Case No.:

HC-CS-47-1956 (Wad Medani)

Court:

The High Court

Issue No.:

1962

Principles

· Landlord and Tenant—Sub-lessee steps into all negative covenants of sub-lessor Landlord and Tenant—Waiver—Landlord must not stand by, knowledgeable of improper building Landlord and Tenant—Equitable remedy for breach of negative covenant—Specific performance an alternative to cancellation Land Law—Town Planning Regulations—Inspector of lands not a representative of building authority and may not enforce its regulations

Certain land in a residential area, Wad Medani, was let by the Government to Fatma who assigned the lease to defendant. Defendant built a bakery on the land without permission of the Municipal Council. And without the consent of the Governor. Moreover the lease by the Government to Fatma prohibits building of non-residential building on the land. The Inspector of Lands brought this action for demolition on behalf of the Sudan Government.
Held: (i) Since the Inspector of Lands does not represent the Building Authority the cause of action based on the contravention of town planning regulations is dismissed for want of standing.
(ii) When the defendant acquired the Government lease from Fatma he stepped into her shoes” thus binding himself not to build for purposes other than residential on the land; he has breached this condition of the lease agree ment by building a bakery.
(iii) Because the plan tiff and the Governor were not aware of the defendant’s erecting of the building at great expense, and thus did not knowledgably stand by. They have not done a positive act constituting a waiver.
(iv) Plaintiff’s action for demolition is not an action to cancel the lease but merely to enforce equitably one provision thereof, an action for specific, performance permissible as an alternative to cancellation under clause of the lease.
(v) Because the building can be used as a dwelling with some alterations, the court orders that defendant be prohibited from using the building for purposes other than as a dwelling unless he has the ‘consent of the Governor so to do, and that the stove shall not remain in the building.

Judgment

(HIGH COURT)

INSPECTOR OF LANDS (BLUE NILE PROVINCE) v.

MOHAMED ELIAS El. RAZA

HC-CS-47-1956 (Wad Medani)

A. A. Bitar D.J. November 20, 1956: —The plaintiff on behalf of the Sudan Government has instituted this action against the defendant for an order to demolish a bakery erected by the defendant in plot No. 35 Block 1956 situated in the third class residential area in Wad Medani and held by the defendant on lease from the Government on the allegation that the defendant has committed breach of articles 3 (2), 4 and .8 of the lease and of articles z and 27 of the Standard Local Government (Municipality) Regulations 1938.

The admitted facts of this case were the following:

(1) The land referred to above is situated in the third class residential area in Wad Medani. It was registered in the name of a certain

fatma Muawwad as a leasehold from the Government by virtue of the lease agreement dated March so, 1954 at EX-P-r.

(2) The said Fatma Muawwad had applied to the Municipal Council, Wad Medani, for a permit to build a bakery on the land. She was informed that her application was then under consideration.

(Whereupon the defendant agreed with the said Fatma for the assignment of the said lease to him in consideration of the amount of £S.

(This assignment was effected by virtue of the deed of assignment dated December 12, 5955. at Ex-P-z.

(5) Eighteen days after the said assignment was effected in favour of the defendant, he started to built the said bakery, which was completed on February 27. 5956.

(6) The defendant built the said bakery on the land without the consent of the Governor.

In the light of the oral pleadings of both parties the following issues were framed for determination by the court with the consent of both parties:

(i) Did the defendant build the bakery on the land without a permit from a Building Authority?

(2) Does the plaintiff represent the Building Authority and whether he is legally entitled to apply for demolition of the bakery on behalf of the Building Authority?

(3) On the supposition that it is proved that the defendant has obtained the permit of the Building Authority, does this fact have any effect on the fact admitted that the defendant built the bakery without the consent of the Governor? (4) Is the plaintiff estopped by conduct from seeking the relief applied for?

(Is the plaintiff, on the facts admitted or the facts that may be proved, entitled to the relief applied for or to any other relief?

