(COURT OF APPEAL)*

MOHAMED EL AMIN MOHAMED ALI v. MOHAMED FAGEER FADL

AC-REV-542-1966

 Principles

·  Landlord and Tenant—Standard rent—Rent Restriction Ordinance, ss.4 and 6— Fixed by law and not based on admission or an agreement

The standard rent cannot be based on admission of what the tenant is paying or be the subject of an agreement between the parties. But it is fixed by the law under Rent Restriction Ordinance, SS. 4 and 6.

Judgment

Advocate: Hussein A. Ghariba for applicant

Osman El Tayeb J. March 12, 1967: —Plaintiff (respondent) is the landlord of house No. 29 Bk. 5, N. West Deims Khartoum. On June 20, 1964, he instituted a suit against the tenant, defendant (applicant), claiming at the contractual rent of £S.16.000m/ms. monthly, the arrears for November and December 1963 and January, February, March, April and May 196.4, and also recovery of possession.

Defendant in reply admitted the contractual rent, but contended that the standard rent was £S.7.000m/ms.; that he paid £S.6.000m/ms. for November; that he served notice on plaintiff to declare the standard rent on January 17, 1964; and so the rent for the months from December 1963 to May 1964 should have been settled by the difference between the contractual rent and the standard rent for the six months preceding, which he would have been entitled to recover.

On the evidence, the learned District Judge found that the standard rent as calculated on the cost of construction and the value of the land was £S.5.050m/ms. in I954 the time of construction of the house. But he decided that the standard rent must be £S.7.000m/ms. taking defendant by his own assertion and admission.

He further held on the evidence that defendant did not pay £S.6.000m/ms. for November 1963.

He also held that the letter of January 17, 1964, was not a notice under section 17 of the Rent Restriction Ordinance to declare the standard rent, as its language did not mean so. And for this reason defendant was not allowed to dispute the contractual rent.

Lastly, the learned District Judge ordered defendant to pay the arrears for six months at the contractual rent of £S.16.ooom/ms. and made an order of possession.

Defendant applied for revision, and the learned Province Judge who dealt with it found for defendant on three points:

First, that the £S.6.000m/ms. that defendant alleged to have paid to plaintiff’s agent has to be accepted, since what plaintiff denied was not the payment to his agent, but the failure of the agent to pay it to him.

Secondly, that the letter of January 17, 1964, was a good notice to supply the s rent under section 17 of the Ordinance.

Thirdly, that the standard rent must be declared to be £S.7.ooom/ms. monthly, and he ordered payment of the arrears accordingly and also possession.

The points for our consideration and determination as follows:

(a) Whether the standard rent is £S. or £S.7.000m/ms?.

(b) Whether the letter of January 17, 1964, was a request to supply the standard rent, and if so, (1) would it entitle the defendant to recover the excess rent paid by him for the six months before it was given, and (2) would it excuse him for the non-payment of the rent for the following months, or that the rent for the following months has to be considered as being settled by the excess rent that he had paid.

(c) Whether the order of possession was or was not justified.

As to the first point, I think the court below was wrong in taking the standard rent to be £S.7.000m/ms. monthly. The standard rent is the statutory rent that is the creation of the Ordinance, which fixed it as the combination of a certain percentage on the cost of construction of the premises, and another percentage on the value of the land at the time of the construction. It cannot be the subject of an admission, as well as it cannot be the subject of an agreement. An admission may be operative on the matter of fact, but not of law. An admission as to the cost of construction, which is a matter of fact, may bind the person who made it.

In El Tayeb Osman El Hadani v. Yousif El Jack Omran, AC-REV-666- 1965, the tenant was sued for arrears of rent; he contended that it was not the standard rent; the landlord raised the point that that contention as a defence was barred by previous adjudication, in which, as a matter of fact, the defence of the standard rent was raised, but for the non- appearance of the tenant, the standard rent was not determined as required by the Ordinance. This court decided that the defence was not barred, and said:

“The purpose of the Rent Restriction Ordinance is the protection of the tenant. That law lays down what rent should the tenant pay for the premises controlled by the Ordinance, and the parties cannot contract out of its provisions. This leads to saying that the tenant cannot lose the right of contesting the rent in subsequent proceedings merely because it was raised—but not taken—in previous proceedings, because to say otherwise would defeat the purpose of the Ordinance.”

I refer to this case in order to indicate that the plea of previous proceedings, which is of legal nature stronger than that of an admission, does not bar a tenant from raising the question of the standard rent, if in the previous proceedings it was not properly determined. And so an admission in the same proceedings as to what the tenant thought what it might be should not be taken against him in this matter. It is to be held that the rent payable as the standard rent, by the tenant, is that which was calculated according to section 6 of the Ordinance, to wit, £S.5.050m/ms.

Coming to the letter of January 17, 1961. I think it was a proper notice under section 17. It told the plaintiff that the house does not deserve rent of more than £S.8.000m/ms. according to the Rent Restriction Ordinance, and that he, defendant, claims the difference, that he, as from December, will not pay more than £S.8.ooom/ms monthly. The fact that he mentioned at the end of the letter that if plaintiff would not accept, they might meet and agree on an architect to assess the cost of the house has no meaning other than insistence on the part of defendant for a statement as to the standard rent from plaintiff.

As defendant has served the required legal notice for a statement as to the standard rent, and as it was established that the said rent was less than the rent that he was paying, he is entitled to recovery of the difference or the sum in excess of the standard rent for the six months pre ceding its claim, if it was paid, according to section 18 of the Ordinance. The claim was made by the notice given on January 17, 1964. The amount that was paid by defendant for the last preceding six months was £S.6.000m/ms. for November and £S.64.000m/ms. for July, August, September and October, and the amount of the rent due for the six months was £S.3o.300m/ms. The recoverable difference was, therefore, £S. 33 .700m /ms.

Defendant did not pay the rent for five months starting from December1963, and the aggregate of that rent according to the standard rent was £S.25.250 By setting it off against the sum due to and recoverable by defendant, defendant will still be entitled to recover a difference of £S.8.450m/ms.

The last question is as to whether this is a case for possession: in my opinion it is not. There was a real and genuine dispute as to the standard rent, the result of which was that defendant went out crediting plaintiff with a sum of money, after setting off the rent for the months on which the suit was based. This is a case in which it could hardly be held that there was rent lawfully due at the time of institution of the suit.

We have been told that plaintiff had already taken possession of the house in dispute; defendant said that he left the house to some sub-tenants, who in agreement with plaintiff gave up possession to him sometime last year. Notwithstanding that defendant is still asking for setting aside the order of possession made by the court below. Such an order without another order for restoration of possession will be useless, and cannot be enforced. And we are not in a position to make an order for restoration of possession, and we have no reasons for it. However, if defendant has any relief, other than being restored in possession, whether against plaintiff or the sub-tenants, he can seek it in a separate action.

This revision is allowed, the decree of the learned Province Judge is set aside, and a decree for the sum of £S.8.45om/ms., with all the fees paid in this court and the courts below, is hereby passed in favour of defendant.

El Fatih Awouda J. March 12, 1967—I agree.