Principles

·   Landlord and Tenant __Eviction - Nonpayment of rent—Tender by unauthorized member of tenant’s family

·  Agency—Landlord and Tenant—Tenant’s relative living in house—Express authority not necessary for relative to pay rent as tenant’s agent

   Tender of rent by a member of a tenant’s family in the tenant’s absence, though without his express authorization, is valid, and the landlord cannot evict for nonpayment of rent.

   Tender of rent by a member of a tenant’s family in the tenant’s absence, though without his express authorization, is valid, and the landlord cannot evict for nonpayment of rent.

Judgment

Advocates: Mahdi Sherif                       for applicant

                    O. A. Ogeil                        for respondents

Babiker Awadalla J. September 5, 1961:—this is an application against the decision of the honourable judge of the High Court, Khartoum, reversing that of the learned District Judge, Khartoum, in which a claim for eviction of applicant from controlled premises occupied by him and owned by respondents was refused.

            The respondents own Plot No. 1, Block 6 B.W., Khartoum Town, which was let out to applicant’s predecessor in title many years ago for use as a bakery. At the time this suit was instituted, June 12, 1960, the rent of the bakery was £S25 per month, and the mode of payment was always by cheque. It appears that the system of dealing between the parties was that the landlords (respondents) sent their collector some time after the monthly rent became due with a receipt, which the latter left with the tenant, and called in later in the month for payment.

 In March 1960, applicant went on leave outside the Sudan and put his mother (D.W. 2) in charge of the business, assisted by D.W. 3. It appears that the collector (P.W. 1) did call at the bakery for collection of the March rent during April, but finding that applicant was away, he went back with out making any demand for the rent. He did not call in during May, and on June 14, the respondents petitioned the court for recovery of three months’ rent (March to May) and also for eviction on the ground of non payment of rent. On June 15 1960, applicant’s mother, apparently conscious of the impending proceedings, sent a cheque to respondents for the three months’ rent, but respondents refused to have it on the ground that [1]they were instituting proceedings. That same day applicant’s mother sent the cheque back by registered letter, which was received by respondents on June 18. Action was allowed on June 16, and fees were collected five days later, i.e., on June 21.

On these facts, which were not disputed on either side, the learned District Judge allowed the claim for recovery of the rent but dismissed that for recovery of possession on the grounds (a) that failure by respondents to receive the rent was due to their own design to make the tenant a defaulter by deviating, without notice, from their normal practice in the collection of the rent, and (b) that anyway at a time before the institution of the suit, the rent due was duly tendered but unlawfully refused.

 The honourable judge of the High Court, on application to him by the landlord, reversed the above decision in so far as eviction is concerned on the grounds (a) that the tenant, by reason of his absence without leaving an agent duly authorized on his behalf to pay the rent, had rendered it impossible for himself to perform his obligations under the tenancy agreement, and (b) that payment by cheque was not a good legal tender.

After hearing the arguments on both sides, in which both, advocates exerted considerable efforts to convince the court of their respective points of view, I am of opinion that the decision of the honourable judge of the High Court cannot stand. There is no doubt that the refusal to accept the cheque was not at all based on the ground that it did not in law operate as satisfaction of the rent due. Had they said so, the landlords would have been faced with the argument that this mode of payment had been accepted for a considerable time, justifying the, tenant in assuming that it would not be refused without notice and so had become part of the contract, As regards the point that there was no person duly authorized on behalf of applicant to perform his obligations under the tenancy agreement, I do not know whether what is meant is that there was no specific direction by the tenant as to the payment of rent, or whether on the other hand it is that there was no person upon the premises who could give a valid discharge by payment. It is admitted that there was no express authorization, but that is quite unnecessary. I entirely agree with the learned advocate for applicant that agency can be constituted in more ways than mere express authorization, and that it would lay an impossible burden on tenants to say that they can only comply with their obligation if they pay either personally or through someone expressly authorized. A chargee of the term, for example, can no doubt pay on behalf of the charger (the tenant) should the latter fail to pay the rent and thereby subject his interest to forfeiture. Even a person without any proprietary Interest, e.g., a licensee, can do so. A tenant cannot be thrown into the road in his absence because he failed to give express instructions to his wife or other member of his family who is ready and willing to pay on his behalf but without any express instructions from him.  Examples can be multiplied.

 I am therefore of opinion that this application mug be allowed with costs, the decision of the honourable judge of the High Court be set aside and that of the learned District Judge, Khartoum, restored.

M. A. Abu Rannat C.J. September 5, 1961:—I concur.