Principles

·  Landlord and Tenant—Breach of tenancy agreement—Use for other than residential purpose—Rent Restriction Ordinance 1953, s. 11 (a)—Dumping gravel and storing lorries on land leased for residence

·  Landlord and Tenant—Notice to quit in consequence of which prior landlord sold— Agreement with prior landlord to vacate when asked—Constitutes notice to quit

A tenant who uses premises leased for residence for dumping gravel and storing lorries is in breach of the tenancy agreement within the meaning of Rent Restriction Ordinance 1953, s. 11 (a).
Obiter dictum: A tenant’s agreement with landlord’s predecessor in title to vacate when asked, on the basis of which landlord purchased, constitutes “notice to quit” within the meaning of Rent Restriction Ordinance, 1953, s. 11 (c)

Judgment 

   Advocates: Abdulla El Hassan and Abdel Wahab Abu Shakiema

   for defendant-applicant

   M. A. Abu Rannat C.J. October 28, 1963: —Plot 1, Block 4 B., East Khartoum city, comprising 2,789 square metres is registered as freehold in the name of plaintiffs the Shell Company (Sudan) Ltd., free from registered incumbrances The Shell Company purchased this plot on September 14, 1959, from Messrs. Vavis for £S.56,000 (fifty-six thousand pounds). The defendant was originally the tenant of Messrs Valvis and after the transfer of the land in question he became the tenant of plaintiffs The tenancy to the defendant is for residence and defendant himself admits this fact He is paying a rent of £S 25 per month Before the transfer of the land to he plaintiffs, Messrs. Valvis and defendant made an agreement whereby defendant agreed to vacate the southern part of the land in question if they asked him to do so.

   On June 19, 1960, the plaintiffs asked the defendant to vacate the premises as the former wanted to use it as a filling station and secondly because the defendant had used it for purposes other than a residential quarter. They stated that defendant has been using the premises as a store yard by dumping gravel, sand and other building materials. They also stated that he was keeping heavy lorries inside the hosh of the house.

   After long hearings and many unnecessary adjournments, the District Judge dismissed the plaintiffs’ claim for reasons stated in his judgment.

On application for revision by the plaintiffs, the honourable judge of the High Court set aside the District Judge’s decree and ordered the defendant to vacate the whole premises. His honour found that there has been a breach of the tenancy agreement under Rent Restriction Ordinance, s. 11 (a), in that he has been using the house as a dumping station for gravel, sand and other building materials, and also in storing heavy lorries inside the house. He also found that the plaintiffs are entitled to the southern part of the premises under Rent Restriction Ordinance, s. 11 (c).

   The defendant applied for revision of the judge of the High Court’s decision.

   Advocate Abdulla El Hassan contends on behalf of the applicant that plaintiffs’ predecessor in title knew that applicant was a building contractor and that he was dumping building materials in the house. He also contends that plaintiffs’ predecessor in title have allowed the applicant to open a wide door in the hosh to enable him to keep the heavy lorries inside the hosh. He contends that even if there was a breach, such a breach was waived by the plaintiff’s predecessor in title and that the plaintiffs who succeeded them are bound by such a waiver.

   As I see it this point must be decided against the applicant. The evidence clearly shows that in 1960 and even in 1961 when the hearing was continuing, the applicant was dumping building materials in the house. As regards the opening of the wide door for the lorries, the applicant admits on being cross-examined that there is no evidence in support of his contention that Messrs. Valvis knew or agreed that the wide door was for the purpose of allowing heavy lorries to be stored in the house. Applicant admits that the house was let to him for residence only and it is clear that there has been a breach of the tenancy contract, which entitles the plaintiffs to an order of re-possession of the whole plot under Rent Restriction Ordinance, s. 11 (a). The breach has been continuous and there is no evidence that the plaintiffs waived their right.

   The second point is not of importance to my decision, but as it raises an important principle, it is necessary to make a pronouncement about it.

   Rent Restriction Ordinance, 1953, s. 11 (c), reads:

   “the tenant has given notice to quit and in consequence o such notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would in the opinion of the court be seriously prejudiced if he could not obtain possession;”

   It has been proved that the applicant (the tenant) agreed with plaintiffs’ predecessor in title to submit to judgment by consent to vacate the southern part of the house. In consequence of this agreement, plaintiffs agreed to buy the house for £S.56,000 in order to make that part a petrol filling station. Where any particular arrangement amounts to a notice to quit is

a question of construction on the particular facts. Thus an undertaking by the tenant to give up the premises by a particular date may in some circumstances be construed as a notice to quit. It would appear to suffice, however, that the tenant has given notice to a previous landlord, and that in consequence the present landlord has done some act which brings him within the terms of this provision. The provision here referred to is Rent Restriction Ordinance, s. 11 (c). The plaintiffs would not have purchased this land or paid this enormous amount had it not been for the fact that they accepted the undertaking of the tenant to the previous landlord.

   The applicant’s advocate further contends that plaintiffs did not obtain the licence for turning the land into a filling station. The evidence before the court is that they took all the necessary steps for obtaining such a licence. This means that they have taken steps for obtaining the licence if they retook possession of the premises.

   I affirm the decision of the judge of the High Court that applicant must vacate the whole land and consequently the application for revision is summarily dismissed.