18 August 1970

     
 

Criminal Appeal No. 1 of 1970

 
     

Court of Appeal for East Africa

     
     

Empire Theatre Limited

 

v.

Tanzania Exhibitors Limited

     
     
 

Judgment

 
     
 

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BEFORE:

PRSIDENT: Duffus
C. J.: Georges
JUDGES OF APPEAL: Lutta

   

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Citation:

Empire Theatre v. Tanzania Exhibitors, Judgment, File No. 1 of 1970 (CAEA, Aug. 18, 1970)

Represented By:

 

Editor's Note:

Appeal from a ruling and order of the High Court of Tanzania at Dar es Salaam (Mustafa, J.) dated 27th November, 1969 in Civil Case No. 202 of 1961

 
     
 
 
 

JUDGMENT OF GEORGES, C.J.

[1] This is an appeal from a decision of the High Court of Tanzania granting leave to the respondent decree holder to execute an order for vacant possession which formed part of a decree entered by consent in 1962. The Court at the same time refused an application by the appellant - the second defendant in the original suit - to review, suspend, discharge or rescind that order. The action in which the decree had been pronounced was for possession of certain premises used by the appellant as a cinema, and for the usual consequential relief. It had been adjusted under Order 23 R.3 of the Civil Procedure Code by a decree dated 16th November, 1962.

[2] Paragraph I of this decree ordered possession of the premises and ejectment of the defendant but this was to be suspended on terms thereafter set out. In paragraph 2 the second defendant - the present appellant - was ordered to pay a certain sum by way of arrears of rent. Paragraph 3 provided for payment of this sum by installments. Paragraph 6 read in part as follows:

"The order for possession shall be suspended provided that if and so soon as two consecutive defaults shall occur, that is to say, if any part of the rent referred to in proviso (i) of clause 8 hereof or of the installments referred to in clauses 3 or 11 hereof shall remain unpaid for twenty-four (24) hours after the due date next after the date on which any default shall first have occurred, the order for possession and ejectment shall, upon application to the Court by or on behalf of the plaintiff, immediately become enforceable.”

[3] Paragraph 8 provided:-

"For so long as no breach occurs in fulfilling the terms of the aforesaid orders and subject in all respects to the foregoing terms hereof and to the provisos hereinafter appearing, the second defendant all be entitled to remain in possession of the suit premises under the terms of the lease of 31st May, 1956 referred to in paragraph 5 of the plaint provided that:
(i) with effect from the first day of January one thousand nine hundred and sixty-three the rent shall be shillings three thousand seven hundred (shs.3, 700/-) per month, payable on the twentieth day of each month commencing on the 20th January, 1963,
(ii) all options for the renewal further renewal contained in the shall be considered as cancelled of no effect,
(iii) the term created by the said lease is hereby extended to 31st December, 1966 on which date it shall in any event expire and absolutely determine (unless possession shall lawfully have been previously obtained) and the second defendant shall deliver up to the plaintiff vacant possession of the suit premises on that day, unless the plaintiff shall previously have obtained possession thereof under the terms of the aforesaid orders."

[4] Before 31st December, 1966 the plaintiff in the suit, K.H.A Jariwala, assigned his interest in the decree to Tanzania Exhibitors Ltd., the present respondents. The premises were commercial premises and were not, at the date of the decree, controlled by any Rent Restriction Legislation. On 1st January, 1967 the Rent Restriction (Amendment) (No.2) Act came into force, bringing commercial premises under control. On 1st February, 1967 the respondent filed an application to execute the decree dated 16th November. When this application came up for hearing it was held not to be in order as no copy of the decree had been attached. It was adjourned to enable the respondent to put it in order. There¬ after nothing happened for two years.

[5] On 18th April, 1969 the application again came up for hearing. The appellant then took objection that the arrangement under which it occupied the premises was separate and apart from the decree and lay outside the scope of the suit. Hamlyn J. ruled that this was not so and that the application should proceed. Thereupon on 13th May, 1969 the appellant filed a notice stating that at the hearing of the application for leave to execute the decree he would apply to have the order for possession discharged or rescinded or suspended under the provisions of section 19(5) of the Rent Restriction Act as amended. The basis of this application was the fact that:

¬"The Rent Restriction Act 1962 with amendments having on the 1st day of January 1967 become applicable to the suit premises of which the 2nd defendant was then the lawful tenant by holding over…nor order for recovery of possession or for the ejectment of the second defendant from the suit premises many now be made or given unless for or upon any of grounds authorised by the fact (sic)."