(6) Is it inequitable to order demolition in the circumstances of the

Case?

(7 On the supposition that demolition should all the building of the bakery or only the necessary parts thereof as of being used as a dwelling-house. should be ordered to be demolished?

I have heard the evidence of both parties and the final speech of each. The plaintiff called two witnesses: Sayed Abbas Tijani. Town Clerk, Wad Medani. and Mohammed Abu Bakr. the Municipal Engineer, and produced the documents exhibits P.1. P.6.

Will ultimately be ordered, be ordered to be demolished would make the rest capable in the later case w

The defendant called two witnesses: Sayed Abdul Razzag Atabani and Mohammed Sabir, Irrigation Engineer, in addition to his own testimony and produced documents exhibits D.1, D.4. He also called and examined the plaintiff himself on oath.

This suit is based on two causes, the first being breach of the conditions of the lease. the second erection of a building without permit from the Building Authority. I should deal first with the second cause of action; and I note that the plaintiff relies on sections z and 27 of the Standard Local Government (Municipalities) Regulations 1938. These sections have no relation with the subject at all. I believe the plaintiff meant to rely on sections 17 and 29 of the said regulations, which provide for building without permit. In regard to this cause of action issues No. I, No. 2 and No. 3 are relevant and I shall deal with these issues forthwith.

Section 29 of the Local Government (Municipalities Regulations 1938. confers unto the Building Authority the power to pull down buildings

- in contravention of the said regulations. The Inspector of Lands the Blue Nile Province does not represent the Building Authority and i ‘s for the latter to take the necessary action to have the bakery pulled down and not for the Inspector of Lands. I therefore dismiss the suit in re, d to this cause of action based on the contravention of the Town planning Regulations.

Whether the defendant obtained a permit from the Building Authority or not has no relevancy with the first cause of action as long as he had erected his bakery without the consent of the Governor. Building Authority is only concerned in buildings from town planning point of view and, even on the supposition that the defendant had obtained a permit from the Building Authority as he alleges this does not at all excuse him from the necessity of obtaining the consent of the Governor, in order to abide with the conditions of the lease and not to commit a breach thereof, unless the Governor had approved the issue of the permit by the Building Authority, a matter which was not pleaded by the defendant at all.

The foregoing would be enough to dispose of issues No. i. No. 2 and No. 3, but nevertheless I consider that a decision in the first issue would help to a certain extent to give a decision in the sixth issue as I shall point out when dealing with the latter issue. I therefore have to decide the first issue.

Did the defendant build the bakery on the land without a permit from the Building Authority? In other words did the defendant commit contravention of the Town Planning Regulations? In the light of the evidence heard I decide this in the positive against the defendant. The defendant started the erection of the bakery at the end of December 1955, and on the same date or around he submitted the application form Ex-P-2 for a permit f’ the Building Authority. The defendant failed to submit any evidence that the permit as issued to him. It is true that a fee of P.3o was collected from him for the issue of the permit.. But payment of fees does not prove that the permit has been issued to him, and as explained by Sayed Abbas Tijani the said fee is usually collected from every applicant as a matter of routine, and that such fee would be refunded to applicants if their applications are ultimately rejected by the Building Authority. The said clerk who collected the fee can in no way be considered acting for the Building Authority. Even the Building Authority itself cannot grant the permit without the consent of the Governor as the area in which the defendant erected his bakery is a residential area and needs the consent of the Governor to waive the restrictions on building therein. In addition to all this. P.W.1 Sayed Abbas Tijani has stated that no permit was issued to the defendant by the Building Authority and that he discovered by chance on February 16. 1956 that the defendant was erecting the bakery and he wrote to the Police to prosecute the defendant. When the Police advised him that the Municipal Engineer should take the necessary action a copy of notice at Ex-P-5 was caused to be served on defendant, and finally the accused was prosecuted before the Police Magistrate. The defendant says that the Town Clerk visited the bakery during erection and did not object. I am convinced by the statement of the Town Clerk. Sayed Abbas Tijani, that at the time when the defendant says that Sayed Tijani did not object, the latter was asking the Police to prosecute the defendant. In the circumstances, I find that the defendant erected the bakery without a permit, thus contravening the Town Planning Regulations.

