Principles

·  Landlord and Tenant—Easements—Lessee has right to easement necessary for reasonable use and used previously lot benefit of part leased

The lessee of part of a tenement is entitled to all easements which are necessary to the reasonable enjoyment of the property granted and were at time of the lease used for the benefit of the part leased.

Judgment 

   Advocates: Abdel Rahman Yousif for plaintiff-applicants

Hassan Dirrawi for defendant-respondent

   Babiker Awadalla J. December 2, 1963: —Respondent-defendant in this case, Abdel Mutal Mohamed’ Abdulla, trading under the name of the “Golden Arrow Co.,” is the owner of two leasehold plots known as plots 2 and 3 block 11 R.W. Khartoum Light Industrial Area. The said block 11 comprises only three plots, Nos. 1, 2 and 3, and plot 1 thereof is owned

by someone who does not concern us here but reference to this fact is only necessary for a clearer understanding of the case. Plots 1 and 3 are corner plots each comprising 1,800 square metres in area, while plot 2, the central plot, comprises 2,400 square meteres.

   For some reason or other, respondent treated the two plots. (2 and 3) as one unit for the purpose of development and so he built them in such a manner that the greater part of the areas of the two plots together formed an inner and enclosed courtyard with the buildings around it constructed in the form of a huge rectangle.

   The southern stretch of this rectangle comprises a row of fourteen shops, the western side, i.e., that part of the building separating plots 1 and 2 consists of a veranda facing the courtyard and offices on the first floor. The northern stretch consists of a veranda and stores. The eastern part of the rectangle contains both basement and ground level stores and the entrance to the courtyard. This entrance is so wide as to allow ingress of big commercial vehicles and is fitted with a huge iron gate.

   Exactly on the boundary between plots 2 and 3 there is constructed a fence of expanded metal about two metres in height and in line with the main gate there is another gate on the expanded metal fence for the purpose of allowing access to plot 2. In other words, access to the inside buildings and the courtyard on plot 2 was only possible by passing the main gate on plot 3 and then the second gate on the fence between the two plots.

   On October 3, 1959, plaintiff-applicants, the Automobiles Co. Ltd., of Khartoum, entered into a tenancy agreement with respondent under which the latter agreed to let to them the buildings “situated at Block W/R 2—3 of the Industrial Area, Khartoum, with the appurtenance, consisting of six shops facing the main street, offices on first floor, all the area of veranda under the offices and behind the shops and the yard,” for use as a service station and garage for the company. . The rent agreed upon was £S.2 monthly payable in advance and the tenancy was to subsist for two years unless the tenant, by three months’ notice, elected to renew. It is not clear whether three months’ notice of election to renew was given before October 1961, the date of determination of the agreement, but on October 6, 1961, the two parties entered into a separate agreement under which respondent agreed to let to applicants some underground or basement stores situated on the eastern side of the building and lying immediately north of the eastern gate. Paragraph of this agreement states as follows:

   “The period and condition with all responsibilities towards both sides in respect of the underground stores will be the same already agreed upon between us in the previous contract dated October 3, 1959, and to be called one whole contract, therefore the rent will be

   £S.300 in lieu of £S.240 as mentioned in the previous contract.”

According to this, I take it that respondent must have waived his right to notice under the first agreement. It is Of particular interest to note that were it not for applicants’ own act of creating a new passage on the southern side as shall be later explained, access to those underground stores would have been impossible from any part of the buildings on plot 2 except by crossing plot 3.

   In my view the present proceedings would never have seen the light of the day were it not for applicants’ own act in March 1961 of converting one of the six shops (the easternmost one) into a passage leading to the inside of the building. They contend that they have done this in order to allow small cars into the garage through this passage and also to provide a sort of waiting accommodation for their customers.

   Sometime towards the end of 1961 respondent let to the American Embassy all the buildings on plot 3 with the exception of the basement stores already let out to applicants. Whether on the request of his new tenants or whether on his own initiative, respondent closed the second gate on the expanded metal fence, so that it was no longer possible to have access to plot 2 from the main gate on plot 3.

   On December 8, 1961, applicants instituted a suit for a mandatory injunction calling upon respondent to allow them access through the eastern gate to the buildings demised to them. Respondent contested the action on the ground that the eastern gate was not part of the demise under the first tenancy agreement. It was therefore for the court to decide this point which formed the main issue in the case and the learned District Judge, after hearing both parties and visiting the site, decided against applicants.

