landlord and tentant

REPORT OF LAW REFORM OF THE SUDAN LAW OF

LANDLORD AND TENANT

Presented by : 1)Dr. Saeed Mohamed Ahmed El Mahdi*

CONTENTS

AN 1)

Professor Cliff F. T/zompson**

This report consists of three parts. Parts I and I I are based on Part I I I, which is an analysis of the current state of the Sudan Law of Landlord and Tenant, with reference to all relevant cases between 1900 and April 1, 1969.

Part I :

Outline of Recommendations for the reform of The Law of Landlord and Tenant in the Sudan ..

Part 11 :

Analysis of the judicial Role in the applica tion of the Rent Restriction Ordinance, 1953

Part III :

The Law of Landlord and Tenant in the Sudan Relevant Sections of the Rent Restriction

Ordinance, 1953 ...

A judicial Decision being evidence of dilatory tactics by parties being unnecessarily

successful ... ...

PART I

PAGE

OUTLINE OF RECOMMENDATIONS FOR THE REFORM OF THE J.A\\ OF 1 AND TENANT IN THE SUI)AN

(i) IM REFORM

A Rent Control Tribunal consisting of a single judge of High Court rank should be created for the Thrc Towns of Khartoum. Khartoum North and Omdurman. Emphasis would be upon both speed and justice in the settlement of disputes between landlords afl(l tenants.

Disputes conccriiing the ‘ maximum rent’’ allowable would be determined by reference to a “standard rent” calculation sill) mitted by two impartial experts employed by the Government. Appeals would be allowed only on points of law, within a narro J)rescril)ecI time—limit, to the Chief Justic(’ or his delagatee.

(2) tECH N I( R i

Policy decisons are r( even for technical reform. The analysis of the current law of landlord and tenant contained in Part III of this report contains r6 Problem areas which are im mediately ripe for clarifying decisions . Many of these problems arc the result of conflicting judicial decisions. Clarifying decisions will require policy choices, such as whether to give the landlord or the tenant greater j)rotection of the law. The choices may he effected by simple legislative amendments.

( MAjoi REFORM

Basic policy questions about the rents which ought presently to he payable in the Sudan, and the proper power relationship between the landlord and the tenant cannot be answered without proper investigation. Such an investigation ought not to be pro longed : 3 months is a feasible time-limit. A Commission corn 1 of an economist, urban so’ and a lawyer experienced in landlord and tenant cases should make specific recommenda tions concerning the basic elements in the 1953 Ordinance, par ticularly the standard rent scales, and the grounds permitting eviction of the tenant.

PART. II

ANALYSIS OF THE JUI)ICIAL ROLE IN THE APPLICA TION OF THE RENT RESTRICTION ORDINANCE, 1953

(i) PRELIMINARY POINTS:

(i) The Ordinance, like all statutes, is ot self-explanatory. The Courts have had to interpret the language of the Ordinance.

(2) Reputing of cases has made the in of the Or din,ance available to the legal profession, and to the public

(2) MERITS OF THE JUDIcIAL INTERPRETATIONS:

(r) Many of the decisions have sensitively attempted to bala nce the rights of the landlord, the tenant, and the general public.

(!) Many decisions by their clearity of thought have effec tively advanced the creation of a Sudanese law of land lord and tenant.

( C OF THE JUDICIAL INTERPRETATIONS:

(i) Too often the courts have unnecessarily permitted dilatory tactits by the parties-both landlords and tenants-so that cases remain unresolved for years.

Introduction

(2)Too many decisions have decided moot points without giving any reasons, or by the uncreative process of citing foreign cases without applying an independent judgment.

(3)Too many legal issues have had unnecessarily conflicting decisions, arising from inadequate judicial co-ordina iton.

PART III

THE LAW OF LANDLORD AND TENANT IN THE SUDAN

(Emphasizing the Judicial Interpretation of the Rent Restriction

Ordinance, 1953, as Amended)

Introduction

The purpose of this article is to state the judicial established

the Courts of the Sudan between 1900 and April i, 1969 in regard to the law of landlord and tenant. *

This report is intended for use by the legal profession and as background for Sudan law reform. Sixteen problems” ripe

resolution are specifically noted. The pre-independence cases

included although their authority is unsettled, because at a minimum the Courts have considered them uselful or persuasive

persuasive precedents.

The law of landlord and tenant reflects both the law of con tracts and the law of property. Most of the decisions in the Sudan

interpretations of rent restriction statute; a tenancy controlled

a statute may be viewed simply as a contract which ha a consi derable amount of its content supplied by legislation.

* Th’ articl ad pt th organization and mat in Thomp.;on, The Su&,nLaw of L ani Tenznt and the Judicial In.eerpretation of the Rent Re8triction Ordinance, 1953, 1952) Sudan L Journal and Reprte (cited as S.L.J.R.)