The defendant has established that the building is suitable as a bakery from a health point of view, but I consider this fact irrelevant.

He also produced the licence under the Traders Licence and Taxation of Business Profits Ordinance, 1929. issued by the Town Clerk. This licence does not avail him at all from obtaining a licence to erect the bakery under the Town Planning Regulations from the Building Authority. I also doubt if it applies to the bakery erected by the defendant, as the place of business in the licence is No77 and 78 Medani, while the defendant in his letter is mentioning that he applied to transfer the licence in respect of No. 77 and 78. Medina, to the plot of land in which he erected the bakery.

No I shall deal with the first cause of action, namely, the alleged breach of the lease agreement, with which issues No. 4—No. 7 are relevant, and Which I shall decide not restricting myself to the chronological order thereof.

The plaintiff in the plaint refers to the lease agreement, s. 3 (2), 4 and 8 but I believe there is a clerical error in this reference and I gather-from the Statement of claim that the intention of the plaintiff is to following section of the lease agreement at Ex-P-i: SS. 4 (2), 4 (4), 4 (8) and of the said lease agreement.

The said sections provide as follows:

4 (2). Before the expiration of the preliminary term to erect and complete fit for use and occupation on the said land and to the satisfaction of the Governor a boundary wall or fence and a building or buildings in accordance with plans, elevations, and specifications, to be first approved in writing by the said Governor and in accordance with the local building. sanitary and other regulations; and to produce to the local Land Registry a certificate from the Governor that such building or buildings have been so completed.

4 (4). Not to erect any building on the said land other than the building or buildings originally approved under sub-clause 2, and not to make any structural alterations or additions to any such building without the consent in writing of the Governor.

4 (8). Not to use or permit the use of the said premises or any part thereof otherwise than as a dwelling-house without the consent in writing of the Governor.

5 This lease is made upon the condition that . . . if there shall be any breach by the lessee of any of the conditions in clause 4, the Government may cancel the lease and retake possession of the said land and all buildings thereon shall become the property of the Government. Without any obligation to pay any compensation for the same.

Is the defendant bound under the said lease agreement which was entered into between Fatma Muawwad and the Sudan Government? Yes. The agreement of the lease was effected on December 12, 1956, by Fatma Muawwad to the defendant by virtue of the deed of assignment with the approval of the Governor who represents the Government in the lease. The defendant covenanted in the said deed that he will observe and perform all covenants and conditions contained in the said lease. The defendant has stepped into the shoes of the original Fatma Muawwad in the lease; he further never pleaded to the contrary.

Did the defendant commit breach of the aforementioned articles of the lease? The defendant has admitted that he erected a bakery on the land just i8 days after the assignment of the lease to him without the consent of the Governor. There is no doubt that this constitutes a very clear breach to the said articles of the lease agreement. A covenant that no buildings except dwelling houses shall be built on the land has been held broken by the erection of even a wall. Woodfall, Landlord and Tenant 854 (2 ed. 1953).

The erection of a bakery on the land means the use of the land other wise than as a dwelling-house.

Before going further. I believe I should first settle the fourth issue in the case: is the plaintiff estopped by conduct from seeking the relief sought? In other words was there any waiver by the plaintiff of the conditions in the lease relied upon in this suit?

