Case No.:

AC-RE V•53 1963

Court:

Court of Appeal

Issue No.:

1962

Principles

·  Landlord and Tenant—Heir of contractual tenant—Succeeds to decedent’s tenancy and right to protection of Rent Restriction Ordinance 1953

·  Landlord and Tenant—Widow of statutory tenant—Succeeds to husband’s tenancy and right to protection of Rent Restriction Ordinance 1953 Sources of Law—Statutory provision in England—Civil Justice Ordinance 1929. s. 9 —May adopt substance of statutory provision not as statute but as a just principle

Plaintiff landlord brought this eviction action against his tenant’s widow who had been living with tenant in the premises in question at the time of tenant’s death. Widow argued that at her husband’s death she succeeded to his tenancy of the Rent Restriction Ordinance 5953.
Held: A contractual tenant’s widow and heir succeed to his rights as contractual tenant, and as such is protected as a statutory tenant by the Rent Restriction Ordinance, 5953.
Obiter dictum: (i) A statutory tenant’s widow living with him at the time of his death succeeds to his rights as a statutory tenant, and as such is protected by the Rent Restriction Ordinance 1953.

(ii) A court should not be dissuaded from applying the substance of an English statute when it - accords with the principles of Civil Justice Ordinance, 5. 9; what is applied in the Sudan is not the English statute but the principles of justice which prompted the legislature in England to remedy the situation by statute.

Judgment

(COURT OF APPEAL) *

HEIRS OF IMAM IBLRHIM v. EL AMIN ABDEL RAHMAN

AC-RE V•53 1963

Advocates: Ahmed Gumaa for defendant-applicant Abdalla El Hassan ... for plaintiff-respondent

Dafalla El Radi Siddig D.J. February i 1962, HC-CS-1500-1959; —The plaintiff brought his action for the recovery of rent from the heirs of the defendant who passed away leaving his widow and other members of the family, the sons and daughters of the late defendant. The plaintiff relinquished his right to sue for the arrears at a late stage of the hearing and now the argument turned on a purely jurisprudential basis.

The learned counsel for the plaintiff prayed for delivery of possession on the plea that a tenancy agreement ends with the death of the tenant and his family should quit. On the other hand, the learned counsel for the defence contended that the word “tenant” includes the family and so the prayer should not be granted. The authorities in England seem to concur with the latter view. Thus in Moodie v. Hosegood [15952] A.C. 61, a widow was held to have become a statutory tenant after the death of her husband. This point is made clear in Blundell and Wellings, Complete Guide to the Rent Acts 184 (1958), under the section entitled “Operation of section 12 (i) (g) of the 1920 Act”: “The expression tenant is defined as including the widow of a tenant who was residing with him at the time of his death, or where the tenant leaves no widow or is a woman, such members of the tenant’s family residing with him at the time of his death as may be decided in default of agreement by the county court.” such persons may continue to occupy as a statutory tenant after the death of the original statutory tenant. Even after remarriage a widow will not lose the benefit of that tenancy: Summers v. Donohue [K.B. 376 held that under Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, S. 12 (1) (g), a widow may continue as a statutory tenant after the death of her husbands MacKinnon L.J. stated: “This case illustrates yet another of the difficult problems which arise” under the Act; and he went on to say that if the “mother was a contractual tenant with the plaintiff, then clearly the defendant might claim the benefit of the Act under s. Z2 subs. i (g), of the Act of 1920, from the death of the contractual tenant, a member of the tenant’s family residing with her at the time of her death.”

In my view the attitude taken by the English law in this respect is equitable and so I uphold it as being a reflection of common sense. I will try briefly, to explain my own view of the matter in reply to the learned counsel for the plaintiff; I agree with him that in contract, unlike tort, the obligation is self-imposed, but it is not uncommon to find laws specially during emergency which restrict a landlord’s grip over his own abode, for instance, the War Requisition Acts, Furthermore, the law made it clear that the tenant’s widow and his family members who were residing with him at the time of his death became tenants. Thus from the practical viewpoint it should not make much difference with the landlord since they had always been residing there; if he is afraid that his abode will be dilapidated and misused still his right of action in that respect against the new tenant is there in case his anticipations came true, and he is not left without a remedy. And else had it not been that the contractual tenant passed away the tenancy would have continued and hence the landlord will only have a new tenant while all the other terms of the agreement survive the death of the old tenant. To my mind a tenancy agreement is unlike contracts, which involve a personal element, for instance, the skill of a technician or the engaging of legal counsel. There one contracts perhaps because he thinks that such lawyer is learned or such worker is dextrous; the rights arising out of these contracts ‘are in personam but in this particular event the widow and family step into the shoes of the late tenant. It is worth mentioning here that our Act is silent in this respect. I presume the legislator had in mind the troubles, which may befall the widow and members of the family if the tenancy is automatically frustrated by death.

