(HIGH OF APPEAL)·

 THE BUILDING AUTHORITY OF KHARTOUM vs.  EVANGLLOS  EVANGUIDES 

WADIA MALOUF vs. THE SAME

AC-APPEAL-23-58

 

Principles

·  Constitutional law-Depreivation of the use or ownership of property –Regulation 22 of the standard Local Government (Municipality) Regulations 1938, whether constitutional-Art. 6 of the Transitional Constitution of the Sudan- Adminbistrative Law-Judicial review of administrative Acts –Duty of administrative authority to act judicially- Demolition order- Local Government (Municipality) Ordinance 1937-Rent restriction-Rights of a statutory tenant

·  Interpretation –“Owner”- “Property”

 Premises in Khartoum Municipality were let by the owner to the Respondent who used them for his trade as a hotel keeper. The Building Authority of the Municipality served a notice upon the owner under Regulation 22 of the Standard Local Government  (Municipalities) Regualtions 1938[3], requiring him to demolish them as unfit use or occupation. The Respondent was not served with the notice and was not given the opportunity to present thereto. 
Held (R.C Soni J. dissenting):-
1.    The Court jurisdiction to review the act of an administrative authority wherever the latter is invested with a legalauthority to determine questions affecting the rights of subjects and has a duty to act judicially and exceeds the legal authority so conferred.
2.    whether a discretionary power is to be exercised judicially or not is to be determined by reference to the magnitude of the interest involved and the absence of any extraneous consideration of policy or expediency fettering the discretion of the authority discretion of the authority concerned. 
3.    By these tests the issue of a dilapidation notice under Regulation22[4] is judicial act. The Court would not, however, interfere unless it could be shown that Building Authority had improperly exercised its powers under the Regulation. 

4.    The word “owner” in the Regulation does not include a tenant of the premises unless he is a person entitled to recieve from sub-tenants a rent substantially equivalent to the rentable market value of the premises. A statutory tenant has a sufficient interest to challenge an order under Regulation 22. 
5.    Regulation 22 is a proper exercise of the police power of the state, and therefore does not infringe Article 6 of the Transitional Constitution[5], and any order made under it invalid. 
 
R.V. London County Council (1931) 2K.B.215;R.v. Electricity commissioners (1924) 1 K.B. 205; R.v. Boycott (1939) 2 K.B. 615 approved. Batoul Mohammed Ali v. Sudan Government AC-Appeal –32-1953; Heirs
Mutwakil Mohammed Osman v. Sudan Government AC-Appeal-22-1953 distinguished.

Judgment

Advocates: Ahmed Kheir…….for Building Authority.     

                   E. Kronfli……….for Wadia Malouf.

                   Ahmed Gumaa….. for Respondent

Revision

 

The Respondent was a tenant of the owner of certain premises in Khartoum Municipality. In 1956 the Building Authority of the Municipality served a notice upon the owner under Regulation 22 of  the Standard

Local Government (Municipality) Regulations 1938[6] requiring him to demolish them as unfit for use or occupation. Wadia Malouf was willing to comply with notice, and to enable himself to do so brought an action[7] for the ejectment of the Respondent from the premises. The Respondent resisted the action upon the grounds (1)that the dilapidation notice was invalid and (2) that his tenancy had not been duly determined in accordance with terms of his lease.

On 23rd April 1957 the Building Authority served a notice on the Respondent ordering him to vacate the premises. The Respondent there upon brought an action[8] against the Building Authority for an injunction restraining the Authority from taking any further steps to have building pulled down. These two actions were consolidated by order dated 27th November 1957.

As appears from the judgments, there was apparently no final order made by the court of first instance- the High Court (Khartoum Circuit) in the 1956 action. In the 1957 action an injunction was granted in favour of the Plaintiff (Responedent) restraining the Building Authority from demolishing the building. Both the Building Authority and the Owner applied to the Court of Appeal for revision of this order.

 

28th April 1958, Babikir Awadalla J.[9]:

this is an application for revision of a decree date 19th February 1958 issued by the judge of the High Court Khartoum in CS276-57 (with127-56). The matter which gave rise to this litigation was a dilapidation  ordermade by the Building Authority of Khartoum Municipality under Regualtion 22 of the Standard Local Governemnt (Municipalities) Regulations 1938 for the demolition of the buildings on Plot 3 Block 1C East, Khartoum. The premises in question are registered in the name of Wadia Malouf (whose name in the register is given as Wadia Habib Debs) but have for a long time been let out to a certain Evangellos Evangellides and used by him as hotel.

It would seem that the owener of the property had always been willing to comply with dilapidation order were it not for the fact that his tenant Evangellides was unwilling to vacate. It is for that reason that CS-127-56 was instituted by the owner in February 1956 claiming eviction of the tenant in order to make compliance with the order possible. The tenant- not content merely with contesting the eviction suit by the owner-himself instituted CS-276-57 for and injunction against the Building Authority on the ground that its findings as to the condition of

 

 

The building were not in conformity with the fact. The date of institution of this suit is April 1957, i.e. about a year after the date of eviction suit; nonetheless the eviction case was-in November that 1957-consolidated with the tenant’s case on the grounds a decision in the latter suit would finally dispose of the matter in controversy in the former. One would have expected the owner and plaintiff in the eviction suit to be given notice of its consolidation order so that he might appear and be heard when the Court was considering the validity of the dilapidation order but this was not done. This mistake, however, becomes unworthy of serious consideration when compared with other and major shortcomings of the proceedings under consideration. The procedure if it is worthy of the name – adopted by the Court below in its handling of the affair, especially the unwarrantable delegation to a subordinate Judge of its inherent jurisdiction in matters of this kind, is indicative of lamentable failure in the Court to appreciate its ture mission in that behalf or to view in its proper perspective and important constitutional function of a very high order. All that there is by way of material in the later proceedings (instituted by the tenant) is the petition, the defence of the Building Authority, reply threto, a sketchy not on the claim by the Judge to whom the cause was referred, and finally a decree by  the Judge of High Court on the strength of that note restraining the Building Authority from demolishing the premises in question.

Both the Building Authority and the owner applied to this Court against this decree. There is common ground in the reasons offered in support of the applications, which can be summarised as follows:

1.That the Court was acting ultra vires trying to review an order of its absolute discretion with no express right of appeal;

2.That the Building Authority is therefore the sole authority competent to decide whether buildings are in such condition as requires action under Regulation 22;

3.That the tenant has no locus standi when the Building Authority is acting under Regulation 22’

Alternatively’

4.That the judgment and decree were passed without any investigation as to whether or not the premises in dispute were in danger;

5.That nor notice of this decree- given in the absence of all parties- was served either on the Building Authority or the owner.

