Case No.:

(AC-Revision-53- 1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Eviction under Rent Restriction Ordinane, ss. 11, 20 (1)— Whet her sub-let in the circumstances_PartnCrSliiPAPPl1Catb0h1 of equitable doctrine of laches to partnership leases

The first respondent, who was the tenant of a shop leased from the applicant agreed with the second respondent to enter into a partnership hereby the said shop should be used as a restaurant, and in furtherance of su h agreement they obtained the consent of the agent of the Nazir of the Waqf that the said shop be run as a restaurant by the partnership. The District Judge. Omdurman: regarded the second respondent as a person sub-letting from the first respondent without the written consent of the landlord under section 20 (1) ot the Rent Restriction Ordinance, and therefore, held that the plaintiff was entitled to eviction. But the Honourable the High Court Judge, on the evidence, found no such sub.let but that both respondents were tenants by a new agreement and on an equal footing.
Held: (i) that there was no evidence of a sub-let, hut that both respondents were tenants by a new contract;
(ii) That as the first respondent had abandoned the partnership business on or about the end of 1956, equity operated so that the second respondent survived as tenant of the shop.
Reilly v. Walsh (1848) 11 lr.Eq.R. 22 approved.

Judgment

(COURT OF APPEAL)*

AWAD ABDEL HAMEED EL MAHDI v. EL SIDDIG ABBAS AND

MOI-IAMED ARMAN

                                        (AC-Revision-53- 1960)

Revision

Advocate: J. L. Demian for applicant

March 10, 1960. Babikir .4wadalla J.: —This is an application for revision against the order of the Honourable the Judge of the High Court. Khartoum, reversing the decision of the learned District Judge, Omdurman.

Court: M. A. Ahu Rannat C.J. and B Awadalla J.

in CS/1071 Omdurman, The claim was one of eviction against both respondents on the ground that the first respondent (the original tenant) sub-let the premises in question to second respondent, and also on .the ground of non-payment of rent by first respondent for the seventeen months preceding the institution of the action.

As I see it, this application must be summarily dismissed. The shop, the subject of this litigation, is No, 81Bk 18 Omdurnian main suk, registered as Waqf of late Mohamed Ahmed Abu Mirein. Until the end of 1956, the agent of the Nazir of this Waqf was PW.1, and in I955 he let out this shop to first respondent. El Siddig Abbas at £S.4 per month. That same year, first respondent entered into partnership with second respondent for the running of a restaurant in this shop and obtained the agreement of the agent for the shop to be taken over by the partnership. This partnership did not proceed for long and an attempt at its dissolution was made by first respondent towards the end of 1956, but second respon dent refused to agree to such a step on the ground that he had expended some money on the furnishing of the restaurant and was therefore not prepared to liquidate the business before he could recoup himself there from. It would seem that first respondent was not much interested in the business, for his attempt at dissolution was a lukewarm one, and, on the evidence, he seems to have dissociated himself from the business from early 1957. Second respondent, who was paying the rent during 1956 to PW.i (the old agent), continued to remit the amount of the rent to the Nazir of the Waqf (the appellant and plaintiff)

The learned District Judge treated the case as one of sub-letting and found ‘as a fact that the old agent did not give his consent in writing to the taking over by the proprietor of the tenancy and told that as such action amounted to a breach of the statutory condition contained in section 20 (1) of the Rent Restriction Ordinance, the plaintiff (applicant) was entitled to eviction. The learned Judge of the High Court, on the other hand, treated the transaction as a new tenancy agreement under which both respondents were equally liable. I entirely agree with him. There was certainly no assignment, because first respondent continued to be liable under the new agreement, and there was definitely no sub-letting, because both respondents were equally liable for the rent directly to the owner. Section 20 of the Rent Restriction Ordinance is therefore entir&y inoperative.

That being the case, it remains to consider the position of the respon dents inter se after their falling apart at the end of 1956. There is no doubt from the evidence of first respondent himself that he considered the partnership as dissolved and so took no interest therein from about that date. Second respondent continued to run the restaurant himself and on his own account until the institution of this suit toWards the end of 1957.

In my view, this abandonment of the business on the part of first respon dent gives the second respondent, in law, the sole right to the whole interest in the tenancy and the landlord is entitled to look to him alone for the payment of the rent. This is the effect of the doctrine of laches in its operation on partnership agreements. The rule in question prevents a partner from having any say in the affairs of the partnership, if he dis-sociates himself therefrom in circumstances giving rise to the conclusion that he is no longer interested. When the partnership business consists partly of leasehold land, the benefits of the whole lease will enure to the survivor. In Reilly v. Walsh (1848) 1I lr.Eq.R. 22, two persons agreed to take land on lease for a building speculation and one of them afterwards opposed the prosecution of the speculation and died without ever having done anything to further it; it was held that the equitable estate as well as the legal estate were in the survivor and that he was not a trustee as to any portion of the land for the executors of the deceased (cf. Lindley, p. 577)

I now come to the second and easier point in the case, i.e., whether there can be eviction in this case on ground of non-payment of rent. The learned District Judge, having found that second respondent was a sub-b lessee, concluded that first respondent was in arrear in the payment of rent for the twelve months during which remittances were being made by second respondent. This is, in my view, highly illogical. The conclusion of the Honourable the Judge of the High Court on the point is, in my view correct.

M.A. Abu Rannat C.J.: —Application is summarily dismissed.

                                                              (Application summarily dismissed)