[1955] EACA 304

Before SIR: BARCLAY NIHILL (President), SIR NEWNHAM' WORLEY (Vice-President) and Sir John Griffin, C. J. (Uganda)

# (1) UGANDA RATION STORES, (2) KARUBHAI GOKAL & BROS., (3) JAGJIWAN MULJI & BROS., (4) PATEL & COMPANY, (5) KARSANDAS PITAMBER & BROS., Appellants (Original Defendants Tenants)

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# (1) PYARALI BANDALI, (2) ABDUL RASUL BANDALI, (3) SHERALI

## BANDALI, Respondents (Original Plaintiffs/Landlords)

### Civil Appeal No. 80 of 1954

(Appeal from the decision of H. M. High Court of Uganda, Lewis, J.)

Landlord and Tenant—Rent Restriction Ordinance, 1949 (Cap. 115), section 6 (1) (1)-Scheme for redevelopment-Whether said sub-section requires landlord to be in possession of an approved scheme before notice given thereunder.

The respondents/landlords sought possession against the appellants/tenants, their statutory tenants of business premises under section $6(1)(I)$ of the Rent Restriction Ordinance, which provides: — "No order for the recovery of possession of any dwelling-house or premises, or for the ejectment of a tenant therefrom shall be made by any court unless— $(L)$ a township or municipal authority has approved a scheme of redevelopment of the site on which the dwelling-house or premises stands and such scheme involves the demolition of the property and the tenant has been given 12 months' notice to quit, or, after the said notice has been given and before its expiry, the court is satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available."

Notices giving the appellants 12 months' notice to quit as required by the subsection were served on 1-7-52. A building plan had been approved by the appropriate municipal council on 24-4-52 after approval by a joint planning committee on 31-3-52 and remained current for one year but was reapproved by the Council on 27-8-52, so that it was current at the date of judgment when the trial Judge ordered the appellants to vacate possession within 30 days therefrom. The approved plan involved the demolition of all the buildings on the plot.

It was, inter alia, argued for the appellants (1) that the words "scheme of redevelopment of the site" in the sub-section must mean something much more grandiose than a mere reconstruction or rebuilding of premises on an individual plot; (2) that it is essential under the sub-section that before a landlord gives notice to his tenant thereunder he should be in possession of an approved scheme; (3) that at the date of expiry of the notices to quit there was no approved scheme extant because the scheme approved by the Municipal Council had expired on 31-3-53, the notices expired on 1-7-53 and the scheme was not reapproved by the Council until 27-8-53; (4) that the notices to quit were invalid within the meaning of the sub-section because there was no evidence that they complied with the common law rule that a notice to quit in order to be valid must expire with a term of the tenancy.

Held (25-6-55).-(1) Any scheme or plan which involves the demolition of a building on a site and its replacement by another building is a scheme for redevelopment of the site within section 6 $(1)$ (L) aforesaid.

(2) There is no requirement in the said sub-section that before a landlord gives a notice thereunder he should be in possession of an approved scheme.

(3) In claims for possession orders against statutory tenants, the material date is the state of facts at the time of the hearing of the claim, so that in the instant case there was an approved scheme in existence at the material date.

(4) (Worley V. P. dissentiente).—The words "to quit" in the said sub-section are not to be implied or construed in the technical sense that they would ordinarily bear in the law of landlord and tenant.

(Per Worley V. P.).-Since the expression "notice to quit" has a well-known technical meaning, those words, in the said sub-section must mean a notice which terminates at the end of a period of tenancy. The 12 months' notice in the said sub-section may either be concurrent with or subsequent to the notice determining a contractual tenancy and does not, therefore, directly affect or operate upon the contract of letting.

Appeal dismissed.