Before this Court, the Building Authority was represented by Advocate Ahmed Kheir an the owner by advocate E. Kronfli. The Respondent was represented by Advocate Ahmed Gumma. The question of the validity of Regulations 22 was never raised by the Counsel for th Respondent and was

Not made a ground of attack by him in the Court below; but as –on the suggestion of my brother Soni J.- the point was the subject of a long discussion before us. In this respect I would like to point out that I am in full agreement with the intervention from the Chair by my brother against the possibility of questioning the constitutionality of any legislation otherwise than in accordance with order XXVI of the Civil Justice Ordinance . I will now deal with the above grounds taking points )1) and (2) together, because they are so interdependent that one of them can hardly be disposed of without the other. In fact the first point is only a consequence of the second, for it can only be by reason of the fact that the Building Authority’s discretion is absolute that  the Courts can be ousted of their juridiction in the matter. The contention that the subject matter is ultra vires the Courts is simply a reiteration of the defence raised in the Court below that the Building Authority was acting in an administrative capacity and not judicially, no Court can interfere with its decisions in the manner now prayed for. It has always of course been accepted that the Sudan Courts have authority to grant relief in this respect within the limits in which an EnglishCourt can review administrative decisions. In England judicial review of administrative decision can be either statutory or non-statutory ; i.e. it may either have its source in a statute or in those writs-known as prerogative writs-which the English Courts have always invoked when playing their historic role of checking executive absolutism. An Appeal stricto sensu is not available in the absence of a statutory provision therefor. The Contention of the Applicants is that an order analogous to certiorari does not lie in this case. It is injunction restraining the Building Authority from proceeding with demolition- did not state on what ground they claim that the Court had juridiction and the Court below granted the relief on the assumption that the Building Authority was acting without jurisdiction .The note on which the judge of the High Court relied in giving his decree says” the regulations give the Building Authority a discretion to order the owner to take down or repair. But these Regulations give the authority such discretion only if the building are dilapidated etc. and do not give the authority a discretion to decide whether the buildings are ruinous. But whether the buildings are really ruinous is objectively decided and not at the Authority’s whim”

In  my review no suggesttion could be more wide of the mark than that the regulations do not give the authority a discretion in deciding  whether the buildings are ruinous ect, or otherwise. The learned District Judge does not tell us in whom the discretion lies and I hope that its not his view that it is Providence alone which is to ordain the issue! I do not

Think it is at all possible in cases of this kind to judge to easily of the nature of the act entrusted to the administrative authority by the legisalture and one has in such cases to analyse carefully the statutory function under consideration in the light not only of its substantive and utlimate effect upon effect upon the rights of individuals but also of its minimal procedural standard before one can say whether such function was entrusted to the absolute discretion of the authority in question and is therefore administrative or ministerial or whether it is subject to the utlimate control of the  Courts and its therefore judicial or quasi-judicial. But before I go into this matter, I would like to quote Robson’s warning in his Justice and Administrative Law, 2nd ed., P.401, where he says;

“ it is obvious…that the words ‘judicial’ and ‘administrative’ when used by the Courts have ceased to habe any clear meaning from an analytical stadpoint . their Cief significance is in idicating to which particular functions the Courts will apply the rules of natural justice and to which they will not apply them.”

It is no doubt true that in theis respectg the authorities in England afford a very fetile field of confusion’ nonetheless I think it is not impossible to trace the authorities and deduce therefrom the broad prinicples which the Courts have followed when reviewing executive decisions by writes or orders of certiorari. The nature and scope of tis writ has been the subject matter of innumerable pronouncements. In R.v. woodhouse (1906)2 K.B. 501 Fletcher-Moulton L.J. observed that “the writ… is frequently spoken of as being applicable only to ‘judicial acts;, but the cases by which this limitation is supposed to be establised shew that the phrase ‘judicial cat’  must be taken in a very wide sense including many acts that would not ordinarily be termed judicial. For instance, it is evidently not limited to bringing up the acts of bodies that are ordinarily considered to be Courst. Other instancecould be given, but these suffice to show that acts are criticised would not ordinarily be called a Court nor would its acts be ordinarily termed ‘judicail acts.’ The true view of the limitation ministesterial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant ot enforce a rate, even though the rate is one which could tiself be questioned by certiorari. In short, there must be the exercisae of some right or duty to decide in order to provide scope for a writ of certiorari at common law.” In R.v. Electricity Commissoners (1924) 1 K.B. P.205 Atkin L.J. made the following observations; “ but the operation of the writs (certiorari and prohibition)has extended to control the proceedings of bodies which do not claim to be, and would not be recgnised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights

Of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the king’;s Bench Division exercised in these writs.’ This passage has been cited with approval in numerous subsequent English decisions and accepted as laying down the correct test, and in r.v. London County Council (1931) 2 K.B. P. 215 Slesser L.J. separated the four conditions laid down by atkin L.J and framed these conditions in the follsong quadrifid:

(a)             some legal authority ;

(b)            to detemine questions affecting the rights of subject;

(c)             having a duty to act judicially; and

(d)            excess of that legal authority.

 

I have therefore to consider whether the building Authority in its role which ahs given rise these proceedings, staifies all the above  conditions.

 

As regards (a):

There is no doubt that the Building Authority was invested with legal authority in the matter of the exercise of the powers under that regulation. Tis regulation was made by the Civil Secretary by virtue of the powers granted to him by section 7 of the Local Government (Municipality) ordinance 1937 the operation of which came to an end on 20th June 1957 i.e. seix years after the coming into force of the Local Government Ordinance 1951. This section, as amended in 1945, and so far as relevant, reads; “The Civil Secretary may from time to time make regulations hereinafter referred to as ‘standard regualtioons’ in respect of any matter on which the Governor under the powers conferred by section 6 could make regulations and with the like consent amend or cancel any such regulations Subsection (2) of section 6 gives the Governor power to make regualtions ‘in respect of all such matters as are necessary or desirable for maintenance of all the health, satety, convenience and well-being of the inhabitants and for the good order and governance of any municipality…” these are of course very wide powers and it con not be serioulsy argued that provision fo the “Removal” of dilapidated or dangerous structures does not pertainto the maintenance of the health, safety, convenience and well-being of the inhabitants or is not conducive or the good order and governance of the municipality. I would like here to point out that untli the Ordinance expired the powers of the Civil Sectretary to make Regulations were not transferred to any othe authority by the vsarious Acts which adapted Sudan Laws  to the new Constitutional set-up.

 

As regards (b):

Under that regulation (i.e. Regulation 22) there is no doubt that the Building Authority had power to determine questions affecting rights of subjects whose property it seeks to demolish ect, in pursuance of that

As regards (c):

This is the most important of all the above conditions, for it is usually the condition which most cases, for which tis right of review is clamed, fail to satisfy. Though the authorities are generally very helpful on what has for centuries been considered to be judicial and what has not, yet no watertight definiton for a “judicial act” has yet been coined. In Royal Aquarim Summer an Winter Garden Society Limite v. Parkinson (1892) 1 Q.B.D 431 itr was said that the word “judicial”  has two meanings – it may refe to the discharge of duties exercisable by a Judge or Justices in Court; or administrative duties which need not be perfomed in Court but in respect of which it is necessary to bring tobear a judicail mind, i.e., a mind to determine what is fair and just in respect of the matters under consideration. Justices for instance acr judicially when determining in their private room what is right and fair in some administrative matter brought before them, e,g, the levying of a rate. It would seem that the substance of this statement was accepted in many of the long line of authorities on the subject. According to these authorities the test seems, to be not the form of the proceedings, e.g. whether or not there is alis or a contested clause, nor whehter the authority in question is entitled to act on tis own initiative or empowered to take evidence on oath, but whether the said authority having regard to the magnitude of the interest involved-is, when disposing of that matter, in duty bound to bting to bear a judicial mind. Robson in his Justive and Administrative Law, 2nd ed., P.296. gives the three attributes of a judicial mind to be:-

(a)             “Firstly, that the possessor of it must put his mind to the case and really use judgment in coming to a decision. He must not-that is to say- approach the matter with a mind already made up;

(b)            Secondly, that the holder of it must honestly endeavour to further the purposes for which power has been given him and must not seek to promote ends of his own, however benevolent or deserving of praise they may be, and

(c)              Thirdly, that his motive must be straightward and honest and his conduct not influenced by extraneous matters.

