Wakilii

Sidikhan v Ahamed Bux (Civil Appeal No. 12 of 1944)

East African Court of Appeal · [1945] EACA 3 · 1945 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from decision of H.M. Supreme Court of Kenya affirming Magistrate's Court order for possession
Decision
Order for vacant possession set aside; decree for rent affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An order for possession under the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940 cannot be made unless the court positively considers whether it is reasonable to make such an order, in addition to one or more statutory conditions being satisfied. Where the reasonableness requirement was neither raised nor considered by the trial court, the order for possession must be set aside. A successful appellant who succeeds on a point not adjudicated upon in the court below will generally not be allowed costs of that appeal.

Outcome

Order for vacant possession set aside; decree for rent affirmed

Facts

The respondent landlord brought suit against the appellant tenant for vacant possession of premises and rent arrears. The premises were subject to the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940. The landlord alleged non-payment of rent. The Magistrate's Court made an order for possession and rent. The tenant appealed to the Supreme Court, raising for the first time the issue that the court had failed to consider whether it was reasonable to make an order for possession as required by section 8(1) of the Ordinance. The Supreme Court dismissed the appeal, holding that it must be assumed the question of reasonableness had been considered. The tenant appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether an order for possession of premises subject to the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940 can be made without the court considering whether it is reasonable to make such an order.
  2. Whether a successful appellant who raises a point for the first time on appeal should be awarded costs.

Orders

  • Appeal allowed.
  • Order for vacant possession and mesne profits set aside.
  • Decree for rent in the Magistrate's Court affirmed.
  • Costs of the appeal in the Court of Appeal awarded to the appellant.
  • Each party to pay his own costs in the Supreme Court.
  • Each party to pay his own costs in the Magistrate's Court.

Rules and key headnotes

Landlord and Tenant — Rent Restriction Legislation — Reasonableness Requirement for Possession Orders
Under the Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940, section 8(1), an order for possession of a dwelling-house cannot be made unless, in addition to one or more of the statutory conditions in paragraphs (a) to (i) being present, the court positively considers it reasonable to make such an order. The existence of a statutory condition does not automatically entitle a landlord to possession; the reasonableness requirement is a separate and essential prerequisite that the court must actively consider.
Rent Restriction Legislation — Mandatory Consideration of Reasonableness
The proviso requiring a court to consider whether it is reasonable to make an order for possession under rent restriction legislation is imperative and not discretionary. A court has a positive duty to consider reasonableness on such evidence as the parties may adduce, and it may indicate to the parties the necessity of furnishing material on this question if they have failed to do so through inadvertence.
Costs — Appeals — Point Not Raised Below
Where an appellant is successful on an appeal upon a point not adjudicated upon in the court below, the general rule is that he will not be allowed his costs of that appeal. This principle applies even where the point is one that should have been considered by the lower court of its own motion.

Legislation cited (2)

  • Increase of Rent and of Mortgage Interest (Restrictions) Ordinance, 1940 s.8(1)(a)
  • Increase of Rent and of Mortgage Interest (Restrictions) Act, 1920

Cases cited (8)

  • Shrimpton v Rabbits (1924) 131 LT 478
  • Goddard v Jeffreys (1882) 46 LT 904
  • Dye v Dye (1884) 13 QBD 147
  • Chard v Jervis (1882) 9 QBD 178
  • North London & General Property Co v May [1918] 2 KB 439
  • Ex parte Walton, In re Levy (1881) 17 Ch D 746
  • Paterson v Provost of St Andrews (1881) 6 AC 833
  • In re DCS (a Debtor) ex parte the Debtor [1904] 2 KB 161

Full judgment

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

Sidikhan v Ahamed Bux (Civil Appeal No. 12 of 1944) [1945] EACA 3 (1 January 1945)
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.