Kaderali v. Iceland Milk Bar Civ. App. 3-D-70; 16/6/70; Georges, C.J.

Kaderali v. Iceland Milk Bar Civ. App. 3-D-70; 16/6/70; Georges, C.J.

This is an appeal from a decision of the Rent Tribunal fixing the Standard Rent of a shop at the corner of Makunganya and Upanga Streets at Shs. 250/- a month from 1^st February 1969. The tenant of the premises, Iceland Milk Bar, did not appear and was not represented at the hearing before the Tribunal. Only one witness, landlady’s husband, testified. He stated that the premises had been let to a Mr. Dharamshi at a rent of Shs. 400/- a month. He produced a receipt book showing the duplicates of receipts issued to Dharamshi and other tenants. Cross-examined by the Tribunal he denied ever having received rent from Ismail Ali Meghji at the rate of Shs. 300/- a month. He also produced his ledger book showing entries for rent to corroborate his testimony. It was not suggested to him that the receipt book and the ledger were forgeries made up by him for the purpose of the case. In their ruling the Tribunal held that they were “not prepared to accept the evidence that premises were let at Shs. 400/- per month on the prescribed date. From the condition of the receipt book it is clear all originals have been destroyed and duplicate copies produced. As for the ledger it is only a notebook and not a regular book of account and can easily be prepared at any time. Thus in absence of any concrete evidence Tribunal rejected evidence of rent Shs. 400/- on the prescribed date. Moreover Mr. Ismail the previous tenant was paying Shs. 300/- a month, raising presumption that the tenant paid lesser amount to the landlord. Moreover other adjacent shops were let at Shs. 250/- per month in the same building on the prescribed date making it highly unlikely for this one to fetch Shs. 400/-.”

            Held: (i) “I should begin by stating that the Tribunal count not on the evidence before it hold that there had been a previous tenant Mr. Ismail who had paid Shs. 300/- a month for the premises. I agree that the Tribunal is entitled to use facts within its knowledge in assessing the standard rent of premises. This cannot, however, extend to using its own knowledge of the rent on or near the prescribed date when that is itself the fact to be determined. It breaks the most elementary rule of fair play which is basically what justice is all about. If the Tribunal has already made up its mind on the basis of information given by a third party who is not to be called or questioned then the actual proceedings before the Tribunal would be a sham and this should never be the case in proceedings such as those before the Tribunal which by virtue of section 9 (10) of the Act are deemed to be ‘judicial proceedings.’ To use one’s knowledge of rents in an area is an entirely different thing from using specifically information as to the rent of certain premises on a particular date to make a finding as t the rent on that date of those premises.” (2) “[The Act – s. 28] clearly contemplates that both sides to the dispute are to be heard and to be given an opportunity of dealing with facts before the Board and contraverting them. If the Tribunal intended to act on the basis that there had been a tenant called Ismail Ali Meghji in the building and that he had been paying a rent of Shs. 300/- evidence to that effect should have been led so that the person testifying could have been cross-examined to enable his truthfulness to be assessed.” (3) “It is clearly stated in the Act that appeals from Tribunals lie to the High Court only on points of law or mixed law and fact – section 11 subsections (1). The High Court cannot substitute its own evaluation of facts for that of the Tribunal even though the High Court may think differently. Where, however, the whole basis of the evaluation of the evidence by the Tribunal is faulty it is the duty of the Court to intervene. It is surely no criticism of a landlord’s receipt book that it contains no original receipts. It must be expected that the originals would be removed and issued to the tenants. The ledger is described as a note book and not a regular book of accounts and it is stated that it could be prepared at any time – clearly implying that it was. The appellant should have been told that the Tribunal regarded his books with suspicion and that in the absence of any other evidence they would not accept them. As the proceeding show the evidence was completed on 3^rd February and ten months later, 2^nd December, without any intervening activity recorded, the ruling quoted above was delivered. I am satisfied that the tribunal acted on wrong reasons in rejecting the receipt book, and in using the information about Mr. Ismail Ali’s tenancy when there was no evidence on the record to support this. (4) Appeal allowed. Application remitted to the Tribunal.