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LAW, AG.V-P.
[1] The appellant is the owner of certain business premises in Nairobi, and
the respondent is his tenant. The appellant, being desirous of obtaining
possession of those premises for the purpose of himself carrying on business
therein, served the respondent with two months' notice to terminate the
tenancy, in accordance with the provisions of section 4 of the Landlord and
Tenant (Shops, Hotels and Catering Establishments) Act, 1965 (hereinafter
referred to as "the Act”), on the 22nd April, 1970.
[2] On the 19th May, 1970, the respondent replied by serving notice of his
refusal to agree to the proposed termination of his tenancy, and of his
intention to refer the matter to the Tribunal established under the Act. The
matter was duly referred to the Tribunal which, on the 19th October, 1970,
heard the parties and their witnesses and was addressed by their advocates.
[3] The Tribunal gave its decision on 29th October, 1970. It expressed
itself as being satisfied that the appellant had a genuine intention to
carry on business in the premises, and that he had the necessary machinery,
know how, and financial resources to do so. The Tribunal accordingly ordered
the respondent to give vacant possession of the premises to the appellant.
[4] By section 12(1)(i) of the Act, a Tribunal has power to vary or rescind
any of its orders, but the Act and the Regulations made thereunder are
silent as to the procedure to be followed by a party who wishes to move a
Tribunal to exercise these powers.
[5] On the 5th December, 1970, the respondent lodged with the Tribunal a
notice of motion asking the Tribunal to rescind the order for possession
made on the 29th October, alternatively to award compensation under section
13 of the Act, which empowers a Tribunal to award compensation to a party
against whom the Tribunal has been induced to make an order by reason of
misrepresentation or concealment of material facts by the other party. The
notice of motion was supported by an affidavit in which the respondent
swore, inter alia, that he had been informed by two of the appellant's
brothers that the evidence given by the appellant before the Tribunal as to
his ownership of machinery was untrue, and that these persons were "able and
prepared" to testify to that effect. When the proceedings re-opened before
the Board on the 7th January, 1971, Mr. R.N. Khanna who then appeared for
the appellant objected to the affidavit filed in support of the notice of
motion, on the ground that it offended against Order 18 rule 3 of the Civil
Procedure Rules, as not being confined to facts which the deponent was able
of his own knowledge to prove, and submitted that it should be rejected as
containing hearsay evidence. Mr. Rayani who then appeared for the respondent
pointed out that the Tribunal had its own procedure and that the object of
the affidavit was to disclose the discovery of evidence of misrepresentation
since the making of the order for possession, and he made it clear that he
was proposing to call the brothers as witnesses. The Tribunal, presumably
accepting Mr. R.N. Khanna's preliminary objection on points of law,
summarily dismissed the application for rescission or compensation, without
giving any reasons and without hearing the witnesses whom Mr. Rayani was
proposing to call. The respondent thereupon applied to the High Court for an
order of certiorari to remove into the High Court and quash the order of
dismissal, and for an order for mandamus directing the Tribunal to hear and
determine the application on its merits.
[6] This application was heard by Wicks J. (as he then was) and Chanan Singh
J. who made the orders asked for. In his judgment, Wicks J. expressed the
view that as no procedure was laid down for moving a tribunal, the use of
the words "Notice of Motion" did not bring the proceedings within the Civil
Procedure Rules, and that the affidavit in support was not necessary. Not
being necessary, it was irrelevant whether or not it was sufficient as an
affidavit. The learned judge said that the notice of motion and the
so-called affidavit should be looked at as forming the grounds of the
application, and looking at these documents in that light he was satisfied
that they constituted an application properly brought under section l2(1)(i)
of the Act. The learned judge went on to hold that the application, having
been properly brought, was never heard, the Tribunal having put it out of
its power to hear it by its action in acceding to the preliminary points of
law raised by f1r. R.:£II. Khanna. He held that the failure on the part of
the Tribunal to hoar the application on its merits constituted a denial of
justice and directed that the orders applied for be made. Chanan Singh J.
said he agreed with the judgment of Wicks J. He also referred to regulation
28 of the Landlord and Tenant (Shops, Hotels and Catering Establishments)
(Tribunal) (Forms and Procedure) Regulations, 1966, made under the Act,
which reads
"The Tribunal shall not be obliged to apply strictly all the legal rules of
evidence under the evidence Act, provided its practice and procedure are
conformable with justice, equity and good conscience"
[7] and added that he had no doubt that "justice, equity and good
conscience" required the complaint of the tenant be looked into, and not
dismissed in obedience to a technical rule of evidence.
[8] From the decision of the High Court the appellant has appealed to this
Court. We have had the advantage of hearing argument and submissions from
Mr. D.N. Khanna and Mr. P.E. Nowrojee for the appellant and Mr. J.M.
Nazareth for the respondent. The principal argument for the appellant is
that what transpired before the Tribunal on the 7th January, 1971,
constituted a hearing. The respondent had chosen to present his evidence in
affidavit form, and as this evidence was hearsay, there was nothing before
the Tribunal to cause it to revise its decision, arrived at after a proper
hearing on the merits, and delivered on 29th October, 1970. Mr. Khanna
attacked all the findings arrived at or concurred in by the learned judges
in the court below as representing grave misdirect ions .He submitted in
particular that there must be solid material put up to require a Tribunal to
vary or rescind an earlier decision, and that the Tribunal in this case had
considered the matter and decided that no prima facie case had been made out
to warrant the Tribunal exercising its powers. He asked this Court to hold
that the same rules should apply to applications for rescission as are
applied by a Court of Appeal before allowing applications for admitting
fresh evidence or asking for a new trial, that is to say the Tribunal must
be satisfied that the evidence sought to be led
(a) could not have been obtained and adduced at the original hearing with
reasonable diligence;
(b) is such as to have an important influence on the result; and
(c) is apparently credible; and he relied on Ladd v. Marshall (1954) 3 All
E.R. 745.
