Case No.:

AC-REV-225-1959

Court:

Court of Appeal

Issue No.:

1961

Principles

·  Landlord and Tenant—Lease for immoral purposes—Not governed by Rent Restriction Ordinance—Ejectment possible outside section 11               

·  Landlord and Tenant—Lease for immoral purposes void—No action maintainable on lease

·  Landlord and Tenant—Lease for immoral purposes—Landlord may not bring ejectment action on illegal lease to which he was a knowing party

·  Landlord and Tenant—Lease for immoral purposes—Right irrespective of illegal bargain enforceable

Plaintiff rented a house to defendant on a month-to-month tenancy knowing that the defendant would use the house as a brothel. Plaintiff claimed permanent recovery of possession on grounds of the illegality of the contract of lease.
Held: because the lease is “void for illegality “ since both parties knew it was for immoral purposes, the Rent Restriction Ordinance,. 1953, governing valid contractual tenancies, does not apply, and plaintiff may recover possession by right of ownership. Obiter dicta:

 ( i)Where a house is knowingly leased for the purpose of a brothel, the lease is “so tainted with the immoral purpose as to be wholly void’s and no action can be maintained on the lease.

(ii) If a plaintiff cannot maintain a cause of action for ejectment based on the immoral purpose of the lease without showing his knowing complicity in the tainted bargain, courts will not enforce his cause.

(iii) Rights possessed by plaintiff in ejectment irrespective of the illegal bargain are recognised and enforced.

Judgment

)COURT OF APPEAL)*

RAB GOUD MOHAMED v. HAWA BINT MOHAMED

AC-REV-225-1959

A. M. Imam 1. January 27, 1960:—In CS-33I Wad Medani District Court, Blue Nile Province, the plaintiff initiated civil proceedings for the temporary recovery of possession for the purpose of carrying out structural $ repairs under Rent Restriction Ordinance, s. 11 (g), of her house known as Plot No. 4—I B.58. Wad Medani Town. Issues were framed accordingly.

On the date fixed for hearing, the learned advocate for the plaintiff I popped up and submitted that the house, the subject-matter of the dispute, was being used as a brothel, and that this fact was known to both parties at the time they entered into the agreement. He reasoned therefore that the tenancy is void for illegality, that the tenancy is no tenancy, that the

defendant, the tenant, is no tenant and cannot therefore clothe herself with the protection of the Rent Restriction Ordinance or. in other words, he was claiming for another alternative relief, viz., the permanent recovery of possession of the premises.         

The defendant, through her advocate, admitted the allegation piece-meal.             

Court: A. M. Imam I. and M. Y Mudawi. Province Judge.

Two issues were framed and one, being an issue of law, the court decided to dispose of first, a course which it could take under Civil Justice Ordinance, s. 73. These issues were:

(a) Was the tenancy between the parties void for illegality, as the house in dispute was being used as a brothel ?

)b) And if so. is this case now covered by the Rent Restriction Ordinance  ?

)c) And if the answer to (a) and (b) is “yes” should the defendant be treated as a trespasser ?

Preliminary judgment was entered in favour of defendant with an order that the case should proceed on the issues first framed for recovery of temporary possession.

The plaintiff applied to the High Court for revision of this judgment where her applic was summarily dismissed. The present application is directed against this order.

The applicant, who appeared before us in person, admitted that respondent was residing with her as an unpaying guest-friend. She also admitted that she was a prostitute but she had repented and for the last 10 years had led a clean life. She said she got married and left staiortly before renting the house to respondent. At first she denied that respondent was using the house from the start as a brothel, and said it was her advocate who made this admission on her behalf, then she admitted knowing that and that she herself was once a prostitute.

Advocate for respondent (and defendant) contended that applicant cannot recover possession by reason of her awareness of the immoral purpose.

Now the law in respect of the consequences of illegality when both parties are aware of it, is clear. The contract is unenforceable and is wholly void.

“Neither party can sue to enforce a contract Which is illegal in itself, any more than he can, for instance, in the case of a contract void for mistake. But where the contract is illegal i the strict sense the consequences of invalidity are more sweeping than in other cases. The contract here is contaminated by turpis causa, and the rule has long been established that ex turpi causa oritur non actio. Neither party can claim any right or remedy whatsoever. The court will not render its process available to a participant in an illegal transaction.” Ch and Fifoot, Contract 259 (2nti ed., 1949)  .