   His reasons for so doing are as follows:

1. That the tenancy agreement to the American Embassy preceded that of applicants’ in point of time and it would therefore be in consistent with the first tenancy to say that applicants had a right of way through the eastern gate;

2. that the tenancy with applicants contained a provision against user of the premises to the annoyance of other occupants of the same building and the use of the eastern gate would cause annoyance to the occupants of the eastern part (i.e., the Embassy;

3. that the explanation by respondent that the gate on the fence was intended simply to give access to plot 2 in case of emergency, e.g., in case of fire breaking out in the premises, is plausible;

4. that the agreement between the parties contained a provision for the construction of latrines on the demised premises which indicates that the demised premises were entirely separate from the rest of the building.”

Applicants applied to the honourable judge of the High Court for revision of this decree and the application was dealt with by His Honour H. M. Abul Gasim P.J. who dismissed the application after calling for a written statement from the respondent. In his decision, his Honour the Province Judge said:

   “The learned District Judge was at pains to pay a visit to the site. The eastern gate, the subject of the dispute, was not included in the contract of lease dated October 3, 1959, concluded between the parties and in the circumstances of the case the learned District Judge could not reasonably infer that it was an implied term which was in the contemplation of the parties at the time of execution of the tenancy agreement. It belonged to another adjoining tenant who has been occupying premises prior to applicant. No evidence was adduced to show that it is essentially a way of necessity to applicant.”

   Against that decision, applicants are seeking the help of this court. This court had to view the site of the dispute before hearing the parties. Such a visit was in the opinion of the court absolutely essential for an under standing of the case.

   From what we have seen and heard, I have no doubt that the decision of the learned District Judge was far from being correct.

   In the first place, the tenancy to the American Embassy did not precede applicants’ tenancy in point of time. It is true that before applicants the Embassy did occupy some of the stores on the northern side of plot 3 but they only obtained a lease of the remaining buildings in that plot two years after the agreement with applicants, i.e., sometime about October 1961.

   Secondly, I am unable to understand how the exercise of a right of way impliedly preserved by the demise can be said to amount to annoyance to anyone.

   Thirdly, the allegation by respondent that the purpose of the gate at the fence was to provide access in case of emergency is in my view corroborative of applicant’s allegation that the whole building had one entrance, for if there were in fact two entrances as respondent seems to allege, then the existence of a gate at the fence separating the two plots would have been most unnecessary whether in case of an emergency or otherwise.

   Lastly, the argument that a provision regarding latrines on the demised premises is evidence of the non-existence of the right of way claimed is absolutely incomprehensive.

   I regret to say that I am unable to see how anyone reading the tenancy agreement and visiting the site can come to any conclusion other than that the demised premises comprised a right of passage to plot 2 over plot 3. It is not at all contested that at the time of the agreement the only means of

access to the buildings let Out to applicants was through the eastern gate and then through the gate at the fence. Any other interpretation would mean that applicants were to pay £S.240 monthly in order to use premises as a “garage and service station” for vehicles that it was impossible to admit into the premises. Such interpretation would of course be untenable. Respondent alleges in his evidence that from the outset the intention of the parties was that one of the six shops was to be converted into a passage for vehicles. I do not think that such an allegation would help respondent for, on the one hand, being parol evidence intended to add to a written agreement, it is inadmissible, and on the other even though it were admitted contrary to the rules of evidence, it would be very hard to believe. I think that if the agreement meant to allow the creation of a new passage on one of the six shops it would have said so in clear terms. In fact the express provision that the tenancy agreement included the six shops on plot 2 is highly inconsistent with such an allegation.

   The gist of respondent’s defence is that the original tenancy agreement covered only the premises on plot 2 and that accordingly applicants cannot claim any right of-passage on plot 3. Such a contention obviously runs counter to the clear wording of the tenancy agreement itself which says that the subject-matter of the agreement covered both plots 2 and 3 and as the only interest the applicants then had in plot 3 was the passage, the reference to plot 3 would be meaningless save on the hypothesis that the tenancy agreement meant to grant applicants the right of way now claimed.

   I would go further than that and would say that even if there was no express provision in the agreement, applicants’ right to go over plot 3 would have been established under the rule in Wheeldon v. Burrows (1878) 12 Ch. D. 31.

   “On the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi-easements) or in other words all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.”

   In Brown v. Alabaster (1887) 37 CH. D. 490, it was held that a made road comes within the meaning of the expression “continuous and apparent easements.” In the case in hand, there is no doubt that the two gates as constructed (i.e., the eastern gate and the gate at the fence) were meant to provide a road leading to plot 2.

   For the above reasons, I am of opinion that this application should be allowed with costs and the decision of His Honour the Province Judge confirming that of the learned District Judge be set aside.

The mandatory injunction sought for ordering respondent to keep the passage through plot 3 open for use by applicants is hereby granted.

A. Abu Rannat C.J. December 2, 1963: —I concur.