411. Thet article covered th judgments from January 1, 1956 through Decem ber 31, 19 printed in th S.L.J.R. Volumes (1956) through (1962). The present r additionally covers the cases printed in Volumes 1 and 2 of the Siidsn Law R (cited as S.L.R.) 19’)9 1940 (Oceana Publishers me. 1969) and in th Volumes of S.L.J.R. for (1983) through 1967), and the unre purted c for th p 1946— 1956 available at the Faculty of Law, Univer sity of Khartoum, and the unreported oases from January 1, 196S to April 1. 1969 available at the High Court, Khartoum.

ASPECTS OF THE FORMATION AND TERMINATION OF TEN ANC I ES

Formalities

Leases of land in the Sudan may be created in a manner which is not strictly formal. i

Differing Versions of the Lease

Where a written lease is in more than one language and the versions differ, the authorative version is the one signed by the parties. 2 The “awkward decision” needed if more than me version is signed has not been required, and the High Court has emphatically urged prospective landlords and tenants to consult an experienced advocate rather than use the form contracts on sale at shops. 3 If a form contract was originally drafted for use in a foreign country, then reference to the law of that country is considered as assistance in its interpretation.4

Quasi- Easements

The lessee of a portion of premises is entitled to all continuous and apparent quasi easements, such as a right of access; that is, the lessee has a right to all those quasi-easements which are neces sary to the reasonable enjoyment of the tenancy .5

Rescission Based on Fraudulent Misrepresentation

An assignee of a lease may rescind an assignment when the assignor fraudulently, makes material misrepresentation as to the permitted user of the land or the pending plans of the owner, even if the assignee by being more dilligent might have discovered the falsity of the representation.6

1. Mitwali Oginan Abul Naga v. Sudan Government (District C.nnmissioncr Kassal HC-CS-261-195l, (unrep Th Di strict Cmmissioner’s Office pr bred a I,ase for ths plaintiff which he signed in the presence of clerks in the D.C.’ office. The D.C. subsequently refti to sign, and leased the land to anoth person. Wat.;on, J., h1d th the Gjvern,nent w hound by the le to the pl. It might h’ argued that th defendant, never having signed any m a mnot b, eh rged with hrewh of thi contract for a l I d ii t think th principle applies in thi country. Leases of land ar. freq 1 signed in n manner th tt j not strictly form -1.”

2. Ta AbdelSayed v. Ahmed Ha.him Baghdadi, HC-CS-235-1923, I S.L.H.

227: Tawfik Doctor v. All Hanidi, HC-REV.87 (unreported).

3. Ta Boctor v. All Ha,ndi, note 2 above by Hayes, J.

4. Taw/ik Abdel Bayed v. Ahmed Hashim Dayhdadi, by Bell, J., note 3

.i. .lutomobile Company Lt v. Abdel Mutual Mohamed Abdalla, AC-REV- 241-1963, (1965) S.L.J.R. 86.

6. Bzbiker El Sheikh BaUm v. El .Vur AbdaUa Sh and Another. AC-C8-l87-

1950. (unreported): AC-APP-15-l95 (unrep.rted).

Term uitiou und l of (‘ovenants

The landlord’s acceptance of a tenant’s unilateral reecission of the tenancy can be by conduct, as when the landlord accepted rent from a third party OCCl1j)yifl the premises under the party 5 own namer

A notice by one of two joint tenants of premises that he intends to quit the portion of the premises occupied by him does not termi nate the joint tenancy, so that each of the joint tenants remains liable for the rent.2

A tenancy is not tczminated by the occupation of the tene ment by a trespasser : a tenant whose premises in Kassala were occupied by the Italian Forces from July, 1940 to January, 1941 claimed the tenancy was frustreated, but the Court held he was liable because he should have provided in the lease ag’ainst the contingency.3 The Court said there might have been a different result if the tenant had attempted to terminate the lease by gving one month’s notice during the ocCupatiOfl.4

A tenant may he depirved of a right to extend a lease where he fails to perform the covenant upon which the extension was made conditional, even if performance is impossible and he has expended substantial sums on improving the propertv.5

Tenant’s lmpro7lenients to I’roperty-Effect of Termination

The tenant is not entitled upon termination of the tenancy to he compensated for buildings or other improvements he has added to the land unless the landlord has expressly or impliedlv promised to pay.6 The landlord’s express or implied permission to the tenant to make changes is not generally to be interpreted as a promise to pay.7 When the tenancy contract requires

I . Jfrohim .1J El h’ini v. Rob .4qeney d Others. AC- Rl -1961. (196:1 5.L..J.R. l9L

2. Ahmeo’ Ha .-lbdel Moneirn and Others v. (hartsto Papalexrs and Ancth i. AC.C5.79-1936. 2 S.L.R. 192.

3. Kerork i v. A ii Yahia El Yernani. A(’.I3EV- 14-1943. (unreporO d).

4. 1(1. per Flaxnian. (‘.J.

