Civil Practice and Procedure-,Right of litigant to pleQd the aid of a statutE
passed while his case was pending appeal

Contract- Tenancy- Terms-Improvements to land-;Comperisation

Landlord and Tenant-Improvements to property-Structual alterationS made by
_ tenant-Whether a right to compensation from landlord':""Whether 14ndlqrd's
consent to alterations is consent to pay for alterations.:....contract requiring
written consent [or alterations

Where a written contract of tenancy requires the Written consent Of
the landlord to structural alterations or additions by the tenant, no agreement
by the landlord to compensate the tenant for changes can be implied either
(1) from the landlord's knowledge of the changes and his lack of protest;
or (~) from the landlord's express or implied consent to such alterations.

Very strong evidence is required to prove either a parol consent to
alterations, or a parol 'promise to pay for such changes wLether a tenancy
contract requires written Consent by the landlord to alterations.

Rent Restriction Ordinance 1920,. s. 3.

Action

The' facts and summary of the arguments appear from the
judgment of Fleming J.

                  Advocate: Mr. Christodoulides .................. for plaintiff" ,

May 20, 1922. M. Fleming J~: The plaintifffs a tenant of
defendants ill certain premises 'at Khartoum North. The' present

. ·Court: Fleming J.action arose out of another action (Civil Suit No, 11/1920) in which
defendants claimed, inter alia, possession of these' premises. Plaintiff'
thereupon claimed compensation for improvements he had effected
during his tenancy and it is that claim which is the subject of this
action.

The defendants were successful in their claim to possession, the
court on March 11, 1920, making a finding that they were entitled
to recover possession forthwith. That finding was appealed against,
but on May 23, 1920, the appeal was dismissed.' Meanwhile, how-
ever, on April 26, 1920, while the appeal was actually pending, the
Rent Restriction Ordinance 1 came into force. The Court of Appeal
did not, however, take that, Ordinance into consideration as' it con-
sidered it was not the proper tribunal to conduct the necessary 'inves-
tigation, but, it held that the appellant might make an application, to
the High Court under the Ordinance asking that court to- rescind its
order. Section 3(2) of the Ordinance' makes provision for such an
application and by petition dated May 25, 1920, Mr. Christodoulides,
advocate on the tenant's behalf, applied under that section. Mr.
Christodoulides 'states that, when he appeared on that' petition, be
was informed by the court that he should start a fresh action, and
he accordingly presented a petition dated May 26, 1920, in whicb  he asked the court to give him "leave to bring an action ................................ to

apply the Rent Restriction Ordinance that plaintiff should remain
in the premiss". As that application was allowed by the court and
a fresh action started I assume that the court regarded a fresh' actiOn
as a suitable form in which to deal with art application to rescind or
vary under section 3 (2) of the Ordinance. At all events no objec-
tion appears to have been taken at the time to the procedure adopted:

The hearing of the action under the Rent Restriction Ordinance
acconjifigl_y proceeded, and on July 8, 1920, the court made an order
thaj the question of compensation to' the tenant should be settled
~fore he was com.pelled to quit, land a date was ~ed for. the hearing-
of the present chum. That order also was acquiesced m, and the
court is therefore bound to deal with the question of compensation,
though it 'is not yet finally- settled whether the plaintiff is entitled to
remain in possession of the premises. '

1 This 1920 Ordinance (Gazette' 358/1920) expired before pubUcation of
the Revised Edition (i926) of the Laws of the Sudan. "Vol. I, 1899-1922.. Ed.In the present action three issues were fixed on July 8, 1920.

They were as follows:

1. Since February 1915, the date when plaintiff entered into
possession of part of the property, has the property, the subject of

, the lease of January 1, 1917, deteriorated or improved in value owing
to structural alterations made by the plaintiff?

, 2. If the property has improved in value owing to the structural
alterations made by the plaintiff, what is the value of the improve-
ments? If the property has deteriorated what is, value of deterioration?

