(HIGH COURT OF JUSTICE)
ALl MOHAMMED AHMED ABU ZEID vs.
RASMEYA MOHAMMED ABU ZEID
(KHC/REV/s
Revision.
Principles
· Land law co-owners of house whether one co-owner in occupation liable to pay rent in absence of agreement.
A co-owner of land in sole occupation thereof is not liable to pay rent to his other co-owners in the absence of specific agreement.
Judgment
The plaintiff and defendant were brothers and co-heirs of certain premises. The defendant was in sole occupation of the premises and the plaintiff claimed a proportionate share of the rent from him. The plaintiff alleged that the defendant had agreed to pay him such share, and he also alleged that the defendant was acting as agent for all the co-heirs.
Advocates: Siddik Ahmed Kheir……… for the applicant (the defendant)
Fawzi el Tom………………………….. for the respondent (the plaintiff)
D.S. Abu Ghazaleh P.J. stated the facts and continued.
At the trial the learned Judge found as a fact that there was no agreement to pay a proportionate part of the rent to the plaintiff. However, he found that the defendant acted as agent for the rest of the heirs and that as such he was liable to pay the rent claimed. The applicant complains that the trial Judge misdirected himself when he found that the applicant was in possession of the house in his capacity as agent for all the heirs appointed by the Sharia Court. The applicant
also complains that the trial Judge was wrong to decide the matter on an issue of agency which was not framed. (The learned Judge then went through the facts and continued). The facts in issue are these: (1) Whether there was any agreement to pay rent to the plaintiff, and (2) whether the defendant was an agent on behalf of the co-owners.
Practically the whole evidence adduced dealt with the question of the alleged agreement to pay rent. With respect to this, the trial judge found that there was no such agreement. The matter standing thus the case regarding the rent should have been dismissed for prima facie a co-owner can enjoy the whole undivided property without being liable to pay rent to the other co-owner in the absence of agreement to the contrary or of some act depriving the co-owner of his right to joint occupation with him. Other remedies are open to non-occupying owners such as an action for partition.
With regard to the other question, i.e. whether or not the defendant was acting as agent for the other co-owners, I find that this matter was not adequately dealt with in the court below. It was wrong to refer to the Sharia Court’s record and to infer agency from it, without that record being put in evidence to enable the parties to comment on it . In the circumstances I propose to refer the case back to the trial judge to give the parties an opportunity to adduce evidence on the question of agency, and for the trial judge to make a new decree according to his findings on this question.
Case referred back