 

Following this criterion which determines a judicial act by reference to:

(a)             The magnitude of the interest involved; and

(b)            The absence of any extraneous considerations of policy or expediency fettering the discrection of the authnority in question, the giving of certificate by a medical officer that a telegraphist was not suffering from telegraphist’s cramp was held in The King v. Postmaster general (1928) 1K.B.291 to be judcial and not simly an administrative act and could therefore be made the subject of a writ of certiorar. Lord Hewart C.J. said:

“ There was a moment in this case when it was argued that the document was of such a kind as  not to be proper for the writ of certiorari. But I am statisfied, when I look at the part which a certificate of this nature msut play in the making of any claim for compensation by a post office worker suffering from telegraphist’s cramp, that the certificate of the certifying surgeon  is of the nature of a judicial act and is a fit subject for certiorari.’

This authority was follwed in R.v. Boycott (1939) 2 K.B. 615 where it was similarly held that a certificate of tow doctors under the Mental Deficiency Act 1913[10] was a judcial act and subject to review by certiorari. Basing his argument (that the issue of the certificate was a judicial act) simply on the magnitude or importance opf the issue, Humphreys J. saek:

“ In my opinion the order of certiorari outh to go in this case….That document – in my opinion- was a document of the highest possible importance in the life of this lad of eleven years of age.”

Speaking of the above two cases, Parker J. said in the recent of R.v. Manchester Legal Aid Committee (1952) 2 Q.B. 413 that the doctors in both these cases were concerned solely with the facts of the particular case, fact repsented to them ex parte and it was not for them to take inot consideration any questions of policy or expediency. In  this case, the application for certiorari was for the purpose of cancelling a certificarte of legal aid granted by a local committee under Legal Aid and Advice Act 1949[11]to a turstee in bankruptcy . Parker J. who relied on the ratio decidendi of the two earlir cases, where the therory of importance was applied , said;-

“ Though the Local Committee may be said to be administrative bodies in the sense that they are responsible for administering the Act, they are quite unconcerned with questions of policy. They can not refuse legal aid because the fund is becoming depleted or because they think that certain forms of action should be discouraged. They have to decide the matter solely on the facts of the particular case, solely on the evidence before them and a part from any extraneous considerations. In other words they must act judicially, not judiciously.”

In the ligh of the above authoirties , I think it will not be difficult for us to determine that in the case before us Building Authority was acting in a judicial capacity. In the first place they are vested with very wide powers by virtue of which they can demolish any building of whatever value and, secondly, in making their decisions they are not bound by any considerations of policy or expediency. It is therefore essential, that They must use their powers with the intention of honestly furthering the purpose for which those powers have been granted. Under Regulation 6 they have the power at all times to enter and inspect any premises for the purpose of esuring that any regulation or order relating to the construction, repair, sanitary condition, or demolition of any building is duly observed. Under Regulaiton 22 they are entitled to act only when the building “ is ruinous or so dilapidated as to have become and to be unfit for use or occupation” or if such building ect, is in a “ structural condition prejudicial to the property in or to the inhabitatnts of the neighbourhood or to the public.” They can even entertain a complaint whether from an owner of a building adjacent to that for which demolition is sought or from neighbours and members of the public. When they get such a complaint, they are bound to act, hearing both the complainant and the owner and then making their decision  unfettered by any superior control or affectd by any considerations of policy or expendiency. Their powers with regard to abatement of a public nuisance are in my view more extensive that the powers of a magistrate under the Code of Criminal Procedure, s.99. because although the building Aouthority can act on its own initiative, a Magistrate can only act “ on receiving a police report or other information.”

Although the provision under consideration is inserted in the Town Planning and Building Chapter of the Municipalities Regulations, I think it has nothing to do with either and in my view rightly pertains to the Police power of the State which governs the removal of nuisance. I think that this power of being able to hear a complaint by an aggrieved party and objection from the owner and then deciding the issue, will make the act of Building Authority a judicial act even if we accept the narrow defintion of that term laid down by Scrutton L.J in .R.v. London County Council (1931) 2 K.B 215 requiring a “decision on evidence between a proposal and an opposition.”

There is no doubt therefore that Building Authority was performing an act which could be the subject of certiorari, but before I dispose of the last condition which has to be considered before a Court could use its inherent power of interference, I would like  to dispose of two contentions made by the learned Counsel for Applicant with reference to the impossiblity of review in this case whaterve may be the authorities in England. The first contention is that as a right of appeal was granted by Regulation 26, then the inference must be that the legislature intended Regulation22 to be outside the Court’ control. This argument in my view seems to be oblivious of the difference between an appeal and a right of review by virture of the prerogative writs. The latter lies only where there is no right of appeal and the legislature can not be presumed by implication to have taken a way that right (Halsbury’s Laws of England, 2nd ed., Vol. 9,p.861).

          The second contention is that this Court is bound by two of its own precedents of which the ratio decidendi is that once there is no right of appeal under an ordinance, then it is nor possible for the High Court invoking its inherent power to interfere by way of review. These cases are (1) Batoul Mohammed Ali vs. Sudan Government (AC- Appeal-37-1952) and (2) Heirs of Mutwakil Mohammed Osman vs. Sudan Government  (AC- Apeal-22-1953). The first case related to an application against the decision of the Commission appointed under the Town Replanning Ordinance 1957 that a donee of a registered plot whose name did not appear in the register of lands was not a person interested within the meaning of such definition under the Town Replanning Ordinance 1950. This application was rejected by the Judge of High Court whose decision was confirmed on appeal to this Court on the ground that as Applicant did not come within the defintion of the words “person interested” then the Commission was quite within its powers to disregard his views.

 I regret I am unable to find in the judgment of this Court anything which supports the contention of the learned Counsel. I think-if this case is at all relevant- it only supports the view that an administrative authority that exceeds its powers can be checked by the Courts, and this –in my view- is the meaning intended by the penultimate paragraph in the judgment which reads:

“… the provisions of the Ordinance lead me to the conclusion that provided the requirements of the Ordinance  are complied with  law permits no interference with work of the Commission.”

The second case was an application against the decision of the Replanning Commission refusing a claim by the heirs of a deceased registered owner on the ground that they were not “persons interested” within the meaning of the Ordinance. Here again the same point for consideration  arose in the High Court and ultimately it came to this Court which decided that in the absence of failure by the Commission didnot conform to the requirements of the Town Replanning Ordinance the High Court was quite justified in refusing to intervence. The ground of rejection of the application   – to my mind- was not that the Court had no power to intervence, but that there was no evidence that the Commission did not conform to the requirement of the Ordinance by which it was created.

 

As regards (d):

This is the last condition for exercise by the Court of its inherent power. Once the Building Authority is shown to have been exercising functions of a judicial nature, it follows that the Court-although they will not substitute their own discretion for that of the authority whose decision they are reviewing-will intervence not only to prevent powers being Exceeded, but also to prevent their abused. Many authorities can be cited in support of this contention. In Wade and Phillips’ Constitutional Law,5th ed., p.307 it is said:-

“ The exercise of the a discretion without taking into account all relevant considerations is equivalent to a failure to exercise it. The exercise of a power for an improper purpose is not an exercise  of a power conferred for purpose defined in the statute  which confers it. Acts which are prima facie lawful may be invalidated if they are done for a wrong purpose or by a wrong procedure. The justice is tantamount to a failure to exercise it at all…”

it was rightly contended for Applicant (the Building Authority) in the Court below that “the present case does not fall within any of these (i.e. the above-mentioned) categories.” The learned Counsel there said that the Building Authority has no authority to order the owner of a dilapidated or dangerous building to take down the same or that the Building Authority is issuing such an order has exceeded the authority given by the Regulations or that the authority in this case is being used for an unautorised purpose.