Cases referred to: Pyarali Bandali Jaffer and others v. Uganda Ration Stores and<br>others Uganda C. C. 352 of 1951; Standingford v. Bruce (1926) 95 L. J. K. B. 223;<br>de Vries v. Sparks (1927) 137 L. T. 441; Walker v. Gode (1861) 3 Guerries V., Sparks (1921) 137 L. T. 441, Walker V. Gode (1661) 36 L. S. Ex. 112, Lemon v. Lardeur (1946) 2 A. E. 329; Aboobaker Noor Mohamed Bokhairia v. Hajee Yacoob Hajee -Ismail E. A. C. A. Civ. App. 48 of 1950; Abo

Wilkinson (Caldwell with him) for appellants.

#### Y. Phadke for respondents.

SIR BARCLAY NIHILL (President).—This appeal, as is not uncommon in cases governed by Rent Restriction legislation, raises points of considerable complexity and difficulty. In order to understand the issues which have to be determined it will be necessary first to set out what I think I can call the agreed facts: -

(1) The five appellants are all statutory tenants of business premises situated on a plot of land held by the respondents on a lease from the Crown and situated in the Municipality of Kampala.

Mr. Wilkinson for the appellants at first hesitated to admit this fact, but after being referred to the pleadings, he conceded that at the time the action for possession was filed (13th January, 1954) the appellants' con--tractual tenancies had expired and they were holding over under the provision of the Rent Restriction Ordinance.

(2) The respondents, whom I will hereafter call the landlords, prayed the High Court of Uganda for possession orders against their tenants under the provision of section $6(1)(l)$ of the Rent Restriction Ordinance which came into force on 1st January, 1949. This sub-section reads as follows: $-$

"No order for the recovery of possession of any dwelling-house or premises, or for the ejectment of a tenant therefrom shall be made by any court unless—.

- (1) a township or municipal authority has approved a scheme of redevelopment of the site on which the dwelling-house or premises stands and such scheme involves the demolition of the property and the tenant has been given 12 months' notice to quit, or, after the said notice has been given and before its expiry, the court is satisfied that alternative accommodation reasonably equivalent as regards rent and suitability in all respects is available." - (3) On 1st July, 1952, notices giving the appellants 12 months' notice to quit as required by sub-section $6(1)(l)$ were served. Mr. Wilkinson contends that these notices did not constitute valid notices to quit within the mean- $\therefore$ ing of the sub-section, but he admits service. - (4) On 7th July, 1954, a Judge of the High Court of Uganda gave judgment for the landlords and ordered the appellants to vacate their premises.

within 30 days. On that date the court had before it the evidence of the Municipal Engineer of Kampala that a building plan for the development of the suit plot had been approved on 24th April, 1952, by the Kampala Municipal Council. Prior to this the plan had been approved by a body known as the Joint Planning Committee on 31st March, 1952. The plan as approved by the Municipal Council remained current for one year only but it was reapproved by the Council on 27th August, 1953. Accordingly on the date that the Judge gave the landlords possession orders he had before him a building plan in respect of the plot approved by the Municipal Council of Kampala and still current. The Municipal Engineer had also testified that the approved plan entailed the demolition of all existing buildings on the plot. As regards notice to quit, although service was not proved until a later date (see the order of this Court dated 22nd February, 1955, and the subsequent proceedings in the High Court on 12th March, 1955) the position in fact was that the respondents had been served with 12 months' notice to quit which had expired on 30th June, 1953.

From the above it will be seen that we reach this position. If the notices to quit served on 1st July, 1952, were valid notices within the meaning of section 6 (1) (L) of the Rent Restriction Ordinances and if the plan before the Court was a plan for the redevelopment of the site on which the premises occupied by the respondents lay and it had been validly approved by a township or municipal authority then the landlords were entitled to their orders for possession. It is interesting to note here, as a fact indicative of the distinctive character of Rent Restriction legislation in Uganda, that section 6 of the Ordinance does not include the usual clause that before granting orders for possession under the section the Court must consider it reasonable to do so.

