving him possession of the premises unless the Court further considered it reasonable to make such an order."

In that case, as Swift, J., said at page 479, the clause "and the Court considers it reasonable to make such an order or give such judgment" was never discussed at all or forgotten by everybody, and in the present case the same thing would appear to have happened. In fact counsel admitted to us that no argument on the proviso had been addressed to the learned Magistrate and no evidence offered for the purpose of enabling him to form an opinion on this point, and the judgment makes no mention of it.

I agree with the learned Judge who tried the appeal that it is not for the trial Court itself to adduce evidence on this question, but there is a positive duty on the Court to consider, on such evidence as the parties may adduce, whether it is reasonable to make the order, and as the Court must have some material on which to base a decision it would, I think, be in order for it to indicate to the parties the necessity of furnishing some such material, if through inadvertence they had failed to do so.

In the circumstances of this case, however, I can find no justification for an assumption that the learned magistrate when he made the order for possession had considered the imperative proviso enjoining upon the Court not to make an order for possession unless it had come to the conclusion that such an order was reasonable. I think it not at all unlikely that the Magistrate, had he adverted to the proviso and applied it to the circumstances of the case, would in the exercise of his discretion have refused an order for possession, but it is unnecessary for me to speculate as to that.

While affirming the decree for rent in the Magistrate's Court, I would allow the appeal and set aside the order for vacant possession and mesne profits, with costs in this Court. In the Supreme Court I would order that each party should pay his own costs, as the question of reasonableness on which the decision of the appeal mainly turned was raised for the first time there. (See the cases of Goddard

v. Jeffreys 46 L. T. 904, the headnote to which is "Where an appellant is successful on an appeal upon a point not adjudicated upon in the court below the general rule is that he will be allowed his costs": Dye v. Dye and another 13 O. B. 147 at p. 158 where Fry, L. J., said: "But as the plaintiff did not argue in the court below the point on which he has succeeded here, there will be no costs of the appeal"; and Chard v. Jervis 9 Q. B. D. 178 at 183 where Jessel, M. R., said in disallowing a successful appellant the costs of the appeal: "He has moreover succeeded upon evidence which was not before the court below.") As to the costs in the Magistrate's Court, I would make the same order, as the question of reasonableness was never raised there at all.

At the conclusion of the judgment Mr. Khanna asked us to reconsider the question of costs and we informed him that he might submit any authorities he chose on the question for our consideration in Chambers, intimating to him that if necessary we should give Mr. Patel (who was absent) an opportunity of answering those authorities. Certain cases were accordingly submitted to us which we will briefly consider. In North London and General Property Company v. May (1918) 2 K. B. 439 the appellant had to come to the Court of Appeal to get a wrong decision set right and got the costs of the appeal, but there was no question of his having succeeded on a point which he had not taken at the trial. On the contrary the Court of Appeal held that the court below was in error on the point of law which had been raised by the appellant. In ex parte Walton In re Levy 17 Ch. D. 746, it was held by the Court of Appeal that the appellant who was a trustee under the Bankruptcy Act, 1869, not succeeding could not get any costs, but that as he could not safely have abstained from taking the opinion of the Court of Appeal he should not be ordered to pay costs. Jessel, M. R., at p. 758 said: "It is to be deplored that such important questions of law should have to be settled at the expense of the litigants, but there is no other fund for the payment of the costs." The case is obviously no authority on the incidence of costs in the present case. In the case of *Paterson and Ors. v. Provost, etc., of St. Andrews* and James Bain and Ors. 6 A. C. 833 it was held by the House of Lords that there should be no costs of the appeal as the appellants were justified in going to the House of Lords on the question involved in the case. Lord Blackburn in his judgment at p. 850 of the report said that the appellants in coming to the House of Lords had attained a sufficiently important object to make it proper that they should not bear the costs of the appeal. The case is not analogous to the present case and consequently not an authority in favour of the appellant's claim for costs before the Supreme Court.

The case of In re O. C. S. (a Debtor) ex parte the Debtor (1904 2 K. B. 161 might appear to support Mr. Khanna's claim for costs before Thacker, J. There the Court of Appeal allowed the appellant his costs of the appeal but because the objection on which he succeeded had not been taken in the court below, he was not allowed the costs of the hearing. The report of that case is very brief and there may possibly have been circumstances actuating the Court in exercising their discretion as to costs in favour of the appellant. Assuming this case to be in favour of Mr. Khanna's contention we do not consider that it should override the general rule as laid down by Jessel, M. R., in Goddard v. Jeffreys (supra).

In the present case had the appellant raised the issue of reasonableness before the trial magistrate it is, as we have said, not unlikely that an appeal with its attendant expense would have been avoided altogether. The order as to costs will be as we have stated and in these circumstances it is unnecessary for us to hear Mr. Patel on the cases put before us by Mr. Khanna.

SIR NORMAN WHITLEY, C. J.—I agree.

MARK WILSON, Ag. C. J.—I agree and have nothing to add.