I would even say that no such suggestion of the excess or abuse of authority was made before this Court. The suggestion that the Respondent was not given an opportunity to be heard was made there for the first time but I will dispose of it when I come to deal with the third ground of appeal viz. the question of the Respondent’s locus standi in these proceedintgs.

In fairness to the Building Authority. I think that the application to the Court below ought to have been dismissed even if it were to come from the owner himself, for all that the said application solicited was not to correct the Building Authority on a matter of excess of jurisdiction, but to make another decision altogether in place of the one made by the building Authority and in sense diametrically opposed to that made by the said authority.  I think the Respondent in this case is claiming a relief which – in the absence of a statutory right of appeal-  it is impossible for a Court of law to grant. In my view the point laid before us for determination in ist case is on all fours with the point devided in Healey v. Minister of Health (1955) 1 Q.B. 221. In that case, the Minister of Health determined pursuant to Regulation 60 of the National Health Service (Superannuation) Regulations 1950 that the Plaintiff shoemaker, employer by a hospital  management committee in the shoemakers’ shop of a mental hospital, was not a mental health officer within the meaning of the Regulations. The Plaintiff brought an action agianst the Minister for a declaration that he was amental health officer within the meaning of the Regulations. The Minister raised a plea in bar to the Plaintiff’s claim that by virtue of section 67 (1) of the National Health Act 1946 and Regulation 60 of the Regulations made under that section his determination was final and not subject to Review or appeal. Regulation 60 says that “ any question arising under these regulations as to the rights or liabilities of an officer or of a person claiming to be treated as such shall be determined by the Minister.” It was held “ that since there was no allegation of want or excess of jurisdciton in the Minister, and no suggestion of the mala fides or defect of natural justice, the action for declaration was in substance aplain appeal on the merits from the Minister’s decision. “This was upheld by the Court of Appeal on the ground that the pleading did not ask for a declaration that the determination of the Minister was wrong in law or that the Minister lacked jurisdiction but merely invited the Court to assume an appellate jurisdiction which it has not been given and could not create. Denning L.J at p.228 said:-

“ The relief which is sought does not include a declaration that the Minister’s determination was invalid. It seeks only a declaration that the Plaintiff is and was a mental health officer. It is obvious that if the Court were to consider granting this declaration it would have to hear the case fresh. Mr. Healey would have to give evidence showing how he spent his time and the Minister would have be allowed to give evidence in answer to it. In short, the Court would have to rehear the very matter which the Minister has decided.”

Now that is exactly what the Court below was called upon to do in this case. No invalidity was alleged whether in assuming the power to condemn the buildings in question or in exercising  that power and all that is alleged in paragraph 4 of the Statement of Claim is “that the state of fact (i.e. the condition of the building as found by the Buidling Authority) is not correct and very much exaggerated since it was proved by technical inspection and report that no danger may be expected and that with ordinary maintenance to the roof and walls the buildings may stand for many years.” How a Court can intervene and make a decision on the very point decided by the Building Authority in the Absence of a statutory right of appeal, I am unable to say.

I, now come to the third ground in this application, viz. whether the Respondent has any locus standi in these proceedings or in other words whether he –being simply a statutory a tenant holding under a yearly tenancy- was contemplated by the legislature when drafting the Regulation under consideration. That Regulation reads as follows:

“ Wherever any building or part of any building is ruinous or so dilapidated as to have become and to be unfit for use or occupation anything affixed to or porjecting from any building, wall or other structure is in a structural condition prejudicail to the property in or to the inhabitants of the neighbourhood or to the public , the Building Authority may order the owner to take down or repair the same within a reasonable time to be fixed by the order. If the order is not obeyed, the Building Authority may enter upon the property and excused the order at the expense of the owner and may recover the same as a civil debts.”

The effect of the penalty appended to this section that if the owner fails to comply with the order-over and above the action it may take to remedy the wrong at expense of the owner- the Building Authority may prosecute him. The term “owner” when referring to any property of course ordinarily means the person in whom that property vests. So when Regulation 22 speaks about owner of a building, it simply means what says, i.e. the person whom the property of that building is at the time vested. The test of vesting of the right of course is receipt of the rent and profits, and it is with reference to this test that the workd had been defined in the various Acts governing Housing, Town Planning and Public Health in England. Under the Housing Act1936 the word is defined as meaning “ any person other than a mortgagee not in possession who. is the time being entitled to dispose of the fee simple of the building or land, whether in possession or in reversion and includes also  a person holding or entitled to the rents and profits of the building or land under a lease or agreement, the unexpired term thereof exceeds three years.”

In the Town and Country Planning Act 1947 the work is defined as meaning “ any person other than a mortgagee  not in possession who, whether in his own right or as trustee or agent for any other person, is entitled to receive the rack of rent of the land”, and the Public Health Act of1936 defines the same word as meaning “ the person for the time being receiving the rack of rent of the premises in connection with which the word is used, whether on his own account or as agent or trustee for any other person”. In the last mentioned Act, the words “ rack rent” are defined as meaning “ rent which is not less than two –thirds of the rent at which the property might reasonably be expected to let from year to year free from all usual tenant’s rates and taxes and to the rent charge ( if any) necessary to maintain the same, in a state to command such rent”. The words “rack rent” had earlier been deined in Blackstone’s Commentaries as meaning “ only a rent of the full value of the tenement or near it.”

I am quoting only these three Acts because they have the Regulations that we are now considering a common ground or object , viz. the maintenance of public health or order. All these Acts in most cases command that the abatement of a public nuisance shall be carried out at the owner’s expense and it is only reasonable that the person who is entitled to the profits of the building should be called upon to make good. Therefore a lessee from the government under the Town Lands Scheme who simply pays a small ground rent and then builds the house and lets it out for an economic rent is an owner within the meaning of Regulation 22.50

Also may be a possessory mortgagee; but a statutory tenant can not certainly claim to be an owner, for a statutory tenant has no interest the premises other than an occupational one protected by the Rent Restriction Ordinance. So also is a tenant form month-to-month or year-to-year or even for a term of yers so long as what he pays for his possession is equivalent to the rentable market value of the premises. It is contended in this case by the leaned Cousel for the Respondent that the yearly tenancy is determinable by two months’ notice by either party. So –accepting the suggestion that it is not a statutory tenancy- what would be the position if the tenant, on receipt of an order from the Building Authority under Regulation 22, were himself  to serve notice  on the landlord  terminating the tenancy? And assuming that after due termination of the tenancy and having no notice of such termination the Building Authority enter and execute the order of demoltion or repair, from whom are they recover the expenses of their work? I have no doubt if any fragile possessory interest of whatever nature was contemplated by the legisalture to bring the holder under Regulation 22, and if tenants who can renounce their privity of estate by a short notice of two months or those who derive their protection from the Rent Restriction Ordinance can be tolerated to obstruct or delay the purposes of Regulation22, then it would be impossible for the Local Authorities to perfom their funcitions in the field of public health and safety of the citizens. I can not see any difference between this objection coming from the Respondent or any of the lodgers of the Albion Hotel, and if he can claim to be an owner, I am unable to see why they should not also.

This point having been decided in favour of the Applicants, I see no reason for going on to the alternative grounds put further by them.

