Empire Theatres Ltd. v. Tanzania Exhibitors Ltd. Court Of Appeal Civ. App. 1-D-70; 18/8/70; Duffus, P., Georges, C.J. and Lutta, J.A.

Empire Theatres Ltd. v. Tanzania Exhibitors Ltd. Court Of Appeal Civ. App. 1-D-70; 18/8/70; Duffus, P., Georges, C.J. and Lutta, J.A.

In an action with respect to certain premises an order for vacant possession was made by a consent decree in 1962. the order was suspended on condition that (a) the appellants pay by instalments a certain sum by way of arrears of rent, (b) the appellants were remain in possession of the premises until 31 December 1966 provided no default occurred in payment of rent, and (c) all options for renewal were cancelled. On 1 January 1967 the Rent Restriction Act 1962 was amended bringing commercial premises under control. The rent was fixed at Shs. 3,700/- per month with effect from 1^st January, 1963. On 1^st February, 1967 the respondents, assignees of the interest in 1962 decree, sought leave to execute the order for vacant possession. The appellant opposed the application claiming that the Act having on 1^st January 1967 become applicable to the suit premises, they were entitled to remain in occupation as statutory tenants by holding over and urged the high Court to discharge or rescind or suspend the order under the provisions of S. 19(5) of the Act as amended. The trial judge, as a preliminary point of law, accepted that s. 19(5(of the Act as amended did not apply retrospectively and granted leave to proceed with the execution. On appeal to the Court of Appeal.

            Held: (1) “The trial judge erred in disposing the matter exclusively on the issue of the retrospectively of s. 19(5) and in not considering appellants’ claim of right to remain in occupation as statutory tenants.” Per Georges, C.J.: “I agree that the judgment of the learned trial judge does not deal with any other issue but that of the retrospectivity of s. 19(5) of the amending Act. I think it is clear also on a careful analysis of the appellant’s application and his affidavit that he was putting forward alternative grounds in support f his right to remain on the suit premises. These have not been discussed no has any ruling been made on them. The question arises as to whether or not his Court should deal with the matter or whether

Matters of fact will have to be determined which will make it more convenient to have the application remitted to the High Court for further hearing and determination…..” (2) s. 19(5) is not retrospective in the sense of invalidating orders already made but it does empower the High Court to discharge or otherwise deal with such order; and s. 29(2) does not limit this jurisdiction. Per Duffs, P. “I am of the view, however, that this Court should also determine whether the learned judge was correct in his inter pretation of s. 19(5) of the Rent Restriction Act (Cap. 479). The interpretation given to this section by the trial judge is quite different to that given by the high Court (Georges, C.J.) in the case of Kotak Ltd. v. Kooverji [1969] E.A. 295 T. [S. 19(5) reads: ‘At the time of the application for the making of any order for the recovery of possession of any premises, or for the ejectment of a tenant therefrom, or, in the case of any such order which has been made, whether before or after the passing of this Act, and not executed, at any subsequent time, the court making or executing the order, as the case may be, may adjourn the application, or stay or suspend execution on any such order, or postpone the date of possession for such period or periods as it thinks fit, and, subject to such conditions (If any) in regard to payment by the tenant of arrears of rent, and otherwise, as the court thinks fit, and, if such conditions are complied with the court may, if it thinks fit, discharge or rescind any such order.’] …. The learned trial judge whilst agreeing that the words of section 19(5) did at first sight give the impression for having a retrospective effect was of the view that the provisions of the transitional s. 29 of the amended Act nullified any retrospective effect of section 19(1). [S. 29 (2) reads: ‘Every order, decision, determination or judgment of a Board, court or the High Court in any claim, application, proceedings or other matter commenced before the commencement of this Act may be enforced, and, where an appeal is lodged against any such order, decisions, determination or judgment, any decision on such appeal may be enforced in the manner provided by the law in force immediately before the commencement of this Act’]. “In my view the meaning of sub-s. (5) Of s. 19 is clear. The sub-section refers to an order for possession which has been made either before or after the passing of the Act and which order has not been executed, and then the subsection gives specific jurisdiction to the court ‘executing’ the order to exercise the very wide powers set out in the sub-section by which the court may delay discharge or otherwise deal with the order of possession. This sub-section does not really have a retrospective effect but rather it gives jurisdiction to the court to further deal with an order of possession already made. In my view the transitional provisions of s. 29 do not in nay way restrict or interfere with the jurisdiction given by s. 19(5). (Jivraj v. Devraj [1968] E.A. 263 referred). I am therefore of the view that the High Court in considering whether or not to order that the order for the possession of these premises should be executed has jurisdiction to consider the application already made under s. 19(5).” (3) Appeal allowed, the matter remitted to the High Court for further hearing and determination.