[6] Affidavits filed by both sides show that the appellant had made monthly payments of shs 3,700/- to the original plaintiff up to July 1967. These payments had been variously referred to in the correspondence as "rent", "payment for occupation" and "mesne profits". Eventually on 16th April, 1968 there had been a consent order made on a summons between the original plaintiff and their assignee_ the respondent, providing that:-

¬ "All rents accruing and accrued due as from 1st April, 1968 be deposited in Court"

[7] When this application came up for hearing in the High Court, advocate for the respondent stated that he intended to argue that whatever may have been set out in the appellant's affidavit the appellant could not successfully oppose an application for leave to execute the decree and that if this argument succeeded it would dispose of the entire proceedings. Advocate for the appellant, who did not appear on this occasion seemed rather, uncertain in his stand. At one point in the proceedings he is recorded as agreeing that it would be better if preliminary points were taken first but later he is recorded as adhering to the view that it would be better if the Court should hear the grounds on which his application was based.

[8] The Court ruled that the matter should be taken as a preliminary point of law. There is no note that this was done by consent. Advocate for the judgment creditor then took two points: (1) that on an application for leave to execute a decree the judgment debtor could be permitted to raise only two matters - (a) that the decree had been satisfied or adjusted or (b) that it was time barred; (2) that the provisions of section 19(5) of the Rent Restriction Act as amended did not apply to these premises because the amending Act was not retrospective. The learned trial judge rejected the first proposition but accepted the second and accordingly granted leave to proceed with the execution.

[9] The burden of this appeal was that this was not in fact a proper case for determination on a preliminary point, that the affidavit disclosed that the appellant was not depending entirely on the retrospective effect of the amending Act for protection but was asserting that independently of any retrospectivity he was a tenant who had become entitled to protection on 1st January, 1967 when the Act came into force. He drew attention particularly to the paragraph of his notice already quoted above which contended that at the date on which the amending Act had come into force he was lawful tenant of the premises by holding over. Learned advocate pointed out also that the learned trial judge was well aware that the application was not based solely on the retrospectivity of section 19(5), and quoted from the judgment a sentence which reads:-

"The second defendant's application is based primarily on section 19(5) of the amending rent act."

[10] He argued that the word "primarily” clearly implied the existence of some other basis for the application which still remained undisposed of. He urged that the learned trial judge should have considered whether or not, on the facts disclosed in the affidavit, the appellant was on the 1st January, 1961 at least a tenant under sufferance who would be protected by the Act when it came into force that day. In this regard he placed much emphasis on Remon v. City of London Real Property Company Limited (1921) 1 K.B. 49. The appellant had, for two years at least, been paying monthly sums which had on occasion been described as rent and there should have been considered the issue as to whether or not he had become a tenant during that period. I agree that the judgment of the learned trial judge docs not deal with any other issue but that of the retrospectivity of section 19(5) of the amending Act. I think it is clear also on a careful analysis of the appellant's application and his affidavit that he was putting forward alternative grounds in support of his right to remain on the suit premises. These have not been discussed nor has any ruling been made on them. The question arises as to whether or not this Court should deal with the matter or whether matters of fact will have to be determined which will make it more convenient to have the application remitted to the High Court for further hearing and determination.

[11] I am of the view that it would be preferable to have the matter remitted. In his judgment the learned judge held that the order for possession in this case could not be reviewed under section 19(5) of the amending Act 51 of 1966 because the Act did not have retrospective effect. This particular issue was not very thoroughly argued on appeal, Mr. Salter preferring to direct the force of his argument to the contention that the application should not have been disposed of on a preliminary point. For this reason it is with some difference that I express an opinion on it. I am not persuaded, however, that the approach which I outlined in Kotak Ltd. v. Kooverji and another [1969] E.A. 295 is wrong. On this point I am happy to note that my Lord President in his judgment, which I have had the advantage of reading in draft, agrees with my approach in that case. The section is not retrospective as Spry J.A. (as he then was) pointed out in Jivraj v. Devraj [l968] E.A. 263 in the sense of invalidating orders made before the Act. What it does is to give the Court power in future to review them.