However, it has been contended by Mr. Wilkinson, with his usual ability, that the landlords have never in law been entitled to succeed in their efforts to obtain possession. Firstly, the notices to quit are invalid, secondly, the plan to rebuild on the plot does not constitute a scheme of redevelopment of the site at all, and, finally, that when the notice to quit expired on 30th June, 1953, no approved scheme whatever was in existence, since the scheme approved by the Municipal Council lapsed on 24th April, 1953, and was not reapproved until 27th August, 1953. Accordingly the landlords had no right of action. As regards the validity of the notices to quit in my opinion they complied sufficiently with the requirements of the sub-section but I will give my reasons for this conclusion after I have considered Mr. Wilkinson's other points where the real difficulty lies.

Much of this difficulty arises from the conjunction in the legislative universe of Uganda of another planet with the Rent Restriction Ordinance, namely the Town and County Planning Ordinance, 1948, which came into force on 1st October, 1948. This Ordinance has since been repealed and replaced by Ordinance 25 of 1951, but its provisions must be looked at in order to ascertain what was the legal position in respect of the authorization of building plans and schemes of development on the date when section 6 (1) ( $l$ ) of the Rent Restriction came into force, that is 1st January, 1949. An examination of the provisions of the Town and County Planning Ordinance reveals the interesting position that on 1st January, 1949, no township or municipality in a declared Planning Area had any power to approve a building plan or scheme of redevelopment, because all such powers had become centralized in the Town and County Planning Board established under the Ordinance. It is agreed that by March, 1949, Kampala had been declared a planning area (see L. N. 62/49). Section 9 of the Ordinance did however permit the Board to delegate its powers. Two delegations of power were made to Kampala Municipal Council, one by Legal Notice 63 of 1949 dated 18th March,

1949, and the other by Legal Notice 98 of 1951 dated 17th April, 1951. The first delegation enabled the Kampala Municipal Council to exercise all the powers conferred on the Town and County Planning Board in the proviso to section 7 (1) of the Ordinance, and the second delegation stated specifically that whereas as approved planning schemes under section 19 of the Ordinance could be executed and enforced by the Planning Committee, powers under the Public Health Ordinance and regulations made thereunder were delegated to the Kampala Municipal Council. The danger in this appeal is that the mind easily becomes bemused by facts which may well have constituted an administrative muddle between the Town and County Planning Board and the Building Rules made under the authority of the Public Health Ordinance, and I have only restated them here to assist me in deciding $(a)$ what is meant by the words "a scheme of redevelopment of the site on which the house or premises stands" used in section $6(1)(l)$ of the Rent Restriction Ordinance and $(b)$ to emphasize that at least from 17th April, 1951, the Kampala Municipal Council could validly approve a building plan so far as approval was required under the Building Rules. The Building Rules, 1951, came into force on 1st August, 1951, and I can summarize their effect quite briefly by stating that under them no building of any kind can be erected until the plans have been approved by the appropriate local authority. The Building Rules, 1939, which were in force until 1st August, 1951, were to a like effect. If then the demolition of a dwelling-house or premises on a plot and the building of something in their place can be held to amount to a redevelopment of the site on which the demolished dwelling-house or premises stood then it certainly follows that in the instant case on the date on which the plaint was filed (i.e. 13th January, 1954) the landlords were in possession of a building plan approved by a municipal authority which would have entitled them lawfully, provided they could get their tenants out of possession before 27th August, 1954, to pull down the premises then existing on the site and build other premises in their place. However, it has been argued that the words "a scheme of redevelopment of the site" must mean something much more grandiose than a mere reconstruction or rebuilding of premises on an individual plot. In this connection I have had the advantage of reading the detailed and interesting judgment of Ainley, J., in Civil Case 352 of 1951 of the High Court of Uganda which was decided on 28th April, 1952. The parties were the same as in the instant case and the Court refused the landlords possession orders because it held that on the date of the filing of the plaint, which was 23rd November, 1951, the landlords were not in possession of a scheme of redevelopment approved by a municipal authority. On the facts as set out in the judgment this was clearly the case, because it would seem that the landlords at that date had been unable to get the Municipal Council to agree to their plans. I am not sure however that I agree with all the reasoning of the learned Judge which led him to the conclusion that approval of a scheme of redevelopment was intended by the legislature to mean something more than the final approval of building plans under the Building Rules. I am not persuaded that this must be so. A plot of land on which no building stands is commonly referred to as an undeveloped plot. When a building is erected on it, it becomes a developed plot. If that building is demolished and a new building is erected in its place I consider that must constitute a redevelopment of the plot. I do not see what else it can be called. It seems to me therefore that the proper construction to place on the wording used in section $6(1)(l)$ is that any scheme or plan which involves the demolition of a building on a site and its replacement by another building is a scheme for the redevelopment of the site within the meaning of the sub-section. From the angle of the Rent Restriction Ordinance I cannot see that it is material whether the scheme or plan for the redevelopment of the site fits in or does not fit in with some other scheme concerning the general development of the locality. It may well be that the would-be developer will find that he cannot obtain the approval of the

