The landlord of a cinema, containing bar accommodation, terminated the lease of the bar tenant by notice to quit. The tenant applied to a subordinate court of the first class for an order to grant a new tenancy under the provisions of the Landlord and Tenant (Shops and Hotels) (Temporary Provisions) Ordinance, 1954. The magistrate sat with two assessors, bne of whom advised a period of 24, the other a period of 12 months, for the new tenancy, which the magistrate had ordered. The magistrate, as he was entitled to do, did not accept these opinions and fixed upon a period of seven months. In so doing he was influenced by a submission that the landlord was planning to give better service than the tenant to the public by running the cinema and the bar as a joint concern. The tenant appealed on the ground that in taking into account service to the public the magistrate had been moved by a consideration he ought not to have accepted and, further, that even if this issue were relevant, the magistrate had attached too much weight to it and should have given effect to the intention of the legislation which was that normally the new period should be for two years, the full length of the Ordinance. The magistrate, by consent of the parties, after deciding the period of the lease, stood over to a later date the consideration of the other terms of the lease. This was argued on appeal as an error in law.
Held (13-7-55):
(1) The object of the Ordinance was merely to give a temporary and transitional protection to tenants for a period not exceeding two years, but not necessarily as long as two years and this temporary protection would be granted if, and only if, the magistrate thought it reasonable to do so. It was by no means implied in the legislation that such protection ought normally to be extended for the full running of the Ordinance because by its scheme the period of the new tenancy was entirely within the discretion of the magistrate.
(2) Since it was by consent that the fixing of the rent and other consideration as stood over to a date later than that upon which the Court decided the period of the new tenancy, the appellant could not be heard to argue that in so doing the magistrate had erred in law. Moreover, there was nothing in section Il (1) of the Ordinance to suggest that the course followed was precluded or unlawful. (3)"Reasonable" in section 11 (1) means having regard to the interests of the parties concerned and also having regard to the interests of the public. The magistrate had not erred in law in taking into account the benefit to the public, which was a relevant factor he might consider in assessing the period of tenancy (4) Under Section 13 (1) of the Ordinance, the only question an Appellate Court could entertain was one of law. The weight to be attached to any particular factor on record was within the discretion of the magistrate and could not be the subject of appeal. The Court was satisfied that the magistrate had considered the factor of benefit to the public and which he was entitled to do and which was a relevant factor and the weight he had attached to that fact could not be a subject for appeal.
(5) An Appellate Court could interfere as a matter of law where the lower court had arrived at a finding without evidence on record to support it. Provided there was some evidence, the Appellate Court would not interfere upon the ground that that evidence was inadequate or ought to have been outweighed by other evidence or ought to have been rejected. These were questions of fact not appealable under section 13 (I). After perusing the record the Appellate Court was unable to say that there was no evidence before the magistrate to support his conclusions about better service; it therefore could not interfere.
Cases cited: Gumming v. Dmso, (1942) 2 A.E.R. 653, C.A.; Cresswell v. Hodgson, (1951) 2 K.B. 92 C.A.
Nazareth with Davies for appellant / tenant.
Mackie Robertson for respondent/ landlord.
