[1951] EACA 12

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR G. GRAHAM PAUL, C. J. (Tanganyika), and LOCKHART-SMITH, J. of A.

(1) KISHEN SINGH and (2) DES RAJ, Appellants (Original Defendants)

MAKIMA MASIMBA, Respondent (Original Plaintiff)

Civil Appeal No. 42 of 1950

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

Right of Judge to question witness—Increase of Rent Ordinance—Exemplary damages against trespasser.

The respondent, who was a landlord, sued the appellants in the Supreme Court for possession of his premises and for damages for having been kept out of possession. He succeeded in obtaining an order for possession together with exemplary damages of Sh. 5,000. The appellants appealed on the grounds that the Judge unfairly cross-examined the first appellant and that he had awarded excessive damages.

Held $(14-2-51)$ .—(1) That the Judge had not cross-examined the first appellant unfairly.

(2) That the appellants had been guilty of obtaining possession by a trick in pretending that they only wanted the house in order to hold a wedding ceremony. In view of this misconduct exemplary damages were properly awarded and were not excessive.

Cases referred to: Yuill v. Yuill. (1945) 1 A. E. L. R., p. 185. Appeal dismissed.

D. N. Khanna for the appellants.

Akram for the respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL, President).—This is an appeal from a judgment by the Supreme Court of Kenya by which the Plaintiff respondent as landlord obtained an order for possession of certain premises together with mesne profits and damages which the learned trial Judge fixed at Sh. 5,000.

Mr. Khanna, for the two defendant appellants, has submitted $(a)$ that in certain respects the trial was so unsatisfactory that this Court should order a new trial, and (b) that in any event on the findings of fact arrived at by the learned Judge this is not a case in which he was entitled to award exemplary or punitive damages in addition to mesne profits. In support of his first point Mr. Khanna has argued that the learned Judge's cross-examination of the first defendant was unfair and went far beyond what was required and he has cited to us the case of Yuill v. Yuill (1945) A. E. L. R. 185. This is a case in which the learned Master of Rolls made certain observations directed to show the undesirability of a trial Judge so overdoing his examination of a witness that it might be said that he had descended into the arena. It does not, however, assist Mr. Khanna in the present matter because, in spite of the fact that in $Yuill$ v. $Yuill$ the Court of Appeal thought it unfortunate that the trial Judge had taken so large a part in the trial; it was said that he had put many more questions to the witnesses than all the counsel in the case put together, the court held that the part which a Judge should take while witnesses were giving their evidence rested with his discretion, and the mere fact that the Judge took a large part in the examination of witnesses did not justify the Court in ordering a new trial. In the case now before us all the learned Judge did, after the cross-examination of the first defendant by the plaintiff's counsel, was to put a series of questions himself which appear to

have been designed to test the witness assertion that his monthly income was more than enough to enable him to pay the high rent for the premises alleged by the witnesses to have been demanded by the plaintiff. As the question whether there had been any tenancy agreement at all was in issue between the parties, this line of examination was certainly relevant. The fact that amongst the questions was one as to whether he had made a return of income to the Income Tax Commissioner seems to have caused the witness some embarrassment, but in my opinion this record and from the wording of the judgment that the learned Judge did at an early stage, from an adverse view of the two defendants based on their demeanour in the witness-box and I concede to Mr. Khanna that *Yuill v. Yuill* is authority for the rule that it is open to Appellate Court to find that the view of a trial Judge as to the demeanour of a witness was ill founded. The Court will only do so, however, when it is quite apparent that the trial Judge has not properly tested his impression as to the demeanour of a witness against the whole of the evidence of the witness in question. Taking the whole of this witness evidence into consideration it was in such direct opposition to that given by the plaintiff respondent on the material point as to whether there had been an agreement to let the suit premises at Sh. 700 per month to the defendants that the Judge in my opinion was fully justified in taking demeanour into account in order to help him to decide the issue of credibility.

Mr. Khanna has also pointed out that much of the evidence given by the plaintiff respondent's witness, Leonard Kigome, was hearsay, and yet from the terms of the judgment it is apparent that the trial Judge relied on it. There might be some force in this submission were it not for the fact that even if the evidence of this witness be totally excluded, there is still sufficient evidence on the view taken by the trial Judge as to the credibility of the defendants to support his findings of fact. For these reasons I cannot accept Mr. Khanna's submission that this is a proper case in which this Court should order a re-trial.