3. .Uanoula Haqmanas v. Nicole Petreides, H,ssa Heis LC 2 S.L.B.

373.

6. Mohs’.med .4bdel Latif Ali Amer v. imperial Ottoman Bank, HC I S.L.R. 137: Mustafa Muso l Ohandagli v Abdel Rahnian El Beili, HC’ l1444, (unreported).

7. Moharned Abdel Laetf Au Amer v. Imperial Ottoman Bank, note 6 abcve (landlord’s consent to erect ( n f buildings W( ii h Ls.449 was not an agreement to pay; l’ealo(’k, J., also held that “typical native dwellings” constructed frofli mud do not “improve” property); Mus Muse El Ghandagliv. .4bdel Rahman El Beth, note S abve, (prerequisite t leiaee’o right to compensation is specific, tot morely ticit, permission of landlord). Compare Denis Cavadias V. I8kaflder Ibrahim and Others, AC-APP-62-1917, 1 S.L.R. 86 (landlord who terminated a t at will is liable to his tenant cultivators for work which improvP’ th value of the land).

written consent by the landlord to alterations, very strong evidence is required to prove either a parol consent to alterations, or a parol promise to pay for such changes. i The tenant does have however a right to remove buildings which he erected with the express or implied permission of the landlord. 2

Termination and Tenant’s Right to Prescriptive Title

When a tenant does not pay rents and exercises other incidents of ownership, a “time must come when (the tenancy) relationship lapses and a termination of the tenancy is presumed 3’.

THE PURPOSE OF THE RENT RESTRICTION ORDINANCE,

‘953, 4

The Ordinance’s declaration of purpose states only: “An ordinance to re-impose rent control”.

The judges have not often been more expansive. The most important statements are the following

Mr. Justice, Abdel Magid Imam: “ The Ordinance was re quired because of the insufficiency of premises and the overwhelm ing demand for accommodation. The legislative intent, therefore is directed in the main to limit the rents and to control the right to recover possession with a view to keeping rents within the limit pescribed by law, thus reducing a landlord’s chance to profiteer to the minimum, and raising the opportunities for tenants with limited resources to securly accommodate themselves. 5”.

1. Saleh Hussein Badran v. Catholic Mission, HC.CS-50-1920. 1 S.L.B. 131.

2. Mohamnl .4bdel Latif Ahi Amer v. Imperial Ottoman Bank, note 7 above (on th hisis of th E law applied); Mohanted Abdel Latif .41i Amer v. Satti Mohamed Has8an, AC-APP-39-1923, I S.L.R. 230 (in accordance with native custom”-Dun, C.J.); Mother Superior Catholic Mission v. Heirs of Coma Bint Ismail, AC-APP-13-1929, 1 S.L.R. 416 (whether landlord evicted tenant with good cause or not, tenant is entitled to take away his building materials) Mustafa Mu8a El Ohandaghi v. Abdel Rahman El Beili, HC-CS-731 (unreported) ( in general accord with native custom” . Plntt, J.)

3. Creed, C.J., in Yacoub Aslanian v. ,Jovan Sola.kian, AC 2 S.L.R.

340 at 342.

4. Tho R’nt Restriction Ordinance (13.XIJ. 1953) in Law8 of the Sudan. \‘ol. 7, Title xx, S tb-Title 7; haroafter cited as the Rent Restriction Ordinance or referred to na tho Ordininca. Soetions discussed in the article are included in Apendix I, b The Appmdix incorporates subsequent amendments, the most important of which was 1958 Act No. 39.

.4slan Serou.ssi arid .4aolher v. Derhedro Bros. AC-REV (1961) S L.J.R. 174, 179.

Mr. Justice, Babiker Awadaila : “(the purpose is) to reduce to the minimum all interference with occupants of premises “ I

The purpose of the Ordinance is served, therefore, by (i) a limit on the maximum rent which is lawful for premises; and (ii) by limiting the reasons which will justify the grant of an evic tion order against a tenant. A most important development is that the expiry of the contractual duration of the tenancy agreement is not one of the reasons for granting eviction-see the discussion below under “Statutory Tenant”.

Once a party 1i established a prima facie claim, “his suit should be heard as an urgent matter.” 2. In a recent case the Court of Appeal felt it necessary to criticize sharply the delay allo wed by lower courts in landlord and tenant suits 3.

