Case No.:

HC-REV-575-1962

Court:

The High Court

Issue No.:

1962

Principles

·  Land law—Co-owner net in undivided shares—Entitled to share of rent when kept from possession Land La’ —Co-owner in undivided shares—Entitled to share of rent when land leased to a third part) Land law—Co-owner in undivided shares—Covenant for quiet enjoyment of co owner in return for rent is enforceable

·  Landlord and Tenant—co-owner in undivided shares—Covenant for quiet enjoyment of co-owner in return for rent enforceable Landlord and Tenant—Co-owner in undivided shares—Entitled to share of rent when land leased to a third party

Obiter dicta: (i) A co-owner in undivided shares is entitled to his share of the rental value of land when
(a) He is being prevented from she enjoyment of possession by his co owner, or
(b) The co-owner is receiving rent for the land from a third party:

(ii) It a party covenants with his co-owner in undivided shares for the quiet enjoyment of the o-owner in return for a share of the rental value, this contract can be enforced

Judgment

(HIGH COURT)

ANIS MANGAROUS s RAMSIS MANGAROUS

HC-REV-575-1962

Advocates: Henry Riad SikIa.. for plaintiff-applicant

‘Mohamed Osman Awad - - - for defendant-respondent

Abdel Mageed Imam J. April 13. 1963 is an application for revision submitted on behalf of plaintiff-applicant against the order of the Resident Magistrate. Khartoum North, dated November 3, 1963, in which his application for recovery of the sum of £S.37.845 m/ms being rent in respect of his undivided share in a house known as plot No. 3. Block 4 E. West, Khartoum North, was dismissed for lack of any cause of action.

The point to be considered is whether or not a co-owner of an undivided share should be entitled to such a relief,

I think the answer should be in the negative. The rule at common law is established that a co-owner as such owns every particle in the whole and because of this he is entitled to enjoy all together with the other co-owners. It follows that he is debarred from claiming rents in case he is not in actual possession; the argument seems to be that he cannot pa rent in respect of property of which he is the rightful and legal owner.

But under certain circumstances equity intervenes as is best illustrated by All Mohamed Ahmed Abu Zeid V. Rasmeya Mohamed Abu Zeid. AC REV-98-I9 (1962) S.L.J.R. 40

I think these circumstances arise when a co-owner is being unlawfully kept out (a) of possession or (b) of receiving his rightful share in rents in case the land is being let to a third party.

In connection with (a) above the court may grant one of two reliefs:

(i) by specific performance, ordering those co-owners who are in actual po6session to allow the plaintiff to share the enjoyment of the land, or

(ii) by fixing a sum certain to be paid over to the ousted co-owner by way of profits and not rents.

In connection with (b) above, the court may order payment of plaintiff’s share in rent.

These circumstances may also include the case of agreement between the parties to pay profits in consideration of the non-enjoyment of his share, in which case the court may enforce such an agreement.

In the tight of the above I understand the holding in Rasmeya’s case.

Of course such a co-owner can resort, in the last resort, to other reliefs granted to him by statute, by way of sale or partition of his share.

It seems to me that the facts in Rasmeya’s case are different from those in the case quoted by the learned advocate for the defendant-respondent. All Saeed Deif v. Abdel Rahim Saeed Deif, (1959) S.L.J.R. 55. and these two cases may therefore be reconcilable with each other.

The facts of this latter case are identical with the one beforehand.

For the above I think the court below was right in dismissing the claim, as it disclosed no cause of action.

The application is dismissed. Defendant-respondent is awarded £S.5 in costs.

Editors’ Note. —See El Sheikh Mohamed Nasir v. Osman Mustafa, HC REV-2 (1962) S.L.J.R. 224.