(COURT OF APPEAL)

MOHAMED SALIH KARBOUS v. AMNA KOKO

AC.REV-136-1967

Principles

Landlord and Tenant—Cause of action—Claim for ownership of property and claim for rents: each of them constitutes a different cause of action

The claim for the ownership of property and the claim for rents received from that property: each one of them separately constitutes a different cause of action.

Judgment

Advocates: Hennary Riad…………………………………………for applicant

                 Salih Awad Salih………………………………………. for respondent

        Osman El Tayeb J. September 4, 1967: - this is an application for revision from the order of Province Judge, Khartoum, dated March 8, 1967, dismissing summarily a similar application from the decree of District Judge, Khartoum, dated January 30, 1967, in favour of respondent awarding her a sum of £S.140.000m/ms. being rent of a house known as plot No. 42—8 D West Deim, Khartoum Town, for the period from September I, 1961, to December 31, 1963, at the rate of £S.5.000m/m per month collected and received by applicant. The above-mentioned house was registered in the name of the applicant and on August 8, 1964, respondent instituted a suit claiming the ownership of that house. The suit was decided in her favour by an order of rectification of the register. It was finally disposed of on February 14, 1966, by an order of the Court of Appeal. Respondent has become the registered proprietor.

       On August 27, 1964, the respondent instituted a suit claiming arrears of rent for the above-mentioned period from a tenant, who in the course of the proceedings made his defence by asserting that the claimed rents were paid by him to applicant, who was then the registered proprietor, and so applicant became the only defendant in the suit.

        The defence raised in the case is that respondent omitted to claim these rents in the first suit without leave of the court, and so she is barred from claiming rent here by virtue of the Civil Justice Ordinance, S. 51 (3), which reads as follows:

       “A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”

        The point for determination is whether the claim for the ownership of property and the claim of rents received from that property institute  different relifs under one caused of action, or whether they are different causes of action. If they come under one cause of action the defence succeeds, but if each one of them separately constitutes a different cause of action, it fails. The learned District Judge accepted the latter view, when he stated that the cause of action for the rents was not in existence at the time of the institution of the first suit. I think he is correct, and it is clear in my mind that the claim for the ownership of the property comes under a separate and distinct cause of action, in relation to the rent or profits to be derived from the property. It may be added, as the learned District Judge pointed out, that as applicant was before and during the litigation the legal owner of the property and respondent was the beneficial owner of that property, applicant has to be considered as receiving the rent claimed in his capacity as a trustee, and has to give back what he has so received.

     For these reasons this application is dismissed with costs.

    El Rayah El Amin C. J. September 4, 1967: —I concur.

    Hassarz Abdel Rahim 1. September 4, 1967 : —I agree.