“LANDLORD”, “TENANT”, “STATUTORY TENANT”; PARTIES TO WHOM THE ORDINANCE IS APPLICABLE SECTION 3, 4, 19. EFFECT OF ILLEGAL OR VOID

TENANCIES:

It is clear by section 3 of the Ordinance and by a 1967 decision of the Court of Appeal that the Ordinance does not apply to premises of which the landlord is the Government. 4

Problem (i).: In light of the above, section ii (f) of the Ordinance, which allows a Local Government Authority a special right of eviction, is anomalous and presumably unnecessary, hut no decison has dealt with it.

1. Heirs of Imam Ibrahim v. El Amin Abdel Rah?nan, AC-REV-53-1963, (l S.L. 228, 234.

2. Cumings, C.J., in Polikhronis Chioti8 and Other8 v. Fareeda .Molla,ncd Effat, AC-REV-6-1947, (unreported). In Abba8 Sabri v. Mahmoud ibrahim Khalil, AC-REV-222-1968, (unreported), Salah Eddin Hassan, J.. said regard to eviction suits based on personal need: Justice and Ecjiiitv do demand their speedy disposal”.

3. Kamal Ramadan and Another v. Ahrned Zein El Abdin, AC-REV-440-1968 (unreported). The Court of Appeal said that the lower Courts erred in not laying dowii time limits for hearing opplicat i as, end sh old nit hove adjcu3 n (I the hearings for weeks or months. The case is reporoduced in Appendix

4. Hussein Hamjd Hu88ein v. Sudan Railuays, AC-REV-l20-1967, (unreported where Abdel Magid Imam, J., said: “It is (lear that tde Rent Restriction Or dinance does not apply on Government premi and the common law regarding landlord ond tenant is the law applicable in such cases.”

The Ordinance does not apply to premises in unscheduled towns, and the Courts have occasionally erred by assuming the application of the Ordinance. i.

The Courts must determine the true relationship of parties where a mortgagee in p leases the premises to the mort gagor, an action for rent and a claim to a set-off for expenditure is determined by the law of landlord and tenant, not by mortgage

law. 2

The “Landlord”

A trustee of property held on behalf of other persons may qualify as a landlord, 3 but one of several co-owners cannot sue as landlord in his own name for eviction of a tenant on the grounds of the landlord’s personal need unless the other co-owners have consented. 4.

A tenant who lawfully sub-lets to someone can be considered a “landlord” for the purposes of suing the sub-tenant for breach of the tenancy agreement. 5

Where property is sold by public auction the sale is complete when he auctioneer accepts the bid, and the buyer immediately qualifies as “landlord” who can give a valid notice of eviction, although he has not yet registered as owner of completed payment 6

A landlord who assigns his lease remains liable to the lessee for an unlawfull entry by the assignee. 7

1. In I8mailSid Ahrnedv. AU IlamadMohamed, AC-REV.614.1966, (unreported) the Court of Appeal overruled both the District and Province Courts which had wrongly assumed the Ordinance applied to the town in question.

2. El Besh A limed El Medani v. O8man ayyad, AC-GEN-7/4/C - 1934, 2 S.L.R.

88 (by Owen, C.J.).

3. Ahmed Mohamed El Maggar v. Mohamed l Khatiin Os,nan, AC-REV-176-1959 (1959 S.L.J,R. 64; see text and footnotes 8 an 9 in Thompson (1962 S.L.J.R. 411, at 414.

4. Abdel Salam Bashir and Others v. Onier Mohatned Ahened El Abasi, AC-REV-

646-1965, (1967) S.L.J.R. 78.

5. AU Salih El Barbari v. Attia MahmDud Attia, AC-REV-64-l966, (1957) S.L.J.R. 130.

6. Sa!jid Mohamed Baralcat v. Ahmed Ibrahim El Nueriy, AC (unreported). This is the apparent rule; Salali Eddin Hassan, J., in the High Court, asked for a clarification, but the brief judgment in the Court of Appeal were not of such assistance.

7. El Rayah Idreea v. Midd East Agricultural Company, HC.REV.322-1963, (1965) S.L..J.R. 111

“Tenant” and “Statutory Tenant” (Section 19)

The most important judge-made law regarding the Ordinance is the rule established in the Court of Appeal by Mr. Justice, Abdel M Imam that “upon the determination of a contractual tenancy by a valid notice to quit, the same is automatically converted into a statutory tenancy and the tenant becomes a statutory tenant within the meaning of section iç (i) i

The agreement between the land1 and the tenant as to the length of the tenancy does not bind the tenant, beeause when the contractual time for termination arrives the tenancy agreement, even if the tenant made “a covenant of unconditional surrender”. 2

The wording of secton 19 is excessively vague and certainly does not require or clearly state the rule reached by Mr. Justice Imam. 3 Indeed, he does not argue his conclusion from the language of the section, but bases his rule on the premise that ,,to hold other wise would render the whole purpose of the Act nugatory 4 This premise seems valid, for otherwise a landlord could pressure the tenant into higher payments of rent by the threat of eviction based upon the contractual termination of the tenancy.

