IBRAHIM YOUSIF BEDRI v. CAIRO UNIVERSITY OF KHARTOUM

(HIGH COURT)

IBRAHIM YOUSIF BEDRI v. CAIRO UNIVERSITY OF KHARTOUM

HC-CS523-1959

Principles

· Civil Procedure—Res judicata—Civil Justice Ordinance, s. 40

· Landlord and Tenant—Estoppel by judgment—Estoppel does not operate against statutory direction or prohibition—Does not operate to prevent court reducing conventional rent awarded in previous suit to comply with standard rent permitted by Rent Restriction Ordinance 1953

· Landlord and Tenant—Rent—Tenant’s right to reduce his rent under Rent Restriction

· Ordinance 1953, S. 10A as amended by 1958 Act No.39—Construction of rent Restriction Ordinance, s. 10A, as amended by 1958 Act No. 39

The doctrine of estoppel by previous judgment does not operate against statutory directions or prohibitions. Therefore it does not operate so as to prevent a court from reducing a conventional rent awarded in a previous suit so as to comply with the standard rent permitted by the Rent Restriction Ordinance 1953.
A proper construction of the Rent Restriction Ordinance 1953, S. 10A, as axnended by Act 39, 1958 gives a tenant absolute power to reduce his present rent by 20 percent., with complete disregard as to the status and amount of that rent. This power is given to a tenant to exercise with immunity, and therefore a landlord cannot evict the tenant for exercising the power.

Judgment

Osnian El Tayeb P.J. April 21, 1960:—Plaintiff is the registered owner of house No. 3, Block 15 W. Khartoum City. On April 1, 1956, the said house was Lased by a written contract to the defendants, the Cairo University, Khartoum Branch, at a yearly rent of £S.I,320 payable every three months in advance.

By the end of the first year plaintiff gave notice to determine the contract, and eventually by his plaint dated May 31, 1957, instituted a suit in this court (CS- 346-1957) claiming possession on the ground that he wanted the house for his own personal use. The claim on this ground was denied. Later by petition dated November 11,1957 plaintiff amended his claim alleging that as the contract was terminated on May 31, 1957, the end of the first year after notice in accordance with the terms of the contract, and that the contractual rent was £S.110 monthly, and that the standard rent was £S.160 monthly, he claims the difference up to the date of the petition of amendment.

While that case was pending before the court, negotiations were conducted between the parties, and they reached settlement to the effect that the rent should be £S.145 monthly from April 1,1957 This settlement was embodied in a decree dated March 17, 1958.

Defendants paid the arrears of rent from that date shown in the decree, and continued to pay and plaintiff was receiving the said rent of £S.145 monthly until December 1958. From January 1959 defendants reduced

the rent to £S.116 alleging that it is the standard rent. In essence the contention of defendants that the LS.145 is in excess of the standard rent in respect of the house which is new premises, and that availing them selves of Rent Restriction Ordinance 1953, S. 10A, as amended by Act 1958, they reduced the rent by 20 per cent.

Then plaintiff brought this case alleging that the standard rent of the house is £S.170 monthly, that he is entitled to arrears of rent being the difference between the standard rent and the rent of £S.116 that defendant; were paying, from January 1959 up to December 1959. and claims possesstion under Rent Restriction Ordinance I953 s. ii (a), on the grounds that by Payment of the reduced rent defendants have failed to pay rent lawfully due and have fallen in breach of the contract of tenancy as embodied in the decree dated March 17, 1958.

The first point raised by plaintiff is that the decree constitutes an estoppel precluding defendants from reducing the rent. In general. former proceedings and the orders made in them are a complete bar to new proceedings in which the matter directly and substancially in issue has heen directly and substantially in issue in the former case between the same parties. Civil Justice Ordinance. s. 40. Again it is the general rule that a judgment passed by a competent court in a suit is conclusive between the parties and their privies and they are estopped from agitating it again in an other suit.

It is also a general rule that estoppel whether by judgment or by conduct cannot apply against statutory direction or prohibition.

The Rent Restriction Ordinance lays down directions as to the standard rent payable by a tenant. It provides for the way of calculating it. It is the maximum rent that a tenant is liable to pay and the Ordinance prohibits the recovery of any sum beyond that rent. So estoppel cannot operate to empower a court to compel a tenant to pay more than the standard rent.

