Principles

·  Landlord and Tenant—Government lease—Assignment of lease from Government without lessor’s consent—Mandatory order issued to assignor ordering him to obtain necessary consent Remedies—Assignment of lease without necessary lessor’s consent—Mandatory order issued to assignor ordering him to obtain necessary consent—Procedure to be adopted

Where a lessee under a lease from the Government assigns his interest or part of it without obtaining the necessary consent of the lessor, the court will issue a mandatory order ordering him to obtain the necessary consent. The procedure to be adopted is that the order should be expressed in the form of a preliminary decree ordering the assignor ‘ obtain the consent of the lessor within one month from the date of the decree. A copy of this decree should be sent to the Land Office concerned. If at the end of the month the lessor has not objected to the assignment, then the court should order the registrar of lands concerned to effect registration of the assignment.
If the lessor objects within the month specific performance of the assigximent will be impossible and the assignee will be compensated in damages.

Judgment

   Babiker Awadalla J. November 19, 1963: —This application should in my view be allowed simply with a view to rectifying the procedure adopted in cases of this sort which are now becoming frequent. I mean the type of case where a lessee under a lease from the Government assigns his interest or part of it without obtaining the consent of the lessor (the Government) under the lease. In the present case, the learned District Judge was no doubt correct in finding that the assignment was not void

by reason of the failure of the lessee to obtain the approval of the Province Authority under the Native Disposition of Lands (Restriction) Ordinance, 1918, for an open consent in these cases was given in 1948, but he was certainly wrong in refusing the remedy sought for on the ground that the transaction offended against Land Settlement and Registration Ordinance, 1925, s. 32 (2). The honourable judge of the High Court was therefore in my view, quite correct in setting aside the decree of the learned District Judge but I doubt if his own decree ordering registration of the assignment is correct. There is no doubt that the tendency of this court had been to view with disfavour cases of this sort where an assignment is made and the assignor refuses to honour his word by proceeding to obtain the consent necessary for the assignment. The authorities on this subject are many, starting with Sabila Fadl v. Ahmed Abdulla Ahmed, AC-REV-66-1956. In Bakheita Ibrahim v. Hamad Mahayoub, AC-REV-8-1957, (1957) S.L.J.R. 25, 31, the honourable Chief Justice said:

   “In all these cases the actions were for damages but Watson J. in El Nifeidi v. El Bashad, HC-REV-KHT-84-1953, indicated that it would be possible to apply to the court for a mandatory order to issue to the vendor ordering him to apply for consent to an assignment… Such an order would merely assure that the vendor does all he can to obtain the consent. But there is one main argument in favour of such an order. It amounts in fact to an order to the vendor to complete his part of the contract by obtaining the consent and then transferring the property or pay damages. In this way it clearly indicates that justice be done and for this reason I do not see any reason why, this remedy should not be accepted in the Sudan.”

   I entirely agree with the view of the honourable Chief Justice expressed in the above passage and having regard to the practice that seems to be growing of lessees invoking the restriction in the lease as an instrument of fraud, I believe it is high time that the court should stop this practice by making the mandatory order referred to. Such order should in my view, be ex in the form of a preliminary decree ordering the assignor to obtain the consent of the lessor (i.e., the Government) within one month from the date of the decree. Copy of this decree should be sent to the Land Office concerned. It is most unlikely that the Government would be interested in objecting to any such assignment save in highly exceptional cases e.g., where the assignee would himself have never been granted a lease under the rules governing the disposal of Government lands if any such rules exist.

   If at the end of the month the lessor’s consent is not forthcoming, then the court should proceed at once to order the registrar of lands concerned to effect registration of the assignment.

In those very rare cases where the Government would object to the assignment then specific performance would of course be impossible and the disappointed assignee would have to be sufficiently compensated in damages.

   For the above reasons, I am of opinion that the decree of the honourable judge of the High Court should be substituted by a preliminary decree ordering Ibrahim Fadl El Mula (applicant and defendant) to produce to the honourable judge of the High Court the requisite consent within a month from the date of the decree. Copy of this decree should be sent to the Land Office, Khartoum.

   If after one month from the date of the decree no consent is obtained by the said applicant and no objection is made by the Lands Office, a decree for registration should be drawn up, by the honourable judge of the High Court and sent to the Land Registry, Khartoum, for action in the usual manner.

M.A. Abu Rannat C.J. November 19, 1963: —I concur. This procedure will be in line with the decision in Bakheita Ibrahim v. Hamad Mahayoub, AC-REV-8-1957, (1957) S.L.J.R. 25.