Problem ( Should the Ordinance be re-drafted to incor porate clearly the protection to the tenant provided by judicial rule of “statutory tenant”? If along with restriction ui..n rents there is to be security of tenure after the end of the contracted term should not the Ordinance make this clear ? At the present time section 19 is unclear, and section ii (a), by allowing eviction

1. ibrahim You8if AF.boudi v. Hassan Abdel Ha/i:, AC (1960) S.L.J.R. 112, 114.

2. Ha88aballa Salim v. Abu Tila El Amin El Tiib, AC-REV.18-1960, (1960) S.L.J.R. 137, 139.

3. Section 19 may simply be providing fcr the effect of a “holdover tenancy.” When a tenant holds over after the end of the terminaticn date, and the landlord continues to accept rent, what are the terms of the tenancy? Section 19 pro. vides an answer to that question by indicating that the tenant becomes a “statutory tenant” under the same terms as existed in the original leaae. But this is not the same as declaring that all tenancies automatically holdover after the end of the contractual term and ccntinuc as “statutcry tenancies”. Prior to the enactment of section 19 in the 1953 Ordinance, several decisions of the Sudan Courts were concerned to define the status of a hcldover tenant. See, e.g. Dimitri Kyriazi v. Co8ti Zi8, AC-REV-29-l945, (unreported) Tenant as holdover tenant is a tenant at will unless the landlord acquiesces in the holding over; accepting rent is acquiesoene); Cht A. Laziade8 v. Ohatta. Kronfls, HC.REV-75-1950, (unreported) (a judicial rule by MeDowall, A/J, in relation to the status of a holdover tenant, which is very similar to section 19 in the 1953 Ordinance); Taw/ik Boctor v. Au Harndi, HC.REV-87-1950, (unreported (Hayes, J., obiter dictum suggests that a landlord should give notice to quo to the tenant which would leave the tenant with no rights except those securcd by the statue; section 19 in the l Ordinance, however, ee1ns to give the tenant the same rights as he had in the original contract).

4 IIa Salim v. Abu Tila El Amin El Tub. id., note 2 above.

for “a breach or non-performance of any other obligation” (which prima facie includes an obligation regarding the termination date), is also unsatisfactory. Moreover, the scope of section ii (c), which provides grounds for eviction where “the tenant has given notice of quit” is left in doubt by the “statutory tenant” rule, and the point of section 15 (which allows a premium payment for the advantage of receiving a lease of TO years or more) is obscure (what advantage is a ten year lease if a lease of any length is con verted into a “statutory tenancy” at the end of the term?).

Becuase tenants in areas convered by the Ordinance have the legislation as part of the tenancy agreement both before and after the contractuaT period, all such tenants are protected by the statute. The Courts have, therefore, indiscriminately called any tenancy a “statutory tenancy”. But Mr. Justice, Babiker Awadalla usefully restricted “statutory tenancy” to describe a tenancy which has passed the end of the contractual period. i.

This distinction is important in the Court of Appeal’s con clusion that “tenant” in the Ordinance includes a wife living with her husband, the tenant, when he dies. 2.

But a wife’s occasional payment of rent does not imply the obligations of a tenant; the wife is considered the agent of the husband. 3 Also, as “a general principle a wife resides in her hus band’s home as a licensee, and when the marriage is lawfully dissol ved, in the absence of any express or implied contract of tenancy, her licence to reside in the home is revoked.” 4

A tenant cannot claim a longer interest in the land than is possessed by the lessor 5, and “the tenant is estopped from deny ing the title of his landlord even if he is trespasser”. 6

In a joint tenancy each tenant is considered a tenant of the whole property and they are jointly and severally responsible for the entire rent despite any agreement between the joint tenants respecting occupation of the premises. 7

I Hcirs of Iniani jb v. El .4,,.in Abdel Rah,nan, AC.REV53-l963, (1962) S.L.J.R. 228, 232 . 234.

:‘. Id.; see text in Thompe n. (1962) S.L.J.R. 411 at 41& s paisgz&jh.

3. Jannet Shoueha v. Tagh’fi I Eiaea ,Shcaal.a. AC.BEV (19€3) S.L.J.1(

81.

4. Idrie Gadalki v. .4RUW .1108800 iIC8allatfl, AC-REV-l(’9-l9&’, (unupc3t(d) (by Lindsay, C.J., with Abt: Ramu.t, J., and Lcrnsx, J., conctuzing).

