Case No.:

(AC-Revision-270-I 959)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Landlord and tenant-Statutory tenancy-Rent Restriction Ordinance, ss. 1I 19 (1).

Where a contractual tenancy is determined by a valid notice to quit, it is automatically converted into a statutory tenancy within section 19 (i), Rent Restriction Ordinance, and the landlord can only recover possession under section 11.
Dicta of Bankes L.J. in Remon v. City of London Real Property Co., Ltd. [1920] 1 K.B. 49 approved..
Arabi Ahmed Abe Sarah v. El Sheikh Mohamed Hamid (1956) S.L.J.R. 96 distinguished.
 

Judgment

(COURT OF APPEAL)*

IBRAHIM YOUSIF ABBOUDI v. HASSAN ABDEL HAFIZ

(AC-Revision-270-I 959)

Appeal

The facts are set out in the jt of A. M. Imam J.

Advocates: Abdulla Negib for applicant

Ahmed Guma’a for respondent

February 29th, 1960. Abdel Mageed Imam I.: —This is an application for revision against both the decree of the District Judge, Omdurman, dated October 1, 1959, granting respondent (and plaintiff) Hassan Abdel Hafiz an order of eviction in respect ofht shop No. 19, Block 12, Omdurman Suk as against applicant (and defendant) Ibrahim Yousif Abboudi, and against the summary dismissal order diade by the Judge of the High Court, Khartoum, on December 8, 2959. The case was fought on two points: (a) whether the landlord wanted the premises for his own use, and (b) whether the contractual tenancy between- the parties was duly terminated by notice and if so whether the landlord was entitled to recover possession. The court of first instance found on, the facts that respondent (and plaintiff) did not want the premises for him. On the other hand the same court found that a written contract between the parties dated January 1, 1956, for. a term of two years and a half was automatically renewed for a further period of one year as from June 30, 1958, and that this last term was duly terminated by two months’ ‘notice served on January 27, 1959.

Before dealing with this second and last point, it_is evident that as a result of an oversight the learned Judge of the High Court took it that the learned District Judge had found in favour of respondent (and plaintiff), that he wanted the premises for his own use, whereas the record clearly

*Court: Abdel Mageed Imam J, M. Y. Mudawi. P.J.

and undoubtedly shows the contrary. For this reason the order of th Judge of the High Court must be set aside.

As for the second point, it was contended by the learned advocate for applicant (and defendant) that the tenancy in question is a statutory tenancy and that the landlord failed to prove any of the reasons er him to recover possession under section 11, Rent Restriction Ordinance. He further maintained that a valid notice to quit under a contractual tenancy does not give a landlord, under the Act, the right to recover possession, as such notice is a mere agreement to quit which should not be binding on the parties, citing in his favour Arabi, Ahmed Abu Sarah v. El Sheikh Mohamed Hamid (1956) S.L.J.R. 96. The learned advocate for respondent (and plaintiff) contended that such notice was enough to terminate the tenancy and to entitle the landlord to possession.

As we see it this application should be allowed and the decree of the District Judge, Omdurman, above mentioned be reversed. Let us say at the outset that Abu Sarah’s case is inapplicable here for the question of notice was not in issue and the Court of Appeal found that an agreement to quit, and not a notice, does not bind the parties, and rightly so, because it would have amounted to ousting the jurisdiction giver to the court by the Ordinance. The question is therefore whether a valid notice given under a contractual tenancy would terminate such contract and give a landlord the right to possession of controlled premises. To this we say: No. Because, though the contractual tenancy is terminated, the landlord would still be disentitled to recover because his contractual tenancy is converted by operation of the statute toa statutory tenancy and he can only be entitled to do’so if one or more of the incidents under section11 Rent Restriction Ordinance is fulfilled. But as a prerequisite any contractual tenancy must have been terminated. If that is so, then the landlord has the right to invoke the jurisdiction of the court without the necessity of s the tenant with any notice.

The principle is well established in Woodfall’s Law of Landlord and Tenant, 25th ed., p. 321: “Where the tenant of a controlled dwelling-house holds over after the expiry of a notice to quit-and pays rent, the landlord is not to be taken by accepting it to assent to renewal of the -tenancy and the old term, for he has no choice but to accept the rent: the tenant is to be regarded as holding over against the will of the landlord by virtue of the Rent Restriction Acts, and becomes a statutory tenant.”

The same appljes to termination of a lease by effluxion of time. In Remon v. City cf london Real Property Co., Ltd. [1921] 1 K.B. 49, where the plaintiff held over two rooms after his contractual tenancy was duly terminated by notice it was held that although the agreement of tenancy had come to an end by the notice to quit, the rooms were “let” within the meaning of section 12(2) of the increase of Rent Act, 1920 and the piaintiff was a tenant who by virtue of the orovisions of the act retained possession within the meaning of section 15 (1) of the act that the landlords could not lawfully disturb him in his possession. Delivering the judgment of the Court of Appeal, Scrutton L.J. said at p.57

 “The Act of 1920 has made some progress in the development of this new statutory’ tenancy. Under the original Acts the statutory tenant was allowed to stay if he performed the other conditions of the tenancy. But one of those conditions might be to give up the premises at the expiration of the tenancy by agreement. To insist on this as a condition would be to render the whole Act nugatory, anti Astbury J. in Artizans Dwellings Co. v. Whitaker [1919] 2 K.B. 301, 304 held that this part of the conditions of the tenancy was inapplic able. In the present Act the ‘tenant’ is only to comply with the terms and conditions of the original tenancy so far as the same are consistent with the provisions of this Act.”

Referring to restriction Acts the same learned judge goes on to say, at p. 58: “whom did they mean to include in the term ‘tenant ‘‘ If a tenant by agreement whose tenancy had expired was not within those terms, the whole purpose of the Act would have been defeated, for it was obviously intended to allow former tenants who were willing to carry out the terms of their old tenancy, as modified by any permissible increases of rent, to stay on.”

For the reasons explained above we think that upon the determination of a contractual tenancy by a valid notice to quit, the same is automatically converted into a statutory tenancy and the tenant becomes a statutory tenant within the meaning of section 19 (1), Rent Restriction Ordinance,and that therefore a landlord can only recover under section is of the same Ordinance. Accordingly the order of the judge of the High Court, Khartoum, dated December 8, 1959, is set aside and the decree of the District Judge, O dated October 1, 1959, is reversed and that respondent’s (and plaintiff’s) claim is dismissed. Applicant (and defendanti is awarded costs both here and in the courts below.

M. Y. Mudawi P.J.: —l concur.

                                                               (Application for revision allowed)