I now come to the question of damages, where it might be argued that Mr. Khanna is on surer ground. On the learned Judge's findings of fact it is. I think. at least open to some doubt whether this case falls within the range of cases where a Court or Jury are entitled to award heavy exemplary damages because of the particularly high-handed, insolent, vindictive or malicious conduct of those who committed the Fort (see Halsbury, Vol X, page 87). Taking the learned Judge's judgment as a whole I think it is evident that he took a strong view of what the defendants had done. Indeed he says that the damages fixed should be taken as the measure of the Court's disapproval of the tactics employed by the defendants. It becomes necessary therefore to examine the evidence as accepted by the learned Judge to ascertain precisely what their tactics were. With due respect to the learned Judge, his record is not abundantly clear on all points, but the facts as he found them seem to be these. The respondent, who is an African, had a house built for him by a Sikh contractor named Joginda Singh Palda. When the house was nearing completion Palda introduced the two appellants, who are also Sikhs, to the respondent, who at once appear to have made a sustained and concentrated effort to induce the respondent to let the house to them on a monthly tenancy. This effort failed but in the end when the house was finished, although an occupation certificate had not been granted by the proper authority, the respondent, perhaps reluctantly, appears to have given permission to the appellants to occupy this house temporarily so that a wedding ceremony and reception could be held in it. The appellants took possession, and whether the wedding was ever held or not, and on this point the evidence is inconclusive, it is manifest that once in the house, the appellants made up their minds to stay there at all costs, and we know that they did so long after the time when the respondent had shown that he wished to get them out. The position in law then seems to be that the appellants were not trespassers *ab initio* on the respondent's premises, but became so when the licence granted them by the respondent was revoked. This position seems to have been recognized by the learned Judge by the passage in his judgment when he says "that at the most there was a mere licence to hire the house for this wedding ceremony". Had the learned Judge been able to find a trespass *ab initio* I would feel no difficulty on the question of damages.

I am not sure that this was not really the respondent's contention but in the course of his evidence he did make an admission that he had said that he would hand the keys to the appellants on 26th May, and I assume that it was because of this admission that the learned Judge had to concede that the respondent may have given the appellants permission to enter for a limited period. If the matter rested here then, as I have already said, it might appear doubtful whether the appellants' conduct in holding over against the respondent would per se justify an award of exemplary damages. I have come to the conclusion, however, that there are other factors in this case which must be taken into account and which go far to sustain the action taken by the learned Judge. On the appellants' own evidence they were prepared to pay to the respondent vastly in excess of what could have been permitted under the Rent Restriction Ordinance, had the rent been assessed by the Central Rent Control Board, for it is not in dispute that the cost of constructing the premises plus the market value of the land was about Sh. 40,000. According to the appellants the respondent wanted Sh. 700 per month and they agreed to pay that sum. Under an assessment by the Rent Control Board the Respondent could not have obtained more than 10 per cent of Sh. 40,000 as the standard rent which is the amount of the mesne profits as fixed by the learned Judge, namely (in round figures) Sh. 333 per month. On the view of the evidence taken by the trial Judge it is obvious then that the appellants did their best, by playing on the cupidity of the respondent, to induce him to ignore the law. Does not this action on the part of the appellants bring their conduct into the category of misconduct? I would also observe that since the appellants entered into possession on 25th May, 1949, and are still in the possession of the suit premises, for they obtained a stay of execution pending the determination of this appeal, they have been in possession for nearly twenty-one months, and had they paid the rent they assert they were prepared to pay the respondent, they would have parted with the sum of Sh. 14,700. With exemplary damages fixed at Sh. 5,000 and mesne profits at Sh. 333 per mensem they are better off financially by nearly Sh. 3,000 than they would have been had the respondent accepted them as tenants at Sh. 700 per month. After due consideration therefore I have come to the conclusion that this is not a case in which we as an Appellate Court can say that in law the Judge erred in addressing his mind to the question of exemplary damages or that in fixing the amount at the sum he did, he so exceeded what was called for by the circumstances of the case that we should interfere. It cannot be emphasized too often that Rent Restriction legislation is designed to alleviate social hardships caused by acute housing shortage, so that those who deliberately flout its provisions, whether they be tenants or landlords, are guilty of anti-social conduct. $\eta \in \mathcal{H}^{\infty}$

For these reasons I would dismiss this appeal with costs.

SIR GRAHAM PAUL, C. J. (Tanganyika).—I concur and have nothing to add.

$\varphi_{\infty} = 0$

$\mathcal{R} \times \mathcal{R}$

LOCKHART-SMITH, J. of $A.-I$ concur.