Case No.:

(AC-Revision-25-1960).

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant—Eviction for personal use—Meaning of “essential” in the Rent Restriction Ordinance (Amendment) Act, 1958. s. 2 (3)—Indispensably requisite—Strict requirement—Necessity not convenience—Arrears of rent— Recovery of over-payment

The common owners of a house brought an action against the tenant claiming eviction for the personal use and occupation of the house by one of them, on the ground that at present he lived in Omdurman and worked at Khartoum; that it would be more convenient for him if he was to reside in Khartoum and thus be in a better position to fulfil his official engagements which require his continuous attention, and that he was intending to get married and was therefore in need of accommodation.
For three months following the ixistitution of the suit the tenant withheld the payment of rent due and these were claimed by plaintiffs by way of amend ment. The defendant counterclaimed amounts paid in excess of the standard rent as admftted by plaintiffs, but the counterclaim was not allowed on the ground that it would delay the main action 
The District Judge gave an order of eviction and his decision v as upheld by the Honourable the High Court Judge. Khartoum. On application for revision
Held: (i) that in order to recover possession under section 11 (e) a landlord must prove that it is in all the circumstances essential for him to reside in these premises. “ Essential means indispensably requisite; i.e., required as an absolute necessity.
(ii) That mere convenience does not satisfy the strict requirement of personal use; it is not sufficient for the landlord merely to show that it is better or mere conve for him to reside in the premises in dispute. Both the District Judge and the High Court judge went wrong in accepting “convenience” as an ingredient of the requirement of personal use.
(iii) That it was misleading to follow English precedents and use English terminology such as ‘ genuine need,” etc. Since to do so would be to ignore the 1958 amendment which aimed at a tighter control.
(iv) That the amount counterclaimed by the defendant as over.payments of rent for the six months preceding the claim for recovery was less than the arrears due, so that in the result the defendant owed the plaintiffs £S. arrears, but this was such a small amount that in view of the dispute as to standard rent withholding of it cannot amount to withholding rent lawfully due within the meaning of section 11 of the Rent Restriction Ordinance

Judgment

(COURT OF APPEAL)

HELEN DIRPIATIS v. HEIRS OF AHMED EL MAHDI

(AC-Revision-25-1960).

Revision

Advocate: Abdalla El Hassan ………for applicant

Respondents appeared by their agent Abdel Rahman.

May 17,1960. B. Awadalla I.: —This is an application against the summary dismissal by his Honour the Province Judge, Khartoum of an application to him against the decree of the District Judge, Khartoum, in CS-1671-58 The claim is one of eviction concerning a house in Khartoum owned in common by the respondents, heirs of Ahmed El Mahdi. The grounds on which eviction is sought are: First, that the house is required for the personal use and occupation of one of the owners; and secondly, non-paymeht of the rent lawfully due for the months of August, Septem- ber and October 1958.

The rent that was actually being paid monthly by applicant for this house at the time of institution of the suit was £S.22 but it was admitted by respondents that the standard rent was only £S.11.500m/ms It appears that when this action started, applicant wanted to avail herself of her rights under section i8 of the Rent Restriction Ordinance and so withheld the payment of rent for the three months following the date of the petition. In answer to the claim for arrears—which was made by way of amendment—applicant counterclaimed for £S.28.500m/ms being the difference between the rent actually paid’for the six months preceding the action and the rent lawfully due in respect of the three months— August to October. The learned District Judge rejected the counter claim on the ground that it tended to delay the claim for eviction. If carefully examined, it would have been found that the counterclaim groundless because section i8 of the Rent Restriction Ordinance allows recovery only in respect of amounts paid during the six months preceding a claim therefore, and as the claim in this case was made in November, the six months extend back only to May 1958. During that period, the overpayment by applicant amounted only to £S.31.500 and as she was in arrear in respect of three months—the rent for which is £S.34.500m/ms—she would still be in arrear to the extent of £S.3. In view of the dispute as to the standard rent as well as to the date from which the six months under section 18 of the Rent Restriction Ordmance have to be counted, I think the withholding of this small sum cannot amount to withholding of rent lawfully due within the meaning of section 11 of the Rent Restriction Ordinance.

