Case No.:

(AC-Appeal-I2-1960)

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Local Governmcnt—Khartoum Municipal Council Building Authority Regulations, 1958 —Reg.55 (3) (b) Reg.55 (1)—Order of demolition Mandamus—Only commenceable where no other legal remedy available

The Khartoum Municipal Council issued the owner of premises, occupied by appellants, with notice under regulation 55 (1) of the Khartoum Municipal Council Building Authority Regulations, 1958, ordering him to demolish Plots Nos. 105,1507, 109 and 11 of Block I C.W. as they were dangerous to the occupants thereof. Copy of the said notice was served on the appellants. The appellants appealed to Judge of the High Court, Khartoum (HC-CS-185-1960). Before going into the merits of the case the Attorney-General objected that the applicants had no locus standi entitling them to appeal under regulation 55 (3) (b) as it gives this right only to the owner, and the learned judge (Imam J.) dismissed the appeal on the same ground raised by the Attorney-General. The appellants appealed.
In their application to the Court of Appeal the appellants contended that their application to the court below was, inter alia, by way of mandamus, and alternatively under regulation 55 (3) (b). Appellants further contended that the local order contradicted the Rent Restriction Ordinance1953, and that the court below should have decided this point before answering the question whether the appellants had a locus standi.
Held: (i) that the appellants need not even be served with notice under regulation 55(1) as they had no locus standi, and that therefore they could not make an appeal under regulation 55 (3) (b)
(ii) That as the appellants did not specifically plead mandamus before the court below, and as mandamus commences only to protect a right where ‘there is no legal remedy available under any existing law, the appellants having ample protection under the Rent Restriction Ordinance, their contention under this head must also fail.
The Building Authority of Khartoum v. Evangellos Evangellides. Wadia Maiout V. The Building Authority of Khartoum (1958) S.L.J.R. 16 followed.

Judgment

(COURT OF APPEAL)*

ABBAS SABREY AND OTHERS V. TOWN CLERK, KHARTOUM MUNICIPALITY AND OrHERS

(AC-Appeal-I2-1960) 

Appeal

Advocates: Amin El Tahir El Shibli and Abdel Aziz Safwat...

                                                                      for appellants

August 29, 1960. M.A. Hassib J.: —This is an appeal against the order of the Judge of the High Court Khartoum (Imam J.) which was made on May 28, 1960, in HC/CS/185/60 dismissing applicants’ appeal invoked under regulation 55(3) (b) of the Khartoum Municipal Council Building Authority Regulations 1958, against a notice issued by the council within the meaning of regulation 55 (1) of the said Regulations directing the owner of the premises known as Plots Nos. 105, 107, 109 and 11 of Block 1 C.W. Khartoum City to close down and demolish the premises on the ground that they are dangerous to the occupants thereof. Copy of the said notice was also served on the applicants on March 13, 1960.

Appellants appealed to Judge of the High Court Khartoum by HC/CS/185/60 that the notice served on them was:

(a) Ambiguous and indefinite, (b) a backhand way of defeating the Rent Restriction Ordinance in view of the cases pending before the Civil Courts between landlord and tenant, (c) inconsistent with the general law and should be declared void.

Before going into the merits of the grounds submitted by the appel lants in the lower court the AttorfleY made an objection in law that the appellants had no locus standi entitling them to make an appeal by invoking regulation55 (3) (b) which gives a right of appeal only to the owner of the premises. The iearned of the High Court ruled that the objection should be dealt with before going into the merits. He framed one issue, namely:

“Are appellants deprived by regulation55 (3) (b) of any right of appeal from an order made pursuant to regulation  55 (1) of the Khartoum Municipal Council Regulations. 1958?

The Judge of the High Court then decided this preliminarY point of law in favour of respondents. He said:

“I agree with the learned Attorney-General that the right to appeal is given to the owner by regulation 55 (3) (b) and not to the tenant.”

Regulation 55 (3) (b) reads:

“A person served with a notice under sub-paragraph (1) of this paragraph to demolish, a building or part of a building may….appeal to the High Court which may defer execution of the notice until a decision is taken.. .

