Wakilii

Bains v Chogley (Civil Appeal No. 1 of 1949)

East African Court of Appeal · [1949] EACA 6 · 1949 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya following retrial ordered by Court of Appeal
Decision
Respondent entitled to remain in possession as licensee of Sidi Bilal whose yearly tenancy had not been validly terminated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An unregistered lease void under statute cannot be received in evidence to determine the nature of the tenancy. Where a tenant enters possession and pays monthly rent, section 106 of the Indian Transfer of Property Act creates a statutory presumption of a periodic tenancy requiring notice to quit. The Court of Appeal has jurisdiction under Article 2 of the Eastern Africa Court of Appeal Order in Council 1921 to set aside an order made on a wrong legal basis as against all parties to do justice in the cause.

Outcome

Respondent entitled to remain in possession as licensee of Sidi Bilal whose yearly tenancy had not been validly terminated

Facts

In June 1941 the appellant purported to lease bakery premises in Nairobi to Sidi Bilal for five years at monthly rent of Sh.300. The written lease was never registered. In 1942 Sidi Bilal went to India leaving the respondent in charge under power of attorney. In April 1946 Sidi Bilal sold the business to the respondent who continued paying rent which the appellant accepted. In June 1946 the appellant claimed possession on the ground that the five-year lease had expired. The appellant sued both Sidi Bilal and the respondent. Sidi Bilal did not defend. The Magistrate granted possession on the basis that the lease was valid. The respondent appealed unsuccessfully to the Supreme Court then to the Court of Appeal which discovered the lease was void for want of registration under section 107 of the Indian Transfer of Property Act and ordered a retrial. On retrial the Magistrate again granted possession finding Sidi Bilal was only a tenant at will. The respondent appealed to the Supreme Court which held Sidi Bilal was a yearly tenant requiring six months' notice to quit and that the respondent was lawfully in possession as Sidi Bilal's licensee. The appellant appealed to the Court of Appeal.

Issues

  1. Whether an unregistered lease void under statute can be considered to determine the parties' intention regarding the nature of the tenancy created.
  2. Whether a tenant in possession under an unregistered lease paying monthly rent is a tenant at will or a periodic tenant requiring notice to quit.
  3. Whether the Court of Appeal's order setting aside a judgment applied to all parties including a party who did not appeal.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Evidence — Admissibility — Unregistered Instruments — Crown Lands Ordinance s.102(1)
Under section 102(1) of the Crown Lands Ordinance no court is entitled to receive any evidence touching an unregistered agreement for any purpose relevant to the consideration of the status of parties as landlord and tenant where the Ordinance applies to the land in question.
Landlord and Tenant — Periodic Tenancy — Creation by Statute — Indian Transfer of Property Act s.106
Where a tenant enters into possession and rent is paid and accepted from month to month, section 106 of the Indian Transfer of Property Act creates a statutory presumption of a periodic tenancy which cannot be rebutted merely by showing that the parties intended a different term under a void unregistered lease.
Landlord and Tenant — Yearly Tenancy — Notice to Quit — Manufacturing Premises
Where premises are used for manufacturing purposes and there is no contract specifying the period of tenancy, the lease must be deemed under section 106 of the Indian Transfer of Property Act to be a lease from year to year requiring six months' notice of determination from either party.
Landlord and Tenant — Tenant at Will Distinguished from Periodic Tenant
A tenant who enters possession under an agreement and pays rent regularly which is accepted by the landlord is a tenant as distinguished from a tenant at will, and the relationship of landlord and tenant is created which may be inferred from payment and acceptance of rent.
Appeals — Court of Appeal Powers — Setting Aside Judgments — Article 2 Eastern Africa Court of Appeal Order in Council 1921
Under Article 2 of the Eastern Africa Court of Appeal Order in Council 1921 the Court of Appeal has jurisdiction to set aside in toto an order made on a wrong legal basis as against all parties to the proceedings for the purpose of doing justice in the cause, even where one party did not appeal.
Statutory Interpretation — Court's Duty — Mandatory Statutory Requirements
It is the duty of the court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it, and where the requirements of a statute have been overlooked it is necessary to set aside an order made on a wrong basis.

Legislation cited (6)

  • Indian Transfer of Property Act 1882 s.105
  • Indian Transfer of Property Act 1882 s.106
  • Indian Transfer of Property Act 1882 s.107
  • Crown Lands Ordinance (Cap. 140, Laws of Kenya) s.101
  • Crown Lands Ordinance (Cap. 140, Laws of Kenya) s.102(1)
  • Eastern Africa Court of Appeal Order in Council 1921 Article 2

Cases cited (4)

  • Phillips v Copping [1935] 1 KB 15
  • Ariff v Jadu Nath (1928) 55 Cal 1090
  • Sheikh Akloo v Sheikh Emaman (1917) 44 Cal 403
  • Ladies Hosiery and Underwear Ltd v Parker [1930] 1 Ch 304

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bains v Chogley (Civil Appeal No. 1 of 1949) [1949] EACA 6 (1 January 1949)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.