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DUFFUS J.A.
[1] This is an appeal from the decision of the High Court in proceedings
under the Rent Restriction Act? 1962 (Cap.479).These proceedings started in
1965 with an application to the Rent Restriction Board for possession of
premises. The record of appeal does not contain particulars of this
application nor does it contain a copy of the proceedings before the board
but the application resulted in the following order being made on the 6th
July, 1966
"ORDER
By consent
Vacant possession of suit premises to be delivered by respondent to
applicant on or before 31st December 1966.
Respondent to pay to applicant mesne profits and sewerage charges from 1st
May, 1965 onwards.
Respondent to pay to applicant costs including Board fees Shs. 300/-."
[2] The Rent Restriction Act was considerably amended by the Rent
Restriction (Amendment) (No.2) Act, 57 of 1966 and the Rent Restriction
Board was abolished and instead the Rent Tribunal established and the powers
of the Resident Magistrate's Court to deal with matters under the Act was
greatly enlarged.
[3] In particular claims for the recovery of possession were now dealt with
by the Resident Magistrate and this included jurisdiction to deal with
applications arising out of an order for possession previously made by the
Rent Restriction Board. The application now before the court is an
application by the tenant, the appellant in this appeal, for the court to
discharge, stay, or postpone execution of the order of the 6th July, 1966,
and is made under the .provisions of sub- section (5) of section 19 of the
Rent Restriction Act.
[4] The application was supported by an affidavit by the tenant, and the
landlord, the respondent in this appeal" also filed a Counter affidavit. The
application is dated 29th November, 1967, and it is common ground that up to
that date the tenant still remained in possession of the premises and had
not as required by the consent order of the 6th July, 1966 6iven up
possession on the 31st December, 1966.
[5] The application was based on two substantive grounds being
[6] That the consent order had been displaced by a new tenancy agreement
between the parties whereby the landlord agreed with the tenant that he
should remain in occupation of the premises on payment of the standard rent,
and that the consent order was a nullity. In the counter affidavit the
landlord denied that there had been a new tenancy agreement and averred that
any payments made had been by way of mesne profits in accordance with the
consent order of the 6th July, 1966.
[7] The application came before a senior Resident Magistrate on the 6th
December, 1967, and eventually after hearing arguments by the advocates for
each party, the senior Resident Magistrate in a written ruling dated 18th
May, 1968 dismissed the application.
[8] The Resident Magistrate held that the consent order was competent and
that the court could not go behind this consent order and he further held
that the order could not be varied in the absence "of a clear and
unequivocal consent between the parties". The matter went on appeal to the
High Court and the appeal was dismissed.
[9] The learned judge of the High Court held inter alia:-
that the proper method of setting aside the consent order would have been by
way of appeal and not by an application of this nature,
[10] That whilst not ruling that a consent order could not be varied by the
court called upon to execute it yet at least good cause must be shown by the
applicant to justify such variation and this had not been done in this case.
[11] The judge made no direct ruling on the question of the appellant's
application to call further evidence but he appeared to be satisfied that
the Resident Magistrate had sufficient evidence on the affidavits to justify
his decision and that the appellant had not put forward any facts for the
consideration of the Resident Magistrate upon which his application could
have been granted. The learned judge therefore dismissed the appeal but
granted leave to appeal to this Court.
[12] There were four grounds of appeal to this Court. The first three
grounds were directed to the validity of the consent order and submitted
that the Resident Magistrate should have held that the order was null and
void. After hearing the appellant's advocate Mr. Peera, we did not call upon
the respondent's advocate Mr. Harjeet Singh to address us on these three
grounds.
[13] The 4th ground of appeal was however, fully argued and this reads as
follows¬:-
(4) In the further alternative, the learned judge should have allowed the
appeal on the ground that the appellant had been denied the opportunity by
the Senior Resident Magistrate to present further evidence in support of his
application under section 19(5) of the Rent Restriction Act and/or that the
Senior Resident Magistrate should have received other and further evidence
in order to try the issues before him fairly and effectively.”