[9] Mr. Khanna submitted, as did Mr. Nowrojee, that the affidavit was
rightly excluded, and that once it was excluded, there was no material
before the Tribunal to justify the invocation of its powers of rescission,
and that there was in fact a sufficient hearing in the absence of
substa¬ntial allegations. Mr. Nazareth for the respondent supported the
judgments appealed from and submitted that far from containing
misdi¬rections they were unassailably correct in every respect. He submitted
that there had been no hearing on the 7th January, 1971, and that the
respondent's application was dismissed on the preliminary point of law that
it must be dismissed in limine as the affidavit sworn by the respondent was
defective because it contained hearsay evidence.
[10] Mr. Nazareth submitted that a court should readily reconsider a
Tribunal's decision based on a preliminary objection turning on a point of
law, and he relied for this proposition on R. v. Kesteven Justices (1844) 3
Q.B. 810. The point of law accepted by the Tribunal was that put forward
specifically as a preliminary objection by Mr. Khanna and was, in Mr.
Nazareth's submission, a thoroughly bad one, and not part of the hearing. It
was based on a misconception as to the nature of the respondent's affidavit,
which was not intended to put in evidence what the appellant's brothers had
to say, but to give notice to the Tribunal of the substance of the evidence
which they would give orally when called as witnesses before the Tribunal.
[11] I find myself in full agreement with Mr. Nazareth's submissions. I am
quite unable to accept Mr. Khanna's submissions as to what is required
before a Tribunal can be asked to exercise its powers of rescission; to do
so would be to equate the Tribunal with a Court of Appeal. A Tribunal, when
varying or rescinding its earlier decision, acts as a court of review and
not as an appellate court. I agree with the High Court judges that the
deficiency or otherwise of the affidavit in the circumstances of this case,
was immaterial. As no procedure is prescribed for invoking a Tribunal's
power to vary or rescind its own decision, it does not matter in what form
the complaint is brought to the attention of the Tribunal. It could be, for
instance, by letter or by petition. The essential is that valid grounds of
complaint, prima facie justifying a review, be brought to the Tribunal's
attention in some effective manner. Here the respondent elected to proceed
by a purported notice of motion supported by an affidavit. These documents
could have been otherwise described. Looking at them together, it clearly
emerges that the respondent was complaining that the appellant had obtained
his order for possession as a result of misrepresentations which he, the
respondent, was prepared to prove, by the evidence of two persons to be
called as witnesses before the Tribunal, were false and fraudulent. It was
then the duty of the Tribunal to hear and determine the application on its
merits. I do not accept Mr. Khanna's submission that a Tribunal is power to
vary or rescind is a purely discretionary power. It is, as Mr. Nazareth
submitted, a power coupled with a duty; a duty which must be performed when
valid grounds justifying the exercise of the power are put forward.
[12] I am satisfied that prima facie valid grounds of complaint were put
forward in this case, and that it was the duty of the Tribunal to hold a
hearing into these grounds of complaint. I agree with the learned judges of
the High Court that no hearing was held, and that the respondent's
application was dismissed on a point of law arising out of a preliminary
objection which preceded what would have been the hearing. I agree with Mr.
Nazareth that this Court is not concerned with the merits of the application
for rescission - they may be good, bad, or indifferent - but that once a
prima facie valid ground of complaint is brought to the notice of the
Tribunal, as happened here, which might justify a variation or rescission of
the original order, then the Tribunal is bound to grant the complainant a
hearing and inquire into the complaint.
[13] I find myself in full agreement with the judgments of the learned
judges of the High Court. I would dismiss this appeal with costs and certify
for two advocates.
[14] As Lutta J.A. and Mustafa J.A. agree, it is so ordered.
LUTTA. J .A.
[15] I have had the advantage of reading in draft the judgment of the
learned Acting Vice-President and I agree that this appeal should be
dismissed. It is a well established principle that a tribunal performing
quasi-judicial functions must do so in accordance with the rules of natural
justice. If the Court is satisfied that a tribunal has not acted in
accordance with those rules there
is a remedy by mandamus and certiorari.
[16] The procedure of the Tribunal is provided for in the Landlord and
Tenant (Shops, Hotels and Catering Establishments) (Tribunal) (Forms and
Procedure) Regulations 1966 (L.N. 19 of 1966), and under regulation 28
“The Tribunal shall not be obliged to apply strictly all the legal rules of
evidence under the Evidence Act, provided its practice and procedure are
conformable with justice, equity and good conscience”.
[17] Although when considering a matter before it the Tribunal is not
obliged to follow the rules of procedure of a court of law, justice, equity
and good conscience require it to consider the matter by fairly listening to
both sides, that is, it must observe principles of natural justice and in
the circumstances the learned Judges of the high court were justified in
making the orders which were asked by the respondents.
MUSTAFA, J.A.
[18] I have read the judgment prepared by Law, Ag.V-P, with which I am in
entire agreement.
[19] I have nothing to add. |
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