Wakilii

Chogley v Bains (Civil Appeal No. 129 of 1951)

East African Court of Appeal · [1952] EACA 307 · 1952 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Central Rent Control Board ordering recovery of possession
Decision
Appeal dismissed as to possession; order for mesne profits set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Section 16(1)(i) of the Increase of Rent (Restriction) Ordinance 1949 differs substantially from section 11(1)(h) of the 1940 Ordinance and applies retrospectively to sublettings between 1 December 1941 and 6 September 1949. Where a contractual tenant sublets the whole of premises without the landlord's written consent during that period, the subletting is unlawful and the sub-tenant is an occupier against whom the landlord may obtain an ejectment order. The section applies to both contractual and statutory tenants and is not limited by the absence of a covenant against subletting.

Outcome

Appeal dismissed as to possession; order for mesne profits set aside

Facts

The landlord Bains owned bakery premises let to Sidi Bilal as a yearly tenant. Sidi Bilal had not occupied the premises since October 1941; the appellant Chogley had been in actual occupation. On 1 December 1948, during protracted litigation over the tenancy, the landlord served a six months' notice to quit expiring 1 July 1949. On 25 January 1949, while the notice was running, Sidi Bilal purported to sublet the premises to Chogley without the landlord's consent. There was no restrictive covenant against subletting. The Increase of Rent (Restriction) Ordinance 1949 came into force on 6 September 1949. In February 1950, the landlord applied to the Central Rent Control Board for recovery of possession against both Sidi Bilal and Chogley. Sidi Bilal did not appear. The Board ordered possession against Chogley and mesne profits. Chogley appealed, contending his sub-tenancy was lawful under the 1940 Ordinance and protected under the 1949 Ordinance.

Issues

  1. Whether section 16(1)(i) of the Increase of Rent (Restriction) Ordinance 1949 applied retrospectively to a subletting that occurred before the Ordinance came into force on 6 September 1949.
  2. Whether the appellant's interest as a sub-tenant was lawful under the 1940 Ordinance and therefore protected under the 1949 Ordinance.
  3. Whether section 16(1)(i) applied only to statutory tenants or also to contractual tenants.
  4. Whether the word 'occupier' in section 16(1)(i) excluded lawful sub-tenants protected by sections 16(6) and 23(3).

Orders

  • Appeal against the order for recovery of possession dismissed.
  • Order for payment of mesne profits by the appellant set aside.

Rules and key headnotes

Landlord and Tenant — Rent Restriction — Retrospective Application of Statute
Section 16(1)(i) of the Increase of Rent (Restriction) Ordinance 1949 is expressly retrospective in its application to sublettings occurring between 1 December 1941 and 6 September 1949, and withdraws protection from sub-tenants whose interest arose from sublettings without the landlord's written consent during that period.
Construction of Rent Restriction Legislation — Plain Meaning Rule
Words in rent restriction legislation are to be taken as meaning what they say and are to be read in their ordinary sense. There is no reason for confining the words 'the tenant' in section 16(1)(i) so as to mean only the statutory tenant; the section covers assignments and sublettings by contractual tenants before the contractual term comes to an end.
Landlord and Tenant — Subletting Without Consent — Effect of Absence of Restrictive Covenant
Section 16(1)(i) of the 1949 Ordinance applies regardless of whether the tenancy agreement contains a covenant restricting subletting. No qualification is to be implied that the section only applies where consent to subletting is required by the tenancy agreement.
Landlord and Tenant — Unlawful Subletting — Status of Occupier
Where premises are not lawfully sublet to an occupier because the subletting occurred without the landlord's written consent between 1 December 1941 and 6 September 1949, the occupier cannot rely upon sections 16(6) or 23(3) of the 1949 Ordinance for protection in possession and is an 'occupier' against whom the landlord may obtain an ejectment order.
Rent Restriction — Relationship Between Sections 16(1)(i) and 28
The presence of section 28 of the 1949 Ordinance, which prohibits assignment or subletting after commencement of the Ordinance without written consent, provides no basis for construing section 16(1)(i) as inapplicable where the tenancy agreement does not require consent to subletting. Section 28 makes doubly certain what section 16(1)(i) already covers for the retrospective period.

Legislation cited (8)

  • Increase of Rent (Restriction) Ordinance 1949 s.16(1)(i)
  • Increase of Rent (Restriction) Ordinance 1949 s.16(6)
  • Increase of Rent (Restriction) Ordinance 1949 s.23(3)
  • Increase of Rent (Restriction) Ordinance 1949 s.28
  • Increase of Rent (Restriction) Ordinance 1949 s.35
  • Increase of Rent and of Mortgage Interest (Restrictions) Ordinance 1940 s.11(1)(h)
  • Rent (Restriction) (Enforcement of Determinations and Orders of the Board and Appeals from the Board's Determinations and Orders to the Supreme Court) Rules 1950 r.12
  • Civil Procedure (Revised) Rules 1948 Order 41 r.27

Cases cited (5)

  • Bains v Chogley (Civil Appeal No. 1 of 1949)
  • Padamshi v Hirji (Civil Appeal No. 32 of 1951)
  • Motiram & Another v. M. H. Ahmad, 22 (2) K.L.R. 14
  • Regional Properties Ltd v Frankenschwerth [1951] 1 All ER 178
  • Karman v Devraj (Civil Appeal No. 738 of 1951)

Full judgment

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

Chogley v Bains (Civil Appeal No. 129 of 1951) [1952] EACA 307 (1 January 1952)
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.