[12] In the words of Sir Clement de Lestang it provides "machinery for dealing with uncompleted matters in the future." This situation is not affected by section 29(2) of the Amending Act. Mr.Lakha indicated that he would not press his cross-appeal on the first argument advanced as to the issues which a judgment debtor could raise on an application by the decree holder for leave to execute a decree. On that argument the learned trial judge had ruled against him. I agree fully on that ruling and the reasons therefore and I can usefully add nothing further.

[13] Accordingly I would allow the appeal and dismiss the cross¬ appeal with costs.

DUFFUS, P.

[14] The facts in this appeal have been fully set out in the judgment of the learned Chief Justice which I have had the advantage of reading in draft form.

[15] There were really two applications before the High Court in this matter. First an application by the respondent in this appeal, The Tanzania Exhibitors Limited the assignors of the original plaintiff; under Order XXI rule 20 of the Civil Procedure Code for execution to issue against the appellant company, the second defendant in the suit, which ore than one year after the date of the decree. The second application, followed as the result of the first application, was made by the second the defendant when showing cause against issue of execution, and was under the provisions of section 19(5) of the Rent Restriction Act (Cap.479) for relief against the execution. There were thus two matters for consideration by the learned judge. First whether the appellant company had shown cause why execution should not issue or whether in any event relief should be granted him under section 19(5). The learned judge quite properly heard these applications together but he took as a preliminary point the issue as to whether or not the provisions of section 19(5) of the Rent Restriction Act could apply in this case.

[16] He decided this preliminary point against the appellant company. He held that section 19(5) was not retrospective and he dismissed the appellant company's application under this section with costs but then having found that no cause had been shown to the contrary he granted leave to the respondent to execute the decree as prayed. With respect the learned trial judge in making this order, does not appear to have considered the facts set out in the affidavit of the first defendant who is also a director of the appellant company. The appellant company claimed that the order for delivery of possession of the premises should not issue as its status as occupiers of the premises had changed and that it had by virtue of the various facts in deposed to the affidavit become a statutory tenant and was as such entitled to remain on the premises. The appellant company was in effect claiming that a new contract had been entered into between the parties and that accordingly the original decree should not be carried into effect.

[17] It appears to me that if the appellant company established that it was entitled to remain in occupation as a statutory tenant, then this must be a sufficiently good reason why the order should not issue. The question whether the appellant company could also claim relief under section 19(5) was in fact a separate application and if the court found that good cause had been shown why execution should not issue, and then a decision under section 19(5) need not have been given. I agree with the learned Chief Justice that in this case the learned trial judge having found that section 19(5) did not apply does not appear to have really directed his mind as to whether the appellant company had shown good cause why the order for possession should not issue and that for this reason apart from anything else this matter will have to be sent back to the High Court for a re-hearing and determination.

[18] I am of the view, however, that this Court should also determine whether the learned judge was correct in his interpretation of section 19(5) of the Rent Restriction Act. The interpretation given to this section by the trial judge is quite different to that given by the High Court (Georges, C.J.) in the case of Kotak_Ltd. v. Kooverji [l969] E.A. 295 T.

[19] Section 19(5) of the Rent Restriction Act (Cap. 419) reads as follows:
¬"19.(5) 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, if it thinks fit, discharge or rescind any such order.

[20] This sub-section was enacted by the Rent Restriction (Amendment) (No.2) Act, 1966 which came into operation on the 1st January, 1961. This was the same amendment Act which applied the Rent Restriction Act to commercial premises. The learned trial judge whilst agreeing that the words of section 19(5) did at first sight give the impression of having a retrospective effect was of the view that the provisions of the transitional section 29(1) and 29(2) of the amended Act nullified any retrospective effect of section 19(1). These provisions are:

“29. (1) Where, at the commencement of this Act, any claim, application, proceedings or other matter, or any appeal, is pending before any Rent Restriction Board established under section 5 of the principal Act as in force immediately before the commencement of this Act or before a court or the High Court, the same may be continued and concluded by the Board, the court or the High Court, as the case may be, as if this Act had not been enacted.
(2) Every order, decision, determination or judgment of a Board, court or the High Court in any claim, application, proceedings or other matter commenced before the commencement of this Act may be enforced, and, where an appeal is lodged against any such order, decisions, determination or judgment, any decision on such appeal may be enforced in the manner provided by the law in force immediately before the commencement of this Act.."