 I think I am now in a position to dispose of the question of the unonstitutionality of this Regulation which was put to the leanrned Counsel for the Building Authority by my brother Soni J. As I understand it this question is whether this Regulation is unconstitutional by reason of its failure to protect an interest as that of Respondent in conformity with Artcile 6 of the Transitional Constitution, which reads: “ No person may be arrested, detained, imprisoned or deprived of the use of ownership of his property except by due process of law.” The word “by due process of law” are used in America Constitution (5th Amendment). The draftsman of our Constitution has used these words in preference to the pharase “ save by authority of Law” occurring in article 31 of the Indian Constitution. It is therefore to the American authorities that we have to look for guidance. The American Corpus Juris (Vol.12.p1180 et seq.) says: “ neither the federal nor state constitutions have made attempt to define what is ‘due process of law’…nor have the Courts been able to give a defintion converting all possible cases. It has been said that they no Longer attempt to define in a few words what is meant by these terms but are disposed to ascretion their intent at application by the gradual process of judicial inclusion and exclusion, as the cases presented for decsion shall require, together with the reasoning on which such decisions may be founded.

Speaking of the extent of the protection afforded by this rule the same authority goes on to say (p.1195) “ the gurantees of due process of law extend to every governmental proceedings wich may interfere with personal or property rights whether the proceedings be legislative, judicial, administrative or executive and relate especially to that class of rights the protection of which is peculairly within the province of the judicial branch of the government. The want of due process of law may arise either from the fact that the law attempted to be enoforced is void or that the forms of law have not been observed.” As applied to judicial acts he says it means a law “ which hears before it condemns, which proceeds on inquiry and renders judgment only after trail.”

Lastly- and commenting on the impact of its rule on the Police Power of the State- the same authority says (p.1197) “ the Constitutional guarantees that no person shall be deprived of life, liberty or property without due process of law do not limit and were not intended to limit the subjects on which the Police Power of a State may lawfully be exerted. These gurantees have never been construed as being incompatible with the principle equally vital-because essential to peace and safety- that all property is held under the implied obligation that the owners’s use of it shall not be injurious to the community “ and later (p.1251). “ it is competent for the legislature to authorise the summary seizure and destruction… of things that, either by the common law or by statute constitute a public nuisance.”

If therefore the power of the state to proveide by legislation for the abatement of public nuisances in a summary manner is in America held not offend against the constitutional principle that a person shall not be deprived of the use of ownership of his property without due process of law, I can not see any reason why in the Sudan we should adopt a different principle.

I am therefore of opinion that this application should be allowed.

R.C.Soni J:-

The revision petition before the Court involves the consideration of two very important general propositions,and it is no pleasure to me that, I have the misfortune to differ from my esteemed colleagues on the Bench.

 

The Points involved are:

1.the rights of a tenant in the premises taken on rent by him and the protection of those rights, and

2.the scope and method of enquiry of an administrative tribunal and the finality of its order.

 

 

The Plaintiff in the 1957 suit is the tenant. It is stated on his behalf that on 23rd April 1957 he was served with a notice dated the 21ist April 1957 issued by the Buidling Authority of Khartoum Municipality Councuil informing him that Authority had come to the conclusion that the premises occupied by him were in a dangerous condition and would be demolished; and the notice gave a certain number of day to the tenant within which to vacate the premises. He promptly on 29th April1957 brought a suit against the Building Authority in the High Court pleading that the premises were not in a dangerous condition, that he had not been head by the Buidling Authority before the Authority  came to the conclusion as to the dangerous nature of the premises, that he had had the premises examined by a competent Engineer *(whose report was attached to the plaint) showing the condition of the premises, and he prayed the demolish the Building occupied by him. The case had an usatisfactory handling before the learned trail judge. That judge called for written submissions, but he relied on somebody’s note date 19thDecember 1957 to the effect that the Court can decide whether the building was all right or not. The trail judge agreed with the note and issued on 19th February 1953 his decree of injunction against the Building Authority without further hearing, agreeing with a remark in the note that wether the building is or not dangerous has to be found “ objectively.”

From this decree of injunction there is a revising petition to this Court by the Building Authority.

Before this suit started in 1957 the owner landlord had brought a suit in 1956 against the tenant which was before the District Court. In that suit the owner landlord said that the Building had been found by the Building Authority to be in a dangerous condition and that he had asked the tenant to vacate the premises, but as the tenant was not vacating the plaintiff prayed for an order of the Court ordering his eviction. This case also had a most strange end. Though issues had been framed in this case, nothing was done for months and months because of various reasons, principal amongst which appear to be the contiued absence of the plaintiff from the country. On once occasion one of the trial judges- this case passed through the hands of many judges-inspected the Building in May 1957 that the building was in a good condition. He propably intended to dismiss the suit, but it is not clear what exactly he did do. Later another trial judge came to know of the tenant’s suit of 1957 in the High Court, and he ordered on 27th November 1957 that the two suits be amalgamated. There is an appeal to this court from what ever the trial.

Judges of the 1956 suit intended to do. The appellant is the owner landlord. It is being alleged that it was by pure accident that it was discovered that the 1956 suit was tacked on  to the 1957 suit, and the latter suit having been decided in favour of the tenant, the appellant supposes that his suit has also had a similar fate.

Having given a short history of the institution of the two cases in 1956 and in 1957. I come to what I have understood to be the points involved. For the Building Authority its learned Advocate submitted that under Regulation 22 of 1938 framed under the Ordinance of 1937 (which Ordinance and Regulation are said to be still in force) the Buidling Authority has been given power to discover whether a building is or is not in dangerous state, and if it so discovers it has to issue notice only to the owner of the building telling him so, and requiring him to vacate, failing which not only the task of demolition would be undertaken by the Building Authority and he be liable to reimburse the Authority the expenses incurred but he would also be guilty of an offence and liable punishment. The learned Advocate also said that no appeal was provided from the order of the Building Authority, though an appeal from another order was provided for in Regulation 26. the learned Advocate submitted that the Building Authority had qualified Engineers on its staff who had seen the building, that the Building Authority was acting within the powers ginven to it under Regulaiton22, had not exceeded those powers, and had not used its powers for any ulterior or unauthorised  purpose. The learned Advovate contended that the Building Authority was requiered to give notice to the owner only, that the owner had informed the tenant, but  that the Building Authority wre not bound to hear the tenant, and had therefore not heard him or his objections, and that the decision of the Building Authority could not be challenged in a court of Law. The learned Advocate srenuously argued that the tenant could be completely ignored, that he had nor rights at all in the premises which could be taken notice of. He argued that the tenant was merely what is called a “Statutory Tenant.” He strongly argued that according to Regulation 22 the tenant did not come into  the picture at all. His existence was immaterial; he had no rights to oppose the order of the Building Authority. He argude also that the Building Authority is a Special  tribunal created under legislative sanction to deal with the matter involved in the tenants suit of 1957 and that the Courts of Law have no jurisdiction to call in question the order of the Building Authority. On the learned Advocate being asked whether the tenant’s rights had any protection under the Constitution he said: “ the article 6 of the Constitution to which his attention had been drawn referred only to the rights of an owner of property, and did not mention tenant’s rights.