I seem to be inclined to the view of the English law for the above reasons and so I uphold it.

Thus had it been that the plaintiff did not relinquish his claim on the arrears he might have had a ground for eviction.

Ergo, in my view, this action should be dismissed.

Abdel Mage imam J. February 4, 1963, HC-REV-199-1962: —This is an application For revision submitted on behalf of plaintiff-applicant against the decree of the District Judge, Omdurman, dated March 1, 1962, in which plaintiff claimed recovery of possession of house No. 2—2—605. Omdurman.

The suit was initially instituted against the defendants-respondent of predecessor. It was alleged by plaintiff-applicant that the tenancy between him and the deceased tenant had automatically terminated on his death. It followed that there would have been at that time no contractual relations between him and the heirs and that this relationship could only be created in the normal way by his consent, express or implied.

The main point then necessary for the determination of this application is whether or not the defendants-respondent has any right to continue in possession of the premises in dispute after the death of their predecessor, the original landlord.

l contended on their part that they, under English law, are protected being the widow and the deceased’s dependants. This was the ground upon which the court below had based its decision.

As I see it, this application should succeed. There is nothing in the Rent Restriction Ordinance giving such protection. It seems that the protection given by English law is based not on common law but arises under statute law and in particular Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. 5. 12 (1) (g). This being the case, I think there would be no point in adopting piecemeal English statute law. I agree that it may be hard to leave the widow and dependants of a deceased tenant unprotected, but I think this should be a matter for legislation.

For the above the decree of the District Court, Omdurman, dated March 1. 1962. is reversed. The plaintiff-applicant is granted an order of eviction against the defendants-respondent, who should deliver over the premises in dispute within two months as from today.

No order as to costs.

Babiker Awadalla 1. May z6, 1963: —This’ is an application against the decision of the Horiourable Judge of the High Court, Khartoum, setting aside the judgment and decree of the learned District Judge, Omdurman, in CS-1806-1959

The case is one of eviction in which the plaintiff-respondent claimed recovery of possession of his house, No. 2—2—605, on the ground of non payment of arrears of rent amounting to £S.112 at the time of institution of the suit. The case was originally raised against the original tenant, Imam Ibrahim Ghunein, of whom the present defendants-applicant are the heirs, lmam died before service of summons and the suit was continued against his heirs. An amendment to the claim was then made in which it was contended that the tenancy is a statutory tenancy and as such incapable of surviving the statutory tenant so as to enure for the benefit of his estate. The original cause of action was then dropped and the learned advocate for plaintiff-respondent claimed recovery of possession Soley on the basis of the amendment. In his submission on the case the learned advocate for defendants-applicant contended that the word

“tenant” in the Rent Restriction Ordinance I9 should be given a meaning co-extensive with the definition of that word in the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. Section I 2 (1) (f) of that Act reads as follows:

“The expressions ‘landlord,’ ‘tenant,’ ‘mortgagee,’ and ‘mortgagor’ include any person from time to time deriving title under the original landlord, tenant, mortgagee, or mortgagor.”

Section 12 (1) (g), dealing with dwelling-houses, reads as follows:

The expression ‘tenant’ includes the widow of a tenant who was residing with him at the time of his death, or, where a tenant dying intestate leaves no widow or is a woman, such member of the tenant’s family so residing as aforesaid as may be decided in default of agreement by the county court.”

The learned District Judge accepted this argument and dismissed the claim. Plaintiff-respondent applied to the Honourable Judge of the High Court, who reversed that decision on the ground that, notwithstanding the hardship that would befall the dependants of a deceased tenant, it would be wrong to follow the provisions of an English statute on a matter like this. It is against this decision that this application is now being made.

The case no doubt raises a very interesting point of law upon which there seems to be no authority in this I entirely agree with the Honourable Judge of the High Court that in England succession to statutory tenancies is provided for by statute in the Act above referred to and that our Rent Restriction Ordinance is silent on the matter. But unfortunately the phrase “statutory” tenancy seems to be understood in the Sudan and used both by Bench and Bar in a meaning which is absolutely different from that in which it is used in England. Before, therefore, going into the question involved in this controversy, one has first to discern the meaning of that term with strict accuracy. In American Economic Laundry, Ltd. v. Little [1951] K.B. 400, 406, Jenkins L.J. says: “The expression ‘statutory tenancy,’ as I understand it, is a compendious expression to describe the right of a tenant of protected premises to remain in possession of those premises, notwithstanding the determination of his contractual interest, until such time as either he voluntarily gives up possession, or the court, on cause shown, makes an order against him to deliver up possession.”