3: If the property has improved in value, is the defendant
liable to compensate the plaintiff for the improvements affected? If
the property has deteriorated, is the plaintiff liable for value of
deterioration?

The first and second of these issues were by consent remitted
to arbitrators, who decided that the property was improved to the
extent of £E.251.010m/ms by the structural alterations made by the
tenant. The second half of the third issue accordingly dropped out,
and the only question left for the court to decide in this action was,
and is, Is the defendant liable' to compensate the plaintiff for the

            improvements effecte<i?·                              .

It is important at the outset to make clea,r that the improve-
ments for which the defendants' liability has to be determined are
improvements brought about by the plaintiff's structural aiterations.
The issues are perfectly clear on that point, and it is therefore idle to
contend-as plaintiff's counsel was inclined, though with an evident
lack of conviction, to do from time to time-that they included the
repairs which, under article 5 (c), Arabic version of the contract,
{.ave to be carried out at the landlord's expense. Plaintiff's counsel
admitted that he could not say what part of the award related 'to
repairs and what to alterations, the items in the arbitrators' estimate
suggest. alterations not repairs, and the estimate is headed "Estimate
for Alterations." Moreover, if the award included an estimate for
anything that could not be justly described as a "structual alteration"
it would have been liable to be set aside on the ground that it had
determined a matter not referred to arbitration.

The sole question accordingly is, are the defendants liable to
compensate plaintiff for the improvements brought about by his
structural alterations?

The quarter to which one ~aturally looks first for an answer to this. question is the contract of lease. The only reference made
in that contract to structural alterations is contained in Article 2 (d)
which provides that the tenant is "not without the landlord's written
consent to make any structural alterations or additions to the said
demised premises.". If he was not even to make the alterations with-'
out written consent it follows, a fortiori, that he was not to pay for
them. The question therefore arises: Did the landlord give his written
consent? Plaintiff produces no written consent, but he alleges that
it was expressed in a 'letter sent to the Tanzim Office. . His evidence
of this is of the most flimsy description' He called as witnesses two
clerks in the Tanzim Office. One of these, Zein, speaking from

recollection, said a letter arrived at his office, he thought in 1917,

from defendants which contained the words, "We have no objection
to any repairs which may be done by Saleh Badran which he wants
done." The other had no personal recollection of the letter at all,
and neither of them could say where the letter now is nor give any
explanation of its disappearance. In face of defendants' denial it is
impossible to attach any weight to evidence of this kind and t 'hold
that _Qefendants did not give their written consent to the, alterations
in respect of which the present claim is made and that under the
contract of lease plaintiff has no right to make the claim.

It is averred, however, by the plaintiff that defendants gave verbal
and tacit consent not only to the making of the alterations, but to the
payment by defendants of the cost thereof. It was only at a late stage
of the case that defendants had the advantage of counsel's assistance.
It is, therefore, not to be wondered at the fact that no question was
,raised as to the admissibility of parol evidence that defendants con-
sented to an alteration of the express terms of the written contract.
Such evidence was in fact given and it is for the court to form from
it its conclusions,' but the fact that the landlord's written consent is
stipulated for in the contract, makes it at all events essential that
parol evidence of a continuing waiver by the landlords" of this con-
dition should be of the ~ost convincing description. I cannot say

.. that I am convinced by the evidence given. I think it, is highly prob-
able that defendants knew that building operations were taking place
on the premises and that they formed the conclusion that the value
01 the property would not be diminished thereby and that they there-

. fore did not think it advisable to assert their rights under Article 2 .
( d ) of the contract. Plaintiff may be entitled to say that that con-

stituted tacit consent to such operations, but it did not constitute tacit
consent to abandon their rights to insist on the observance of the said
Article at any time they chose to do so, and in particular to insist
on its observance where any alteration was contemplated for which
they were to be called upon to pay.

