Case No.:

AC-REV-367-1960

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Landlord and Tenant—” Dwelling-house “—Rent Restriction Ordinance, s. 16—Shop attached to dwelling not a “dwelling” Landlord and Tenant—” Premises “—Rent Restriction Ordinance, ss. 4 and 5—Shops furnished or unfurnished are “premises”

The tenant of a shop equipped with shelves brought this action against his lessor for recovery of rent collected in excess of the standard rent. The District Court held this lease not covered by the Rent Restriction Ordinance 1953, because on the face of the lease-contract the shop was furnished. Before the Court of Appeal the lessor argued that the shop was a “dwelling” because it was part of a dwelling-house, and that therefore the lease was covered by Rent Restriction Ordinance. s. 16.
Held: (i) A shop is not a ‘ because it forms part of a dwelling-house; the lease is not within the purview of Rent Restriction Ordinance 1953, 5. 16.
(ii) “Shops, whether furnished or unfurnished, are ‘premises’ within the meaning of the Ordinance,” and are therefore covered by Rent Restriction Ordinance 1953. S.

Judgment

(COURT OF APPEAL) *

AHMED MOHAMED ABBASHAR v. EL HADI EL HAG EL AMIN

AC-REV-367-1960

Advocate: lbrahim Ahmed lbrahim ... for defendant-respondent

Babiker Awadalla J. February 11, 1961: —This is an application against the summary dismissal by the Hon.. Judge of the High Court, Khartoum, of an application to him against the decree of the learned District Judge, Khartoum, in CS-14

Applicant is the tenant of a shop at Burn El Mahas built on Plot 5, Block 5A, property of respondent. In his plaint (as further elucidated by his examination under Civil Justice Ordinance, s. 6) applicant claimed the following relief:

(a) A declaration that the standard rent of the said shop was £S.2 per month and not £S.9.6oom/zps as he was then paying, and

(b) Recovery of six months difference under the Rent Restriction Ordinance, s. 18.

Respondent, defendant in the suit, in his written reply dated June 22, 1959, claimed that the standard rent was £S.9.600m/ms and denied liability to pay any difference under Rent Restriction Ordinance, s. x8. He further counterclaimed for recovery of possession of the shop on the ground that he required it for his own use.

Issues were framed as at p. of the record, and from these, it appears that the parties were disputing the nature of the premises, i.e., whether they were new or old within the meaning of the Ordinance, though the record in that behalf is too sketchy to indicate which of the parties was claiming what. At the top of p. 4 under the heading “Reply” it is stated that the shop was built before 1947 and was not let out in July, 1951, and it can therefore be surmised that this allegation was made by or on behalf of applicant, particularly because the onus on the first issue was laid upon him. From the evidence of the Municipal Engineer contained in Doc. 4 coupled with the evidence of the engineer called by applicant, it Is clear that this shop is “old” within the meaning of the Ordinance d if it was burnt some time afterwards (i.e., about 1951) it was certainly not completely rebuilt after the fire but was simply rehabilitated. In the circumstances all the evidence about Cost of building is irrelevant for, in determining the standard rent, the relevant subsection is 4 (d). Subsection (c) is not applicable because there was no tenant of those on July 5, 1951.

The learned District Judge was no doubt wrong in assuming that this case does not come within the ambit of the Ordinance because the shop was let out furnished.

It is not disputed that the shop was equipped with shelves, and assuming that it could be said that the shelves are “furnished,” Rent Restriction Ordinance, s. 16, only applies to dwelling-houses. Even in its application to dwelling-houses, it does not take them outside the operation of the Ordinance, but simply gives the court power to check abuses if in its opinion the letting out of the furniture was used as a cloak for contra-vening the provisions of the Ordinance. It is strange that the learned District Judge addressed himself to the possibility that Rent Restriction Ordinance, s. 16, may not be relevant, but, stranger still, he says that in that case furnished shops are not provided for at all by the Ordinance and that we have only to look to the contract of the parties. This is no doubt an interpretation which would appeal most to the land-owners of the centre of Khartoum but which, I am glad to say, cannot be accepted by this court. Shops, whether furnished or unfurnished, are “premises” within the meaning of the Ordinance and I cannot see how they can cease to become so because the legislature thought fit to make a special provision regarding furnished dwelling-houses. If furnished shops become excluded by such a provision, then no doubt the same argument would exclude unfurnished houses and the Ordinance would become a dead letter.

Before us, the learned advocate for respondent tried to persuade the court to believe that a shop is a dwelling-house if it formed part of a dwelling-house. I do not agree with this argument.

This application is therefore allowed with costs and case referred back for a decision as to what is the standard rent on which no doubt the court would seek the opinion of the Governor under Rent Restriction Ordinance, s. 4 (6), and consequential relief, if any.

The counterclaim will, of course, not be gone into, as there was no cross-appeal relating to that part of the dispute.

A. R. El Nur P.1. February 11, 1961: —1 concur.

Editors’ Note. —The decision in Ahmed Mohamed Abbashar v. El Hadi El Hag El AC-REy- (1962) S.L.J.R. 81, was followed in Idris Fat’h El Rahman v. Abdalla Mohamed Abdalla, AC-REV (Babiker Awadalla J.).

* Court: B. Awadalla 1, and A. R. El Nur P.1.