In England the term is never applied except when the contractual term has been brought to an end in accordance with the agreement, e.g., a monthly tenancy cannot become a statutory tenancy except after service of a proper notice to quit. This applies to all other periodic tenancies. In this country the term has indiscriminately been used to cover every type of occupation which does not derive validity from a current written agreement. The normal monthly tenancy, which is created by parol, is the typical example where the use of the phrase is commonly and wrongly extended. Strictly speaking, such a tenancy can only be referred to as a statutory tenancy when the proper notice to quit had been served and the tenant holds over and elects to invoke his rights under the Ordinance.

Before, therefore, dealing with the question of succession to a statutory tenancy, one has first to make sure that the tenancy is properly a statutory tenancy and not a contractual one. This is because if the tenancy is a contractual one then the heir or devisee of the tenant is entitled to enter into possession on the strength of the deceased’s title. In 23 Haisbury, Laws of England 661 (3rd ed. 1958). it is stated as follows

“The interest of a tenant, whether for a term of years or from year to year, in the demised property vests, upon his death, in his personal representatives; and this is so notwithstanding that the tenant has bequeathed the property...

The same principle applies to other periodic tenancies, i.e., monthly and weekly tenancies. In Mellows v. Law [1923] K.B. 522, 525, in dealing with succession to a weekly tenancy, McCardie J. said: “The result, therefore, is, in the circumstances of this case, that on the death of Miss Riggs the tenancy did not ipso facto determine, and in my view, before the appointment of the administratrix, it must be deemed to have vested in the President of the Probate Division. . .. That would be the position at common law, and I desire to repeat what I said in Collis V. Flower that all tenancies, whether long or short, prima facie vest in the executor or administrator, as the case may be, upon the death of the tenant.”

Once the contractual tenancy so vests in the heir, then he steps into the shoes of the deceased tenant, and even if a proper notice to quit is served upon him, its effect would only be to convert the tenancy from a contractual tenancy to a statutory tenancy.

If the tenancy is properly a statutory one, i.e., a tenancy duly terminated by effluxion of time or a valid notice to quit, the interests of a deceased tenant do not pass to his heirs or devisees according to English law. In 16 Haisbury, Laws of England 288 (3rd ed. 1956), it is stated, “the interest of a statutory tenant under the Rent Restriction Acts is a personal right which cannot be transmitted by will and which does not vest in the tenant’s personal representative.” But by the statutory provision above referred to, succession to statutory tenancies has been recognized and regulated so as to protect the widow and other members of a tenant’s family residing with him at the time of his death. The expression “family” is broadly construed, the test being whether an ordinary man would answer affirmatively the question whether the person was a member of the tenant’s family. In Brock v. Willams [1949] 2 K.B. 388, 396, Denning L.J. said that the term would include stepchildren and illegitimate children as well as “adopted children, whether adopted in due form of law or not.” In Jones v. Whitehill [1950] 2 K.B. 204 it was extended to a niece by marriage, and in Price v. Gould (1930) t43 L.T. 333 to brothers and sisters. It has even been suggested that the expression is capable of including a de facto spouse.

It would therefore be evident from the wording of the statutory provision, and the attitude taken by the courts in interpreting that pro vision, that the whole intention of the legislature in England was to alleviate the hardship which would otherwise have befallen the family of a statutory tenant when the statutory tenancy normally comes to an end on the death of that tenant.

The Honourable Judge of the High Court refused to afford protection to the family of a deceased statutory tenant in the Sudan because in his opinion he would be blindly following the provisions of an English statute. But would he? Much as I do respect the attitude of the Honourable Judge of the High Court, I must say with much diffidence that the real question before him was whether in this case there is an obvious hardship, which it would be contrary to justice, equity and good conscience to leave unremedied. Once the court is satisfied that there is such hardship, then it should not in my view be dissuaded from its duty in applying the principles of the Civil Justice Ordinance, s. 9, by the simple fact that a similar situation was in England remedied by a statutory provision. What we apply in the Sudan is not the English statutory provision itself but the general principles of justice, which prompted the legislature in England to cater for the situation. This has always been the attitude of the Sudan courts in matters of this sort, and I see no reason why a different view should be taken in the case now before us. What the Sudan courts are prevented from doing is the borrowing of artificial qualifications granted on a general principle by a foreign statute. Cf. Hunein Manios v. BoxaII & Co., AC-APP-14 -1936 (Bennett J.).

In my view that urge to reduce to the minimum all interferences with occupants of premises, which forms the basis of all rent control, demands that the protection of the Rent Restriction Ordinance should be extended at least to the heirs of a deceased tenant who are residing with him at the time of his death. If such protection is withheld, the hardship on the occupying heirs would be intolerably grave and would be out of all harmony with the spirit of the Rent Restriction Ordinance. On the other hand no hardship would befall the landlord if the heirs continue in occupation so long as they are willing to pay the rent and abide by all the obligations of the deceased tenant.