I now come to the question of eviction on grounds of perconal require ment. There is evidence that respondents own other houses, one of which is occupied by them at Omdurman. The house to which this claim relates is alleged to be required for the personal occupation of PW.1 Abdel Rahman, a Government official in the service of the Exchange Control section of the Ministry of Finance, later transferred to the Sudan Bank. It is contended on behalf of respondents.

First: that the nature of work entrusted to PW.1 in the Sudan Bank (and before that in the Ministry of Finance) demands continuous atten tion which he is unable to exert by reason of his living at Omdurman. Secondly, that due to the number of persons living with PW.1 in the common family house at Omdurman, he is unable to devote his spare time usefully in relation to his official duties, and thirdly, he intends to get married but he is prevented from doing so through lack of accommoda -tion.

Tht learned District Judge in accepting these reasons as sufficient to support the claim said at page 3 of the judgment: “It is both a necessity and convenience that a person lives in a comfortable house which is near to his office.” His Honour the Province Judge in confirming the decision of the learned District Judge said:

“The important point for the decision of this suit is whether there is genuine need for personal use. I think that this question is rightly answered in the affirmative. Inconvenience and inadequacy of the present residence of the landlord are enough to establish general need for personal use. The one of plaintiffs who needs the house for his dwelling is a Government official having his office in Khartoum and so there is inconvenience in his living in Omdurman where he is now living. The house at Omdurman is a family house and the number of the members of the family i comparatively big: again that member is intending to marry and he needs a separate house. So it can be accepted that the family house has become inadequate and not comfortable for them all.” I would like to point out that the words “inconvenience” and genuine need” are no longer helpful to a landlord in view of the amendment to the law passed in 1958 when the legislature aimed at tightet control. Under that amendment a landlord has not only to show that he requires the house for his residence but he has to go further and prove

“…that it is in all the circumstances essential for him to reside in those premises.” The English precedents and terminology on tbe point are therefore quite misleading. The word “essential” as found in the Oxford Dictionary means “indispensably requisite” and the word “indispens able” means “absolutely necessary.” So that the meaning of the word essential” is simply “required as an absolute necessity.” The quotation by the learned advocate for respondents from an English case that “the requirement need not amount to actual necessity” seems to ignore the amendment, for “necessity” must henceforth be the basis of every application for eviction on grounds of personal requirement.

I am convinced as regards the fir two groun4s given by respondent (PW.i) that they can at the most amount to nothing other than saying, ‘it would be better for me if I live in Khartoum instead of Omdurman.” in other words it is an assertion that pertains to the category of con venience rather than necessity. Respondent (PW.1) is now actually living in the common house at Omdurman and he admits he had been so living since his graduation in 1955 without any evil consequence, and if living in Khartoum is now alleged to be a necessity, we cannot see how it could have been dispensed with for at least four years before action was brought. As regards the question of marriage, the only evidence he had amounts to no more than a declaration of intention and the words of the amend ment prevent giving consideration to a future eventuality, the occurrence of which might never come to pass. The position might have been dif ferent had the court been seised of the facts about this marriage amounting to something more than a mere declaration of intention,

I would like to put on record my grave suspicions about the genuine- ness of this claim. There is no doubt that the refusal of applicant to agree to an increase of rent to £S.36 per month was, to say the least, an impor tant factor in bringing about this battle against applicant. The learned District Judge dismissed this matter as of no moment because in his opinion the demands to increase were made, not .by Abdel Rahman, but by another brother of his. What difference this would make, we are unable to see. Co-owners are bound by the acts and declarations of eack other in so far as tl common interest is concerned. Applicant had been patiently condoning these flagrant breaches of the Rent Restriction Ordinance in consequence of which she had been matle to pay now twice as much as she used to pay in 1951. It is high time that landlords are made to realise that contraventions of this enactment are now punishable under the criminal -law.

This application is therefore allowed with costs here and before His Honour the Province Judge and the decree of the learned District Judge ordering eviction is hereby reversed.

There shall be a decree in favour of respondents for £S. and costs proportionate thereto in the court of first instance.

Abdel Mageed Imain J.: —l concur

(Application allowed)