[14] Before proceeding to consider ground four I would. State my reasons for
agreeing with the other members of the court that there was no substance in
Grounds one to three. There can be no doubt that an order for possession can
be made under section 19 of the Rent Restriction Act when the court is
satisfied that (a) that one of the 14 grounds set out in section 19(1) exist
and (b) that, as provided by sub-section (2) of section 19, it is reasonable
to make an order for possession and further, if possession is sought on any
of the grounds specified in paragraphs (c),(e),(h) or (i), that unless such
an order is made great hardship will "be caused to the landlord.
These conditions must exist to the satisfaction of the court before an order
is made and to this extent it is correct to say that a mere consent order
cannot be made. But these prerequisites are largely a matter of proof and in
this respect if the tenant consents, in the sense that he admits that these
requirements do exist, then the court may accept his admission as sufficient
proof, and if it is satisfied that it is reasonable so to do may make the
order. This legislation is similar to the provisions of the English rent
restriction laws and this question has been dealt with "by the English
courts in various cases. I would refer here to the judgment in the cases of
Barton v. Fincham (192l_ 2 K.B. 291, Thorne v. Smith (1947) K.B. 307 and in
Middleton v. Baldock (1950) 1 K.B. 657.
[15] I think the following extract from Jenkins, L.J. in the Middleton v.
Baldock case (at page 669), when considering the Barton v. Fincham and
Thorne v. Smith cases is also applicable here ¬
"I think that the principles deducible from those cases are these under the
Acts the court only has jurisdiction to order possession on one or other of
the specified statutory grounds. It is not, however, always obliged to hear
a case out for, if the tenant appears and admits that the landlord is
entitled to " possession on one of the statutory grounds, the court may act
on that admission and make the appropriate order…But in my judgment the
court cannot go further than that and exercise general jurisdiction to make
a consent order without inquiry or investigation simply because the tenant
appears in court and says; 'I give consent to an order,’ or says in the
witness box that he does not contest "the landlord's right. I think that
that necessarily follows from the principle that possession can only be
ordered on one or other of the statutory grounds and that the tenant cannot
waive the statutory protection by agreement."
[16] The position as I see it is that the court may accept the admission set
out by the tenant as proof of the required facts and on these admissions
find that it would be reasonable and proper to make the order under
sub-section 2) of section 19, but in doing so it is advisable that the court
should avoid using the word "consent" in the order as the court is not
making the order because the tenant consents but because it is satisfied
that it is reasonable and proper to make the order as required by section
19.
[17] I have dealt with this matter as there appears to be some
misunderstanding over the procedure in cases of this nature but in fact this
question does not really affect this case, as here the Resident Magistrate,
in my view, clearly had no power to set aside the order of the Rent
Restriction Board under an application made under sub-section (f) of section
19.
[18] The correct method of challenging the consent order should have been by
way of appeal or perhaps by a separate action but not in an application of
this nature. This was pointed out both by the learned Chief Justice when he
dealt with an application to stay execution pending the hearing of this
appeal and also by Hamlyn J. in his judgment.
[19] Apart from this fact it is impossible is, without having the
application and other proceedings the Rent Restriction Board leading up to
the Board's final order, whether this order had been properly made or not.
[20] I will now consider ground 4. This application is made by virtue of the
provisions of sub- section (5) of section 19 which states:-
At the time of the application for the making of any order for the recovery
of possession of any premises, or for the ejectment of a tenant there from,
or, in the case of any such order which has been made, whether before or
after the passing of this Act, and not executed, at any subsequent time, the
court making or executing the order, as the case may be, may adjourn the
application, or stay or suspend execution on any such order, or postpone the
date of possession for such period or periods as it thinks fit, and, subject
to such conditions (if any) in regard to payment by the tenant of arrears Of
rent and otherwise as the court thinks fit. And if such conditions are
complied with the court may 1 if it thinks fit discharge or rescind any such
order."
[21] In this case the order for possession had already been made by the
former Rent Restriction Board and the Resident magistrate's court is the
court executing the order and as such can exercise the very wide powers of
variation of the original order at any time before order had been executed.
[22] The powers given under sub-section (5) are extremely wide very and it
is obvious that the intention of the legislature was allow the court to
retain full control over the possession of the premises as between the
Landlord and tenant until the order for possession had been executed.
