(COURT OF APPEAL)*
BAKHEITA IBRAHIM vs. HAMAD MAHAYOUB
(AC/REV/8/1957)
Principles
· Landlord an Tenant purported assignment contrary to covenant not to assign without consent —— consent not applied for —— spec performance not grantable —- measure of damages for breath of contract.

A tenant holding under a lease with covenant not to assign without landlord’s consent purported to assign for valuable consideration, no such consent having been applied for. The ‘assignee” claimed specific performance. This cannot be granted,

Judgment

(1) The question discussed in this case was also raised in Abdullah Mohd. el Fadil and another v. Batoul Beshir el Dabi and others FIC/REV/264/1958 which will be reported in (1958) S.L.J.R. and in El Sarra Bint Fideil v. Fatima Habib and others HC/REV/ 24/1959 which will he reported in (1956) S.L.J.R.
(*) M.A. Abu Rannat. C.J. exercising his powers under Section 176 of the Civil Justice Ordinance.
as it would put compulsion on the tenant to break her covenant and the landlord was not a party to the proceedings. The measure of damages which the disappointed ‘assignee” can claim is not limited by the technical rule of English land law to what he has paid as consideration and for investigation of title, but he can claim any damages for the breach of contract proved in the normal way.
Application for Revision:
The facts are set out in the judgment of M.A. Abu Rannat, C.J.
Advocates: Mohammed Abdel Mut’al …………..for applicant.
Respondent not represented.
M.A. Abu Rannat, C.J. : This application is summarily dismissed. Many cases of this nature are coming. to the Court of Appeal, and I shall take the opportunity to write a full judgment for the purpose of publicity.
The facts of this case have been fully ascertained by the learned Province Judge and are shortly as follows
By a lease entered into on the 26th. April, 1948, between the Plaintiff and the Sudan Government, the Sudan Government demised certain lands viz. Plot 245, Block 8 in the third class residential area of el Darner Town to the Plaintiff. By Clause 4 (2) of that lease the plaintiff was to erect a building for private habitation on the land within one year of the date of the lease and was thereafter to hold the land until the 31st. December, 1968 at an annual rent of 18 piastres.
Clause 4 (7) of the lease provided
‘The lessee agrees not to assign or charge or mortgage or underlet for a period exceeding three years the premises or any part thereof without the previous consent in writing of the Government and in applying for such consent to declare the true consideration for such assignment or under letting or the amount of such mortgage or charge.”
Clause makes provisions for re-entry on breach of covenants and Clause 6 links up with Clause 4 (7), laying down cases in which consideration for such consent can be claimed by the lessor, i.e. the Government.
By 1952 the plaintiff found herself unable to complete the building which had reached roof level, and she agreed to assign the premises to the defendant for the sum of L.E.62. 500/ms and the defendant was
to complete the building. The defendant entered into possession in 1952 with the consent of the plaintiff and completed the building by August, 1956, paying rates as from 1st July, 1952 when such were demanded.
By the 18th March, 1954 the plaintiff had received the total consideration although she was only to have received the last of that money after the land had been registered.
In August, 1956 the plaintiff was registered leasehold proprietor under the Land Settlement and Registration Ordinance.
The issue before the learned Province Judge was whether the plaintiff was entitled to possession of the premises or whether the defendant was entitled to specific performance of the agreement of the 1st July, 1952, so as to be registered as leasehold proprietor in the plaintiff’s place. The plaintiff also claimed rent as from the 1st July, 1952 when the defendant went into possession and the defendant claimed damages in the alternative to a decree of specific performance.
The learned Province Judge refused to decree specific performance and refused to order that the defendant pay rent. He ordered possession to the plaintiff and ordered that the plaintiff pay to the defendant the sum of L.E.45.500 m/ms, being the sum of L.E.62. m/ms., plus the sum of L.E.83.ooo m/ms. expended by the defendant in completing the building. From this judgment the plaintiff is appealing by way of revision.
Two points have been raised against the issue of a decree of specific performance. First it was argued that such a decree would be contrary to section 2 of the Natives Disposition of Lands Restriction Ordinance (No. 1). That Section provides that:
“No native of the Sudan shall sell, mortgage, charge or otherwise dispose of nor agree to sell, mortgage, charge or otherwise dispose of any land or any right or interest in or over the same, unless with written consent of the Governor of the Province within which such land is situated.”
Section 4 makes any attempted disposition contrary to section 2 null and void. There are certain exceptions set out in sections 2 and 3, which we are not concerned with here.
Secondly it is argued that Clause 4 (7) of the lease itself demands such consent to an assignment and this consent has not been applied for.
