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Case No.:

AC-REV-137-1959

Court:

Court of Appeal

Issue No.:

1962

 

Principles

·  Landlord and Tenant—Waiver—Statutory conditions—permission to sub-let—May not be waived

The landlord’s right to evict under Rent Restriction Ordinance 1953. S. x (a), for tenant’s breach of the statutory condition under Rent Restriction Ordinance 1953. S. 20 (1) requiring consent of the landlord in writing before tenant sub-Lets may not be waived or estopped.

Judgment

(COURT OF APPEAL) *

FATMA HABIB AND OTHERS v. EL SARRA BINT FIDEIL

AC-REV-137-1959

Advocate: Hussein 0. Wanni ... for plaintiff -applicant

M. A. Hassib J. June 7, 1959. HC-REV-24-: —This is an application challenging the decree of the District Judge, Omdurman dated January 25. ‘959, whereby he dismissed plaintiff-applicants claim for recovery of possession of the premises known as hosh No. 3/4/217, Omdurman.

Plaintiff-applicant El Sarra Bint Fideil, being the landlord of the said hosh brought her action for recovery of possession of the premises on the ground that first defendant, Fatma Habib, sub-let to other defendants, with out her written consent, part of the premises.

The fact that the first defendant had sub-let parts of the premises to the other defendants without the consent of the landlord oral or written is admitted and also proved. The contention of the defence was that the landlord had known of the sub-letting and did not move and thereby lost her right by either waiver or estoppel.

In the course of the trial it was revealed that the standard rent was £S.Io.400m/mS and that the first defendant-respondent had sub-let rooms to the other defendants-respondents at £S. each, meantime she occupied and lived in the remaining part of the premises.

The learned District Judge, in his judgment, raised and discussed interesting points; finally he decided in favour of defence by finding that plaintiff-applicant should be estopped from pleading the provisions of Rent Restriction Ordinance 1953, S. 20, because she waived her right under the common law doctrine of waiver and estoppel.

I now proceed to consider the application for revision on the light of the above-mentioned facts.

Rent Restriction Ordinance 1953, s. 2o, provides: “With effect from July 1, 1953, it shall be a condition of every tenancy, statutory or other wise:

(1) That the tenant shall not assign or sub-let or otherwise part with possession of the premises or any part thereof without the consent of the landlord in writing, and

(2) That the landlord shall not unreasonably withhold his consent; pro vided that it shall not be unreasonable for the landlord to withhold his consent if:

(a) The number of persons actually or potentially entitled to the protection of this Ordinance is increased by such assignment or sub-tenancy;

(b) The tenant himself remains in any part of the premises; or

(c) The rent or rents payable to the tenant under the proposed sub tenancy or sub-tenancies exceed in the aggregate the rent pay able by the tenant to the landlord.”

In the present case it is admitted and also proved that:

(1) There was no consent, parol or written.

(2) The number of persons entitled to the protection of the Ordinance actually increased.

(3) The tenant himself (first defendant-first respondent) remains in the premises.

(4) The rents payable by the two sub-tenants were exceeding the standard rent.

The major question now is: “Does the English common law doctrine of waiver or estoppel apply to defeat an express provision of the statute of this estate?

The importance of the provision given by Rent Restriction Ordinance 1953, S. 20, it seems, does not appear to have been fully realized by our courts.

Coupled with the general rule of the law of tenancy this section (Rent Restriction Ordinance 1953, S. 20) was in my view specifically intended by the legislature to protect the landlord by controlling the commercial exploitations by the acts of the tenants.

The Rent Restriction Ordinance was imposed after the last war by conditions of necessity to control and restrict the rights of the contracting parties in respect of residence on the ground of public policy. Thus Rent Restriction Ordinance 1953, s. 20, was intentionally made to prohibit and prevent subletting assigning or parting with the premises without consent in order to avoid the tenants’ commercial exploitation of the controlled premises. It is an imperative order. It states: “ The tenant shall not sub-let, etc This means the tenant by no means can do one of these acts without the written consent of the landlord. The landlord not only in statutory tenancy but also in contractual tenancy is given this protection of the law.

To avoid abuse of this right by the landlord the legislator provided by Rent Restriction Ordinance 1953, s. 20 (2), imperatively that the landlord shall not withhold his consent except in certain cases where he is also protected by the law. He may refuse consent in writing when:

(a) The number of persons would be increased.

(b) The tenant remains in possession.

(c) The rents collectable from the tenants would exceed the standard rent.

That is a general survey of our law. Let us then consider it in the light of the present case.

It was contended for the defence that though the consent in writing of the landlord was not obtained before sib-letting, yet the landlord knew of the sub-letting and did not take action for a period of time in accordance with her statutory right under Rent Restriction Ordinance 1953 S. 20. The defence further cited Ibrahim Mohamed Wageealla v. Ahmed Shawgi

Mustafa, HC-REV-55-I95.7 (1957) S.L.J.R. 24, in support of their defence of waiver and estoppel. The lower court accepted the principle in Ibrahim Mohamed Wageeaila v. Ahmed Shawgi Mustafa, supra, and decreed in favour of defendant-respondent.