[23] This jurisdiction to interfere with the previous order for possession
would in my view clearly include a case such as the appellant avers existed
here and the application was therefore properly brought before the court.
[24] The Resident Magistrate had power to direct the manner in which the
issue before him should be decided. I would refer to section 11 (c) of the
Act. Sub-section (1) of this section provides that every claim proceeding or
other matter of a civil nature arising out of this act shall be commenced as
if it were a civil suit and regulated by the provisions of the Civil
Procedure Code 1966: but sub-section c) gives the court power to take
cognizance of any matter which it may have power to take under the Act and
to settle the issues and proceed to try these issues as in the civil suit.
1n this case the appellant filed his application as Chamber Summons and
usually evidence in a Chamber Summons is given by affidavits. There; is
undoubtedly however, power for the court in any Chamber summons to direct
that oral evidence be taken and in that event the matter is adjourned into
open court. See Order XVIII rule 4 of the civil procedure Code, 1966, Order
XIX deals with evidence by affidavit. The court may at any time order any
particular fact or facts to be proved by affidavit and may on the
application of either party order a deponent to attend for cross-examination.
[25] As I stated, the appellant in this case brought this application by way
of Chamber Summons and this was supported by an affidavit.
[26] The application came before the senior Resident Magistrate in Dar es
Salaam and there, on the application of the advocates for both sides, he
deci¬ded and order the mode of trial and gave permission for the filing of a
counter affidavit by the respondent and for the appellant to file an
affidavit in reply.
[27] The order reads as follows¬.
ORDER:
Counter Affidavit by 14/2/68.
Reply if any by 21/2/68.
Hearing of Application on 5/3/68
At 8.30 a.m. in chambers.
In accordance with this order the application duly came on for hearing in
chambers on the 10th May, 1968, before the senior Resident Magistrate, who
after hearing submissions by the advocates for the parties reserved his
ruling and delivered this on the 18th May, 1968, dismissing the application.
The application was heard on the evidence contained in the appellant's
affidavit and in the counter affidavit filed by the respondent. The
appellant did not file an affidavit in reply, and no application was made to
the court to allow cross-examination of either of the deponents.
Mr. Peera for the appellant did however, in the course of his argument say
that the question as to whether rent had been paid did call for oral
evidence and then said¬
"I want to call evidence on my 3rd point."
The record of appeal does not contain a direct ruling by the senior Resident
Magistrate on this application. It is however, apparent that the application
was not granted as the Magistrate proceeded to make his ruling without
allowing any oral evidence to be called and it does appear that this was the
position as understood by the parties as in his final reply, Mr. Peera did
say.¬
"'There is already evidence in the form of affidavit. For 11 months -
applicant was lulled into a sense of security until he was suddenly pounced
upon. Execution must be postponed until matter is rectified. Court is
invited to take this into account."
[28] In his ruling the senior Resident Magistrate said this "As for the
variation of the order, I CANNOT say that this argument is even worth
dwelling upon lengthily. WITH THIS CONSENT order in force the applicant
would have been liable to pay mesne profits as long as he were in occupation
of the suit premises. And while the respondents awaited execution of the
decree, they should have been unwise to refuse to accept such monies. The
question of varying this order cannot therefore be said to have arisen, in
the absent of a clear and unequivocal consent between the parties."
[29] There can be no question, but that the Magistrate was completely
justified in finding that there was no proof of a clear and unequivocal
consent between the parties on the evidence before him. The appellant’s
affidavit was vague and incomplete, e.g., it referred to the payment of rent
but did not state the amounts paid, nor was any receipt for those payments
exhibited, it referred to a request for the payment of rent contained in a
letter dated 27th January, 1961 but this letter was also not exhibited.
[30] The counter affidavit denies the existence of any tenancy or the
payment of any rent and explains that any amounts received were in respect
of mesne profits in accordance with the consent order.The counter affidavit
did not however explain the long delay in applying for possession. The
appellant did not file an affidavit in reply. It would have been, in my view,
impossible for the Magistrate on this evidence to have found that a new
tenancy agreement existed.
