(COURT OF APPEAL)

EL KHEIR EL SHEIKH v. SUAD ATTIYA AND OTHERS

AC.REV-79-1958

 Principles

·  Landlord and Tenant—Assignment of lease—Natives Disposition of Land Restriction Ordinance No. I, 1918, ss. 2 and 4—Governor’s consent to assignment required by covenant in lease but not applied for by assignor—Assignor’s duty to complete by applying for necessary consent

·  Equity—Specific performance—Discretionary remedy—None where it would order breach of previous covenant in lease—None against a person not a party to the suit

A lessor of Government land in Khartoum assigned the lease to plaintiff, but the lessor died before registration of the assignment was completed. Defendants, heirs of the lessor, denied the transaction in this suit for specific performance. The district Judge found in favour of the defendants on the grounds that the alleged assignment was not valid under Natives Disposition of Lands Restriction Ordinance No. i. 1918, s. 2. requiring the Governor’s consent to such an assignment. and also under a covenant in the lease to the same effect. The assignor had not applied for consent.
Following the High Court’s summary dismissal of the plaintiff’s application for revis the Governors consent was obtained, and therefore the Court of Appeal allowed the plaintiffs application for revision and ordered registration of the lease to plaintiff.
Obiter dicta (i) Natives Disposition of Lands Restriction Ordinance No. 1 1918. s. 2. was not applicable to this case because of the Governor’s proclamation of August 15  1948, giving  a general consent to dispositions of lands in the Three Towns between  natives of the Sudan.
(ii) A covenant in a lease requiring the Governor’s consent to assignment is binding  The assignor, however, is under a duty to complete the contract, and therefore to apply for the necessary consent, and in such a case the court may ordcr the assignor to apply for the consent.
(iii) Specific performance is a discretionary remedy and will not be decreed in order to breach a previous covenant in a lease, nor will it be decreed against one who is not a party to the suit.
 

Judgment

Abu Rannat C.J. March 14, 1961 :—Plot No. 22 in Block 7A west, Khartoum city  (New Deims), comprising an area of 267 square metres or thereabout, was and is still registered as leasehold from the Sudan Government for a term expiring December 32, 1972, in the name of Asha Ahmed Mustafa. On September 21, 1952, Asha Ahmed Mustafa signed a written document known as Exhibit P. i to the effect that she assigned to the plaintiff the above lease in consideration of £S.145 which she acknowledged she had received. Before the registration was completed. Asha Ahmed Mustafa died in March 1956 and her heirs are the defendants in this suit.

The defendants denied that their mother, Asha Ahmed Mustafa, signed the document of September 21, 1952, or that she received £S.145 from the plaintiff.

The District Judge who wrote the judgment did not himself hear the evidence of the plaintiff or his witnesses. In his judgment he stated that in his opinion Exhibit P. i was not an agreement, since it was not signed by the plaintiff. He also decided that even if Exhibit P.1 was a valid agreement of sale, such sale was null and void under the Natives Disposition of Land Restriction Ordinance 1918, and also under the lease conditions which require prior consent of the Governor before such an assignment is registered. The District Judge then dismissed the plaintiff’s claim with costs.

On application by the plaintiff for revision to the judge of the High Court, Khartoum, the learned judge dismissed the application summarily, and commented as follows:

This application must fail. The Governor’s consent under the Natives Disposition of Lands Restriction Ordinance 1918 was generally given by the Governor and is no longer required. But his consent under the lease is essential. Exhibit P. i is a document admitting sale by the defendant, but nevertheless, the consent of the Governor on the lease is a condition precedent for the enforcement of the sale. Applicant could sue for damages.”

The first point in issue is whether the document of September 21, 1952, is genuine. In my opinion there is more than sufficient evidence that this document was sealed by Asha Ahrned Mustafa and that she received the £S.145 which represented the consideration for the transaction In addition to the evidence given by the witnesses who signed the document  there is the strong evidence of possession by the plaintiff since September 21, 1952. I therefore find that Exhibit P. i is a valid agreement for assignment of lease made by Asha Ahmed Mustafa in her lifetime.

The main issue before the District Judge was whether the defendants were entitled to possession or whether the plaintiff was entitled to specific performance of the agreement of September 21, 1952, so as to be registered as leasehold proprietor in the defendants’ place. The District Judge refused to decree specific performance on the ground that such a decree would be contrary to the Natives Disposition of Lands Restriction Ordinance No. 1, 1918, S. 2. That section provides:

“No native of the Sudan shall sell, mortgage, charge or otherwise dispose of any land or any right or interest in or over the same, unless with written consent of the Governor of the Province within which such land is situated.”