I can not agree with learned Advocate at all. A tenant has valuable rights in the premises taken on lease by him. And those rights are owned by him and he is the proprietor of those rights. They are his property and they have as much sanctity and are as well protected by the Constitution  under the Article 6 as any other rights. To mention only some of them I may say that he has such rights, title and interest in the property as the deed between him and the landlord or owner gives him. He may, for instance, have leasehold rights for a number of years of for life. If Government decides to use the Land Acquisition ordinance to acquire the premises, he has a right of compensation independent of and separate from the compensation which the owner may egt. It can happen quite often that the interests of an owner and a tenant may conflict in land acquisition proceedings. Again, if a tenant has a cloak of protection put on him under the Rent Restriction Ordinance , the landlord can not evict the tenant if all the conditions required under section 11 of that Ordinance are complied with the tenant. If temporarily he has to leave the premises under the provisions of section 11 he has a right to come back there again under the condition mentioned in the section. It most often happens that landlords despair of ever being able to evict a tenant from the premises occupied by him because the Rent Restriction Ordinance is to strong for them. Landlords in many cases under this Ordinance find their interests so antagonistic to the tenant’s that they would be glad of any way being shown to them to get rid of the tenant. I may mention another well known example of the tenant’s rights. A tenant in possession of the premises is protected from trespass. I am giving these illustrations merely to show that tenancy rights have an existence in law as strong and as cherished as the rights of owner or landlord. In my opinion the tenant can fitly be described as the owner of those rights to have and use the premises according to the terms of his lease, or according to the protection of the law in force passed in his favour.those rights are his property. As a man may acquire a car or a house under terms of a contract in which he and the seller of te car or house have rights, so can a man acquire rightsin premises for his use and occupation for a period of time wich may be as short as long and on such terms and conditions as the deed of conveyance between the two parties makes it. They are rights of property whether in the car or in the house or in any other thing. When Article 6 of the Constitution says that “ no person may…deprived of the use of ownership of his property except by due process of law”, the Article does not speak of an owner of land or building or chattel only. It is in most comprehensive terms, and being an Article of the Constitution has to be widely interpreted.

In Stroud’s Judicial Dictionary we read at page 2340 that “’Property’ is the most comprehensive of all terms that can be used, in as much as it

Is indicative and descriptive of every possible interest which the part can have.”

In Bouvier’s Law Dictionary we read: “ The term ‘Property’ embraces every species of valuable right and interest, including real and personal property, easements, franchises, herditaments.” It is also stated there that: “ Literally taken the word (property) is nomen generalissimum, but is not always so used. As ordinarily used it means the thing possessed, but it may include the right to use and enjoy it. The more comrehensive meaning is presumed to have been intended by the use of such a word in a Constitution.” As an example of a constitutional document Bourier mentions a treaty ; and it was held that “ property comprehends every species of title inchoate or compelete , legal or equitable, and embraces rights which lie in a contract, executory or executed.” The case of public Trustee v. Wolf and Others decided finally in the English house of Lords and reported at (1923) A.C 544 may also be seen. The argument that prevailed in the House of Lords was that the words Property, rights and interests used in the Treaty were of the widest possible import and it was to misunderstand the Treaty to read into them a limitation.

Bouvier in his Dictionary gives a number of examples of property, out of which I may mention two,- a chose in action, and the office of a professor in a university who can be removed only on cause. A statutory tenant also can only be evicted by an order of the Court on cause shown.

Again it is obvious that a qualified property may exist. Bouvier gives many examples. Take two simple ones which are so well known. The bailee of goods is not the owner of goods, but he has a qualified property in them. The mortgagee of (say) a house, whether with or without possession, is not the owner of the house, but he has a aqualified property in it, as important as an owner has. As mentioned in Bouvier , land in a strict legal sense is not property but is the subject of property. Use is the real side of property.

In my opinion when the Constitution in Article 6 speaks of the deprivation of use or ownership or property, the expressions used therein embrace meanings in the widest sense so as to be worthy of mention in a document of the highest significance and importance to the citizens of the State. If find it impossible to hold otherwise.

 Accoridng to the Constitution any deprivation of the use of a person’s property can take place only according to “due process Law”. What is this due process law? The legislature may think it wise or expedient to entrust the determination of certain things to a body other than ordinary courts of law. That body becomes a Court or Tribunal of special jurisdiction, and when exercisng that special jurisdiction is limited to the matters left to its determination which have to be decided fairly and impartially, according to a procedure which does not offend natural justice.

If the Tribunal decides matters not mentioned in the authority creating the Tribunal, it acts beyond its jurisdiction;  and if it decides them according to a procedure wich offends against natural justice its order can be challenged. so also if rights which persons own or possess in a matter left for the Tribunal’s determiantion are ignored and they are deprived of them, the Tribunal’s order would be open to challenged. In Corpus Juris, Vol.43 at pages 304 many cases are mentioned out of which 1 cite a few:

1.    The case of United States Century Life Assurance Company v Des Monies, 185 lowa,573; 171 N.W. 31 in which it is said: “but where certain powers are conferred on the City Council and the manner of performing those has been directed by the legisalture, it would seem according to the consensus of opinion that the manner or mode of perfomance ought not to be arbitrary  or oppressive; and that, when this is attempted, the courts may interfere, and prevent an unreasonable course on the part of the city, in exectuion of what it has, through the city counicl, enacted.”

2.    Then there is the case of Bradentown vs. State, 88 Fla. 381, 384, 102 S. 556 where it was said: “ Yet the discretion or judgement of the Municipality in the premises must accord with controlling provisions and principles of law, and acts done are subject to judicial review so that the law and not arbitrary or unreasonable municipal action shall control, to the end that private rights be conseverved by law.”

3.    In the case of Gawthorn v. De Funiak Springs, 88 Fla. 324,102S.250 it was said: “ Municipalities established not to confer arbitrary powers upon officials but to conserve the rights and interests of the people through governments which operate by means of official acts limited and regulated by law… A municipality may be enjoined from unreasonably exercising any lawful power conferred. Upon it by the legislature , for a power granted by the  legislature can not lawfully be so exercised as to violate organic rights of individuals.”

And it is also stated there 9 in Corpus Juris) that the examination of a judicial question by the court is not interference with discretionary powers of municipal authorities. What is said of the Municipal Council is equally true of its adminitrative Tribunals.

The place where the order of the Tribunal is challenged is in the court of general jurisdiction. The High Court is the highest court of the country, and has unlimited civil jurisdiction.  It is the High Court which determines whether a Court or Tribunal of special jurisdication has acted wihin its jurisdiction, or has acted in a manner contrary to principles of natural justice. Mr. Kronfli, learned Advocate for the landlord , who spoke more for the Building Authority than for his client the landlord appellant relied

On the case of Local Government Board v. Arliage which was decided finally in the English House of Lords and is reported in (1915) A.C.120. In that case certain observations of Lord Loreburn L.C. in the earler case of Board of Education v. Rice (1911) A.C.179 were cited with approval by Lord Haldane L.C. Lord Loreburn had said at p.182 that “they”, that is those who are to make orders, “ can obtain information in any way they think best, always giving oppurtunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view.” Lord Loreburn had said earlier that    “they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything.” The paragraph at p.182 ends by Lord Loreburn saying that if the Court is satisfied that the Board had not acted judicially in the way he had described then  there is a remedy by mandamus and vcertiorari. In the case of Local Government Board v. Arlidge (1915) A.C.120, Lord haldane L.C. had said at p.132 that when a duty of deciding is imposed those whose duty it is to decide must act judicially. His words are: “ They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adqualtely presenting the case made.

“Fairness”, it has been said quite recently, “ requires the adoption of a clear procedure designed to enable the parties to know their rights; to present their case fully, and to know the case they have to meet.” The fundamentals of natural justice are the recognition of the rights of eacth person whose rights and interests are put in jeopardy, a notice to him, and opportunities granted to know the case against him and to substantiate his defence. The details of how this is to be done may vary.