Regulation 55(1) reads:

If in the opinion of the Council any building or part of a building is in such a condition as to be dangerous to persons or property or  to the public in the premises on which the buildings stand or any adjoining premises or street the owner shall comply with any notice in writing served on him by the Council to remedy such condition if it can be remedied or if it cannot be remedied to demolish the building and to clear the site within such reasonable time as may be specified in the notice.”

Hence this appeal against the decision made by the Judge of the High Court.

Appellants’ advocate now contends that Judge of the High Court was wrong to dismiss their application for mandamus on the ground that they had no locus standi entitling them to appeal under regulation 55 (3) as their application to the court below, dated April 4, 1960, was made (inter alia) under regulation 55 (3), yet it was admitted in the court below as an application on mandamus and not as an appeal under regulation 55(3) (b) and treated for all purposes as mandamus.

The advocate then cited The Building Authority of Khartoum v. Evangellos Evangellides (1958) S.L.J.R. 16 in support of application. The appellants’ advocate further urged that the local order is unconstitu tional and is also inconsistent with the general principles of the law and justice for it contradicts the Rent Restriction Ordinance, 1953, and it was the duty of the court below to decide on this ground before going into the question whether appellants had a locus standi.

In my opinion this appeal is hopeless and should be dismissed sum marily. In the outset I must declare that service of a notice issued under regulation55 (1) on the tenants was not required by the law. It is immaterial whether the tenants of any premises falling within the provision of section 55 (1) were served or not served with any notice in that behalf.

The lower court’s decision that the appellants had no locus standi was rightly made. The question was before considered amply in a pre vious case, which is similar to this. In the case of The Building Authority of Khartoum v. Evangellos Evangellides, the Court of Appeal decided that the tenants of the premises had no locus standi and could not invoke regulation 55(3) (b). The decision of the lower court that the appellant had no locus standi enabling them to appeal against the order of the Municipal Building Authority is, for the reasons above-mentioned,’ correct. They cannot make an appeal under regulation 55(3)(b) of the said Regulations.

This therefore will answer the first point in the appeal. There remains the second point, i.e., the contention that the appeal has grounds by way of mandamus in order to admit it to the Court of Appeal for a decision. The learned advocate for appellants urged that the appellants’ case before  the lower court in mandamus was not considered at all, and that the applicants’ case in the lower court was disposed of only on whether the appellants had locus standi concerning the right of appeal within regulation55(3) (b) of the order. He further urged that the omission by the lower court to consider and decide upon the question of mandamus is a gross injustice, which should be rectified and remedied in the appeal court.

At the outset I must decide that if this statement is correct the appli cants are undoubtedly entitled to intervention by the Court of Appeal. But as I see it this statement is not at all correct. It is not true that the proceedings in HC/CS/185/60 are by way of mandamus proceedings.

In their petition to the lower court the appellants did not pray for a remedy by way of mandamus. Their petition was an application for appeal within the meaning of regulation 55 (3) (b) against the notice issued under regulation 55 (1) for cancellation thereof.

In their application dated April 5, 1960, to the High Court the applicants in paragraph 4 of their petition mentioned regulation 55(3)(b) as the basis on which the application was made. Again in the grounds dated April 16, 1960, the learned advocate for the applicants referred only to regulation 55(3) (b) and mentioned the reasons in his submission why the regulation 55 (1) should not be invoked. He ended the application by a prayer for allowing his application for revision (appeal) with the hope of cancelling the notice of March 13, 1960.

The learned judge of the High Court when dealing with an objection in law raised by the Attorney-General on behalf of the defendants that the appellants had no locus standi under regulation 55(3) (b) said:

“As I see it this objection should succeed. I refrain from touching on the merits of the application, as this is unnecessary for a decision on the objection. I agree with the learned Attorney-General that the right to appeal is given to the owner by section 55(3) (b) and not to the tenant.”

It is clear from the statement that the lower court did not tackle any ground other than by way of appeal under regulation 55 (3) (b)

Now the appellants’ advocate contends that their application to the lower court was based on both regulation 55(3) (b) and mandamus and that it was admitted in the lower court as such, i.e., an appeal and mandamus proceedings. As the position of the appellants in the lower court did not expressly put mandamus as a cause for the proceedings I doubt if they can now make the matter a ground for appeal before this court.