[21] The learned judge also referred to the common law rule that the rights of a party are decided according to the law as it existed when an action began and also to the provisions of section 10 of the Interpretation and General Clause Ordinance, Chapter I. All the provisions however depend on the express words of the legislation being interpreted. In my view the meaning of subsection (5) of section 19 is clear. The subsection refers to an order for possession which has been made either before of after the passing of the Act and which order has not been executed, and then the subsection gives specific jurisdiction to the court ‘executing’ the order to exercise the very wide powers set out in the subsection by which the court may delay discharge or otherwise deal with the order of possession.

[22] This subsection does not really have a retrospective effect but rather it gives jurisdiction to the court to further deal with an order of possession already made. In my view the transitional provisions of section 29 do not in any way restrict or interfere with the jurisdiction given by section 19(5). Subsection (1) of section 29 does not apply but subsection (2) does apply but this subsection provides that the possession ‘may be’ enforced in the manner provided by the law in force immediately before the commencement of this act. This is not a mandatory provision and it in no way interferes or takes away the new jurisdiction given to the court to further deal with an order for possession which has been already made but not executed. In fact subsection 19(5) expressly gives the court jurisdiction to deal with such orders whether made before or after the commencement of the Act. This matte was fully considered by the Chief Justice in his decision in the Kotak Ltd. Case and in dealing with subsection (2) of section 29 he said:-

“It would appear to me that this subsection does not materially alter the situation. If s. 19(5) is retrospective in the sense that creates a power to review in futuro orders made prior to the enactment of the amendment, then it is clear that the ‘law in force immediately before the commencement of the Act’ would have been affected by the Act to the extent that orders could be reviewed under the Act. For these reasons, I would myself be of the opinion that the court did have power to review the order for possession made in this case.”

[23] Admittedly the learned Chief Justice's view was obiter and he expressed some doubt as to the relationship between section 29(2) and section 19(5) but I entirely agree with his interpretation of section 19(5). I would also refer here to the decision of this Court in Jivraj v. Devraj [1968] E.A.263, C.A. and to the views expressed by the learned Vice-President and by Spry, J.A., as he then was, and as quoted by the Chief Justice in the Kotak Ltd. case. Here again these were only obiter observations, but they do support my view of section 19(5). I am therefore of the view that the High Court in considering whether or not to order that the order for the possession of those premises should be executed has jurisdiction to consider the application already made under section 19(5) of the Rent Restriction Act. I agree with the Chief Justice that the cross-appeal be dismissed.

[24] I would therefore allow this appeal and set aside the orders of the High Court dismissing the application and ordering that leave to execute the decree be granted and I would further order that the applications be sent back to the High Court for re-hearing and determination. The cost of the first hearing in the High Court will be in the discretion of the judge re-hearing the matter. I would allow the appellant the costs of this appeal and of the cross-appeal and as the other judges of the court also agree, it is so ordered.

LUTTA, J.A.

[25] I also agree and have little to add. In my view when the decree was passed, it determined any interest the appellants had in the suit premises, and as the decree had not been executed the matter was properly before the Court as a pending cause and as such, it would be governed by the law in force before the Rent Restriction (Amendment) (No.2) Act, 1966 came into force. I think this is the kind of situa¬tion section 29(2) of the Transitional Provisions is intended to cover. However, it seems to me that the latter provision is declaring the common law rule that where there is an alteration of the law during the pendency of a suit, the rights of the parties to that suit are to be governed by the law in force when the suit was filed, in the absence of an express provision to the contrary. I do not think that section 29(2) is intended to fetter the powers of the Court under section 19(5) of the Act.

[26] Section 19(5) of the Act does confer powers on the Court to ‘stay or suspend execution on any such order or postpone the date of possession…and discharge or rescind any such order". It is immaterial whether such order was made before or after the coming into force of the amending Act.

[27] It is for the tenant seeking protection of section 19(5) of the Act to establish to the satisfaction of the Court that he is entitled to remain in occupation of the suit premises, notwithstanding the determination of the contractual terms with the respondent. His status as a statutory tenant or not is a matter to be inferred from the facts of circumstances of his case-see Marcroft Wagons Ltd. V. Smith- (1951) 2 All E.R. 271- and Murray, Bull and Co. Ltd. V. Murray- (1952) - 2 All E.R. 1079. It seems to me that if the Court is satisfied that he is a statutory tenant, protection will be granted under section 19(5) of the Act.

 
 

 

 
     

 

 

 

 

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