The Natives Disposition of Lands Restriction Ordinance No. 1, 1918, S. 4, makes any attempted disposition contrary to section 2 null and void. There are certain exceptions set out in sections 2 and 3 with which we are not concerned here,

The Natives Disposition of Lands Restriction Ordinance No. 1, 1918, is not appicable to this lease at all, as by proclamation dated August 15, 1948, and published in the Sudan Government Gazette No. 793 at p. 284. the Governor of Khartoum Province gave a general consent to the disposition of lands between natives of the Sudan, in the three cities of Khartoum Omdurman and Khartoum North. It is thus no longer necessary to apply for such a consent in those cases where the land concerned is Within the boundaries of such cities and the disposition is between natives of the Sudan. This view is accepted by the Honourable Judge of the High Court, Mr. Justice M. A. Hassib.

The se-cond point which is important for the correct decision of this application is that Clause 4 (7) of the lease demands that the Governor’s consent to an assignment must be obtained; and the evidence shows that this consent was not applied for by the lessee before her death. This leads to the point  that, whenever consent is required, such consent must not be unreasonably  withheld. See the statement of Neville J. in Lewis & Allenly Ltd. V. Page  [1914] i Ch. 782, 785.

In the lease before us the restriction is simply not to assign without written consent  and thus until an application has been made, and consent refused, would not be possible to see whether the consent was unreason ably refused. This shows that an attempt to assign without written consent would be a breach of covenant and would entitle the lessor (the Government to forfeit the lease under Clause . 5.

The lease specifically provides that such a consent must be “the previous consent,” i.e., that before an assignment, the consent must be obtained. I therefore agree with the dictum of Soni J. in Sabila: Fadl v .Ahmed Abdalla Ahmed, AC-Rev66-1956 (1956) S.L.J.R. 62, 63. when he stated

Sabila  is a Government lessee, and her document of title. the lease deed explicitly mentions that she cannot transfer her rights in the land without the express consent previously given in writining  of the Governer  If the vendee was not careful to scrutinize the title  of the vendor he has only to thank himself for having placed himself in difficulties  If a lease mentions what the rights of the lessee are, it is not a mere formality to say that the Governor’s consent  need not previously be obtained. The rights of the lessee are circumscribed   and limited

Thus. can the plaintiff demand specific performance of the agreement of September 21, 1952? In my view he cannot. There are two reasons for this. First, it is a clear rule of equity that specific performance, which is an equitable and therefore discretionary remedy, will not be decreed where to do so would be to order the breach of a previous covenant see Willmott v. Barber (1880) Ch. 96. But it should be noted that when a person sets up a defence of forfeiture to a decree of specific performance, the court must be satisfied that the forfeiture will follow from the specific performance of the agreement before admitting the validity of the defence. Thus, where the forfeiture would result from such person’s own act, and not because of the agreement, the court would decree specific performance. Secondly the court will not decree specific performance against a person who is not a party to the suit, and if in this case specific performance is ordered it would mean that the Government would be asked to consent without the right to consider whether it wishes the defendant as its tenant.

Thus, specific performance not being possible in these circumstances. it is clear that the plaintiff has no title to the property. But should the matter rest here?

The duty of conveying the land rests on the assignor, and therefore the defendants in this case should have applied for the consent of the Government. Turner L.J. stated in Williams v. Glenton (1866 i Ch.App. 200. 209:

“The vendor however is bound to complete  the contract, and if he does not take the steps which are necessary to enable him to do so. he is liable for damages upon the contract, and heavy damages would be given if. having the means of completing the sale, he should decline to take the proceedings necessary for that purpose.”

S F. H. Jeuns in. Day v. Singleton 1899 2 Ch. 320. placed this not so much upon breach of contract as a breach of duty, i.e., it is really an action for failing in his duty to obtain, if he could. the consent of the Charterhouse i.e., the lessor) to a transfer. The cases show that even though the purchaser knew of the need for consent, the duty to obtain such consent lies on. the vendor. here the vendor made no effort to apply for such a consent, he must show that any such application would have been dismissed on its merits. See Salter J. in Braybrooks v. Whaley [I919] I KB. 435. 442-

In all these cases the actions were for damages, but Watson  J. in El. Nifeidi  v. El Bashab. HC-REV-84- 1953 indicated that it would be possible to apply to the court for a mandatory order to issue to the vendor ordering him to apply for consent to an assignment.

The learned judge did not cite any authority for such an order. Also it is clear that there is nothing to compel the lessor to grant his consent should he have reasonable grounds for withholding such consent. There is thus no assurance that the plaintiff would get what he wants. Such an order would merely assure that the vendor does all he can to obtain the consent. There is one main argument in favour of such an order, It amounts in fact to an order to the vendor to complete his part of the contract by obtaining the consent, and then transferring the property or to pay damages. In this way it clearly does indicate that justice be done, and therefore I do not see any reason why this remedy should not be accepted in the Sudan. In fact this equitable remedy has become very important, as many cases of this nature have reached the courts and some of these cases disclose that some of the lessees were acting in bad faith. The Governor’s consent in this case, however, was later obtained.

The application is allowed, and a decree ordering the registration of the leasehold  property in the name of applicant El Kheir El Sheikh be issued..

No order as to costs.

Mr. Justice Nur, who was sitting on this revision, authorised me to say that he was in full agreement with this judgment.

A. M. Immam J. March 14, 1961 :—I concur