In the application for revision the learned counsel for plaintiff-applicant cited Abdalla Mohamed E. Fadil v. Batoul Bashir El Dabi, HC-REV-264-1958, where the defence based on waiver and estoppel was rejected.

I have read the proceedings of the two revision cases. Ibrahim Mohamed Wageealla V. Ahmed Shawgi and another, supra, was determined by His Honor Judge Abu Ghazaleh P.J., and was confirmed in the Court of Appeal. Abdalla Mohamed El Fadil v. Batoul Bashir El Dabi, supra, was decided by me. The principle stated there was: “Once a sub-letting without consent in writing is taking place, then a breach entitling the landlord to seek for recovery of possession takes place.”

Unfortunately this case did not go to the Court of Appeal. But in another case the Court of Appeal again confirmed the principle that the landlord is estopped from claiming recovery of posse upon accepting rent for a few months. This case is Ibrahim Osman El Arabi v. Hassan Ahmed El Hakim, AC-REV- (1961) S.L.J.R. 124. In it the Hon. Chief Justice, after referring to the common law principle of waiver, cited Oak Property Co., Ltd. v. Chapman [1947] K.B. 886 as his authority.

Faced with two decisions of the Court of Appeal in favour of the allegation that the express provision of the statute could be overruled by the common law doctrine of waiver, I find it very difficult indeed to differ in deciding the present case, but, with due respect, I feel that in the past decisions justice was not done and I now try to give an account of the exposition of the law in accordance with recognised rules of the interpretation of statutes.

Before proceeding to consider the principle of the interpretation of statute law, I should not forget to emphasis that the English statute law dealing with restriction of rents is different from Sudan law in respect of the present question. In Sudan statute law sub-letting without the consent of the landlord in writing is forbidden by the provision of the Rent Restriction Ordinance 1953, S. 20. In English statute law there is no such provision. So the decisions of the English courts when interpreting the English statute law did not refer to consent in writing of the landlord. It only refers to the landlord’s consent, which is not required to be in writing. The difference in the two law provisions makes resort to English case law like Oak Properties Co., Ltd. v. Chapman [ K.B. 886, already mentioned, quite unauthoritative. It lacks the analogy requisite for the authority of precedent. Looking therefore to English reported cases for guidance upon interpreting Sudan statute law does not tally with the recognised rules of interpretation of statutes.

I now come to the main point of interpretation of statutes. In the preamble of the Sudan Rent Restriction Ordinance 1953, the object of the law was stated as follows: “An Ordinance to re-impose rent centrol.”

The title of the same law is Rent Restriction Ordinance 1 There fore it is clear from both the title and object that the law was intended to restrict and control rent, i.e., keep within bounds.

Evidently the control of rents is not a natural procedure. It is an outcome of a persisting need arising after the last world war conditions necessitated by the shortage of accommodation in many of our towns. The pressure was high and the law was intended to meet an immediate situation. It was a consequence of a public inquiry. It was not only intended to protect the tenant but it was also intended to protect the landlord. To encourage building more houses the house-owners undoubtedly require a protection.

The conditions and obligations imposed by the Rent Restriction Ordinance 1953. s. 20 are very important. By this section the legislator imposed obligations superseding the obligations created by the parties to a contract of tenancy. The Rent Restriction Ordinance 1953, S. 20, prohibits assignment, sub-letting or parting with possession of the premises or part of the premises without consent in writing of the landlord. It further prohibits withholding of the consent by the landlord except in certain cases where the law is intended to protect the landlord Thus it shall not be unreason able that the landlord refuses consent on any of the three exceptions of the Rent Restriction Ordinance 1953, s. 20 (2).

That is the provision of our statute in respect of the point now before us.

Now then, “How does the court interpret this clear express provision of the statute law?

The counsel for defence contended that though the first defendant- respondent sub-let part of the premises to the other defendants-respondent without consent in writing of the landlord, yet the non-observance of the literal provision of the statute law is excused on the common law doctrine of waiver or estoppel, and the trial court accepted the defence of waiver and estoppel. The difficulty faced by the lower court was obviously based on precedent. This difficulty is now confronting me; but I shall never yield to the authority of precedent if justice is not done.

Maxwell, Interpretation of Statutes 388 (10th ed. 1953) states:

“Where in an Act there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only, or whether it is an Act which is intended, as matter of public policy, to have more extensive operation.”

After referring to certain Acts which he deems to have been intended to deal with private rights only, such as statutes of limitation, the author stated: “But when public policy requires the observance of the provision it cannot be waived Maxwell, Interpretation of Statutes 391 (10th ed.1953).

Here the author referred- to examples of the ‘statute of this kind by mentioning the Insurance Statute and the Bill of Exchange Statute.

