AMNA ABDEL RAHMAN v. SAYDA MOHAMED MUSSAAD

(COURT OF APPEAL)

AC-REV-345-1960

Principles

· Limitation of Actions—Renewal—Prescription and Limitation Ordinance 1928, SS.9 and 4 (i)—Right of action renewed by admission of liability—Defendant’s allowing plaintiff uninterrupted possession of land as of right—An implied admission of liability

· Landlord and Tenant—Assignment of lease—Governor’s consent to assignment required by covenant in lease—Consent not applied for by assignor—Assignor’s duty to complete by applying for consent

· Equity—Specific performance—Discretionary nature of remedy—Not decreed where effect would be to order breach of previous covenant in lease—Not decreed against a person not a party to the suit Equity—Laches

The lessor of Government land in Khartoum North assigned the lease to plaintiff. Several years later a dispute arose and the plaintiff claimed that the lease should be transferred to her.
There was a covenant in the lease requiring the Governor’s consent to an assignment. The assignor had not applied for this consent, but it was later obtained.
The District Judge, upheld on revision to the High Court, held that plaintiff’s action was statute-barred, the action being brought after lapse of five years from the contract.
Held: (i) By the first proviso to Prescription and Limitation Ordinance 1928. s. 9 a right of action is renewed when the defendant admits his liability.
(ii) Under section 4 (i) of the same Ordinance, the fact that the assignor of a lease allowed the assignee to have uninterrupted possession of the land as of right for several years, since shortly after the assignment, was an implied admission of liability.
Obiter dictum: (i) Where the Governor’s consent is required by a covenant in a lease, it is the duty of the assignor to complete the contract by applying for the consent, and in such a case the court would be prepared to order the assignor to make such application.
(ii) Specific performance is a discretionary remedy, and will not be decreed where it would order breach of a previous covenant in a lease, nor will it be
decreed against a person who is not a party to the suit.

Judgment

M. A. Abu Rannat C.J. March 7. 1961 :—The facts of this case as far as can be ascertained are these:

The plaintiff and applicant, Amna Abdel Rahman, is claiming a right to assign to her the leasehold property of a house situated at Danagla Village at Khartoum North.

Plot 3, Block 5 P. West, Khartoum North Town, comprising an area of 34 square metres, is registered as freehold property of the Sudan Government, subject to a notice of lease for a preliminary term of one year in the name of Sayda Mohamed Mussaad, the defendant in this case.

The plaintiff claimed that in 1948 the defendant agreed to assign the leasehold in this plot in consideration of payment of £S.3.500m/ms The assignment could not be made or registered unless and until the building obligations were fulfilled, and the Governor’s consent was obtained. The defendant signed a document to this effect, and the plaintiff paid her the £S.3.500m/ms.

These facts are admitted by the defendant, although she contended half-heartedly that the written agreement was obtained by fraud or duress. On reading the evidence, I find no fraud or duress practised on her and therefore this issue should be decided in favour of the plaintiff.

This case was not decided by the District Judge who framed the issues or heard the evidence, as the District Judge who framed the issues died, and the District Judge who heard the evidence resigned his post and left the Judiciary. The case was therefore transferred to District Judge Tewfik

Cotran, who decided the case on a point of law, which was not raised by the parties to the suit. The learned District Judge decided that the action was statute-barred and dismissed the plaintiff’s claim. He was upheld by the Honourable Judge of the High Court when the case was brought to him on an application for revision by the plaintiff. The two learned Judges agreed that as the agreement for assignment of the lease was made in 1948, and the buildings were constructed by the plaintiff within a period of less than one year, the plaintiff’s right of action, which was based on the contract or on a claim for specific performance, was barred after five years.

With respect to the two learned judges, I think they overlooked a very important factor in arriving at their decisions.

It is admitted by the defendant that, since the buildings were completed by the plaintiff, the plaintiff has been either in physical or constructive possession of the house in question until the date when these legal pro ceedings were taken by her. The evidence shows that the plaintiff was at first in occupation of the house, and later on she let it and received the rent for herself.

The first proviso of Prescription and Limitation Ordinance 1928, S. 9, reads as follows:

“Provided always that the right of action shall be renewed if the person against whom the claim is made at any time whether during or after the prescribed period admits his obligation in respect thereof verbally or in writing or by part satisfaction of such claim and to the extent and from the date of such admission.” [italics added]

Prescription and Limitation Ordinance 928, S. 4 (i), reads:

“Where it is shown that a person has been in possession of land or receipt of the rents or profits thereof at each of two periods, it shall be presumed that he has been in continuous possession of the land or in continuous receipt of the rents or profits between those periods until the contrary be shown.”

