(COURT OF APPEAL)*

ABDEL SALAM BASHIR AND OTHERS v. OMER MOF-IAMED AHMED EL AB

AC-REV-646-1965

 Principles

·  Landlard and Tenant—Evjc- action when there ore several o Restric tion Ordinance, S. 11 (e) (Amendment) Act. 1958, s. 2 () —On co-owner cannot cue in his own name without consent of other co-o ner

Plaintiff is a co-owner in a shop. He instituted ti s suit in his own name for recovery of possession of the shop for his perso al use from the tenant. District Judge awarded him judgment accordingly. Province Judge confirmed the court’s judgment.
Held: Where landlords are several co-owner one of them is not allowed to sue atone in his own name, on the ground of personal use under Rent Restriction Ordinance, s. it (e) (Amendment) A’ 1958, s. 2 (i), unless the other co-owners give their consent accordingly; bee’ e one co-owner has no right to deal with joint property withou the cons - of other co-owners according to the land law of the Sudan.

Judgment

Advocates: S. K. Omer for applicants

Mohamed El Awad El Hassan for respondent

Osman El Tayeb J. August 27, 1966: — Plaintiff is the co-owner as to half the shop No. 29S, Block 20, Wad Me Suk, the other co-owners are nine in number. Plaintiff has become 1 rO-owner in 1962 by sale from others. The two defendants are enants of the hop in question.

Plaintiff in his own name served notice to quit on defendants informing them that he was in need of the shop for his own personal use. There after he instituted this suit in his own name, describing himself as the landlord, claiming recovery of possession on the ground of personal use. He made no mention of the other co-owners, though they were shown in the land registration certificate attached to his petition.

Defendants opposed the claim on two grounds:

(a) That as plaintiff is the co-owner as to half of the shop; he is not to be allowed to sue for recovery of possession;

(b) That his allegation of need for personal use is denied.

Issues were accordingly framed on these two points. After the close of the hearing, the learned District Judge decided the two issues in favour of plaintiff and gave him an order of possession. The learned District Judge stated in his judgment that there is no provision in the Rent Restriction Ordinance nor in the Civil Justice Ordinance preventing a co-owner of an undivided share from suing alone. He quoted the case of Abdalia Surour v. Medani Haa El Tahir and Others (1960) S.L.J.R. 289, as an authority on the point that a co-owner can sue atone for recovery of possession of the joint property on the ground of personal use.

The application for revision to the Acting Province Judge was sum marily dismissed by him, agreeing on the judgment of the learned District Judge.

In this application the second point of the need for personal use is not raised, but the argument of the learned advocate for defendants has been focused on the other point, that of the right of plaintiff to sue in his own name without joining the other co-owners in the shop.

As I see it, the determination of the case depends on the meaning and applicability of the Civil Justice Ordinance, Ord. VII, r. 1, and on the meaning of “landlord” in the Rent Restriction Ordinance. The rule under consideration reads as follows:

1.     Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of aU persons so interested. But the court shall in such case give, notice of the institution of the suit to all such persons.

2.      Any person on whose behalf or for whose benefit a suit is instituted under sub-rule (1) shall be offered a reasonable opportunity of objecting and may apply to be a party to the Suit.

This rule is identical to the Indian Code of Civil Procedure, Ord.1, r. 8, 1 Molla, Code of Civil Procedure, o6 (12th ed., 1953), comments as foflow:

“ This rule i an enabling provision which entitles one party to represent many who have a common cause of action; but it does not vest a right of suit in a person or group of persons, or does not 1,rc any one to represent many if his action is maintainable without oinder of the other persons.”

It is one person to sue or defend a suit for himself and on behalf of others who vea common interest in the suit. I It is called a representative suit, but this representation must be with the permission of the court, and the persor represented have to be given notice and afforded the opportunity to object to the suit or the representation or to apply to be joined in the suit So it is clear that it does r apply to a person suing in his own name for lii ‘and Ibr h ôw1:i in’t or cause of action, as in the ec -a The plaintiff, here, is suing in his own capacity as a co o in the shop, and on his own cause of action; that of requiring the shop for his own personal use. He is not purporting to represent the other co-o who it appears have not the same interest in that particular cau of action.

Then we come to the meaning of “landlord,’ because it is only the “landlord” who has the right to claim possession under the Rent Restric tion Ordinance, s. ii landlord is defined as follows:

“Means with reference to any tenancy actual or potential the person who has granted or is entitled to grant that tenancy.”

This definition is, as it is expected to be, restricted to the creation of the relationship of landlord and tenant, whether contractual or statutory. In that respect, and in a contractual tenancy, the landlord is the person who made the contract, and in the case of a statutory tenancy, he is the perscn who would have been entitled to make that contract. The contract of tenancy is normally made by the proprietor (the registered proprietor in the case of registered land) in his capacity as owner and principal; or it ma)’ be made by another in his capacity as agent of the proprietor, whether by express or ostensible agency; or it may be made by a trustee, whether actual or constructive. What is the position of the co-owner of the pro pemny? He is no doubt a proprietor in so far as his share is concerned, hut he is not so with respect to the shares of the other co-owners. The fact that he is a co-owner does not vest him with right to deal with the ioir property. The law of the Sudan does not accept such concept as wou1 allow a co-owner to deal with the property of his co-owners, in the ahse’ce of authority from them.

The principles of English law that 1 shall here refer to have no applica tion in the Sudan. Those principles that were developed by the English common law and then modified by Statute. Where land is owned in undivided shares by many persons, the law is that no legal estate is capable of subsisting or of being created for each one of them. It can only be done “behind a trust for sale,” whether created by settlement or by operation of law. The result is that the legal estate in the land is vested in trustees for sale, and the land is converted into money; whether rents or profits or the purchase price in case of sale. And the co-owners are only entitled to the money; they cannot make any dealing with the land.

In the Sudan, according to the provisions of the Land Settlement and Registration Ordinance, a dealing, which includes the granting of a lease, can only be made by the registered proprietor or a person duly authorised on his behalf. When the land is registered to many persons in undivided shares, each one of them is a proprietor and holds the 1 e jn respect of his share, another without consent or authiority

The case of Abdalla Surour helps in this case to show that the co owners have to act jointly. It was instituted by all the co requiring possession for personal use for one of them. And as the need for personal use was established the court rightly ordered possession. The co-owners were in agreement to transfer the tenancy to that one who required it.

In the present case the position is different. Plaintiff alone in the strict sense is not the landlord; it is here a group of persons—as they appear In the register as co-owners or joint proprietors. The contract can only be made by them jointly.

The plaintiff, therefore, cannot sue alone in his own personal right; requiring the whole plot for his own personal use.

For these reasons, this revision is allowed and the decree is reversed.

El Fatih Awouda 1. AUgust 17, 1966: —l concur.