[31] This matter has given me much concern having regard to the possibility
of an injustice being done to the appellant especially having regard, to the
unexplained delay of some eleven months in applying for the execution of the
order. The question, however, as to whether he would allow oral evidence to
be called, was a matter in the Magistrate's discretion and it does appear
that the appellant has only himself to blame for the lack of the evidence.
[32] The onus was on the appellant to prove circumstances which would
justify a variation of the order for possession and he has not done so. He
could, if in fact, a new agreement was entered into, have proved this by
filing a proper and complete affidavit with the attachments that I have
mentioned, or may have done so by an affidavit in reply. Then, further, he
could have applied for permission to cross-examine the deponent on the
affidavit file by the respondent, and there is also the fact that he had
agreed to the order made by the Magistrate for this matter to be heard in
chamber and on affidavit evidence. The appellant had full opportunity to
prove his case, if it did in fact, exist, and failed to do so.
[33] There is one other point which I would deal with, although this is not
a ground of appeal, the Magistrate did in his ruling find that this
application must have necessarily failed as the court could not go behind
consent order.
[34] With respect this clearly is wrong. As I have pointed out the court
cannot in fact make a consent order under section 19 of the Act but may do
so on admissions made by the parties.
[35] The provisions of sub-section (5) of section 19 are very wide and would
covet all orders made under section 19 even, if in fact there could be such
a thing as a "consent order".
[36] As I have pointed out the intention of the legislature was to allow the
courts to retain control over the question of possession of the premises
until any order for possession had been executed.
[37] We were in this respect referred to the case of Karim. Ahmed. (1953) 20
E.A.C.A. 63 a judgment of this Court but, this judgment was on the
interpretation of section 10(4) of the Rent Restriction Ordinance of Aden
which is quite different to sub-section (5) of our section 19.
[38] In this respect it might be useful if I refer to the judgment of an
English case of Rossiter v. Langley (1925) 1 K.B. 741 at p. 744 and to the
following extract from the judgment of Salter, J. when he was dealing with
the provisions of sub-section (2) of section 5 of the English Increase of
Rent and Mortgage Interest (Restrictions) Act, 1920, which is similar to the
provisions of our sub-section (5) ¬
I cannot imagine wider words. (His Lordship read sub-s. 2.) That is
obviously a provision tended to be wholly in the interest of and for the
protection of the tenant, and to give to the county court judge, who has
been invested with a wide discretion in making the order, an equally wide
discretion to deal with it up to the last moment. That power was given in
press terms. The question is whether we have any warrant to limit that
discretion to cases where the original order was not made by consent."
[39] The learned judge then went on to find that the court had authority to
deal with any order, whether made by consent or not, and he referred to the
case of Wellesley Vs White (1921) 2 K.B. 2.04, which was quoted in the
judgment of this Court in the Karim v. Ahmed case as follows:¬-
“With regard to Wellesley v White ;( 1) I do not think we are necessarily
differing from the decision of the Divisional Court in that case. The
agreement there was made before the Act of 1920 came into operation, and the
application was made under s. 5, sub-s. 3. I think the county court judge in
holding that he had no jurisdiction to consider the applica¬tion by the
tenant was wrong, and that this appeal should be allowed."
[40] The senior Resident Magistrate was in my view, wrong in coming to his
conclusion that he could not go behind this order, but on the evidence
before him, he was fully justified in dismissing the application of and
indeed he could not properly have arrived at any other decision.
[41] I would therefore dismiss this appeal with costs to the respondent.
LAW. J.A:
[42] The facts giving rise to this appeal are fully stated in the judgment
prepared by Duffus, J.A. which I have had the advantage of reading in draft.
So far as the first three grounds of appeal are concerned, Mr. Peera for the
appellant tenant submitted that a Rent Restriction Board had no jurisdiction
to make a consent order, being prohibited from acting without proof of facts
establishing that the grounds for the application existed, and that it would
be reasonable to make the order sought.