In connection with tenancies the same principle is laid down in the same page:

"In the case of a lease the landlord cannot sue for the rent or for the breach of any other covenant.”

The same principle is also laid down in Woodfall, Landlord and Tenant 273 (25 ed., !954). which reads:

“But where premises are let for an immoral or unlawful purpose, or the lessor was aware, at the time the lease was granted, of the tenant’s intention to use the premises for such a purpose, no action can be maintained upon the lease; the courts will not enforce any of its stipulations, such as the covenant for payment of rent, and the lease is treated as void.”

See Gas. Light and Coke Co. v. Turner (1840) 6 Bing.N.C. 324. In Jennings v. Thrognorton (182 Ry. & Moo. 251. rightly cited by the learned District Judge, i landlord who permitted a wockly tenant to remain in possession after he was fully informed that the tenant was occupying the premises for purposes of prostitution was held to be unable to recover the weekly rent.

Again the principle is more firmly established:

" Where a house is knowingly let or assigned for the purposes of a brothel . . . the lease or assignment will be so tainted with the immoral purpose as to be wholly void.”

Woodfall. l.andlord and Tenant 644 (25th ed.. 1954 and cases there, cited: Smith v. White (1866) L.R. 1 Eq. 626 and upfill v. Wright (1911) 1.K.B.506.

So much for the consequences of illegality in respect of stipulations and covenants contained in a lease. What then is the position in r of recovery of property generally and of recovery of possession of land in particular claimed under an illegal contract.

The law in this respect is also clear in that such property is irrecoverable if the disclosure of the illegality is essential to the cause of action.

“Property transferred under a contract that is void for mistake is recoverable by the transferor, but not so where the contract is void for illegality. Here the transferee is in fortunate, position, for he can take advantage of the legal maxim ex dolo molo non oritur oct He can successfully plead the turpis causa …." Cheshire and Fifoot. Contract 259 (2nd ed., 1949(

The two maxims ex turpi causa oritur non actio and in pan delicto potior est conditis defendentis combined produce the effect that neither party can maintt an action against the other if he requires any aid from the illegal transaction  to establish his case.

“If a plaintiff cannot maintain his cause of action without showing. as part of such cause of action. that he has been guilty of illegality. then the coi will not assist him in his cause of action.” Scott v. Brown, Doening, McNab & Co. [1982 ] 2 Q.B. 724. 734, quoted in Cheshire and Fifoot, Contract 260(2nd ed.. 1949 )   .

From the above it can be seen that the right to the return of property is barred only when the plaintiff must necessarily call to his aid the illegal contract.

If he can establish his case without being driven to djsclo4e the illegality he will succeed. Or, to put it in another way rights which he may posses irrespective of the illegal contract are recognised and enforced.” Cheshire and Fifoot, Contract 260 (ed., I949).

Cheshire and Fifoot, Contract 260-26! (2nd ed., z gives this example:

“Suppose, for instance, that a lease for io years is made by A to B for a purpose known by A to be illegal.

“A cannot sue for the recovery of rent, since to substantiate his claim he must necessarily rely upon the illegal transaction. Nor, It Is apprehended, can he sue to recover possession before expiry of the agreed term. If he did so, B would allege possession by virtue of the lease, and A would be precluded from pleading its illegality

“But, once the term of10 years has expired, A has an independent cause of action by virtue of his ownership. He cannot be allowed to recover what he has transferred in pursuance of the Illegal transaction, but he cannot be deprived of rights which he has not transferred. Once the illegal, but temporary, title has ceased, he can rely upon his previous lawful title.”

In the present case, the tenancy is a month to month tenancy. But it is yoid for illegality. We therefore think that the provisions of the Rent Restriction Ordinance, ‘9 do not apply in this case. For the statute presupposes a valid contractual tenancy. e.g., it is not applicable in the case of a trespasser, likewise when the contract is completely void; for we think that the statute cannot work in a vacuum. This being the case we think that applicant (and plaintiff) relying on her incidental right of owner-ship, can recover possession of the premises.

For the above reasons explained, we allow the appeal, cancel the decision of the District Judge, Wad Medani, dated June 3, 1959  and order respondent (and defendant) to quit the house in dispute forthwith.

Applicant (and plaintiff) is to bear the costs in this action.

M. Y. Mudawi, Province Judge. January 27. 1960:—I concur.