The appellant sued the respondent for Sh. 2,300 being rent owed under a verbal agreement in 1951 by which the respondent was to pay Sh. 700 per month for seven rooms or stores. The respondent did not dispute that the agreement had been made and that he had paid only Sh. 500, but he relied on an assessment of the Central Rent Control Board made in 1954 by which the rent was assessed at Sh. 214 per month with effect from 1st July, 1954. The appellant asserted that the premises had been let as stores or business premises. The respondent claimed that they had been let as a dwelling-house and relied on the fact that the Central Rent Control Board had regarded them as such as it made the order.
The Magistrate refused to go behind the Board’s order and investigate its validity, ruling that it could be attacked only on an appeal from it or a review. Accordingly, he dismissed the claim.
The appellants appealed on the grounds that there could be no estoppel by a previous judgment of the Board operating so as to defeat a claim for rent either for a period the subject or not the subject of specific adjudication by the Board, that while the Board was entitled to enquire into the facts to decide whether or not it had jurisdiction, its finding did not bind the Resident Magistrate, who could not on the facts before him have found, as did the Board (on the material before it), that the premises were controlled as having been “let” as a place of residence.
The respondent argued that the Board’s decision was binding on the Magistrate’s Court as that Court was not superior to the Board.
Held (8-6-56):
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The Increase of Rent (Restriction) Ordinance, 1949, did not invest the Central Rent Control Board with exclusive jurisdiction conclusively to make a finding on the collateral issue on which its jurisdiction depended, namely, whether the premises were let for business or residence, so as to bind the Courts in subsequent proceedings.
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The Magistrate was not precluded from and was under a duty to make his own finding on the facts before him untrammelled by any previous decision of the Board.
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A previous judgment of the same tribunal or court, if shown either by facts (accepted and found) or otherwise to be contrary to the provisions of a statute, cannot operate to create an estoppel, or as res judicata.
Cases referred to:
Trinidad and Tobago v. Eriche and Others, (1893) A.C. 518; Dalip Singh v. A.O. Nathwani, (1952) 25 K.L.R. 81; Heptulla Bros. Ltd. v. Jambhai Jeshangbhai Thakore (Privy Council Appeal No. 13 of 1955); The Queen v. Commissioners for Special Purposes of the Income Tax, (1888) 21 Q.B.D. 313; Griffiths v. Davies, (1943) 2 A.E.R. 209; Bradshaw v. McMullan, (1920) 2 I.R. 412; 21 Digest 139 (h); Maritime Electric Co. v. General Dairies Ltd., (1937) A.C. 622, 1 A.E.R. 748.
Judgment:
Set aside and case remitted to the Magistrate for hearing and determination.
Counsel:
Khanna for appellants.
Carvalho for respondent.
Reported by:
D.N. Khanna, Esq., Barrister-at-Law.