In regard to the Governor who represents the Sudan Government in the lease, the defendant never at all mentioned or even attempted to say that the Governor was aware that the defendant was erecting the bakery during its erection. But he said that the plaintiff, the Inspector of Lands in the Blue Nile Province personally knew of the intention of the defendant to erect the bakery and that the said Inspector advised him to take the land from the original lessee for that purpose. The defendant also said that the plaintiff visited the bakery on January 15, 1956, during erection and did not object until long after its completion. The defense witnesses of the defendant witnessed that on the request of the defendant, they asked the plaintiff around June, 1956 to help the defendant by granting him the consent and that the plaintiff promised to do his best to help the defendant by begging the Governor to grant consent.

i am much impressed by the statement of the plaintiff. I cannot believe that he advised the defendant to accept the land from the original lessee for the purpose of erecting a bakery. The evidence adduced by the defendant to the effect that the plaintiff visited the bakery during its erection is hearsay evidence. I do believe the plaintiff that he only knew of the erection of the bakery around the end of March 1956, i.e., after the completion of its erection and he caused the Governor to issue the letter dated April 2, 1956 which was produced on the request of the defendant, which letter proves that the Governor did not know of the erection of the bakery until the date of the said letter and that the Governor definitely does not consent to the use of the land as a bakery. The defendant applied to the Governor for his consent after the completion of the erection of the bakery, but such application was rejected.

It is true that the Sudan Government did not bring this action except in September. 1956; but I presume that the reason for this delay was due to the fact that the defendant was being prosecuted by the Building Authority before the Police Magistrate

In any way there was no positive act of waiver of the restrictions on the defendant under the lease agreement on the part of the Sudan Govern ment. “If a lessee exercise a trade upon the demised premises by which his lease is forfeited, the landlord does not, by merely lying by and witnessing the act for six years, waive the forfeiture, some positive act of waiver being necessary, but if he permit the tenant to expend money in improve ments to adopt them to that trade, it would be evidence for the fury of his consent to their being so used.” Woodfall, Landlord and Tenant 861-62 (2 ed. 1953)-

Had the representative of the Government in the lease. i.e., the Governor, been aware that the defendant was erecting the bakery which cost him a big amount of money. and did not take the necessary steps to stop him or to object. I might have considered this to be a waiver of the relevant restrictions on the part of the Government even though the written consent of the Governor was essential. But as I have said the plaintiff and the Governor were not aware that the defendant was erecting the bakery until its completion.

in the circumstances I find that there is no waiver of the restrictions referred to above on the part of the Sudan Government or the plaintiff and that the plaintiff cannot be estopped from seeking the relief applied for.

I now come to deal with the rest of the issues No.5, No. 6 and No. 7. i.e.. “to what relief, if any, is the plaintiff entitled and whether it is inequitable to order demolition.”

I must point cut here that the plaintiff has declared that he does not ask that the lease be cancelled, and that Government recovers possession of the land and all buildings thereon as provided in article No. of the tease, but only asks for demolition o the bakery.

There is no provision in the lease for demolition in case of contravention or non-observance of the covenants or conditions of the lease; but I can interpret the relief sought. In the light of the above declaration of the plaintiff: an order to prohibit and restrain the defendant from the continuance of using the land otherwise than a dwelling-house. i.e., by not allowing the defendant to keep the bakery on. because as long as it is on the land, the land is considered ‘to be used otherwise than a dwelling-house.

Clauses4 (2). 4 (4) and 4 (8) relied on by the plaintiff can be interpreted as follows:

(i) Before the expiration of the preliminary term the defendant shall erect a boundary wall and a dwelling-house on the land;

(2) Not to erect the above except according to plans first approved by the Governor;

(3) Not to use the land otherwise than a dwelling-house except with the written consent of the Governor.

ln regard to the first, I say that it is a positive condition, relief against the breach of which can be sought by specific performance or under Clause No. 5 of the lease referred to, which the phuintiff did not ask.

In regard to the second, it is negative covenant, but the wrong under it was completely done and it is not a continuing wrong to be remedied by a writ of injunction as the relief sought in the suit. Such relief should have been sought when the defendant materialized his intention not to observe this clause, and not after the wrong was completely done. Demolition cannot be ordered on the ground of contravening this clause.

