(COURT OF APPEAL)

ABDEL RAHMAN AHMED ABDEL RAHMAN v. HAMZA YASSIN HAMZA

AC-REV-209-1968

Principles

  Landlord and Tenant—Eviction—Rent unpaid and lawfully due—Rent Restriction Ordinance, s. 11 (a)—Principle of reasonableness not applicable

Where there is rent lawfully due under Rent Restriction Ordinance, s. 11 (a) and not paid at the time of institution of the suit, there must be eviction. The principle of reasonableness is not applicable, because there is no such provision in the above Ordinance.

Advocate: Mahmoud El Sheikh Omer for the applicant.

Judgment

Mahdi Mohamed Ahmed J. October 2, 1969 : —This is an application for revision from the order of Province Judge, Omdurman Circuit, dated May 20, 1968 dismissing summarily an application to him to revise the decree of District Judge, Omdurman, dated December 11, I967 in respect of eviction and arrears of rent.

The gist of the application is that the decision of the trial judge in ‘respect of respondent’s waiver of his right of punctual payment is against the ‘weight of evidence, and that at any rate the order of recovery of possession was not reasonable in the circumstances.

In my opinion it is now settled that a landlord can waive his rights under the Rent Restriction Ordinance. In the case of Ibrahim Osman El Arbi v. Hassan El Hakim, AC-REV-195-1958 (1961) S.L.J.R. 124, it was laid down that acceptance of rent by a landlord from a statutory tenant with the knowledge of the tenant’s breach of the covenant amounts to waiver. Again in Asian Seroussi v. Derbedrossian Bros. (1961) S.L.J.R. 174, it was held ‘that a landlord forfeited his right to eject the tenant if he continued to accept rent after his knowledge of sub-letting without his consent.

However, what amounts to a waiver is a question of fact for the trial court to decide:

“The question whether in any given case the acceptance of rent by a ‘landlord from a statutory tenant with knowledge of the latter’s breach of covenant is an unequivocal act of affirmation of the tenancy is one of fact for the county court judge to determine.”  (Oak Property Co. Ltd. v. Chapman [1947] 1 K.B. 886, cited with approval in the above-cited case of Ibrahim Osman El Arabi V. Hassan El Hakim.)

Hence the decision of the trial court whether the landlord’s conduct in the specific case amounts or does not amount to waiver ought not to be disturbed unless it is manifestly against the weight of evidence.

In the present case the trial court found that the conduct of the land lord does not amount to a waiver of his right to punctual payment of rent and I am inclined to agree with such finding. All applicant was able to prove was that he delayed the rent for one month on two occasions. He paid the rent of September with the rent of October 1966 and paid the rent of November with the rent of December 1966.

To determine whether acceptance of rent after these two defaults amounts to waiver we must bear in mind the distinction between a breach by sub-letting without consent and a breach by non-payment of rent lawfully due. In the case of sub-letting without consent there is one breach of covenant, and if the landlord continued to accept rent with knowledge of the breach, he may be deemed to have waived his rights with respect to that particular breach. But the case of rent must be looked upon from a different angle since every default constitutes a separate breach. A landlord may waive his right in respect of one breach or two by acceptance of rent. Does that amount to a waiver of his rights, not only of these past breaches, but of future breaches as well? In my opinion the answer should be in the negative. In order for applicant to succeed he must prove a uniform practice capable of being interpreted as an implied agreement to vary the terms of the tenancy contract as far

as payment of rent is concerned. In my opinion nothing less will suffice and certainly not two isolated defaults.

It is true that there are several decisions by the Court of Appeal to the effect that the Rent Restriction Ordinance, s. x (a) is not imperative and an order of eviction need not automatically follow a finding of non payment of rent lawfully due. Abdel Wahab Mohamed Mekki Khalil v. E. Zervos (1960) S.L.J.R. 43, and Heirs of Nur El Dayim Mahmoud v. El Hag Mohamed Salah El Din (1962) S.L.J.R. 89.In the above cases an attempt was made to receive the principle of reasonableness found in the English law.

However, a clear change in the trend of thought in the Court of Appeal is correct in recent decisions. In the case of Ahmed Rahmadan v. Dina Kosta, AC-REV-300-1966-decided on November 6, 1966—the Court of Appeal decided that such a principle of reasonableness is not receivable except in the teeth of our statute law. The court stated, per Osman El Tayeb J.:

“This is the English law, which provides by statute that the court shall not make an order of possession unless it is satisfied that it is reasonable in the circumstances to do so. In the Sudan, we have no such provision in our statute law, namely, the Rent Restriction Ordinance. How can we receive the foreign statute to substitute or amend our own? I think this we are not authorized to do under Civil Justice Ordinance, s. 9."

The court went on to say that the courts in this country are bound to order possession when any of the grounds mentioned in section 11 are established and failure to pay rent in particular. The said court further intimated that there are only two grounds which justify a court in not ordering eviction; that is, tender of rent before commencement of the proceedings and an honest and genuine dispute as to the standard rent. The same attitude was maintained in the case of Muhrath Diyab V. Khalid Ahmed Suliman, AC-REV-431-1967 decided on November 19, 1967. In that case the Court of Appeal stated:

'' It has been decided in many recent cases that when there is rent lawfully due and not paid at the time of the institution of the suit, there must be eviction. The principle of reasonableness has no application in the Sudan."

I conclude from the above that the trial court was right in its finding of fact as to, the non-existence of waiver and in ordering eviction. There fore this application is summarily dismissed.