(COURT OF APPEAL* HASSAN TAH.A\ HAMADOUK vs. FIASSAN ALL ABDEL RAHMAN (AC/ REV/77/1957) Revision. Principles · Contract - agreement to irrigate fields - cultivators agreeing to farm properly — whether breach justifies repudiation. · Practice - onus of proof - failure to cult oats properly. The applicant, a cultivator, made an agreement with the respondent whereby the latter was to irrigate land belonging to the applicant. The contract provided that the applicant was to maintain a good standard of husbandry. After some years the respondent applied to the authorities for the cancellation of his license, and the license was thereupon cancelled. The applicant accordingly brought an action for breach of contract against the respondent. Held: (1) that the onus of proof that the applicant had not maintained a good standard of husbandry was on the respondent. and (2) in any case, failure of the applicant to maintain a good standard of husbandry, while it might have given rise to a claim for damages, could not justify the respondent in abandoning the whole contract as he had done. Decision of the Province Judge reversed. Judgment The facts appear sufficiently from the Judgment. Advocates: The plaintiff appeared in person. Ma’atasim E Tagalawi for the respondent. B. Awadalla J. This is an application by Hassan Taha Hamadouk against the decision of His Honour the Province Judge el Darner, dated 21.2.1957 reversing a decree of the District Judge, Merowe in CS/241/1957 passed against the respondent for a sum of L.S.36 damages for breach of contract and costs. The applicant is one of several cultivators of el Arak Omodia, Merowe district, and the respondent is the owner of a four-inch pump installed for the specific purpose of irrigating the sagias of the applicant (*) Court: M.A. Abu Rannat C.J. and B. Awadalla J. and other cultivators. The relationship between the parties is governed by an agreement made in a stereotyped form and dated 1.5.1950. This agreement was made operative for five years but it seems from clause (1) that the intention was to make this agreement automatically renewable for a period co-extensive with that for which he pump license might be renewed, with the proviso that the cultivators were at liberty at the end of the first five years to give three months notice of their intention not to renew. The important clauses of this agreement, so far as these proceedings are concerned, are as follows Clause (3). This provides that if the pump owners fail to irrigate the cultivator’s land, the former will be liable to compensate the cultivator, and the assessment of compensation is left to the board of arbitrators referred to in clause (53). Clause (4) This provides that the cultivators shall maintain a good standard of husbandry, following such directions or rules as may issue from the Province Authorities. Clause (5) ‘This empowers the pump owner to withhold the water from any land not cultivated at the proper time. Clause (13) This provides for arbitration in cases of delay in preparing the land for cultivation, etc. Sometime towards the end of 5954 the respondent applied to the Province Authorities to have his pump license cancelled, and the Authorities complied with the request. He therefore rendered himself incapable of performing his part of the contract for the remaining part of the term, and the applicant sued for damages. The case started on 11 .12.1954, and the applicant therein assessed his relief at . 36. The respondent alleged that he was driven to apply for withdrawal of the license, because the cultivators (of whom the applicant was one) were not diligent enough in carrying out their obligations under the contract, and so he was getting no profit out of the enterprise. The District Judge correctly framed issues as follows 1. Did the plaintiff fail to cultivate the land as provided for by the agreement ? 2. If ‘Yes’, is the defendant entitled to renounce the agreement ? 3. If ‘No’, what is the exact quantum of damages sustained by the plaintiff ? Though he did not specifically say so, we assume from the final cult that he found all the issues in favor of the plaintiff. The respondent applied to His Honour the Province Judge who reversed the District Judge’s decision for the following reasons, viz., (1) that the applicant had, in effect, three months’ notice of the respondent’s intention to withdraw his license, and (2) that the applicant had failed to maintain a satisfactory standard of farming, as provided for by the agreement, or at all events that the applicant had failed to discharge the onus of proving that he had done so. We are of opinion that the basis for the decision of His Honour the Province Judge is not correct. As regards the question of notices, it is not true that the agreement is terminable by three months’ notice by the respondent. This right is reserved only to the cultivators, and even they cannot give a notice which does not expire at the proper time, Viz., 30.4.1955. As regards the alleged breach of clause (4), it is not in our view correct to interpret the contract in a manner which entitles the respondent to be sole judge and arbiter of the issue, and to renounce his obligations at any time by unilateral action. It is true that a breach of clause ( does not appear to be covered by the arbitration clause but then the ordinary rules of the law of contract would no doubt give the respondent a right of action should he suffer any damage by reason of the cultivator’s failure to farm up to the standard required by the authorities. Had the respondent waited until the authorities revoked the license by reason of bad farming the respondent would certainly have been entitled to great sympathy, but he cannot expect such sympathy if he takes the law into his own hands, and breaks all relations with the cultivators merely by reason of the fact if it be a fact -— that they ‘failed to cultivate their lands properly’, as he stated in his evidence before the District Judge. We must add that His Honour the Province Judge states in his note on the case that it is improper to call on the respondent to prove ‘failure to cultivate’ for the reason that this is a negative issue. We do not agree with this. Failure to cultivate is as much an affirmative as the existence of the contract itself, and the District Judge was right in laying the onus of proof thereof on the respondent. We are of opinion that the decision of the District Judge on the law was correct. The question of damages is one of fact on which the District Judge was entitled to find as he did, on the evidence before him. The decision of His Honour the Province Judge is therefore reversed, and that of the District Judge is hereby restored with costs here and in the Court below. M.A. Abu Rannat C.J. — I concur Application for Revision Allowed.