Blundeli and Wellings, Complete Guide to Rent Restriction Acts 110, put the rules as follows:

The jurisdiction of the court to decide whether a given rent is outside the limits permitted by the Acts cannot be ousted by estoppel. The standard rent is a sum which it is poscibie to fix by calculation made in accordance with the Acts and cannot be altered by any admission or omission on the part of the tenant. If an cstopel in relation to the standard rent is possible it is exhausted when the contractual tenancy comes to an end and thereafter the full standard rent unaffected by any estoppel is recoverable. A tenant is entitled to have the standard rent determined under section ii of the Act of 1923 notwithstanding a previous judgment against him for arrears of rent based on a standard rent of a higher amount than that he sought to establish

In the English[ case of Griffith v Davies which seems to be a leading case on the subject. Lord Creene M.R. said

It appears to me beyond all question, that if in proceedings where the point is not taken (he means the point as to the tandard rent), judgment for an amount of conventional rent which is excessive is given against a tenant, and later in action is brought against the tenant for the conventional rent at the same rate, in which later proceedings it is shown that that rent is excessive, the earlier judgment cannot give to the court a jurisdiction which section i of the Act of 1920 has denied it.”

The section referred to provides that rent in excess of the standard rent is irrecoverable from the tenant. The Master of the Rolls goes on:

In other words, if two actions are brought in respect of two different rent periods, and in the first action judgment is given for the conventional rent, and in the: second it is shown that the conventional rent is too high, the court is bound in the second action to give effect to the provisions of section I and to refuse to give judgment for the recovery of the excess rent. Otherwise the court would be doing something which the statute says it is not to do.”

It can be seen that in order that the question of the standard rent can he allowed to reconsidered in the subsequent proceedings. two conditions must be fulfilled (1) that whether the rent payable by the tenant, was or was not the standard rent, was not raised in the former proceedings, and (2) that the tenant can show that the rent he was paying was in excess of the standard rent.

As to the first of these two points, the question of the standard rent was raised in former case. The plaintiff by the amendment of his claim in former case raised the point alleging that the standard rent was £S.160 monthly, and that as the tenancy was determined he claimed the recovery of the difference between the alleged standard rent and the rent that was payable by the tenant. Before a defence was made, which is immaterial, the parties reached an agreement and consent decree was passed for the rent of £S.145 and the recovery of the difference. The question of the standard rent was actually raised •in the former case, and it cannot be raised again.

As to the point, each of the parties adduced evidence to prove his allegation as to the standard rent. The evidence of plaintiff outweighs that of defendants. This is the only remark that I can make about the evidence, and should not discuss it, because the parties are estopped by judgment in the former case. The plaintiff, as a landlord, is bound, in all the circumstances by the rent agreed, during the currency of the contract,

even though it was much less than the standard rent. He can, of course, claim the standard rent as may be calculated on the assessed or actual value of the construction of the building, after the determination of the present tenancy in one way or the other, and the creation of a new tenancy whether with defendants or with any other person.

The last, though an important point in the decision of the case, is whether defendants committed breach of the contract by reduction of the rent, that would entitle plaintiff to possession under section ii (a) of the Ordinance. In my opinion there is no breach. This answer depends’ on the meaning of section 10A of the amendment of the Ordinance. Defendants reduced the rent in pursuance of this section. It gives an absolute power to the tenant to reduce the present rent that he has been paying;by 20 per cent., with complete disregard as to the status and amount of that rent. This power is given to the tenant to exercise with immunity, he can reduce the standard rent that was lawfully fixed in accordance with the provision of the Ordinance. The only action available to the landlord against the tenant in such case is to insist on the payment of the standard rent, which the tenant was paying or which he must pay.

In the circumstances plaintiff is not entitled to recovery of possession, and this part of the claim is to be dismissed with costs. Plaintiff shall be entitled to a declaration that the rent payable by defendants must be £S.145 per month, and that he shall be entitled to recovery of the difference between £S.145 and £S.116 from January 1959 to December 1959, amounting to £S.348 with costs.