The first objection can be easily disposed of. The Natives Disposition of Lands Restriction (No. 1) Ordinance is not applicable to this lease at all. By a proclamation dated the 1oth February, 1948 and published in the Sudan Government Gazette of 1948, at page 120, the Governor of Northern Province gave a general consent to the disposition of lands in the town of el Damer between natives of the Sudan. It is thus no longer necessary to apply for such consent in those cases where the land concerned is within the boundaries of el Damer Town and the disposition is between natives of the Sudan.
This leads me to the second, and more cogent, point, There is some support for the argument that wherever consent is required, such consent must not be unreasonably withheld. Should the withholding of the consent be unreasonable, the assignment could go ahead without such consent. See Treloar vs. Bigge (1874) 9 Ex. D. 151. (and the Landlord and Tenant Act, 1927, section 19 (1) which simply re-enacts this Common Law position). But a failure to apply for such consent is a clear breach of covenant. As Neville J. stated in Lewis and Allenby vs. Pegge (1941) 1 Ch. 782, at p. 785:
‘It is obviously a formality to apply for the consent of the landlord in a case where under the terms of the covenant he has no power to prevent the assignment by withholding his consent. It matters not, where the proposed assignee is a respectable and responsible person, whether the landlord gives or does not give his consent. The cases show that if, on the other hand, the landlord has been asked and refused or has been asked and withheld his consent, the lessee retains his interest under the lease, whereas if he has not been asked and so is unable to give the consent that he should give, the withholding of which is inoperative if the request be made, then the whole property of the lessee becomes the property of the lessor.”
(i.e. subject to forfeiture). In that case the restriction was that consent would not be withheld in that case of a responsible and respectable person. (See also Barrow vs. Isaacs (1891) I Q.B. 417; Wilson vs. Fynn (1948) 2 All E.R. 40; and Creery vs. Sommersell & Flowerdew (1949) 1 Ch. 1 In the lease before us the restriction is simply not to assign without written consent and thus until an application has been made and consent refused, it would not be possible to see, whether the consent was unreasonably refused.

Thus it is clear that an attempt to assign without such consent would be a breach of covenant and would entitle the lessor to forfeit the lease under Clause . The case of Creery vs. Sommersell and Flowerdew shows further that on the facts of this case the Court is not likely to grant relief to such forfeiture, for the defendant knew of the requirement for consent and does not seem to have pressed for such consent to be obtained.
I do not agree that cases decided under the Natives Disposition of Lands Restriction (No. 1) Ordinance are applicable here. There are many cases when the consent under that Ordinance may be a pure formality, e.g. where the Governor, having given consent to a mortgage, must be deemed to have consented to the legal effects of such mortgage, i.e. foreclosure and sale, etc. The basis of these two cases is different. Whereas the Ordinance aims to protect natives of the Sudan generally from exploitation by a sale of their property, especially to aliens, the provisions in a lease are the terms which have been agreed upon between the parties and the restriction on assignment, etc. is for the protection of the lessor, who should not be deprived of the right to exercise his discretion whether he will have a certain person as his lessee, i.e. tenant. Thus I am in complete agreement with the learned Judge, Watson, J. in El JV vs. El Bashab HG/REV! KHTM /84/1953 when he stated “The Governor’s consent under the lease is in these circumstances no mere formality”.
The lease specifically provides that such consent must be the previous consent”, i.e. that before an as the consent must be obtained. I therefore respectfully agree with the dictum of Soni, J. in Sabila Fadl vs. Ahmed Abdullah Ahmed (1956) S.L.J.R. 63 ‘Sabila is a Government lessee,. and her document of title, the lease deed, explicitly mentions that she cannot transfer her rights in the land without the express consent previously given in writing of the Governor. If the vendee was not careful to scrutinize the title of his vendor, he has only to thank himself for having placed himself in difficulties. If a lease mentions what the rights of the lessee are, it is rot a mere formality to say that the Governor’s consent need not previously be obtained. The rights of the lessee are circumscribed and limited ...“
Thus, can the defendant demand specific performance of the agreement of the 1st July, 1952 ? In my view he cannot. There are two reasons for this. First it is a clear rule of equity that specific performance, which is an equitable and therefore discretionary remedy, will not be decreed where to do so would be to order the breach of a previous
covenant. Willmott vs. Barber (1880) 15 Ch. D. 96 is directly in point here. In that case too the previous consent in writing was required to an assignment and had not been obtained. Fry J. stated (at p. 107)
“The plaintiff would be asking me to compel the defendant Barber to commit a breach of his prior covenant not to assign without license obtained in the lease of 1869. That is a course which I decline to adopt.”
