(COURT OF APPEAL)

GAMAL MOHAMED AHMED v. NICOLA VALVIS

AC-REV 112-1959

 Principles

·  Landlord and Tenant—Eviction—Tender of rent due after institution of suit by landlord not sufficient to prevent landlord evicting tenant

·  Landlord and Tenant—Rent payable monthly—where no mode of payment stipula payment of rent should be made monthly in arrears

Tender of rent due by a tenant after the institution of a suit for eviction by landlord is not sufficient to prevent the landlord evicting the tenant.

Where under a tenancy agreement  the rent is payable monthly and no mode of payment is stipulated, payment should be made monthly in arrears . The fact that a landlord allows his tenant to get into arrears does not prejudice his right to sue for arrears without notice, unless there is a variation, express or implied, to that effect, of the original contract with-regard to mode of payment.

Judgment

M. Y. Mudawi P.J. March 7, 1960:—House No. 68, Block 31 East, First Class area, Khartoum, ‘ premises category” is owned by plaintiff.

By verbal agreement the said dwelling-house was let to defendant in 1953 at a monthly rent of £S.50.000m/ms.

On March 13, 1957, plaintiff and defendant entered into an agreement, the gist of which was that defendant should build at his own expense two addition rooms in the house, subject to the proviso that the cost of the said new buildings should be later deducted from the monthly rent which was, after the erection of the two rooms, to be raised to £S.80.000m/ms per month. However defendant failed to erect the buildings and chose to keep the house as it is.

On January 13, 1958, plaintiff served a written notice on defendant demanding the payment of £S.590.000m/ms being arrears due up to the end of December 1957. The notice shows, inter alia, that the rent as from October 1957 was increased to £S.80.000m/ms per month.

Sometime in January 1958 defendant instructed one Abu Naieb to pay plaintiff £S.300.000m/ms towards settlement of the rents due which offer was rejected by plaintiff.

On March 13, 1958, plaintiff again demanded payment of arrears up o March 13, 1958, which by that time amounted to £S.830.000m/ms including the monthly increase of £S.30 as from October 1957. However, if the £S.30 are ignored then the arrears at £S.50.000 per month will be £S.650.000m/ms. Still no payment was effected.

On April 8, 1958, this action was raised against defendant for recovery of possession on ground of arrears of rent lawfully due (Rent Restriction Ordinance, s. ii (a) and the settlement of £S.650.000m/ms being the rent due. Peculiarly enough the arrears in the petition were calculated on the basis that the rent was all through £S.50.000m/ms per month.

After the institution of the suit all arrears were paid by defendant.

The suit was heard in the District Court which dismissed the claim with costs.

In November 1958 a revision was placed with the High Court which upheld the decision of the District Court.

In May 1959 this appeal was brought before the Court of Appeal.

The District Court based its decision on the following issues: (1) What was the mode of payment of rent? (2) Was the plaintiff entitled to the monthly increase of £S.30.000m/ms? (3) Was defendant in breach of the mode of payment or any amount due?

Issue No. 2 apart, we are of opinion that both the District Court and the High Court went wrong in deciding the issues framed.

Issue No. 1. The law on this point is in our judgment very clear. When the rent is monthly and when no mode of payment is stipulated then the payment of rent should be made monthly in arrears. This is exactly the case here. However, the fact that the plaintiff for some reason or other made it a habit to allow defendant to get into arrears should in no way be taken against plaintiff or affect his right to start proceedings for recovery of arrears without notice unless the court could in the circumstances spell out a variation of the original agreement with regard to the mode of payment. In this particular case we are of opinion that there is no sufficient evidence to justify any court to conclude that a variation was intended. In view of this we decide that the acts of forbearance on the part of plaintiff should not bar him from invoking his legal rights at any time he chooses. See Bird v. Hildage [1948] 1. K.B. 91.

Issue No. 2. This is correctly decided by the court below.

Issue No. 3. This is again wrongly decided. The tender of £S.300.000m/ms was made to plaintiff in January 1958 at a time when the rent lawfully due at the rate of £S.50 per month was £S.500.000m/ms Plaintiff in our view is perfectly entitled to reject it. Had defendant made an offer of the whole amount due, i.e., £S.500.000m/ms and then challenged the alleged increase then he would have been on more firm ground. However instead of taking this reasonable step he folded his arms and allowed the lawfully due arrears to rise to £S.600.000m/ms on March 31, 1958, and only effected payment after the petition was entered into the books of the court. Such delayed payment does not in our opinion affect the situation either way. The dead line is the date of entry in the court books. Payment made before this date will undoubtedly wipe out the right to recover possession for lawfully due arrears. But if defendant in a fit of repentance as Mr. Valvis did here came after the entry of the petition in the court books and offered payment then such act will have no effect on the question of recovery of possession though it will of course put an end to the proceedings as far as recovery of rent is concerned.

In the light of this exposition of the law we hold that the court below was in the wrong when it decided that payment of rent after institution of the suit will deprive plaintiff of his right to evict dafendant (Bird v. Hildage)

In view of the above we allow the appeal and reverse the decision of the court below.

M. I. EL Nur. J. March 7, 1960:—I concur.