Jani and Another v Souza and Others (Civil Appeal No. 73 of 1955) [1956] EACA 37 (1 January 1956)

APPELLATE CIVIL

Before Rudd, J.

PRAHLAD KALYANJI JANI AND ANOTHER, Appellants

v

F. DE SOUZA AND OTHERS, Respondents

Civil Appeal No. 73 of 1955

Landlord and Tenant—Increase of Rent (Restriction) Ordinance, 1949—Construction of section 16 (1) $(k)$ —Whether Central Rent Control Board has the power to order compensation under section 16 (1) $(k)$ if it has not ordered grant of new tenancy-Whether making of Closure Order deprives the tenant of his right to continue his tenancy—Quantum of compensation—Court will not interfere with Board's award unless it is assessed on wrong principle.

The facts appear sufficiently in the judgment.

Held (16-5-56).-(1) Where the Rent Control Board makes an ejectment order in favour of a landlord against a tenant under section 16 (1) $(k)$ of the Increase of Rent (Restriction) Ordinance, 1949, the power to order compensation to be paid to the tenant is not dependent upon there being provision in the order for the grant of a new tenancy in the premises when reconstructed.

(2) Where such compensation has been competently awarded the Court will not interfere as regards quantum unless it is satisfied that the amount of compensation was assessed by the Board upon a wrong principle.

(3) The mere fact that a closure order had been served upon the landlord without reference to the tenant was not necessarily a bar to compensation.

Appeal dismissed.

Madan for appellants.

Malik, A. H., for respondents.

Reported by: I. R. Thompson, Esq., Resident Magistrate, Nairobi.

JUDGMENT.—In this appeal the appellant landlord seeks to have that part of the order of the Central Rent Control Board which required him to pay Sh. 2,000 to each of the three respondents to the appeal as compensation, set aside.

The appellant sought possession of premises to let to the respondents under paragraphs $(b)$ , $(f)$ and $(o)$ of section 16 (1) of the Ordinance and alternatively under paragraph $(k)$ of the subsection. The Board treated the application as one under paragraph $(k)$ and ordered possession to be given up to the appellant, but the appellant was ordered to pay Sh. 2,000 compensation to each of the respondents.

In my opinion, the case did not come within paragraph $(b)$ . There is no finding and no evidence to support a finding that the respondents were guilty of conduct amounting to a nuisance or annoyance to adjoining occupiers. They have not been convicted of any offence in connexion with the premises and there is no finding or evidence to support a finding that the premises deteriorated owing to acts of waste by or the neglect or default of the respondents. No repairs or maintenance was done by the landlord for many years. Such maintenance as was done was done by the tenants, but there is nothing to show that the tenants and not the landlords were responsible for keeping the premises in structural repair and in habitable condition. Section 28 of the Ordinance would appear to make that the responsibility of the landlord.

In my opinion the case does not come within paragraph (f) of the subsection. It was argued that the landlord required the premises for a purpose which is in the public interest. There is no finding or evidence of that. In my opinion the paragraph requires that the landlord shall have in mind a particular purpose for which he requires the premises and that particular purpose must be one which is in the public interest in the opinion of the Board. A finding by the Board is essential and, apart from that, there is no particular purpose proved which the landlord had in mind except to rebuild and partially reconstruct into business premises which would be let out in the ordinary way to tenants. That is not such a purpose as is envisaged in paragraph $(f)$ .

As to paragraph $(o)$ ; there was evidence that the premises were occupied by a larger number of people than could be reasonably accommodated in them. but there is no finding by the Board that the premises were "overcrowded". The Board inspected the premises. The Court has not seen either the premises or a plan and could not possibly find on the evidence that there was overcrowding.

There is no doubt that on the evidence and on the facts stated in the landlord's case the Board was entitled to order possession under paragraph $(k)$ of section 16 (1), which reads: $-$

(k) The landlord requires possession of the premises to enable the reconstruction or rebuilding thereof to be carried out, in which case the Central Board, the Coast Board or the Court, as the case may be, may include in any ejectment order for such purpose an order requiring the landlord to grant to the tenant a new tenancy of the reconstructed or rebuilt premises or part thereof on such terms as may be reasonably equivalent to the old tenancy, and fixing a date for the completion of the new buildings and for its occupation by the tenant and imposing such other reasonable conditions, whether relating to the matters aforesaid or to the provision or availability of alternative accommodation for the tenant or to the payment of compensation by the landlord to the tenant or otherwise as the Board or Court, as the case may be, may think fit.

It was argued that the paragraph only empowers the Board to order compensation if it includes in an ejectment order an order requiring the landlord to grant to the tenant a new tenancy of the reconstructed premises or part thereof. In my opinion that argument is unsound and the Board has a power to order compensation instead of ordering a new tenancy of the whole or part of the reconstructed premises. In this case there is evidence that it was unlikely that any part of the premises could be reconstructed as dwellings. In my opinion it is in just such a case that the Board would properly order compensation.

I am by no means satisfied that the poor structural state of the buildings was due to any failure of duty on the part of the respondents. In my opinion it is just as likely to have been due to neglect on the part of the appellant or his predecessors in title.

It was argued that the respondents remained in possession after notice of a closure order against the appellants and that they were therefore in illegal occupation. The respondents were not parties to the proceedings in which the closure order was made. Further it was not clearly proved that the appellant could not have made the premises habitable without resorting to partial demolition and reconstruction though to do so would have been unprofitable.

In the circumstances I have no doubt but that the Board was empowered to order payment of compensation as a condition of an order for possession. I think that this is a case in which such an order was perfectly proper. The alternative from appellant's point of view would be, if he was to keep himself

on the right side of the law, to put the premises in habitable order as required by section 28. It was submitted that compensation in such cases was tantamount to connivance at payment of key-money, but that does not necessarily follow. Compensation could just as well be a compensation for disturbance, or for the purpose of enabling the tenants to house themselves until they could find other permanent accommodation. In this case I think it was intended to be compensaion for disturbance and I see nothing wrong in that in view of the fact that the respondents were tenants of long standing, protected by the ordinance, and that it was not feasible to order that they be given new tenancies in the reconstructed premises.

I have been somewhat concerned as to the quantum of the compensation awarded: the Board described the premises as "this dreadful place" and as not fit to live in. Costs were awarded against the respondents at the rate of Sh. 200, yet the Board awarded these other respondents Sh. 2,000 each as compensation. The respondents were given 37 days in which to vacate. At first sight it appeared to me that the compensation awarded by the Board is high considering the nature and state of the premises as found by the Board. Yet I am satisfied that there was a case for compensation and I do not feel disposed to interfere with the Board's assessment of compensation unless I am clearly satisfied that it was based upon a wrong principle. An appeal lies only on a point of law or of mixed fact and law and therefore this Court has no jurisdiction to interfere with the order of the Board except on "point of law or a point of mixed law and fact". If this Court were satisfied that compensation was assessed upon a wrong principle there would be justification for interference on appeal. The amount of compensation was the same amount as one of the respondents said he had been asked to pay as goodwill, otherwise key-money, for two other rooms, but I am not satisfied that that was the basis on which the compensation was assessed.

I am not prepared to say that the compensation was assessed upon a wrong principle and therefore I dismiss the appeal with costs.