In the 1957 case in which the plaintiff tenant has challenged the Building Authority’s order of the 21stApril1957 what had that authority done? They had admittedly ignored the tenant altogether. He was served with  a final peremptory order on the 23rd April to vacate. The learned Advocate Building Authority’s said that the tenant has no rights in the buildings or premises. He said that even if he has, the Building Authority can by-pass him under Regulation 22, and that he has no locus standi to oppose the Authority’s order. The Authority insists on ignoring him. How can it be said that a thing is being done under due process of law, if the tenant’s very rights in the premises are not recognised? In my opinion it is impossible to say that the tenant has nor rights in the premises. He has undoubted rights whether he be a tenant under a deed (which was shown to us) which postulated a year  to year tenancy, or whether he be what is called a “statutory tenant” as Mr.Kronfli had submitted that the deed had been cancelled.No Special Tribunal can ignore the rights of a person guaranteed under the Constitution. Regualtion 22, in so far as it limits the jurisdiction of the Building Authority to

 

 

Have regard only to the rights of the owner of the building and thus to ignore the rights of the tenant is bad to that extent. The rights of the tenant very much exist. He can not be –by-passed.

Article 3 of the Constitution provides that “the provisions of this Constitution shall prevail over all laws, existing and future, and such provisions thereof as may be inconsistent with the provisions of the Constitution shall to the extent of such incosistency be void.” The guardian of  the Constitution is the High Court as provided in Article 102 of the Constitution. The jurisdiction with regard to the interpretation of the Constitution is reserved to the High Court under Clause (2) of the Article 102 and is not vested in the Special Tribunal.

In the quotation from Lord Loreburn in Rice case[12]in the House of Lords mentional earlier it is stated that the Special Tribunal has to give “a fair opportunity to parties in the controversy for correcting or contradicting any relevant statement prejudicial to their views, and if the Building Authority had not informed the owner of their view, and if the latter had protested, the order of the Building Authority would be quashed by means of a certiorari , and a mandamus issued against the Authority. In the present case it is said that the owner was notified and has concurred in or acquiesced in the view-point of the Building Authority. This may not cause any surprise. The interests of the owner, landlord and the tenant in this case clash. The tenant is undoubtedly a necessary and a proper party to the controversy . it is the duty of the Building Authority to give him an opportunity to make his representation. It is their duty to consider that representation. The landlord’s acceptance of the Authority’s view does not bind the tenant. He has his own rights in the building, whether he is a tenant under a deed as claimed Mr. Gumma or whether he holds under the Rent Restriction Ordinance as claimed by Mr. Kronfli. The tenant is vitally interested. By the demolition order he is being deprived of his rights in the property, the use of the premises occupied by him. The landlord owner wants to take shelter behind the order of the Building Authority wo take shelter behind the landlord owner. It is a vicious circle.

The motive in establishing an administrative tribunal is not merely to promote good administration but to ensure that questions referred to the Tribunal are determined in accordance with principles of fairness and impartiality. That the tenants or other persons have rights which are recogised by the Legislature is well illustrated if we look at the provisions of section 99 of the Code of Criminal Procedure[13]. The object of the Legislature in the case of section 99 is the same as in the case of Regulation 22- the abatement of nuisance and protection of citizens from dange. In section 99 the conduct of proceedings is left to Magistrate .In Regulation 22 the Building Authority conducts the proceedings which are as similar as can-in fact appear to be identical- to what the Magistrate does. The Magistrate hears all the parties and makes is order . Disobedience to his order is punishable. Recovery can be made of expenses incurred. The matter of appeal is not material, as an appeal a slways a gift of the legislature. But the important point to notice is that the Magistrate has under section 99 to issue his notice to and hear everyone involved, even one who is merely in control of the building. He issues his notice after gathered informations in any way he likes, whether from a police report or otherwise. If the Magistrate fairly follws the procedure prescribed his order can not be challenged in the Civil Courts. It is obvious that if the Magistrate contravenes the fair procedure ,an act5ion in a Civil Court lies. It was argued before us that section 99 refres to offences under the Penal Code. This is really to ignore the substance of the section. What the draftsman of the section 99 has done is to employ a literary drafting device to shorten the language. This section is borrwed from the Criminal Procedure Code of India. The draftsman of the Indian section set out at length the things, nuisances and dangers without making a reference to the Penal Code. When referring to a building the section in India reads thus:

“ Whenever  a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other informantion, and on taking such evidence (if any) as he thinks fit,…that a building…is in such a condition that it is likely to fall and thereby cause injury to persons living ro carrying on business in the neighbouringhood or passing by, and  that in consequence the removal, repairs or support of such building…is necessary, such Magistrate may make a conditional order requiring the person… owning, possessing or controlling such building…within a time to be fixed in the order , to remove, repair or support such building… or if he objects to do so to appear before himself or some other Magistrate of the first or second calss at a time and place to be fixed by the order, an remove to have the order set aside or modified in the manner hereinafter provided.”

The draftsman of section 99 of the Code of Criminal Procedure in the Sudan has merely made an epitome of the Indian section without the slightest change of substance by making a reference to section 299 of the Sudan Penal Code[14]. Section 229 in turn refers to a person who has property in his possession or under his control.

 It is urged that Regualtion 22 has nothing to do with offence. A Court looks at the substance of the matter, not merely to the words used, to find out the meaning of the language employed. Section 99 is applicable throughout the country, while Regulation 22 is limited in scope and is limited to areas where the Local Self-Government Ordinance is applicalbe. The object of the legislature in both cases is exactly the same . the Regulation is made for the safety, convenience and well-being of the ihanbitants. The Regulation mentions the owner of a building only. I t omits to mention the cases of such well known and important rights and interests which exist in  a building, as for instance for a long period of say 50 or 500 years. The Regulation as it is worded is applicable to onwers of a building only. This is how it reads:

“ 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 occupation, or where any building, part of building, wall or other  structure or anything affixed to or projecting from any building, wall or other structure is  in a structural condition prejudicail to the property in or to the inhabitants of the neighbourhood or to the public, the Building Authority may order the owner to take down or repair the same within a reasonable time to be fixed by the order. If the order is not obeyed, the Building Authority may enter upon the property and execute the order at the expense of the owner and may recover the same as a civil debt (Penalty C.3).”

The Regulation prescribes no procedure as to how the Building Authority is to arrive at its conclusions. It forgets that the owner may have parted with a considerable portion of the bundle of his rights of ownership in the property to (say) a mortgagee or tenant. The Regulation envisages the simple case of there being only an owner to deal with. The language is limited in scope. The Regulation prescribes no procedure as to how the party affected is to know what is in the mind of the Building Authority. If prescribes no procedure as to how the party affectd is to make his objections or is represntation. It says nothing as to whether the Building Authority is to consider the objections or represntations.

It is argued that a comparison of the provisions of Regulation 22 with those of section 99 is irrelevant. It was urged that the Regulation is of a later date and that it should prevail over section 99 . With regard to these arguments a thing or two is to be noticed. If a later statute deals with exactly the same subject-matters as an earlier one, there may be ground for thinking that there is a repeal of the earlier one by implication , but not otherwise. Here only thing that is covered by both section 99 and Regulation22 is the consideration of the simple case of a building in wich nobody else has any rights except as owner. Regulation 22 does not deal with other cases. The jurisdiction of the Building Authority is  limited to that simple case dealing with  the owner. And even as regards that simple case no procedure is prescribed. The Building Authority is wants to stretch its hand to cover others cases, to grasp jurisdiction, and to apply whatever it may think to be its procedure to cases of other persons having intimate relations with the building. The owner may be in Europe, the person in possession in Khartoum. It is difficult to imagine how the safety, convenience and well-being of the very person who is in immedite possession of the building can be ignored without hearing him or his representation. Can it be said that justice is being done by ignoring him? It is said that a tenant for a long term can not be ignored , but what is known as a “ statutory tenant” is nobody. He is said to have no rights in the premises. What are the grounds for so thinking?