In the present case the learned advocate has only himself to blame in relying solely on the question of succession and disregarding the element of non-payment of rent. The tenancy appears to me to be a contractual tenancy, the benefits an burdens of which now pass to the defendants. Even if it is a statutory one, then it enures for the benefit of the widow and children of the deceased tenant who were admittedly residing with him at the time of his death.

For these reasons, I am of opinion that the decision of the Honourable Judge of the High Court should be set aside and that of the learned District Judge be restored.

M. A. Abu Rannat C.J. May 1 6, 1963: —I concur. This case raises an interesting and very important point under the Rent Restriction Ordinance

1953.

The facts are fully stated in the judgment of my brother, Mr. Justice Babiker Awadalla, and I therefore need not repeat them here.

It is contended on behalf of the landlord that as the Ordinance does not expressly mention that the widow or heirs who were occupying the house in question with the tenant at his lifetime are entitled to step in his shoes on his death, such a right is only conferred on the tenant as a personal right and that it should not pas s on his death to his legal heirs. I do not think that this contention i s right. In Dean v. Wiesengrund [1955] 2 Q.B. 120; [1955] 2 W.L.R. 1171, the Court of Appeal held that unless there are clear words to take away such a right from the tenant’s heirs, such a right must pass to them on his death.

The facts in Dean V. Wiesengrund are as follows: After the death of the tenant of a rent-controlled flat, who had paid to the defendant landlord as rent a sum in excess’ of his standard rent, her executor claimed to recover that excess rent from the landlord. His action was dismissed by the county court judge on the ground that the Increase of Rent and Mort gage Interest (Restrictions) Act, 1920, S. 14 (1), while giving the tenant a right to recover the excess rent from the landlord or his legal personal representative, restricted that right to the tenant by whom the excess had been paid, and that, therefore, the right was destroyed by the death of the tenant.

Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, S. 14 (1), reads as follows:

“Where any sum has, whether before or after the passing of this Act, been paid on account of any rent -.. being a sum which is by virtue of this Act, or any Act repealed by this Act, irrecoverable by the landlord . . . the sum so paid shall be recoverable from the landlord . . . who received the payment or his legal personal. representative by the tenant . . . by whom it was paid, and any such sum.

and any other sum which under this Act is recoverable by a tenant from a landlord or payable or repayable by a landlord to a tenant, may, without prejudice to any other method of recovery, be deducted by the tenant .. . f any rent . . . payable by him to the land lord...”

It was held by the court of Appeal in Dean v. Wiesengrund, supra, that Courts (Emergency Powers) Act, 1917, S.5, and Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, S. 14 (1), conferred on a tenant a right which prima facie woul4 on his death pass to his personal representative unless there was in the statute words which clearly indicated that the right was not so to pass; and that the wording of Section 14 (1) was not sufficient to deprive the tenant’s estate of an asset given to the tenant by a statute. It was further held that if that were wrong, the cause of action vested in the tenant would survive her death for the benefit of her estate by Law Reform (Miscellaneous) Provisions Act, 1934. 5. 1 (1).

Law Reform (Miscellaneous Provisions) Act, 1934 s.1 (1), reads:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall, not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under the Supreme Court of Judicature (Consolidation) Act, 1925, s. 189, for damages on the ground of adultery.”

The Sudan courts have been applying the principles contained in section 1 (1) of the Act of 1934, and when the judges of this court give a decision on the application of a statute, such a decision is binding on them and their successors. In the case of Hunein Manios v. Boxall Co., AC-APP-14. 1936, we applied the provisions of the Sale of Goods Act, 1893, and in the case of Heirs of Ibrahim KhaIiI v. Ahmed Hassan Abdel Morieim & Bros., AC-APP-42.,we considered and applied the principles of the law of tort, both as to rights of workmen injured in an employment and dependants of deceased persons. We applied these principles under the general provisions of the Civil Justice Ordinance, s. 9.

I am unable to regard the absence of reference to the legal heirs of a tenant in the Rent Restriction Ordinance as sufficient to deprive them of the benefit of a right under the Ordinance, as there is no clear indication that the right is to be taken away in the event of the tenant’s death.

Furthermore, Law Reform (Miscellaneous Provisions) Act, 1934. S. i (i), the principles of which are applied in the Sudan, contains a proviso that it shall not apply to certain causes of actions. Apart from those excluded, it is to apply to all causes of action, and it is clear to me it is sufficient to cover the defendant-applicant’s claim.

I am therefore of the opinion that this application should be allowed.

Court: M. A Abu Rannat C.J. and B. Awadalla 1.