3. Abd4 Gader MahmozuT v. Ahnied llassan Rhalil, BC.REV.16-lUSl, (Un r p

6. Au Awad El Khorabi v. Sail!, Mohasned Salih, Kc BC.RLV6-l263, (unreported) by A.M. Attabani, J.)

7. Ahmed Haaaan Abdel Monei,,, and Others v. Chrisot Papaleacs ard Another, HC-CS.79-1936, 2 S.L.R. 192.

Effect of Illegality on Ten

A statutory tenancy may arise even if the original tenancy agreement is under a shadow of illegality, i hut a contractual lease where is wholly tainted by illegality is void and no statutory tenancy can arise. 2

RENT: “STANDARD RENT”; “MAXIMUM RENT”;.

LIABILITY FOR REPAIRS

The “Maximum Rent” : Section 5.

Rents are restricted by section 5 to the “maximum rent” which is the “standard rent with any permitted increases”. The formulas for standard rent” calculation in section 4 depend primarily on whether premises are “old” (construction began before January, i, 1947) or “new” (construction began after December, 31, 1964), and “permitted increases” include amounts for “improvements or structural repairs of the premises “under section 6. 3

The “Standard Rent” : Se 4

The difficulty about calculating the “standard rent” portion of the maximum rent is that the three main categories of premises in section 4 (a), (b) (c) which provide rent calculation formulas leave out a variety of premises. The premises which do not fit into one of the three main calculation categories are by section 4 (d), to have “such rent as the Province Authority may approve”. This includes, for example, the case of ‘ premises” that did not have a tenant on July, I, 1951. 4

The potential confusion of the categories is illustrated by the that the Court of Appeal 5 reversed a High Court decision 6 and held that rent for all or any portion of “new premises” was to follow the formula of section 4 (b) without the possibility of a flexible formulation of rent by the Province Authority under section 4 (d), based upon the different rental qualities of portions of “new” buildings.

1. A’ma El Mu/ti Shakir and Others V. Jo8eph Tabet, HC-REV-46-1967, (1957) S.L.J.R. 83; AC-REV-132.1958, (1958) S.L.J.R. 55. See text at P. 415 and footnote 15 in Thompson, (1962, S.L.J.R. 411.

2. Rab GoudMohamedv. Haufz BintMoharned, AC-REV-225-1959 (1961)S.L.J.R.

166, 169 (by A.M. Imam, J.), see text at p. 416 in Thompson, (1962) S.L.J.R.

411.

3. Other sections are also relevant, such as section 16 ( limitaticn on rent of furnished houses ).

4. Ahmed Mohamed Abba8her v. El Hadi El Hag El Amin, AC-REV-367-1960 (1962) S.L.J.R. 81.

5. Mohame4 Ahmed El Bireir v. Mvtvsam El Tagalaws,,AC-REV-146-1961 (1963) S.L.J.R. 124 (By B. Awadalla J.)

6. Soferian and Co. Ltd. V. Internatio,uil Trading Co., HC-REV-186-1960 (1961) S.L.J.B. 219 (by A.M. Imam, 3.). See the text in Thompson, (1962) S.L.J.R. 411, at p 417 for background.

The “standard rent” calculation is imposed on the parties by the Ordinance, and cannot be altered by any form of agreement between the parties. i The calculation of standard rent on the basis of an analogy with a separate suit is improper, 2 and a previous judgment in regard to the standard rent of premises is nc t res judicata unless the calculation was done in accordance with the provisions of the Ordinance. 3 The burden of proof rests upon the landlord. 4

The “ cost price of the construction “ in the formulas in sec tion 4 means the cost price at the time of the construction without any deduction for subsequent depreciation.

Reconstruction of “ Old Premises “ : Sections 4, ii (g), 6 (a)

“Old premises” which are demolished and rebuilt within the “new” period are “new premises” and rent is calculated accord ingly under section 4 (b). 5

Problem ( : Should the above rule be limited to situation, found in the deciding case, where there is no tenant at the time of the reconstruction ? If there had been a tenant in possession, the landlord would have had to gain temporary possession under section i:r (g), the proviso of which limits the increase in rent to the amount allowed by section 6 (a). The difference is that the new standard rent under this procedure could be considerably less than that allowed by a calculation under section 4 (b). 6

“ Rates” (Sections 4, 6 (b), 9) as Part of the “Maximum Rent” (Section 5)

The calculation of standard rent which is within section 4 (a) (i.e. “old premises” of which there was a tenant on July I, 1951) should include the amount of rates if the tenant was obliged to

1. Saad Hanna v. helen Adam Papadaw, AC-REV-145-1957, (1963) S.L.J.R.

12; Mohamed El Amin Mohamed Au v. Mohawed .Fageer .Fadl, AC-REV-

542-1966, (1967) S.L.J.R. 189.

2. Ali Abu Zeid v. Heirs of Ha88an Abu Moneim, AC-REV-112-1964 (1967)

S.L.J.R. 4.

