Alvares v Mohamed (Civil Appeal No. 41 of 1952) [1952] EACA 315 (1 January 1952)

APPELLATE CIVIL

Before WINDHAM, J.

B. F. C. ALVARES, Appellant (Original Tenant)

ν.

HAYAT MOHAMED, Respondent (Original Landlord)

Civil Appeal No. 41 of 1952

(Appeal from the decision of the Central Rent Control Board, Nairobi)

Landlord and tenant-Increase of Rent (Restriction) Ordinance-Appeal from Rent Control Board—New points—Whether arguable.

The Central Rent Control Board ordered a tenant's eviction from certain premises. On appeal to the Supreme Court the appellant sought to argue two grounds not raised before the Board. The first did not go to jurisdiction but the second, on the validity of the notice to quit, did.

Held (23-9-52).—The point not raised before the Board and not going to its jurisdiction could not be argued on appeal. The point going to the Board's jurisdiction could be argued.

Appeal dismissed.

Case referred to: Colonial Boot Company v. Dinshaw Byramjee & Sons (E. A. C. A.). C. A., No. 1 of 1952.

Nazareth for appellant.

Kean for respondent.

JUDGMENT.—This is an appeal by a tenant from a majority decision of the Central Rent Control Board, Nairobi, ordering his eviction from certain premises. subject to the operation of the Increase of Rent (Restriction) Ordinance, 1951, on the ground that the premises were reasonably required by the landlord under section 16 (1) (e) (ii) of that Ordinance.

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The first ground of appeal argued before this Court is that the Board treated the premises as business premises and accordingly applied the criteria set out in section 16 (1) (e) (ii) whereas in fact (it is contended) they were at the same time both business premises and a dwelling-house (at least as to part of them) so that the Board should have applied the criteria set out not only in section 16 (1) (e) (ii) but also in section 16 (1) (e) (i). Now this point was never argued before the Board. The proceedings below were conducted and argued throughout on the footing that the premises were business premises and nothing else, and indeed the landlord's original application to the Board was made under section 16 (1) (e) (ii) only (i.e., under the paragraph that deals with business premises) and not under section 16 (e) (1). Furthermore, at the hearing before the Board, counsel for the appellant (tenant) is recorded as having submitted that there were only two issues before the Board, (a) whether there was "reasonable alternative accommodation" for the tenant, and $(b)$ whether it would be reasonable to give the landlord possession of his own premises. That being so, I decline to entertain the contention now put forward for the first time that the premises were in part dwelling premises. The point does not go to jurisdiction, and is not therefore one which ought to be considered although not raised below.

There is a growing tendency in this Court, and particularly in landlord and tenant disputes, to raise on appeal points which were not in dispute before the tribunal below and which the other party therefore either did not consider it necessary to establish at all, or at least not with such cogent evidence or arguments as it might otherwise have adduced. This Court will continue to do all that it properly can to discourage that tendency, which is always embarrassing to the other side and is wasteful alike of public time and private money.

The second point argued before me, which was similarly not argued before the Board, is the question whether the notice given to quit by the respondent to the appellant was a valid one so as to make the appellant a statutory tenant. Such a point does go to jurisdiction, as was recently affirmed by the Court of Appeal for Eastern Africa in *Colonial Boot Company v. Dinshaw Byramiee and* Sons, C. A. No. 1 of 1952, and must therefore be considered on appeal although not raised below. In the present case, however, exactly as in the Colonial Boot Company case, a notice to quit (exhibit 5) in the general recognized form was produced by the landlord and no objection was taken to its validity either at the time or in argument later, but the proceedings were conducted throughout on the footing that the tenant was a statutory tenant. The Court of Appeal therefore refused to consider any argument on appeal attacking the validity of the notice. For the reasons given by the learned President of the Court of Appeal in that case in so refusing, with which I respectfully and fully agree, I similarly decline to consider any argument brought to show that the notice (exhibit 5) was a bad one.

There remain the two grounds of appeal which were argued both before the Board and before this Court, namely: $(a)$ whether alternative accommodation, reasonably equivalent as regards rent and suitability in all respects, was or would be available to the tenant, and $(b)$ whether the Board applied the right tests and considered all relevant factors in coming to the conclusion that it was reasonable to make the eviction.

It is contended for the appellant that the answer to each of these questions is in the negative. After carefully considering the record and the written decision of the Board, I am unable to hold that the Board came to a wrong conclusion as regards the alternative accommodation or that it erred in any way in deciding (by majority of two to one) that it was reasonable to order the eviction. In particular, I consider that the wording of the Board's written decision refutes the contention of the appellant that the Board thought that the only factor relevant to the question whether eviction would be reasonable was the balance of hardship, or that the Board failed to consider the loss to the tenant of his goodwill, which eviction would occasion. The Board clearly considered this factor together with others urged on the tenant's behalf, but they failed to tip the scale of reasonableness in the tenant's favour when weighed against the factors on the other side of the scale, which included the near-blindness of the landlord.

For these reasons this appeal must be dismissed with costs.