Wakilii

Barot v Valji and Sons (Civil Appeal No. 28 of 1955)

East African Court of Appeal · [1955] EACA 168 · 1955 Appeal Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Landlord and Tenant Court order granting new tenancy under Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954
Decision
Matter remitted to lower court for retrial in accordance with proper application of the Ordinance and Rules

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the magistrate's order directing a retroactive tenancy from 24th December 1954 was ultra vires and contrary to sections 10 and 11(2) of the Ordinance. The magistrate failed to determine whether the rear premises were a shop within the meaning of the Ordinance. The magistrate erred in applying an objective market rent test rather than the subjective test of what is right and fair. The magistrate misconceived the assessor's functions by treating the assessor as a jury on questions of reasonableness which the court must decide. The matter was remitted for retrial.

Outcome

Matter remitted to lower court for retrial in accordance with proper application of the Ordinance and Rules

Facts

A tenant carrying on business as a shoemaker leased premises comprising a shop on Bazaar Road and rear premises on Bazaar Lane (described as a shop but registered and used as a store) from a landlord who was a 58-year-old piece-goods hawker also operating a retail provision shop adjacent to the store. The landlord determined the lease, citing advancing age, uncertainty of hawker's licence renewal, and desire to open a piece-goods shop in the leased premises. The tenant applied under Part II of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 for a new tenancy. The magistrate granted a tenancy of both premises from 24th December 1954 to 31st May 1955 at Sh. 1,350 monthly, and continued tenancy of the Bazaar Road shop until 23rd December 1956 at Sh. 900 monthly. The landlord appealed except as to refusal of tenancy of the store. The tenant cross-appealed against refusal of store tenancy coterminous with the shop and against the rent fixed.

Issues

  1. Whether the magistrate had power to make an order directing a retroactive tenancy from 24th December 1954.
  2. Whether the rear premises in Bazaar Lane were a shop within the meaning of the Ordinance.
  3. Whether the magistrate applied the correct test in assessing rent.
  4. Whether the magistrate properly exercised his functions in relation to the assessor's role.
  5. Whether the magistrate properly considered the personal circumstances of the landlord.

Orders

  • Appeal allowed with costs.
  • Matter remitted for retrial.

Rules and key headnotes

Landlord and Tenant — Statutory Tenancy — Retroactive Orders — Ultra Vires
An order made on 15th June 1955 directing a retroactive tenancy from 24th December 1954 is contrary to sections 10 and 11(2) of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 and is ultra vires the powers of the magistrate.
Landlord and Tenant Legislation — Definition of 'Shop' — Necessity for Determination
A court considering an application under the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 must apply its mind to whether premises are or are not a shop within the meaning of the Ordinance before determining whether it has power to make an order with regard to those premises.
Landlord and Tenant — Rent Assessment — Subjective Test
The rent to be paid under a new tenancy granted under landlord and tenant legislation is to be arrived at by applying the subjective test of what the judge thinks is right and fair, as distinct from the objective test of what the evidence shows is the rent obtainable in the open market.
Assessors — Functions and Proper Role — Expert Opinion Distinguished from Judicial Determination
Under rule 11 of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954, the function of an assessor is to give the court the benefit of special skill or knowledge in relation to matters concerning the premises or their rental value, not to advise the court upon issues such as the reasonableness of granting a tenancy which the Ordinance requires the court to decide.
Assessors — Opportunity to Controvert Opinion — Procedural Fairness
If a court treats an assessor as a jury and takes the assessor's verdict at the end of evidence, the proviso to rule 14 of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954 becomes nugatory, as the party against whom the assessor gives an opinion cannot at that stage exercise the right to an opportunity to controvert that opinion.

Legislation cited (4)

  • Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 s.10
  • Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954 s.11(2)
  • Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954 r.11
  • Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Rules, 1954 r.14

Cases cited (1)

  • John Kay Ltd v Kay and Another [1952] 1 All ER 813 (CA)

Full judgment

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Barot v Valji and Sons (Civil Appeal No. 28 of 1955) [1955] EACA 168 (1 January 1955)
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.