Principles

·  Landlord and Tenant—Sub-lessee without written consent of landlord—A licensee of tenant

If a tenant allows another to occupy his house and pay rent to landlord on tenant’s behalf without the written consent of landlord required by Rent Restriction Ordinance, 1953, s. 20 (I), the occupant is a licensee who may be evicted at the tenant’s pleasure.

Judgment

      Advocate: Mamoun Senadda for plaintiff-applicant

      Babiker Awadalla J. March 28, 1964:—House No. 43, Transit Port Sudan, is the property of Port Sudan municipality, and let out to applicant El Tayeb Magzoub at £S.2.125 m/ms per month. There is no indication in the proceedings as to the length of the tenancy but it appears to be one from month to month.

      Sometime in 1958 applicant allowed respondent Mohamed Babiker to occupy the house and pay the rent to the municipality because applicant was then leaving Port Sudan temporarily for Tokar.

Applicant returned from Tokar in 1959 and asked respondent to deliver possession of the house back to him but respondent refused and offered to applicant another house belonging to the municipality and let out to a friend of respondent. Applicant occupied that house for some time and then vacated it by order of the court and was therefore compelled to go back to respondent who again refused to give delivery of the house. Applicant started the present proceedings.

      The back-bone of respondent’s defence is that applicant had assigned the tenancy to him in consideration of his (i.e., respondent’s) paying two months’ arrears due to the municipality from respondent at a timer prior to the assignment and respondent paid those two months’ arrears and took possession as a tenant. He admits that the municipality of Port Sudan knew nothing about the alleged assignment. An issue covering the point was accordingly framed and it was proved by applicant that there was no intention of any assignment of the tenancy and that the arrangement was simply made for accommodating both parties as respondent himself was in need of a house at the time, and that the rent was always paid by respondent to the municipality under the name of respondent. The learned District Judge accordingly gave judgment in favour of applicant for immediate eviction.

      Respondent applied to His Honour the Province Judge against that decision and His Honour the Province Judge set aside the decision on the ground that there was an assignment of the tenancy. He accordingly ordered a rehearing of the case to determine whether the said assignment was lawfully made in accordance with the provisions of the Rent Restriction Ordinance. It is against that decision that the present application is now being made.

      I regret I am unable to see the point in ordering a retrial to determine something which is quite clear on the face of the record. Both parties seem to be in agreement that the municipality had no knowledge whatsoever as to the arrangement because it is alleged by applicant and admitted by respondent that the rents had always been paid to the municipality in the name of applicant.

      As Rent Restriction Ordinance, s. 20 (I), requires the written consent of the landlord in the case of assignment, sub-letting or otherwise parting with the possession of premises, respondent can in no way acquire any proprietary interest by way of assignment until that consent is obtained or waiver on the part of the municipality is proved.

      In my view the interest of respondent is nothing more than that of a bare licensee who can be suffered to stay in the house for so long as the tenant requires and who becomes a trespasser once his licence is revoked and he refuses to quit. The mere fact that he is paying rent on behalf of the tenant is quite immaterial for it only gives him a personal right not to

be interfered with during any period for which rent had already been paid, assuming it were payable in advance.

      For the above reasons, I am of opinion that applicant is entitled to recover immediate possession and that the decision of the learned District Judge was correct.

      This application is therefore allowed with costs and the decision of His Honour the Province Judge is hereby set aside.

      M. A. Abu Rannat C.J. March 28, 1964:—I concur.