[43] An order based solely on the consent of the parties without
investigation by the Board amounts in Mr. Peera's submission to the
conferring of a jurisdiction on the Board beyond that which the legislature
has seen fit to confer, and relying on Barton v. Fincham (1921) 2 K.B. 291
Mr. Peen submitted that such an order is invalid and incapable of execution,
and should be set aside as a nullity. Barton's case was considered and
distinguished by the Court of Appeal in England in Thorne v. Smith (1947) 1
All E.R. 39, and in the course of his judgment Bucknill L.J. said:¬
"But in the present case it is, I think, reasonably clear that the tenant,
in effect, agreed to the order because at the time when the landlord asked
the court to make the order the landlord by his own statements had satisfied
the tenant that he intended to occupy the house himself and he, the tenant,
could not hope successfully to resist the claim. If the tenant had stated
this expressly in court the judge would surely have had jurisdiction to make
the order on that ground. I think in the events which happened here, the
tenant being legally represented; the judge was entitled to proceed on the
view that this was the true position. Before making an order for possession
the judge is under a duty to satisfy himself as to the truth if there be a
dispute between landlord and tenant, but if the tenant in effect agrees that
the landlord has a good claim to an order under the Acts, I think the judge
has jurisdiction to make the order for possession under the Act, without
further inquiry."
[44] This passage, with which I respectfully agree, and which was considered
with approval in Middleton v. Baldock (1950) 1 K.B. 657, disposes in my view
of the first three grounds of appeal. The landlord had claimed possession on
the ground that he reasonable required the premises for his own occupation,
a ground on which the Board had jurisdiction to make an order for possession
if satisfied as to the truth of the claim. The tenant, who was represented
by counsel, consented to such an order being made. This consent in my
opinion amounted to an admission of the truth of the grounds on which the
landlord claimed possession, and justified the Board in making the order
sought without further inquiry.
[45] The 4th ground of appeal was that the appellant had been denied the
opportunity by the Resident Magistrate, to whom he has applied under section
19(5) of the Rent Restriction Act to discharge, Postpone or stay execution
of the order, to present further evidence in support of his application.
[46] I agree with Duffus, J.A. that the learned magistrate was wrong in
holding that he could not go behind a consent order. Section 19(5) aforesaid
confers upon the court very wide powers to stay, suspend or even rescind an
order which has been made but not executed, and I do not consider that the
fact that the order had been made by consent affects the position the
magistrate's primary reason for refusing the tenant's application was that
he did not believe, on the evidence before him, that the consent order had
been varied by agreement of the parties and a new tenancy substituted.
According to the tenant's affidavit in support of his application, the
creation of this new tenancy was evidenced by a letter from the landlord's
agent dated 27th January, 1967.
[47] No such letter was annexed to the affidavit, and the creation of a new
tenancy was denied by the landlord in his counter-affidavit. No application
was made on the tenant's behalf to cross-examine the landlord on his
affidavit, and the magistrate did not specifically deal with an application
by Mr. Peera to adduce oral evidence in amplification of the tenant's
affidavit. The magistrate's reasons for not hearing further evidence are
however apparent from his "ruling" He simply did not believe that a new
tenancy had been substituted for the consent order for possession. On the
evidence before him, this was in my opinion a reasonable finding on the part
of the magistrate.
[48] Whether or not to allow oral evidence to be adduced was a matter within
the magistrate's discretion, and I am unable to slay that he wrongly
exercised his discretion in this case, having regard to the unconvincing
allegation of the creation of a new tenancy in the tenant's affidavit. On
the face of it, there could be no reason why the landlord should have
consented to a new tenancy. It was admitted by the tenant that the rent
remained the same, and it is most unlikely that the landlord for no apparent
consideration would have abandoned the benefit of the order for possession
which he had obtained in his favour.
[49] I agree with Duffus, J.A. that this appeal should be dismissed, and I
concur in the order proposed by him.
NEWBOLD, P.
[50] I have had the advantage of reading in draft the judgments of Duffus,
J.A. and Law, J. (and I agree with them. I would only add that I notice, not
unfortunately for the first time, that the affidavits in this application
were used as a form of pleading.
[51] This is an improper practice (see Order X1X, rule 3 (1) and should
cease.
[52] There will be an Order in the terms proposed by Duffus, J.A. |
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