Wakilii

Jhetam v Parker and Others (Civil Appeal No. 10 of 1952)

East African Court of Appeal · [1952] EACA 317 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the decision of the Central Rent Control Board, Nairobi
Decision
Eviction order granted; respondents ordered to vacate premises and deliver up possession within one month; arrears of rent and mesne profits awarded to appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the Central Rent Control Board has no power to make conditional eviction orders; all orders must be final whether postponed or not. Where a tenant is out of occupation for a sufficient period, the burden shifts to the tenant to rebut the presumption of cesser of possession by showing both an intention to return and an outward practical expression of that intention. A tenant who fails to discharge this burden is not entitled to protection under the Ordinance, and the Board has no discretion to refuse unconditional eviction.

Outcome

Eviction order granted; respondents ordered to vacate premises and deliver up possession within one month; arrears of rent and mesne profits awarded to appellant

Facts

The first respondent was a statutory tenant of one room and kitchen. He went to India in November 1948, leaving members of his staff (including the second and third respondents) in occupation. Upon his return in December 1948 with his wife, he was unable to reoccupy the premises because his staff remained there and prevented him from doing so. The first respondent admitted he had not occupied the premises since his return. The appellant landlord applied to the Central Rent Control Board for eviction. The Board made a conditional eviction order requiring payment of rent arrears and compliance with other conditions. The landlord appealed, arguing the Board had no power to make conditional orders and that the first respondent, being out of occupation for over three years, was not entitled to protection under the Ordinance.

Issues

  1. Whether the Central Rent Control Board has power to make conditional eviction orders under the Increase of Rent (Restriction) Ordinance 1949.
  2. Whether a tenant who is out of occupation of premises for over three years retains statutory protection under the Ordinance.
  3. What burden of proof applies to a tenant seeking to rebut the presumption of cesser of possession after prolonged absence.
  4. Whether the Board retains discretion under section 16(2) to refuse eviction where a tenant is not entitled to protection under section 16(1).

Orders

  • Appeal allowed with costs against all three respondents, both in the Court of Appeal and in the Board below.
  • Order of the Central Rent Control Board set aside.
  • Second and third respondents ordered to vacate the premises within one month.
  • First respondent ordered to deliver up formal possession of the premises to the appellant within one month.
  • First respondent ordered to pay to the appellant Sh. 252 arrears of rent and mesne profits at Sh. 42 per month from 1st October 1951 until delivery up of possession.

Rules and key headnotes

Landlord and Tenant — Rent Control — Powers of Rent Control Board — Conditional Eviction Orders
A Rent Control Board has no power under the Increase of Rent (Restriction) Ordinance 1949 to make eviction orders conditional upon the breach of conditions at some future time. All eviction orders must be final, though their operation may be postponed to a specified date under section 16(5). Section 5(1)(k) empowering the Board to impose conditions does not extend to making the operation of an eviction order dependent on future events requiring subsequent determination.
Landlord and Tenant — Statutory Tenancy — Cesser of Possession — Burden of Proof
Where a statutory tenant has been out of occupation of premises for a sufficiently long period (three years or more), the burden shifts to the tenant to rebut the presumption that possession has ceased. The tenant must satisfy the tribunal not only that he always intended to return but also show a corpus possessionis, that is, some outward and practical expression of that inward intention, such as installing a caretaker or representative with the status of licensee and the function of preserving the premises for the tenant's ultimate homecoming.
Landlord and Tenant — Statutory Protection — Tenant Out of Possession
The protection of rent restriction legislation does not extend to a statutory tenant who is out of possession of the premises from which eviction is sought. Where a tenant admits he was unable to reoccupy premises upon his return because his staff remained in occupation and prevented him from doing so, he has failed to establish corpus possessionis and is not entitled to statutory protection.
Rent Control Board — Discretion — Reasonableness Test — Applicability
The discretion conferred on a Rent Control Board under section 16(2) of the Increase of Rent (Restriction) Ordinance 1949 to consider whether it is reasonable to make an order for recovery of possession has no application to a case in which the tenant is held not to be protected by section 16(1). Where a tenant is not entitled to protection under the Ordinance, the Board has no discretion to refuse unconditional eviction.

Legislation cited (4)

  • Increase of Rent (Restriction) Ordinance 1949 s.5(1)(k)
  • Increase of Rent (Restriction) Ordinance 1949 s.16(1)
  • Increase of Rent (Restriction) Ordinance 1949 s.16(2)
  • Increase of Rent (Restriction) Ordinance 1949 s.16(5)

Cases cited (9)

  • Vaiji v Dinshaw Byramjee & Sons (25 (1) K.L.R. 86)
  • Kishen Singh v Megha and Others (Court of Appeal No. 17 of 1952)
  • Brown v Brash ([1948] 1 All ER 922)
  • Wigley v Leigh ([1950] 1 All ER 73)
  • Devji Hamir v Morley (17 E.A.C.A. 18)
  • Dixon v Tommis ([1952] 1 All ER 725)
  • Trustees of Tayebi Club v Pathak (Court of Appeal No. 118 of 1952)
  • Tara Singh and Another v Harnam Singh (11 E.A.C.A. 24)
  • Skinner v Geary ([1931] 2 KB 545)

Full judgment

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

Jhetam v Parker and Others (Civil Appeal No. 10 of 1952) [1952] EACA 317 (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.