3. El Tayeb Osman El Hadari v. Yousif and El Gak Omran, AC-REV-666-

1965, (1967) S.L.J.R. 101. But compare Eadel El Seed Bakhit v. Mohained Abboud, AC.REV-4-1947 (unreported) (Tenant cannot contest standard mt three months after evict icn based upon non-payment of rent, because he shouJd have raised the issue as a defence in the original suit, which is res , under section 40 Civil Justice Ordinance, 1929); Htesaein Khahl v. Ramass Ayyad, HC-CS-381-1959 (1964) S.L.J.R. 88 (Tenant cannot dispute amount of rent agreed in consent decree while relying on that judgment in defence to a subsequent eviction action

4. El Tayeb Osman El Hadari v. You8if El Gak Oman. note 3 above.

5. El Amin Abdel Rahman v. Khali/a Mahgoub, AC-REV-414.1959 revision summarily dismissed, AC-BEV-290-1960 ,(1960) S.L.J.R. 204.

6. S the argument in Thompson (1962) S.L.J.R. 411 at the top of 418.

pay them as part of “rent at that (late “. i if any tenant in premises which fall within the section 4 (a) calculation agrees

to pay rates, the rates are within the allowable standard rent. 2 Although there is no implied term that a tenant will pay any in crease in rents as part of the standard rent, 3 the landlord is en titled to collect increased rates from the tenant under section 6 (b) so long as he gives notice under section 9. 4

Premiums “ (Section i as Part of tile ,, Maximum Rent (Section 5)

Mr. Justice Mohamed Ibrahim El Nur defined a premium as “the difference between the standard rent and the best rent that might othcrwise be obtained. “ 5 The ,, difference “ is a capital sum v section i allows the landlord to collect from the ten an for io years or longer. The presumed reason for the Ordin ance’s permission is that the premium is justified by the privilege of the tenant obtaining a long lease. 6

That a payment for a lease of less than ten years is called a

a “premium” will not render it unpavable if in fact it and the

agreed rent are within the amount of standard rent determined by

a calculation based on section 4. 7 But a “premium” payable

on a ten year or longer lease will not be automatically permitted

and will be struck down if the rental aspect of it is apparent. 8

Problem ( : Because of the rule that a tenancy for an agreed duration will not end but shall continue as a statutory tenancy, 9 the justification for the allowance by section 15 of a premium for lease of ten years or more appears obscure. If the Ordinance were repealed, the long lease would be an advantage, but does this un likely possibility or any other reason retention of section 15 ?

J. AU El Sayed El Kobani v. Hejr of 4hmt’d El iiJa1id Ac-REv.:31e-)9W, (1960) S.L.J.R. 255.

2. Costi8 Trizie. Ltd. y. Idrie Ah,ned El Khangi, AC-BEV (1960)

8.L.J.R. 219, 224.

3. Boo iiote 1 abov,’, at 256.

4. Id., and AU Mohamed El Hag v. lbrahini El Sayed 4/,,md. A(’-14E\-66-

1967, (unreported).

5. fjaafar Ahmed Hamad v. Town Clerk, Kliartotin, 1 AC-1 (unreported).

6. See Sir El Khatim and Another v. Nagib lbrahjn, El Yes. HC-REV-7-1959 (1956) 8.L.J.R. 93, 95 (by M.A. Heasib. J.)

7. See note 5 above.

S. See note 6 above, and Thmnpson (1962) 8.L.J.R. 411 at the top of 419.

9. Bee notee 1 and 2 p. 116

Good and Tenantable Repair” (Section 4) and “ Improvements or Structural Repairs “ (Section 6 (a)

The landlord is entitled under section 6 (a) to increase the standard rent for completing “improvements or structural repairs, “ but he is not permitted to increase the standard rent for keeping the premises “in good and tenantable repair” (sectior.. 4). i The distinction is that “ structural repairs “ (section 6 (a) are “ something new for the benefit of the occupier, something that was not there originally, as distinct from the replacement of some thing that was already there but has become dilapidated or worn out”. 2

The landlord may use first-class materials for “ structural re pairs “ although unnecessary if they are reasonable “to satisfy modern standards in a first-class area of the city “. 3 No increase in standard rent on the basis of such repairs is possible until the landlord has incurred expenditure. 4

The liability for repairs to keep the premises in “good and tenantable repair” may be determined by the parties in the ten ancy agreement. In the absence of express agreement a 1951 de cision states that the liability for repairs in uncontrolled premises rests upon the tenant, 5 but for controlled premises section 4 of the 1953 Ordinance makes the landlord “responsible “.