But it should be noted that when a person sets up a defense for forfeiture to a decree of specific performance, the Court must be well satisfied that the forfeiture will follow from the specific performance of the agreement before admitting the validity of the defense (Helling vs. Lumley 3 Dc G. & J. 493). Thus where the forfeiture would result from such person’s own act, and not because of the agreement, the Court would decree specific performance.
Secondly, the Court will not decree specific performance against a person who is not a party to the litigation. Thus in Peacock vs. Penson ( Beav. 355) one of the defendants was not a party to the contract which it was desired to have specifically enforced. It was held that he could not be made a party to have such decree made against him self. Thus here to order specific performance would mean that the Government would be asked to consent without the right to consider whether it wishes to have the defendant as its tenant.
Thus specific performance not being possible in these circumstances, it is clear that the defendant has no title to the property and the plaintiff is entitled to possession. But should the matter rest here ?
The duty of conveying the land rests on the assignor. Thus the
Plaintiff in this case should have applied for the consent of the
Government, i.e. the lessor. As Turner, L.J. stated in Williams vs.
Clenton (L.R. s Ch. App. 200, at p. 209).
“The vendor, however, is bound to complete the contract, and if he does not take the steps which are necessary to enable him to do so, he is liable for damages upon the contract; and heavy damages would be given if, having the means of completing the sale, he should decline to take the proceedings necessary for that purpose.”
Sir F.H. Jeune in Day vs. Singleton (1899) 2 Ch. 320 placed this, not so much upon breach of contract, as upon a breach of duty
“It is really an action for failing in his duty to obtain,
if he could, the consent of the Charterhouse (i.e. the lessor) to
transfer.”
The early case of Lloyd vs. Crisp ( Taunt. 249) shows that even though the purchaser knew of the need for consent, the duty to obtain the consent lies on the vendor. Where the vendor has made no effort to apply for such consent, he must show that any application by him for such consent would have been dismissed on its merits (Braybrook vs. Whalley (1919) 1 K.B. 435; see Salter J. at p. 442).
In all these cases the actions were for damages. But Watson J. in el nifeidi vs. el Bashab HC/REV/KHTM/84/53 indicated that it would be possible to apply to the Court for a mandatory order to issue to the vendor ordering him to apply for consent to an assignment. The learned Judge does not cite any authority for such an order. Also, it is clear that there is nothing to compel the lessor to grant his consent should he have reasonable grounds for with holding such consent. There is thus no assurance that the Defendant would get what he wants. Such an order would merely assure that the vendor does all he can to obtain the Consent. But there is one main argument in favor of such an order. It amounts in fact to an order to the vendor to complete his part of the contract by obtaining the consent and then transferring the property or to pay damages. In this way it clearly does indicate that justice is to be done, and for this reason I do not see any reason why this remedy should not be accepted in the Sudan. This does, however, open further difficulties as to damages, with which I shall deal later.
in my opinion the learned Province Judge should have framed the issues differently. Instead of framing the issue in specific performance, he should have asked whether such a mandatory order should issue. After determining this issue, he should then have gone on to deal with the questions of damages and rent, in the event of. either the mandatory order not being complied with, or the consent, when applied for, being refused. As the parties were not represented before the Court below, I think that the Court should reframe the issue and deal with this point.
In my view the evidence does not show in any way that the Defendant has disentitled himself from claiming this equitable remedy. I do not think that the equitable doctrine of lashes applies here, i.e. that the Defendant has been so apathetic in the enforcement of his right as to have lost his right to this equity. (Re Lloyds (1903) 1 Ch. 385). It would appear that the Defendant has acted bona fide and the Province Judge
has accepted his statement of the facts. The mere fact that he knew of the need of consent should not disentitle him for it was not for him to obtain it (see Lloyd vs. Crisp) and in equity time is never of the essence unless the parties expressly make it so.
But is not this a case where damages might be sufficient compensation ? I am rather diffident at suggesting the reframing of the issue and its re-trial, in view of the fact that it is not the Defendant who is appealing from the judgment below, but it is the Plaintiff’ who is complaining as to the amount of the damages awarded against her. Thus I must deal with this point of damages. Assuming that the consent were to have been refused or that the case is tried on the basis that specific performance is not possible, should the Court order damages ? In the case before us we know that consent has not been asked for. We have also seen that the authorities indicate that it is the vendor who must procure the conveyance of the interest sold, i.e. who must obtain consent to an assignment where such is required (Williams vs. Clenton and Lloyd vs. Crisp).
In English Land Law the Rule in Fureu vs. Thorn hill (2 Wm. B.
1878) as stated by Lord Chelmsford in Bain vs. Fothergill (1874) L.R.
7 H.L. 158 would prevent a purchaser from recovering damages
beyond what he had paid as consideration and to investigate the title.