municipal authority to his scheme, unless it is one which some other body such as a planning committee is prepared to accept. In fact it will be remembered that in the instant case the Municipal Council before it approved the building plan, had had it approved by a body called the Joint Planning Committee.

This brings me to what has been termed another difficulty. Is it essential under section $6(1)(l)$ that before a landlord gives his tenant the notice required by the sub-section that he should be in possession of an approved scheme? If the answer be yes, then it is pointed out with some glee by Mr. Wilkinson, the landlord will never get his possession order, because under the now existent Building Rules, an approved scheme remains effective only for 12 months, so that the landlord, having to wait 12 months before he can go to court for an order, will then have no approved scheme in his possession to support his application which accordingly will fail. I think the short answer to all this is that section 6 (1) $(l)$ contains no such requirement. I can see nothing in the sub-section to prevent a landlord who has it in mind to redevelop his property from giving his tenant 12 months' notice of the fact. He must of course see to it as well that notice is given to bring about a termination of the contractual tenancy, if that has not already been done. If the landlord, before he goes to court, has been unable to obtain approval of his scheme for development then he will not get his possession order and his statutory tenant will remain in occupation. It has also been argued by Mr. Wilkinson that when the notices to quit expired on 1st July, 1953, there was no approved scheme existent, because the scheme approved by the Municipal Council had expired on 31st March, 1953, and was not reapproved until 27th August, 1953. Therefore on the expiry of notice there was no cause of action and this rendered the landlords powerless to do anything. Again I think the answer to this is that in claims for possession orders against statutory tenants the material date is the state of facts at the date of the hearing of the claim. See Megarry 6th Edition at page 182:-

"Although the landlord's' claim to possession at common law must be complete when the proceedings are commenced, the circumstances relevant to his claim for possession under the Acts, both as to reasonableness and, in general, the specific heads, are those existing not when proceedings are commenced but at the date of the hearing by the court of trial and not the Court of Appeal."

The material date in the instant case is therefore 7th July, 1954. If my construction of the meaning to be attached to the words "has approved a scheme of redevelopment of the site" is correct then on that date the landlords were in possession of an existent approved scheme. Accordingly they were entitled to get their order for possession provided they could also prove that their tenants had received 12 months' notice to quit.

This brings me, finally, to the last point. Were the notices served on 1st July, 1952, valid notices to quit within the meaning of sub-section 6 (1) (*l*)? Mr. Wilkinson has argued that they were not because there is no evidence that they complied with the common law rule that a notice to quit in order to be valid must expire with a term of the tenancy. I am unable to accept this argument for the following reason. The tenants when they received the notices dated 1st July, 1952, were no longer contractual tenants. In other words no common law tenancy existed which could be terminated by notice. Their occupation depended on a special statutory protection afforded them by the Rent Restriction Ordinance, which they could continue to enjoy as long as the legislation remained in force, or until such time as their landlord was able to get a possession order from the court. I think it would have been better had the draftsman of section $6(1)(l)$ used the expression "12 months' notice to vacate" instead of 12 months' notice to quit, but neverthe-

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less I am persuaded that the words "to quit" do not imply that they must here be construed in the technical sense they would bear in the ordinary law of landlord and tenant.