The tenant may recover from the landlord the expenditures he has made for repairs for which the landlord is responsible under section 4, but not for expenditures on what amount to “structural repairs “ under section 6 (a) 6 The tenant’s right of recovery does not include self-help by refusal to pay rent while remaining in occupation. 7

1. Zareef Saleeb v. Heirs of Mohamed El Sayed El Barbary, AC.REV-34-1965, (1966) S.L.J.R. 130.

2. Id., at 113 by Osman El Tayeb, J.

3. Costie Trizis, Ltd. v. Idri8 Ahmed El .Khangi, note lp.l2 above, at 223, by M. A. Abu Rannat, C.J. with MA. Hassib, J. concurring. See discumion in Thompson, (1962) S.L.J.R. 411, at 419.

4. Oaman Musa v. Abdel Mageed Mohamed, BC.REV-51-1947, (unreported).

5. Muatafa Oaman El (labani v. El Jak All Gable, HC. CS-1123-1951, (unrepor. ted). “This would seem common sense, for there is nothing to prevent the parties from defining their ropsective liabilities by covenant.. .and it s the tenant who is in inunadiate physical control of the premises for the period of the leave.,, . Bodily, J.).

6. El Naima Mohamed El Igeüi v. Saeed ObeidaUa, AC.REV-25-1961, (1963) S.L.J.R. 186 (A tenant “must be content with the state of the premises se taken over by him and he csnnoe by unilateral action elevate the standard of the house...” - B. Awadalla, J.)

7. (l.A. Contomichajo. v. El Rayed Mohamed AU, HC.CS.162-1929, 1 S.L.B. 4”7.

Requirement of Notice to Validate Increases of Rent (Section 9)

The landlord must strictly meet the notive and- time require ments of section 9 before being allowed an increased standard rent. i Even if the tenant agreed to increases of rent which were permissible under the Ordinance, the standard rent was not legally increased unless proper notice was given under section 9, and any such increase therefore was never lawfully due. 2

Section 10 A : Calculation of 20 per cent Reduction of Rent for” New Premises “ (Section 4 (b)

Problem (5) The extraordinarily poor wording of section ioA appears to make the 20 per cent reduction of rent for tenants of “new premises “ ineffective. 3 Two ambiguous decisions of the High Court have not dispelled this impression. 4 However, it remains open to the Court of Appeal to adopt the suggestion that the 20 per cent reduction alters the “ standard Rent “ definition for “ new premises “ in section 4 (b). 5 Therefore, the landlord’s right in the proviso to demand the “maximum rent” would be affected by the re-definition of “standard Rent “, but the pro viso would have meaning as an indication that a contractual rent below the amount permitted by the altered definition of section 4

(b) cannot be further reduced. Alternatively, the legislative auth ority could easily re-write section ioA to achieve a 20 per cent reduction on “ new premises ‘. 6

The Effect of the Tenant’s Right to Demand a Written Statement of the Standard Rent from the Landlord : Section 17

Ii the tenant under section 17 has made a request from the landlord for a statement of the standard rent, 7 and has not re

1. Moharain Abdel I’ v. Hunna Nawoom Mou8alti, HC.REV-512-1963, (1965) S.L.J.R. 116.

2. Habeeb Kohein v. The African Commercial Company, AC-REV-232-1964 (1966) S.L.J.R. 68, 71 (by Osman El Tayeb, 3.).

3. Note of this popular belief and the suggestion of an interprctaticn which would give the section meaning is made in Thompson, Vol. 1 of Lamp Law of the Sudan (1965) p. 148.

4. El Amin Abdel Rahman v. Khalifa Mahgoub, HC-REV-414-1959, (1960) S.L.J.R. 204; Ibrahirn Yousif Bedri v. Cairo Univer8ity of Khartoum, HO CS-523-1959, (1964) S.L.J.R. 91. Both judgments are by Osman El Tayeb,

5. Thompson, id., note 3 above, and in (1962) S.L.J.R. 411, 420: and Abu Samra, The Rent Restriction Ordinance, 1953, 8. IOA a amen&d 1958, (1967)

S.L.J.R. 250, a very useful contribution.

See, e.g., Abu-Samra, id., at 257.

For an example of a Court’s decisicn as to whether a tenant’B request was a proper notice under section 17, see Moharned El Arnin Moha AU v. Mohamed Fageer Fadl, AC-REV.542.1966, (1967) S.L.J.R. 189, 191. A certificate by an architect mder section 17 cannot be relid upon in Court without giving the tenant an opportunity to cress-examine the architect Saad Hanna v. Helen 4 dam Papadam, AC-REV-145-l957, (1963) S.L.J.R. 15.

ceived a reply, there are no grounds for eviction based upon non payment of “ any rent lawfully due” under section ii (a). r

Problem (6) : If the tenant has not requested a statement of the standard rent, and the landlord sues to recover unpaid rent due under the tenancy agreement, can the tenant raise the defence that t