I go further than this, however, and hold that, eyen if defendants'
tacit and verbal consent to the actual alterations made were un-
equivocally proved, and even if their written consent were proved,
it would not give plaintiff the right to call upon the defendants to pay
the cost of such alterations, unless he can prove that they agreed to
do -so. That I believe to be settled law. There are,' it is true, in
England and Scotland certain statutory exceptions to this rule, but
these apply only to agricultural holdings and have nothing to do with
improvements such as those for which the plaintiff claims.

It is said by Mr. Christodoulides to be common law that defen-
dants by keeping silent while operations were going on with his
knowledge, and by examining books and accounts, gave tacit consent
to pay for the operations. He said at an early ,stage of the Case, that
he would look for authority for this proposition. Whether his search
was successful he has not said, but in his closing address, delivered a
year later he stated that it was such a simple matter that he had not
thought it necessary to quote any cases.

There remains the question, did defendants consent verbally to
pay for the alterations in respect of which this claim is made? On
this point it is necessary to _ analyse the evidence with some care, as,
while there are 5 witnesses on plaintiff's side and only one on defend-
ants', the latter tells a tale which is consistent and ex [acie probable,
but the evidence of the former contains much that is inconsistent and
still more that is improbable.

Plaintiff's witnesses on the point are himself and his brother,
Nassar Ali, Fadl El Mula, and Mohamed Hassan. Nassar Ali, who
was called first, says that about the beginning of 1915 in plaintiff's
shop at. Khartoum North, Father Fischer, who represented the
defendants throughout their negotiations with plaintiff, authorized
plaintiff verbally to build or do anything he liked and he (Father
Fischer) would pay him £E.400 or any other sum he liked. Fadl
El Mula says at the beginning of 1915 at Khartoum North Father
Fischer said, 'Change, repair, build, and I will deduct from rents'.
(The rent at that time according to plaintiff was PT.80 a month.)

Mohammed Hassan, who was at the time plaintiff's clerk, says that in
1916 and 1917 Father Fischer promised "to pay for expenses made
by plaintiff on premises." Plaintiff's brother says that in 1915 he
accompanied plaintiff and Father Fischer to the premises and the
latter said, "There is no objection, you can do the work." Witness
was then asked; Was anything said about payment? It was with
the greatest difficulty that an answer was got to this simple question.
At last the witness stated that Father Fischer said, "There is no
objection. Do the work. We are ready to account for it. Keep
an entry of it." The same witness says that in 1917 Father Fischer
said to plaintiff, "Do the work and I am ready to pay whether lE.3
or 4." Plaintiff in his evidence says that in 1915, Father Fischer
told him to make the alterations he wanted and he would account for
them. Defendants' only witness was Father Fischer. He says he . was
always alone when he spoke to plaintiff as plaintiff did not like to
have witnesses. He further says that when he first knew of the
alterations he told plaintiff that all he did he must do at his own"
expenses and, plaintiff said, "All right."

I am quite unable to draw from this evidence the conclusion
plaintiff asks me to reach. Can anything be more improbable than
that defendants' representative gave plaintiff carte blanche to build
or do anything he liked and he would pay for it?· It is incredible
that he should say he would pay lE.400 or any other sum he liked, and
only a lunatic would suggest that expenditure on that. scale should be
met out of a monthly rent of PT.80. The evidence of plaintiff's
brother is not only unsupported, but even if believed it amounts to
very little and most of it is absurd on the face of it. No plan was
prepared, no estimates were submitted and nothing took place to keep
defendants abreast of what was going on except an alleged inspection
of plaintiff's books which (if it was in fact made) would be sufficiently
explained by the existence of an account tor rents, repairs, or goods.
No account of any sort was rendered to the defendants from begin-:
ning to end, and no payment to account was ever made. It is quite
possible of course that there. was a misunderstanding between plaintiff
and Father Fischer. The lanes besides being extremely deaf was
speaking in a foreign language and plaintiff may have formed a belief
that defendants would pay., He had not, however, in my opinion
sufficient foundation for, suc~ a belief, and any man of sense would
have had it fortified by something of a tangible nature.