(COURT OF APPEAL)

MOHAMED TAWFIK v. DUREYA HAMZA YASSIN

AC-REV-925-1969

Principles

  Landlord and Tenant—Eviction for personal use—Rent Restriction Ordinance (Amendment) Act S. 2 (3)—Mere betrothal is insufficient to prove essential need

The need for the premises for the marriage agreement is only a matter of convenience and does not prove essential need under Rent Restriction Ordinance (Amendment) Act 1958, s. 2 (3)

Advocates:  Abdel Halim El Tahir for the applicant

A. S. Badhawi for the respondent

Judgment

Dafalla El Radi Siddig J. March 10, 1970 : —Applicant is impeaching a decree by His Honour the Province Judge, Khartoum Circuit, whereby he reversed a decree in favor of applicant by Khartoum District Court.

It is contended for applicant that no marriage agreement exists and that respondent based her claim for personal use on the fact that she merely got betrothed. At the outset I absolutely agree with the learned counsel for respondent that she is a feme sole and as such she is capable in the eyes of the law of owning her separate property. It is also true that at the time of raising the suit the house in issue is registered in the name of respondent; but the circumstances that led to registering the premises demised to applicant in her name may be taken inter alia in considering the genuineness of the claim based on personal need.

Now the whole issue, to my mind, turns on whether mere betrothal suffices to meet the definition of genuineness in eviction cases as postulated in the previous decision of this court. Having perused the record of the suit I am of the opinion that in all the circumstances respondent failed to prove a genuine need in the sense illustrated by the precedents. A similar situation had arisen in Helen Depriadis v. Heirs of Ahmed El Mahdi (1960) S.L.J.R. 164. At page 167 the Honorable B. Awadalla J. said:

"As regards the question of marriage, the only evidence he had amounts to no more than a declaration of intention and the words of the amendment prevent giving consideration to a future eventuality, the occurrence of which might never came to pass."

Thus, as I can see things betrothal is a mere declaration of intention to get wed. Although betrothal may give rise to legal effect yet it is an event absolutely different in its effect from a state of coverture which can only be brought about by the marriage contract. Hence, the need for the premises for consummating a marriage may be necessary, while the need for the premises for the marriage agreement may be only a matter of convenience. Experience has taught us that a betrothal would not as of necessity culminate into a status of coverture, but there is the likelihood that the parties might break their engagement. Thus in the event, the actual marriage in the jurisprudential sense is only an eventuality; or to put it more precisely a contingency which may not take place at all.

Moreover, the above fact coupled with the facts that there were dealings inter se for selling the house to applicant. This is only a scrap of evidence which may be taken inter alia in considering the whole circumstances that led to the dispute.

Hence, it is my opinion that until the marriage contract is entered into the claim based on personal use is premature and that a mere betrothal does not suffice as a ground for the claim.

Ergo, the decree of His Honour the Province Judge is hereby reversed. The decree of the learned District Judge is hereby restored.

No order as to costs.

Ramadan Ali Mohamed 1. March 16, 5970:—I agree.