Lord Chelmsford stated (at p. 206):
“I think the rule as to the limits within which damages may be recovered upon the breach of a contract for the sale of a real estate must be taken to be without exception. If a person enters into a contract for the sale of real estate knowing that he has no title to it, nor any means of acquiring it, the purchaser cannot recover damages beyond the expenses he has incurred by an action for a breach of the contract; he can only obtain other damages by an action for deceit.”
Thus as is here the case, since there is no deceit, i.e. fraud, the purchaser cannot recover anything beyond the consideration paid for the lease.
This rule has been much criticised and is based upon the peculiarities of English Land Law. It is “founded entirely on the difficulty that a vendor often finds in making a title to real estate, not from any default on his part, but from his ignorance of the strict legal state of his title”. (Kelly C.B. in Engel vs. Fitch (1868) 4 Q.B. Cas. 659). In my view this rule should not be adopted in the Sudan, where the question of title
is much more easily ascertainable in view of Land Registration and the provisions of the Land Settlement and Registration Ordinance. Thus this is one instance in which the Courts of the Sudan should remember that they are guided by, but not bound by, the Common Law. It would be contrary to justice, equity and good conscience to follow such a rule. The rule does not apply to goods (see Sale of Goods Act, 1893, s. 12) and is anomalous, being an exception to the general common law rule that he who undertakes by contract to do something must do so or pay damages in accordance with the rule in Hadley vs. Baxendale.
But in any case the rule is very strictly confined to the question of title. Thus in Day vs. Singleton (1899) 2 Ch. 320 Lindley M.R. held that Bain vs. Fothergill is not applicable “to the case of a vendor who can make good title, but will not, or will not do what he can do and ought to do in order to obtain one” (329). Thus later he said
“If Dunn’s representatives (i.e. the person who should have applied for consent to an assignment) had tried to obtain the lessor’s consent and failed, Day could have obtained no more damages than those he has recovered i.e. return of deposit and costs of searching title). The damage to him is occasioned by his not obtaining what he was entitled to by his contract; and so far as damages are concerned the reason why he fails to obtain what he bargained for is immaterial. The damage is the same whatever that reason may be. Why, then, should he obtain more damages if no attempt is made to obtain the lessor’s consent than he could be entitled to if a proper effort to obtain such consent had been made and had failed ? The only reason which can be assigned for deciding that he is entitled to more is that the rule which limits his damages in the first case is itself an anomalous rule... which ought not to be extended to cases in which the reasons on which it is based do not apply”.
Thus it would appear quite clear that the Plaintiff having failed to apply for the consent, had not fulfilled her duty and thus should have to pay damages. Having undertaken to convey a good title, she has failed to do so. In my opinion this also applies to the case where she has applied for consent and this has been refused. She should have enquired before she completed the formalities as to the assignment, i.e. entered into a binding contract to assign, or have entered into an agreement to assign subject to consent being obtained. The effect of
such latter agreement would be to leave her free from legal liability if consent were refused (Graham & Scott vs. Oxlade (1950) 2 K.B. 257).
The learned Province Judge has assessed the damages at L.E.145.5oo m/ms. and from this figure there is no appeal by the Defendant. I do not think that this amount is excessive and it seems to cover such damages as are recoverable under the usual rules in Hadley vs. Baxendale. I my self would have awarded higher damages, should an enquiry as to damages suffered within the rule in Hadley vs. Baxendale have elicited that more had been lost as a result of the Plaintiff’s failure to convey the property.
This leads me to the final question. Should the Defendant in this case pay rent for the period he has occupied the premises? The learned Province Judge found “There was no agreement of tenancy. Clearly it was an agreement of assignment permitting the Defendant to complete the buildings and occupy. This leads me to think that the Defendant has acquired a customary right of occupation under section 27 (h) of the Land Settlement and Registration Ordinance. But this was not applied for. It is only just and equitable that the Defendant should not be liable to pay anything by way of rent.”
If this were a tenancy, then the payment of rent would be implied. But where there is no tenancy, only a right to use and occupation, no such term can be implied unless it is necessary to the circumstances. Here the circumstances as found by the learned Province Judge seem to indicate that no such term to pay rent can be implied. The intention was to convey the property and not to lease it. The occupation of the Defendant until proper conveyance is thus rather in the form of a licence at will, than a customary tenancy under section 27 (h) of the Land Settlement and Registration Ordinance. In any case (a) I have no evidence as to what is the customary right in el Damer Town where a person builds on land with the consent of the proprietor; and (b) that sub-section was to cover cases which do not include the present one (i.e. building for members of the household). Thus I find that the learned Province Judge is right when he found that no rent is payable by the Defendant to the Plaintiff.
Application dismissed.