22 July 1971

     
 

Criminal Appeal No. 16 of 1971

 
     

Court of Appeal for East Africa

     
     

Shyam Thanki, Pyaralli Jaffer Mawji, Badrudin Alidina Velji and New Palace Hotel

 

v.

New Palace Hotel (1964) Limited

     
     
 

Judgment

 
     
 

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BEFORE:

PRESIDENT: Duffus
VICE-PRESIDENT: Spry
JUDGES OF APPEAL: Mustafa and Law

   

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http://www.worldcourts.com/eaca/eng/decisions/1971.07.22_Thanki_v_New_Palace_Hotel.htm

   

Citation:

Thanki v. New Palace Hotel, Judgment, File No. 16 of 1971 (CAEA, July 22, 1971)

Represented By:

 

Editor's Note:

Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam (Biron, J.) dated 9th Feb¬ruary 1971, in High Court Miscellaneous Civil Appeal No.16 of 1970

 
     
 
 
 

SPRY, V-P.

[1] This is an appeal from a judgment and decree of the High Court, holding that a contract between the parties con¬stituted "a lease of a business or running concern as a whole", not a lease of commercial premises, and that it was therefore outside the ambit of the Rent Tribunal established under the Rent Restriction Act, 1962 (Cap.479). The Tribunal, acting under the power conferred by section 7(1)(b) of the Act, had required the respondent company to apply for the determination of the standard rent of a "building operated as an hotel under the name "New Palace Hotel".

[2] At the hearing of the application, it was submitted that the Tribunal had no jurisdiction: the Tribunal ruled that it had jurisdiction and there was no appeal from that ruling. The Tribunal proceeded to assess the standard rent and the appellants then appealed against the decision. At the beginning of the hearing of the appeal, the learned judge raised of his own motion the question whether the Tribunal had had jurisdiction to entertain the application, and eventually decided, as we have said, that the matter had been one outside the ambit of the Act.

[3] At the hearing of this appeal, Mr. Dastur, for the appellants submitted that since the repeal of paragraph (a) of section 7 (1), the Tribunal has had no power to decide whether premises are within its purview, that power being reserved to the court, under section 11A. With respect, we do not think that question is of any rele¬vance to this appeal, as the High Court undoubtedly had jurisdiction to consider and adjudicate on the matter. The contract between the parties was signed on 14th November, 1966, at a time when the Act did not apply to business premises.

[4] In form, it is an ordinary lease: it is expressed to be for a fixed term, with an option for renewal; it defines the premises, thereafter referring to them as "the demised premises"; it contains an agreement to let, on the part of the respondent company, and to take, on the part of the appellants; it contains an agreement to pay rent, a covenant for quiet enjoyment and other provisions usual in leases. The learned judge found on the evidence that the parties "regarded the arrangement between them as the lease of a business as a running concern operated from the suit premises and which premises constitute but part of the agreement as a whole."

[5] That may well be so, but, with respect, we do not think that answers the real question in issue. That question is, we think, whether as a result of the contract, the relationship between the parties was that of landlord and tenant of the suit premises. If the answer to that question is in the affirmative, then, we think, the Act applies and it is immaterial that there may be other parts of the contract that may be outside, and ancillary to, the relationship of landlord and tenant. Mr. Lakha, for the respondent company, has sought to uphold the learned judge's decision. The essence of his argument is that the giving of possession to the appellants was merely in¬cidental to the larger transaction relating to the business as a whole.

[6] Mr. Lakha went so far as to describe it as no more than a licence. He referred us to cases showing that it is possible for a licensee to have exclusive possession and therefore that exclusive possession does not point irresistibly to the existence of a tenancy. With respect, we are not persuaded by this argument. Prima facie, the contract between the parties is an agreement for a lease. We can find nothing in the evidence to show that it was not what it appears to be. We accept that the contract between the parties may have included elements going beyond the landlord and tenant relationship, but that cannot take the tenancy outside the pro¬visions of the Act.

[7] Such matters may be for consideration by the Tribunal under section 4(2) of the Act or they may only be enforceable, if at all, by the courts: those are not matters that concern us on this appeal. We think, with great respect, that the learned judge erred in thinking that if the relationship between the parties went beyond that of landlord and tenant, the Act did not apply. If the relationship of landlord and tenant existed, we think the Tribunal had juris¬diction, and we have no doubt that that relationship existed, whether it was part of a wider one, as alleged, or whether the transaction was basically a lease with certain additional elements.

[8] Accordingly, the appeal is allowed, the judgment and decree are set aside and the proceedings are remitted to the High Court to hear and determine the appeal from the Tribunal. The appellants are awarded the costs of this appeal but the costs in the High Court are to be determined by the High Court on the determination of the appeal to that court.

DUFFUS, P.

[9] The appeal was filed 7 days out of time. No application has been made for an extension of time, although the defect was pointed out to appellants on 10th June, 1971. There is accordingly no competent appeal before this Court, and we have no option but to strike out the appeal as incompetent, with costs, and we order accordingly.

[10] The objections that the notice of appeal and the record of appeal were not served in accordance with the rules of this Court are conceded by the advocate for the respondent but we need not further deal with these objections nor with the further objection that leave to appeal was not obtained.

 
 

 

 
     

 

 

 

 

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