The plaintiff on this ground could either ask for damages or sue for relief under clause No. 5 of the lease agreement, relief that the plaintiff did not seek.

In regard to the third which is Clause (8) in the lease agreement. I say that it is negative covenant breach of which may be remedied by the equitable remedy of injunction if the said breach is of a continuing nature. No doubt that in this case it is; the defendant has accepted the assignment of the lease with his eyes open to all its covenants, and I have no discretion but to order that what is prohibited by the agreement of both parties shall not be done.

Where an injunction is sought to restrain the breach of negative con tract. the court has no discretion to exercise.

If parties, for, valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of court to that which already is the con tract between the parties. It is not then a question of the balance of convenience or inconvenience, or of the amount of damage or of injury—it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves.” Doherty v. Ailman (1878) 3 App.Cas. 709, 720 (Lord Cairns L.C.) quoted in full at Snell, Equity 572. n. 16 (23rd ed. 1947) and accompanying text.

Although there is special provision in Clause of the lease providing as I have said in case of committal of breach of the covenant in Clause 4 (8) thereof, yet I hold that the plaintiff can ask for the much lesser and more lenient relief sought in the suit.

In the circumstances an order of injunction against the defendant shall therefore issue prohibiting him from using the premises for any purpose other than a dwelling-house, and ordering him not to allow the stove to remain in the building he erected.

The P.W.2, Mohammed Abu Bakr, has stated that if the stove of the bakery is demolished the rest of the building will not be considered a bakery any more, but can be used as a dwelling-house with some additions. Relying on his statement I found it in accordance with justice, equity and good conscience to order the defendant not to allow the stove of the bakery

S.L.J.R.—4’

to remain in the building, and I do not see it just to order him not to allow all the building to remain on the land.

It has been the practice of courts when issuing an order of injunction not to order pulling down of buildings. but to order the defendant not to allow such buildings tO remain on the land. See Snell. Equity 569 (23rd ed. ‘947).

Is it not equitable to issue the order of injunction against the defendant in the circumstances of the case?

The defendant has pleaded so claiming that the building of the bakery cost him a big amount and that it is suitable for use as a bakery. I do not accept this pleading of the defendant. The defendant in addition to his violating the lease agreement committed an offence by erecting the bakery without the permit of the Building Authority as I have found heretofore. Furthermore the issue of the order of injunction against the defendant in the circumstances of the case is not discretionary to the court, as I have pointed out. It is true that there was some delay on the part Of the plaintiff in bringing this suit, yet as I have found this delay did not affect the defendant at all because he erected the bakery and completed its erection before this fact came to the knowledge of the plaintiff or the Governor. This delay is also justified as I pointed out; at any rate I do not consider it so l6ng as to be “ laches” to defeat equity. -

In regard to the costs of this suit I have discovered that no fees were paid by the plaintiff. The defendant has stated on oath that the bakery cost him £S.3500. The plaintiff asked for the demolition of the bakery but did not adduce any evidence as to its value. So I assess the value of suit by £S.3ç00. The total fees which the plaintiffs have paid amount to £S. and are ordered to be paid to the Judiciary forthwith.

As demolition of the whole bakery ‘shall not be ordered, but the defendant shall be only prohibited from using the premises for any purpose other than a dweiling.house without the consent of the Governor and shall be ordered not to allow the stove of the building he, erected to remain therein. I consider that the defendant shall be ordered to pay part of such fees to the plaintiff. The defendant has stated on oath that the erection of the stove cost him £S.i5oo i.e., three-sevenths of the total value of the bakery. So the, amount of fees which the defendant is ordered to pay to the plaintiff is three-sevenths of the total fees i.e., £S.2

Editors’ Note; —On this discussion of laches, see Franks. Limitation of Actions 239. n.4 6 (1959) and accompanying text and 7 Halsbury. Laws of England. s. 540 at p. 247 (3 ed. 1954).