My conclusion therefore is that on 7th July, 1954, the landlords were entitled to the order claimed and given by the court below and I would accordingly dismiss this appeal with costs. I would make the possession order effective on 30th July next.

SIR NEWNHAM WORLEY (Vice-President).—The history and relevant facts of this matter and the relevant provisions of law are sufficiently set out in the judgment prepared by the learned President and I do not propose to repeat them here.

In my opinion, however, this appeal should be allowed on the ground that the respondent/landlords did not show that the notice, exhibit 1, was a valid notice to quit within the meaning of paragraph $(1)$ of sub-section $(1)$ of section 6 of the Rent Restriction Ordinance. There can be no doubt that, so far as concerns the common law, the expression "notice to quit" is a technical one or, as it is sometimes called, a term of art, meaning a notice which terminates at the end of a period of the tenancy. If any authority be required for this, the cases cited by Mr. Wilkinson are sufficient, namely Standingford v. Bruce (1926) 95 L. J. K. B. 223 and de Vries v. Sparks (1927) 137 L. T. 441, nor is there any doubt that if the issue is raised, the onus is upon the party giving the notice to show that it was a valid one. See Walker v. Gode (1861) 30 L. J. Ex. 172 and Lemon v. Lardeur (1946) 2. All E. R. $(C. A.)$ 329.

In the Uganda Rent Restriction Ordinance, section $6(1)(e)$ , which deals with a case where the tenant has given notice to quit, the expression is undoubtedly used in its technical common law meaning: it must therefore require a strong argument to convince a court that in a later paragraph of the same sub-section the expression is used with a different meaning. In my opinion no such argument can be established.

It is true that in paragraph $(e)$ the notice to quit is a notice determining the contractual tenancy, whereas the 12 months' notice prescribed in paragraph (1) is, as I understand it, a notice separate from, though possibly concurrent with, the notice required to determine the contractual tenancy. I find support for this view in the decisions of this Court in two appeals from Aden, namely, Civil Appeal No. 48 of 1950, Aboobaker Noor Mohamed Bokhairia v. Hajee Yacoob Hajee Ismail (unreported) and Civil Appeal No. 23 of 1952 between the same parties which is reported in 19 E. A. C. A. 108. Both cases depended upon a paragraph of section 10 of the Aden Rent Restriction Ordinance which provided that an order for possession could be made "on the ground that the premises are required by the landlord for the substantial alteration or reconstruction thereof in such a way as to affect the premises or for the demolition thereof, and the Court, after being satisfied that the landlord has obtained the necessary permit for such alteration, reconstruction or demolition and has given to the tenant not less than three months' notice in writing to vacate the premises, considers it reasonable to give such judgment or make such order." In the former appeal this Court held that it was a condition precedent to the making of an order that it should be shown that the contractual tenancy had been terminated and that the statutory notice prescribed by the paragraph, not having been shown to have expired with the end of a period of the tenancy, could not be deemed to be a sufficient notice. In the second of these appeals this Court rejected the argument that the statutory three months' notice to vacate could not be given during the currency of the contractual tenancy and held that the two notices could be given in one and the same document and could run concurrently.

If I am right in this that the statutory 12 months' notice may be either concurrent with, or subsequent to, the notice determining the contractual tenancy. then it must be conceded that it does not directly affect or operate upon the contract of letting. To take as an illustration the form of tenancy most common in these territories, namely a letting from month to month, such a letting can be determined by a notice terminating at the end of a month, but, nevertheless, a landlord will not be able to get possession under the terms of paragraph (1) for another 11 months. During those 11 months there will be no contract in existence and although the Uganda Rent Restriction Ordinance (unlike most other rent restriction legislation) does not expressly provide that a tenant holding over under the protection of the Ordinance shall observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, I think that is a necessary implication. At any rate, I understand that to be the interpretation which has always been put upon it: this is borne out by the pleadings in the present case in which all the appellants admitted that they were "statutory tenants". If that be so, then I think there is good reason why the legislature should, in paragraph 11, deliberately use the expression "notice to quit" with its ordinary common law meaning. The tenant holding over, or statutory tenant, is still bound to pay the rent at the same periods as under his original contract, and there may be other obligations which also depend upon the period of tenancy. If the 12 months' notice to quit is construed to have the same meaning as a common law notice, both landlord and tenant know exactly where they stand as to payment of rent and other conditions, whereas if the notice may be any 12 months' notice, expiring perhaps in the middle of a quarter or in the middle of a half year, confusion and uncertainty will at once be caused and disputes may arise as to the tenant's liability for rent for the broken part of the period.