Mandamus being an extra-legal remedy commenceable by civil pro ceedings in protection of a right for which no egal remedy is in existenCe should in all events be specifically pleaded in any proceedings before a court of justice where (inter alia) other causes or grounds are invoked. For the, sake of argument mandamus in the circumstances of the appel lants cannot be commenced. It is essential for remedy by way of mandamus that no other legal remedy is available to the applicants.

The appellants are tenants who by the Rent Restriction Ordinance are entitled to protection of their occupation and no tenant could be turned out except in furtherance of the provision of the law. Only if the provi sions of the Rent Restriction Ordinance are not sufficient to protect the occupation of the tenant is it possible that mandamus may lend its aid. To sum up, this appeal is hopeless because: (1) the decision of the Judge of the High Court that the appellants had no locus standi under regulation55

(3)(b) Is a right conclusion of the law on the authority laid down in the Building Authority case and English cases cited therein. (2) The application of the appellants to the Judge of the High Court did not contain a prayer on mandamus and the omission by the Judge of the High Court to deal with mandamus was based on the material before him.

(3) Mandamus is an extra-legal remedy only commenceable by way of civil proceedings to protect a right for which there is no legal remedy in existence and appellants as tenants have protection against any order for eviction by the Rent Restriction Ordinance.

Therefore, if the Honourable the Chief Justice agrees, this appeal should be dismissed summarily under rule 13A of Order Xl, Civil Justice Ordinance.

October 27, 1960. M. A. Abu Rannat C.J.: -I agrees that this appeal is hopeless and should be summarily dismissed for the following reasons:

(1) Advocates for appellants submit that rule 55(1) ofthe Local Orders made by the Khartoum Municipal Council under section of the Local Government Ordinance is inconsistent with the Rent Restriction Ordinance. I cannot understand where the inconsistency lies. The Rent Restriction Ordinance deals with cases between landlord and tenant, while the Muni cipal Local Order deals with dilapidated and dangerous buildings, by which authority was given to the Building Authority to perform functions relat ing to public health and safety of the people. The object of the two laws is different.

(2)The learned advocates also submit that the learned Judge of the High Court should have granted them a remedy under the prerogative writ of mandamus. The general rule of law is that where a statute creates an obligation and enforces its performance in a specified manner, such performance cannot be enforced in any other manner, and the remedy by mandamus will not be available when a specified remedy is given by the Act imposing dic duty it is sought to enforce. Section 55 of the Local Government Ordinance permits the Municipality of Khar toum to make local orders to give effect to the enforcement of the certain duties: These duties were embodied in rule 55 (1) of the Local Orders which created certain obligations, and specified the manner in which they should be performed.

(3) The third submission is that the word “person” referred to in paragraph 3 of rule 55 of the Local Orders covers the tenant or any person in occupation. Paragraph 3 reads, “in any case other than the one covered by paragraph 2 of this local order, a person served with a notice under paragraph i of this local order to demolish a building or part of a building may:

(b) appeal to the High Court which may defer execution of the notice until a decision is taken, provided that he takes immediate steps for the complete evacuation of the premises and prevention of entry thereinto by any person”

The only person referred to under paragraph 3 is the owner who is mentioned in paragraph 1 of Local Order No. 55. On the authority of The Building Authority of Khartoum v. Evangellos Evangellides (1958) S.L.J.R. 16 the tenant has no locus standi, in these proceedings, and he is therefore not entitled to appeal to the High Court under paragraph 3 (b) of Local Order55.

The fourth point raised by the advocates for appellants is that the appellant may be the owner for the purpose of the Local Government Ordinance. The word “owner” referred to in Local Order 55 has no meaning in my view, other than the person in whom the property is, at the time of the services of notice, vested. I need not elaborate on this point since it was dealt with in the Evangellides’ case.

In my view the appeal is hopeless and should be summarily dismissed under rule 13A of Order XI of the Civil Justice Ordinance.

                                           (Appeal summarily dismissed)

 Court: M. A. Abu Rannat C.J., M. A. Hassib J

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