The facts of the case clearly show that the plaintiff was in possession of the land as of right, that the defendant never interrupted her or disputed her right. This amounts to admission by defendant of her obligation, and the right of action was renewed until the time of the institution of this suit. It is therefore clear that the right of action was not barred by lapse of time.

The learned Judge of the High Court stated that plaintiffs claim can also be dismissed for her failure to obtain the Governor’s consent under Natives Disposition of Lands Restriction Ordinance 1928, S. 4. This objection by the learned Judge of the High Court can easily be disposed of.

The Natives Disposition of Lands Restriction Ordinance 1918 is not applicable to this lease at all. By proclamation dated August 15. 1948, and published in the Sudan Government Gazette No. 793, the Governor of Khartoum Province gave a general consent to the disposition of lands in the municipalities of Khartoum, Khartoum North and Omdurman between natives of the Sudan. It is thus no longer necessary to apply for such consent in those cases where the land is within the boundary of Khartoum North Town and the disposition is between natives of the Sudan.

Now I come to the more important point, which is this. Is plaintiff entitled to the specific performance of the agreement which is contained in Document A so as to be registered as leasehold proprietor in the defendant’s place? Before giving a clear answer to this question, it should be mentioned that clause 4 (7) of the lease demands consent of the Governor to the assignment of such lease, and the record shows that this consent was not applied for by the defendant. The lease specifically provides that such consent must be previous consent, i.e., that before an assignment, the consent must be obtained.

Thus, can the plaintiff demand specific performance of the 1948 agreement? In my view she cannot, and there are two reasons for this. First, it is a clear rule of equity that specific performance, which is an equitable and therefore discretionary remedy, will not be decreed where to do so would be to order the breach of a previous covenant. Secondly the court will not decree specific performance against a person who is not a party to the litigation, and to order specific performance in this case would mean that the Government would be asked to consent without the right to consider whether it wishes the plaintiff as its tenant or not.

The duty of conveying the land rests on the assignor. Thus the defendant in this case should have applied for the consent of the Government, i.e., the lessor. In William v. Glenton (1866) L.R. 1 Ch. 200 at 209, Turner L.J. stated: “The vendor, however, is bound to complete the contract, and if he does not take the steps which are necessary to enable him to do so, he is liable for damages upon the contract; and heavy damages would be given, if, having the means of completing the sale, he should decline to take the proceedings necessary for that purpose.”

I do not intend to burden this judgment with a review of all the relevant cases on this point, but I invite the reader of this judgment to read my judgment in the case of Bakhita Ibrahim v. Hamad Mahgoub, AC-REV-8- 1957, in which reference is made to many authorities in support of this view. In that case I said:

“In all these cases the actions were for damages, but Watson J. in El Nifeidi v. El Bashab, HC-REV-84-1953, indicated that it would be possible to apply to the court for a mandatory order to issue to the vendor ordering him to apply for consent to an assignment. The learned judge did not cite any authority for such an order. Also it is clear that there is nothing to compel the lessor (the Government) to grant his consent should he have reasonable grounds for with holding such consent. There is thus no assurance that the defendant would get what he wants. Such an order would merely assure that the vendor does all he can to obtain the consent. But there is one main argument in favour of such an order. It amounts in fact to an order to the vendor to complete his part of the contract by obtaining the consent and then transferring the property or pay damages. In this way it clearly indicates that justice be done, and for this reason I do not see any reason why this remedy should not be accepted in the Sudan.”

In my opinion the learned District Judge should have framed the issues differently Instead of framing the issue in specific performance, he should have asked whether such mandatory order should issue.

The evidence does not show in any way that plaintiff disentitled herself from claiming this equitable remedy, nor do I think that the equitable doctrine of laches applies here. The plaintiff has not been so apathetic in the enforcement of her right as to have lost her right to this equity. See Re Lloyds [1903] I Ch. 385. The mere fact that she knew of the need of consent should not disentitle her, for it was not for her to obtain it, and in equity time is never of the essence unless the parties expressly make it so. I am also of the opinion that in this case damages would not be sufficient compensation.

Now the Governor has given his consent for the assignment of the lease under Clause 4 (7) and I therefore order that the lease be transferred to the plaintiff.

M. A. Hassib J. March 7, 1961 :—I concur.