(COURT OF APPEAL)

MOHAMED AHMED OSMAN v. ABDEL MOUMIN MOHAMED SAEED

AC-RE V-575-1967

Principles

  Landlord and Tenant—Sub-let without landlord’s written consent—Rent Restriction Ordinance, s. 20 (1)-may waive his right for written consent

A statutory landlord who knows of a tenant’s statutory breach of sub-letting without written consent under the Rent Restriction Ordinance, s. 20 (1), may waive his right for such written consent either tacitly or by conduct.

Judgment

Advocates: Ahmed Sulieman …………………for applicant

Mohamed Osman El Awad ………………….for respondent

Salah Eddin Hassan J. February 5, 1968: —The main issue for which this revision was allowed was whether a landlord could waive his right for a written consent to a sub-tenancy if he has had knowledge of it. There are two conflicting decisions in the Court of Appeal respecting this point. They are: Askrn Seroussi & Another v. Derbedrossian Bros. (1961) S.L.J.R. 174 and Mohamed El Hassan Mohamadein v. Mohamed El Ghali Moharned (1964) S.L.J.R. 126.

In Aslan Seroussi & Another v. Derbedrossian Bros. AC-REV-185-1957

                                                    the Court of Appeal (Mr. Justice Imam and Chief Justice Abu Rannat) ruled that a landlord may waive his right for a written consent as provided in the Rent Restriction Ordinance, S. 20. He can do that either tacitly or by conduct.

In Mohamed El Hassan Mohamadein V. Mohamed El Ghali Mohamed, AC-REV-217-1960 Mr. Justice Hasib by authority of the Chief Justice dismissed the application for revision summarily and made the following comment:

“The plea of estoppel for the applicant does not help him. There is no estoppel in the Rent Restriction Ordinance. The control created by the law is a status and the parties can neither contract out of it nor in it.”

Mr. Justice Hasib did not refer to AsIan Seroussi & Another v. Derbedrossain Bros., AC-REV-185-1957 of which I believe he was not aware.

The learned Province Judge was quite right in ignoring Mohamed El Hassari Mohamadein v. Mohamed El Ghaii Mohamed, AC-REV-2 17-1960, and following Asian Seroussi & Another v. Derbedrossian Bros., AC-REV –185-1957. The reasons are obvious and can be enumerated as follows:

a. Asian Seroussi & Another v. Derbedrossian Bros., AC-REV- 185-1957was adjourned and heard by the Court of Appeal.

b. The judgment is well argued and is no doubt a Court of Appeal decision.

c. Mohamed El Hassan Mohamadein v. Mohameci El Ghali Mohamed, AC-REV-217-1960 was not adjourned into the Court of Appeal and accordingly it is not a Court of Appeal decision in the strict sense but a decision passed by a single Judge of the High Court to whom the Chief Justice delegated his authority.

So according to our authorities existing we can safely say that a landlord could waive his right for a written consent. He can do that either expressly or by conduct.

From the facts in this case the Province Court came to the conclusion that the landlord did not waive his right to a written consent. I do not think there is any strong reason to justify reversing this finding.

So be it, in my opinion this application should fail.

There will be no order as to costs.

M. E. A. Gassourna 1. February, 1968: —I agree.

El Rayah El Amin C.J. February , 1968 :—I agree.