Wakilii

Salim v Salim (Civil Appeal No. 60 of 1954)

East African Court of Appeal · [1955] EACA 288 · 1955 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the Supreme Court of Kenya dismissing an appeal from the Coast Rent Control Board's order for vacant possession
Decision
Appeal dismissed; order for vacant possession upheld subject to conditions regarding approval of building plans

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the Coast Rent Control Board had jurisdiction under the Increase of Rent (Restriction) Ordinance, 1949 to order vacant possession for breach of a covenant against sub-letting. Oral evidence of sub-letting was admissible even where a written agreement existed but was not the final agreement between the parties. A breach of covenant is not waived by a notice to quit that expressly determines the lease for breach, nor by acceptance of rent by a rent collector lacking authority to grant a new lease. Appeal dismissed.

Outcome

Appeal dismissed; order for vacant possession upheld subject to conditions regarding approval of building plans

Facts

The respondent landlord leased premises in Mombasa to the appellant tenant's testator for 75 years from 1934 at a monthly rent of Sh. 150. The lease contained a covenant against sub-letting without written consent and a forfeiture clause. In September 1952, the landlord learned that one Mohamed Mujahid was occupying the greater part of the premises and operating a restaurant business. No consent for sub-letting had been sought or given. On 13 November 1952, the landlord's advocates gave written notice determining the lease on 30 November 1952 for breach of the covenant. When the tenant failed to comply, the landlord applied to the Coast Rent Control Board on 20 January 1953 for vacant possession, mesne profits and costs. The Board found the breach proved, the lease lawfully terminated, and ordered vacant possession. The tenant appealed to the Supreme Court, which dismissed the appeal, and then to the Court of Appeal.

Issues

  1. Whether the Coast Rent Control Board had jurisdiction to entertain and determine the application for vacant possession.
  2. Whether the Board acted upon inadmissible evidence in finding a breach of the covenant against sub-letting.
  3. Whether the evidence established a breach of the covenant against sub-letting.
  4. Whether any breach of covenant was waived by the giving of a notice to quit and/or by acceptance of rent after knowledge of the breach.

Orders

  • Appeal dismissed with costs.
  • Vacant possession to be given in one month from the date of judgment if approval of plans for new building has been given; otherwise the Board's original order stands.
  • Conditions subsequent imposed in the Board's order to stand.

Rules and key headnotes

Landlord and Tenant — Rent Control Board — Jurisdiction to Order Vacant Possession for Breach of Covenant
A Rent Control Board established under the Increase of Rent (Restriction) Ordinance, 1949 has jurisdiction to determine applications for vacant possession and to adjudicate between lessors and lessees of premises under sections 5(1)(f), 5(1)(n) and 16(1)(a) of the Ordinance, notwithstanding that it may not possess all the powers of the Supreme Court including the power to grant relief against forfeiture.
Documentary Evidence — Exclusion of Oral by Documentary Evidence — Agreement Not Setting Out Final Terms
Section 91 of the Indian Evidence Act, which embodies the rule of exclusion of oral by documentary evidence, does not apply where a written agreement does not set out the terms of the final agreement between the parties but contemplates the execution of a further formal agreement.
Leases — Registration — Agreement for Lease Distinguished from Lease
An agreement for a lease is not registrable under section 40 of the Registration of Titles Ordinance, which speaks only of a lease executed in the prescribed form. Even if such an agreement were ineffectual for want of registration, a party is not debarred from giving other evidence of the sub-letting.
Documentary Evidence — Stamp Duty — Admissibility of Unstamped Copy
Where the document tendered in evidence is only a copy of a copy and there is no evidence whether the original was stamped, the stamp objection under section 39 of the Stamp Ordinance fails. In any event, a party is not prejudiced by exclusion of an unstamped document where the breach has been established by oral evidence before the document was produced.
Leases — Forfeiture — Waiver by Notice to Quit
The effect of giving a notice to quit when a forfeiture of lease is incurred depends on the intention with which the notice was sent. A notice that sets out the breach and expressly determines the lease for that breach does not amount to a waiver of the forfeiture, as it does not recognize the continuance of the tenancy but rather terminates it.
Leases — Forfeiture — Waiver by Acceptance of Rent — Authority of Agent
For the acceptance by a rent collector of rent to operate as a waiver of a breach of covenant in a lease under section 112 of the Indian Transfer of Property Act, it must be shown not only that the rent collector had knowledge of the breach, but that he, as agent, had authority to grant a new lease or authority to waive a forfeiture.
Leases — Forfeiture — Waiver by Acceptance of Rent — Timing of Acceptance
Under section 112 of the Indian Transfer of Property Act, acceptance of rent after the institution of proceedings to eject the lessee on the ground of forfeiture is not a waiver of the right to forfeit the lease, but acceptance of rent prior to the institution of proceedings may operate as a waiver if the lessor is aware of the forfeiture.

