(COURT OF APPEAL)· ALAM MAXIMOS vs. KHADIGA EL BRIGDAR AC-Revision-74-58 Revision Principles · Lanlord and Tenant- Demolition ordr by Local Authority- Whether Rent Restriction Ordinance 1953, section 11 (g) applicable-Housing Act 1936, section 156 Lease-Whether frustrated by demolition order- Whether contractual doctrine of frustration applicable to leases- Equity,justice and good conscience. Where a Local Authority makes a demolition order section 11 (g) of the Rent Restriction Ordinance 1953 is inapplicable. Such an order will put an end to the tenancy contract ands discharge both parties form performance of the contract. The rule of Englihs Law that a tenant remains liable to pa rent even though he is deprived of the use of the premises by fire, rains,etc,is against equity, justice, and good conscience and will not be followed in the Sudan. Redmond vs. Dainton (1920) 2 K.B. 256 disapproved. Cricklewood vs. Leighton (1945) A.C 221 approved. The Building Authority of Khartoum vs. Evangellosw (1958) S.1. J.R 19 distinguished. Judgment 27th December 1958. Babikir Awadalla J. :- In my opinion both these applications for revision are hopeless and should be summarily dismissed. The delay in disposing of them had been caused nby our inability to obtain the Local Order of the Omdurman Municipality under which the Dilapidation Order was issued. The Defendants raised tow interesting points of Law viz. :- (i) That this case falls within subsection (11) (g) of the Rent Restriction Ordinance and hence and order of eviction can not be made unless all the conditions of that subsection are complied with, and (ii) That in any case there is a subsisting contract and any order which interferes with that contract is not operative as against the tenant. The District Judge decided both points against the tenant holding on the on one hand that subsection (11) (g) is operative only when reconstruction, demolition, etc, is carried out voluntarily and not when it is imposed by a Local Authority for Public Health reasons, and on the other, That a demolition order of this sort puts an end to the contract on grounds of frustration. The tenant applied to the Judge of Hight Cort who dismised the applicxation on the ground that the decision in the Albion Hotel case[15] which he describes as a dangerous principle-leaves no discretion for him but to dismiss the application. The proper reading of the decision in the Albion Hotel case would have revealed that the points in controversy in the two cases have not the slightest relation. In the Albion Hotel case the tenant contended that he was an interested party in the matter and any order that disregarded his interests by failing to summon and hear him is entirely wrong. I really regret that the Judge of High Court is still under a misapprehension as to the point in controversy in the previous case. The decision of the District Judge on the two points raised is no doubt correct. Section 11 (g) of the Rent Resrtriction Ordinance can not be interpreted in a manner inconsistent with laws relating to the public health of the citizens. In England there is a clear provision to the effect in section 156 of the Housing Act 1936 where it is said: “Nothing in the Rent and Mortage Interest Restrictions Acts 1920-33 shall be deemed to affect the provisions of this Act relating to the obtaining possession of a house with respect to which a Demolition Order has been made.” (See Hill and Redman, Landlord and Tenant, p.1521) That in the law of contract a demolition order operates to discharge both parties from performance of the contract is too obvious to require comment. It is ture that in England the law is that a tenant can not rely upon the contractual doctrine of frustration (Redmond vs. {1920} 2 K.B. 256) but the hardship of such a rule was pointed out in the more recent case of Cricklewood vs. Leighton (1945) A.C.221 and its soundness has been much doubted both by the Bench and commentators. I do not think that it would be in accordance with equity, justice and good conscience in this country if we hold that a tenant who is deprived of the use of the house by fire, rains, etc, shoud continue to pay the rent for the duration of the term. 27th December 1958. M.A Ab Rannat C.J. :- I agree (Application dismissed) · Court: The Honourable the Chief Justice, Babikir Awadalla and A.R. Nur.JJ [1] S.249 (1): Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident · M.A. Abu Rannat C.J. [2] “Rule 21: The Parties to an appeal shall not be entitled to produce additional evidence,whehter oral or documentary, in the Court of Appeal. But if (a) the Court from whose decree the appeal is referred has refused to admit evidence which ought to have been admitted; or (b) the Court of Appeal requires any document to be produced or any witness to be examined to enable it to pronuonce judgment, or for any other substantial cause, the Court of Appeal may allow such evidence or document to be produced, or witness to be examined. · Abu Rannat C.J., R.C Soni and b. Awadalla JJ. [3] Regulation 22: “whenever any building or part of any building is ruinous or so dilapidated as to have become and to be unfit for use or occuaption, or where any building, part of a building, wall or other structure…is in a structural condition prejudicial to the property in or to the inhabitants of the neighbourhood or [4] Supra [5] Article 6: “ No person may be arrested, detained, imprisoned or deprived of the use or ownership of his property except by due process of law.” [6] See note 1. [7] CS-127-56 [8] CS-276-57 [9] With whom Abu Rannat C.J. concurred [10] 3 & 4 Geo. 5. C. 28. [11] 12. 13 & 14 Geo. 6.C.51 [12] Supra [13] S.99: “ (1) wherever a Magistrate of the first or second class considers on receiving a police report or other information and on taking such evidence, if any, as he thinks fit that an offence under sections 224,225,227,229 or 230 of the Penal Code is being committed, such Magistrate may make a conditional order requiring the offender within a time fixed in the order to cease committing such offence and to amend or ermaove the causes thereof in such manner as in the order specified or to appear before himself or some other magistrate of the fisrt or second class at a time and place to be fixed by the order and apply to have the order set aside or modified in the manner hereinafter, provided. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.” [14] S. 229: “whoever…knowingly or neglingtly omits to take such order with any property or substance in his possession or udner his control …as is sufficient to guard against probable dagner to human life from such property, substance or operations, shall be punished with imprisonment for a term wihc may extend to six months or with fine which may extend to £E.20 or with both.” · Court: M.A. Abu Rannat C.J., Babiker Awadalla J. · Court: R.C. Soni J., Babikir Awadalla J. · Court: M.J. EL Nur, Ag. C.J., Babikir Awadalla J. · Court: Babikir Awadalla J. · Court: M.A. Abu Rannat C:J., MI El Nur J. · Court: M.A Abu Rannat C.J., M.I. El. Nur. J. · Court: M.A. Abu Rannat C.J., Abdel Rahman El Nur J. · Court: M.A. Abu Rannat C.J., Babikir Awadalla J. · Court: M.A. Abu Rannat C.J., Babikir Awadalla J. [15] The Building Authority of Khartoum vs. Evangellos Evangellides (1958) S.L.J.R.16