This principle of interpretation of statutes is supported by many English decisions.

In Soho Square Syndicate, Ltd. v. Pollard & Co. Ch. 638, the question of waiver of a statutory provision was fully discussed and there decided that the statute was a statute intended by public policy and the principle of waiver did not apply.

In Bowmaker, Ltd. v. Tabor [1947] 2 K.B. 2, the principle was confirmed as a source of authority for the law.

Guardian of the Pool of Salford Union v. Dewhurst [1926] AC. 619 is also a reported principle by the House of Lords. There it was decided that the judgment of the Court of Appeal was correct that contracting out of the statute, which was a statute intended by the legislature on grounds of public policy to protect a certain class of people, was not possible.

In support of this principle, I quote Crawford, Statutory Construction540 (1940):

“Whether a statutory provision can be waived involves a question closely related to, if not a part of, the pi o mandatory and permissive construction. Certain laws were recognised to be of less importance than others; consequently, the factor which determines their importance constitutes the factor which will determine whether a statutory provision may be waived.”

After referring to the principle laid down by the maxim Cuilibet licet jun pro se rntroducto renuntiare, he commented as follows:

“Consequently, the statutory prescription of the form of fire insurance policy since it was founded o public policy was such a provision of the law which could not be waived.”

It is now clear that the rule of interpretation of statutes is:

(1) When there is an express prohibition there would be no waiver or estoppel.

(2) If there is no such prohibition the recognised rule is whether the statute is a statute intended by public policy to protect a certain class of people and here contracting out, “waiver and estoppel are not allowed.”

(3) if the statute is a statute dealing with the private rights of individuals then waiver or estoppel could be pleaded.

Examples of (2) are law of insurance, bills of exchange and rent restriction. Examples of (3) are a statute of limitations, and an enactment entitling the passenger to carry so many kilos of luggage.

I have already discussed the nature of our statute law and arrived at the conclusion that it is an enactment to regulate the difficulty of housing accommodation, It was a law made in furtherance of the state public policy to meet and arrange for an immediate situation. It is a law similar to the law of insurance and bills of exchange.

In my judgment, for the reasons I have endeavoured to express, this Act is an Act passed not merely for the purpose of dealing with the individual rights of private persons. It has a more far-reaching scope than that. It was intended as a matter of public policy to deprive the parties of the powers which they otherwise could have exercised and to impose upon them as a condition of exercise of those powers that they should first obtain the consent in writing of the landlord and the landlord should not withhold his consent except in certain cases.

Apart from this there is another difficulty in the way of defence. By the provision of the Rent Restriction Ordinance 1953, S. 20 (2), the law authorises the landlord to refuse consent when the proposed sub-letting would cause:

(a) Increase of persons;

(b) Overcharge of standard rent;

(c) stay of the tenant in the premises.

Any of these is a reason for the landlord to withhold his consent. In the present case the sub-letting would cause the three of them. There was an increase of persons using the premises, and there was an overcharge of rent collectable.

Overcharge alone is a cause entitling the landlord to ask for recovery in the English statutes law. To give the landlord a similar power the Sudan law made the provision of the Rent Restriction Ordinance 1953, S. 20 (2).

In the Indian statute law, Bombay and Madras Acts, the landlord is given a power similar to Sudan law and the Indian courts gave, in the several instances the law came for their interpretation, that the sanctity of the statutory conditions and obligation should be given literal interpretation and should not be interfered with.

I now hold that the judgment of the court below in so far as this question is involved be reversed and a decree for recovery of possession be given to the plaintiff-applicant. The costs in this court are given by the defendant-respondent.

M. I. El Nur J. August 18,1959: —in my view there is no merit in this application for revision.

It was established that plaintiff-applicant sub-let the house in dispute without the written consent of defendant-respondent. I am in full agreement with the learned judge of the High Court that any sub-letting without the written consent of the lessor is entitled to the protection of the Rent Restriction Ordinance.

Rent Restriction Ordinance 5953, 5. 20 (i), provides: “That the tenant shall not assign or sub-let or otherwise part with the possession of the premises or any part thereof without the consent of the landlord in writing,” and s. 21 states: “No assignee or sub who, after July i, 1953, entered or enters into occupation of any, premises otherwise than with the consent in writing of the landlord, . . . shall be entitled in respect of such occupation to the protection of this ordinance.”

The allegation that defendant-respondent had waived her right to insist on a written consent, or that she by her conduct consented to the sub letting, though not originally raised by the plaintiff-applicant before the District Judge, has no force in it.

Therefore, subject to the agreement of the Chief Justice, this application should be summarily dismissed as hopeless.

M. A. Abu Rannat C August 18, 1959: —Application is summarily dismissed.

Editors’ Note. —But see AsIan Seroussi v. Derbedrossjan Bros., AC-REV

185-1959, (S.L.J.R. 174,178.

* Court: M. A. Abu Rannat C.J.  and M. I. El Nur J.