This is sufficient to dispose of the appeal; but, I think it advisable to express my opinion on the other issues raised in argument. On all these I am in full agreement with the views expressed by My Lord the President. The use of the word "development" or "redevelopment" as meaning the sub-division of and building upon land is one that has come into use of recent years, but has not yet, so far as I know, attained the status of a term of art. The Shorter Oxford Dictionary does not recognize its use in this sense. I think we are all familiar with the expression "ribbon development", which I take to mean the building of houses in a string along both sides of a road and having nothing to do with any question of the general layout or planning of an area. We are also, most of us, familiar with the advertisement or hoarding which ominously announces that a piece of land is "ripe for development", which again I take to mean simply that if a speculative builder chooses to sub-divide it and build houses upon the subdivisions he is likely to make a respectable profit. For my part, I am unable to read into the words in paragraph (1) "redevelopment of the site on which the<br>dwelling-house or premises stands" in its context anything more than the pulling down of existing buildings and the erection of new ones. Whether what is planned for the site fits in with any planning for the locality is, I think, entirely the concern of the planning or municipal authority.

Mr. Wilkinson suggested that the expression "scheme of redevelopment" implied something of a public nature, e.g. the making of new roads, the realignment of buildings to a building line, etc. In support of this he referred to the case of *Mitchell v. Townsend* (1921) 90 L. J. K. B. 601, a case under section 13 (1) (c) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, from which, he said, a great part of the Uganda Ordinance was taken. The section of the English Act allowed an order for possession to be made, in the case of business premises, if "the premises are bona fide required for the purpose of a scheme of reconstruction or improvement which appears to the court to be

desirable in the public interest". It was held that the words "scheme of reconstruction or improvement" applied only to a scheme of a public character, and did not refer to a merely private scheme. The language of the Uganda Ordinance is, however, so different that I am unable to accept Mr. Wilkinson's suggestion that the draftsman was only paraphrasing and condensing the provisions of the $Act.$

Further, I do not think that the High Court had to look any further than the approval of the municipal authority to the scheme for redevelopment of the site. I do not think that either this Court or the court below is required to go into the question as to whether, at the time when paragraph (1) was enacted, a township or municipal authority did or did not possess power to approve such a scheme. It is sufficient, in my opinion, for the landlord to show that at the time the matter is before the court such approval has been given. If the municipality has acted ultra vires in giving such approval, there are other ways of restraining or prohibiting them. It is conceded, however, that in the intant case, the Municipal Council was validly exercising a delegated power of approval.

I would therefore allow this appeal with costs, set aside the decree of the High Court and award the appellants the costs of the proceedings in the High Court. Any costs paid by the appellants or any of them under the decree now set aside should be refunded. As to the costs of the further hearing ordered by this 'Court, I consider they should be treated as part of the costs of the trial and paid accordingly.

SIR JOHN GRIFFIN, C. J.—Upon this appeal 1 have had the advantage of reading the judgments of the learned President and the learned Vice-President. The judgments record a divergency of view on the matters for determination in one respect only. It concerns the construction to be applied to the expression "12 months' notice to quit" occurring in section (1) (1) of the Rent Restriction Ordinance (Cap. 115).

I am in agreement, and for the reasons there given, with the construction placed on the expression, quoted, by the judgment of the learned President.

Similarly I am in agreement, on the other issues raised in argument upon the appeal, with the views expressed by my lord President. That being the position I would dismiss this appeal with costs and I would make the possession -order effective on 30th July, 1955.