Legislation cited (12)

  • Increase of Rent (Restriction) Ordinance, 1949 s.5(1)(f)
  • Increase of Rent (Restriction) Ordinance, 1949 s.5(1)(n)
  • Increase of Rent (Restriction) Ordinance, 1949 s.16(1)(a)
  • Increase of Rent (Restriction) Ordinance, 1949 s.16(2)
  • Indian Evidence Act s.91
  • Registration of Titles Ordinance s.40
  • Registration of Titles Ordinance s.43
  • Stamp Ordinance s.39
  • Indian Transfer of Property Act s.107
  • Indian Transfer of Property Act s.111
  • Indian Transfer of Property Act s.112
  • Crown Lands Ordinance s.83

Cases cited (37)

  • Attorney-General Fiji v Bailey (1950) 37 All I Register Apl 73
  • Abrahams v MacFisheries [1925] 2 KB 18
  • Branch v Bennett's Dairies Ltd (1928) 44 TLR 605
  • Chaplin v Smith [1926] 1 KB 198
  • Creery v Summersell [1949] Ch 751
  • Cobb v Lane [1952] 1 All ER 1199
  • Chenbasapa v Llikshman (1893) 18 Bom 369
  • Chidambaram Chettiar v Moyyappan (1946) Mad 672
  • Doe d v Payne (1815) 171 ER 410
  • Dinomoyi Debi v Roy Luchmiput Singh (1879-80) 7 IA 8
  • Damodar Jagannath v Atmaram Babaji (1887) 12 Bom 443
  • Doe d Nash v Birch (1836) 1 M & W 402
  • Esdaile v Oxenham (1824) 107 ER 717
  • Dharamshi Virji v Haji Aladina Abdulrehman (1950) 24(1) KLR 24
  • Horsey v Steiger [1899] 2 QB 79
  • Hindly v Rickarby (1803) 5 Esp 4
  • Ismail Mohamed Chogley v. E.A. Bakery Kenya Sup. Ct. Civ. App. 1025/1950
  • Jackson v Simons [1923] 1 Ch 373
  • Jagat Singh Bains v Ismail Mohamed Chogley (1949) 16 EACA 27
  • Khimji Bhimji & Bros v Shivji Jetha (1948) 23(1) KLR 6
  • Loewenthal v Vanhoute [1947] 1 All ER 116
  • Magnay v Knight (1840) 1 Man & G 944
  • Marche v Christodoulakis [1948] 64 TLR 466
  • Meghji Karman v Karamshi Devraj (1953) 20 EACA 47
  • Norman v Simpson [1946] KB 158
  • Nagara Garage v Ranchhod Pitamber (1950) 17 EACA 77
  • Miller v Babu Madho Das (1896) 23 IA 106
  • Peebles v Crosthwaite (1897) 13 TLR 198
  • R v Drucquer [1939] 2 KB 588
  • R v Fulham Hammersmith and Kensington Rent Tribunal ex parte Zerek [1950] 1 All ER 482
  • R v Hackney Islington & Stoke Newington Rent Tribunal ex parte Keats [1950] 1 All ER 138
  • Rees v Bute [1916] 2 Ch 64
  • Sonet Koor v Himmut Bahadoor (1876) ILR Cal 339
  • Shanker Lal v Sukhrani (1882) 4 All 462
  • Secretary of State for India v Kuchwar Lime & Stone Co Ltd (1937) 65 IA 45
  • Thaji Beebi v Tirumalaiappa (1907) 30 Mad 386
  • Venkatagiri v Raghava (1886) ILR 9 Mad 142

Full judgment

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Salim v Salim (Civil Appeal No. 60 of 1954) [1955] EACA 288 (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.