Sir Raymond (now Lord) Evershed M.R in the case of Marcroft Wagons v. Smith (1951) 2 K.B. 496 has said that he has “ a right of exclusive) possession of property as will entitle him to bring an action for respass against the owner of that property:, which right the Master of the Rolls later calls “ a statutory right of irremovability”, though he said that the statutory tenant may not be able to dispose of it by grant or by testamentary disposition. Cheshire in his book Modern Real Property has said (at p. 247 of the 7th edition) that to call tenant’s right personal is a “little anomalous since it avails him against persons other than his landlord”, quoting the authority of Scrutton L.J. in Keeves v. Dean (1924) 1 K.B. 685 C.A. at p.694. in that case Scrutton L.J. had said that it was an unwelcome task which Parliament had imposed upon the Courts of defining the position of the “statutory tenant”. He said that Parliament had called him a tenant and “ he appears to me to have something more than a personal right against his landlord. I take it that he has a right against all the world to remain in possession until he is turned out by an order of the Court.” In the earlier case of Shuter v. Hirsch (1922) 1 k.B.438, Scrutton L.J. had at p.448 called the statutory tenant “ that anomalous legalenity”, “ the person who holds the land of another contrary to the will of that other, who strongly desires to turn him out”. In the case of American Economy Laundry v. Little (1951) 1 K.B. 400 (C.A.) at p.406 Jenkins L.J. has used the following words:

“ the expression ‘statutory tenant’, as I understand it, is a compendious expression to describe the rights of the tenant of protected premises to remain in possession of those premises, notwithstanding the determination of hi9s contradtual interest until such time as either he voluntarilyu gives up possession, or the ‘Court, on casue shown, makes an order against him to deliver possession.”

It is evident from those quotations that it may be difficult to give a proper legal name to a person having thoses rights, it may be difficult to define those rights, but it is inconceivable to me to say that he has no rights. His rights exist. They can not be by-passed by the Cuilding Authority or by anyone.

It is not necessary for the purpose of my agument to decide whether section 99  is applicable to the case or not, though I might draw attention to the provisions of section 5 of the Local Self-Government Ordinance of 1937 (said to be still in force) which section says that nothing in that Ordinance is to be consttured so as to restrict or modify the laful powers of a Magistrate charged with enforcement of law. Regulatkon 22 would tus seem to be supplementary to other provisions of the law and not overriding tem unless the two exactly coincide. I do not, howevcer, want to enlarge on this topic as I said that it is not necessary to decide this point for the purposes of my argument.

A comparison of section 99 with Regulation 22 is is instuctive as it brings out what I have been trying to say all the time that besides the owner there are rights of others in the premises which are as valuable and are as much under the protection of the Constitution and the laws of the country as those of any others. If those rights are being infringed by a Building Authority seeking to enforce orders which they do not have a right to make qua those persons or by a dopting a procedure ignoring those persons, which procedure offends against fair play and principles of natural justice, the Building Authority acts contrary to what Lord loreburn L.C. or Lord haldane L.C had said (in the cases cited earlier) was the duty of everyone who has to decide anything. They would then be acting in a way I conceive to be contrary to due process of law.

 It was argued that there is in Regulation22 a deliberate cutting away of the number of objectors for the sake of promptitude. A Magistrate can be as prompt as a Building Authority in arriving at his decision, though he hears everbody,’ I see no force in this argument. We are not dealing with a case of emergency. Even an emergency Is provided for by the Code of Criminal Procedure.

 In any case it is no use speculating on what was or what was not considered by the draftsman of Regulation22. the question is a plain.

One before me. Has the tenant or has he not  a right in the premises? Is he or is he not protected by the Constitution and the laws when somebody wants to deprive him of his rigts? Is it in accordance with principles of fair play and natural justice- as all notions of due process of law must include those principles- that an order be passed and a Building Authority demolish the building wherein he has rights by insisting in ignoring those rights and by denying them without informing him in what way the building is considered dangerous and without ginving him a chance to make his representation whether orally or in writing, whether personally or through an Advocate or agent, and that the Building Authority could arrogate to itself all powers to act against his interests without examining his representation to the contrary? If such be the meaning of the Regulation it is in my opinion contrary to what a just procedure should be, contrary to my conception of due process of law.

The Building Authority relies on the procedure mentioned in Regulation 22 for the justification of its order. It is well to remember and know the role procedure plays and its proper place in the decision of things. In a case which came up for final edcision before the English Hose of Lords, Kendall v. Hamilton (1879) 4 App.Cas.504, Lord Penzance is reported as saying as follows at p.525:

“ In this state of things I confess I am unwilling that your Lordships should confer the sanction of this, the ultimate Court of Appeal, upon a rule of procedure which, without affecting to assert any just rights on the part of the defndant, denies the aid of the law to enforce those of the plaintiff. Procedure is but the machinery of the law…the chanel and means whereby law is administered and justice reached. It strangely departs from its proper offince when, in place of facilitating, it is permitted to obstruct, and even extinguish  legal rights, and is thus made to govern where it ought to subserve.”

The expression “ due process of law” is well known to American lawyers. The legal principle of the control of adminstrative tribunals by the Supreme Court of the United States is illustrated by a case decided not many months age by the Supreme Court of the United States. It is the case of Brownell v. We Shung, 252 U.S. 180 and is among the new decisions repoted in the legal juornal Case and Commerit. In the January-February 1958 issue of Case and Comment we read as follows at p.42:-

“ An alien against whom an exclusion order was entered pursuant to the provisions of the Immigration and Nationality Act of 1952 sought to test the legality of such order in a declaratory judment action under the Administrative Procedure Act. The government contended that the soled mode of review of the exculsion order was by habeas corpus proceedings. The United States of Appeal for

 

 

The District of Columbia Circuit ruled in favour of the alien’s claim that declaratory relif was available. (97 App. D.C. 25, 227 P.2d 40).

On certiorari, the United States Supreme Court in Brownell v. We Shung, 352 U.S. 180, 1 Led. 2d 255,77S. Ct.252 affirmed the judgment of Court below.

Clark J., speaking for a unanimous court, stated that there was nothing in the 1952 Act to bar the challenge of exclusion orders by either habeas corpus procdure or declaratory judment actins. The provisions of the 1952 Act to the effect that, in exclusion proceedings, the decision of a special inquiry officer is final unless reserved on appeal to the Attorney-General, was said to refer only to administrative, and not judicial finality.”

It is also well to remember that we have to take care in applying all that is said in English cases. In the english Constitution Parliament is Supreme. The Legislature there is not bound by any written law of the Constitution. But in the Sudan, as in the United States, the Constitution is supreme. Textbooks are full of cases where the Supreme Court of the United States has declared legislative acts of the United States Congress Ultra vires the Constitution and uneforeable. The same duty is cast on the Hihg Court here to scrutinize with care all rules, regulations, laws and ordinances whether made by the Legislature or by the rulemaking authority so that no transgression is made of citizens’ rights declared by the Constitution which are entrusted to the care of the High Court. Whether pleaded or not, the Constitution has always to be borne in mind.

To sum up what I have attempted to say:- in may opinion the tenant there has been nothing decided so far as I can make out. The issues had been framed nearly tow years ago. The personal ispection of the trail judge in the absence of parties and without hearing evidence can not by itself lead to any conclsuion. This 1956 case should be decided in the normal manner by allowing parties to lead whatever evidence they may wish to, and then by a judgment giving reasons fo the judge’s decision. I would remand the 1956 case for decision.