ALEXANDER GRAY PATTERSON AND MOHAMEDRAZA SULEMAN VERSI V. BADRUDIN MOHAMED SALEH KANJI [1956] EACA 106

ALEXANDER GRAY PATTERSON AND MOHAMEDRAZA SULEMAN VERSI

V.

BADRUDIN MOHAMED SALEH KANJI [1956] EACA 106

PANELISTS: Sir Newnham Worley J, Bacon J, and Mahon J.

FACTS

The respondent was the successful plaintiff in an action in the District Court for rent due under an oral tenancy agreement with the first defendant in respect of the house belonging to the respondent. The defense alleged that as the respondent only held the premises under a right of occupancy and, as it was a term of a grant thereof that no letting should be effected without the Governor's consent under regulation 3 of The Land Regulation of 1948, and such had not been obtained, the transaction was inoperative.

ISSUE

• Whether the letting effected without the Governor's consent is inoperative or not
  

The District Court

Found that the lease the first defendant was inoperative by reason of failure to obtain the Governor's consent under the Land Regulations but not void for breach of the condition against subletting. The District Court concluded that the defendants were stopped from relying on the fact that the lease was inoperative. Thus the Court entered judgment for the plaintiff.

The High Court (of Tanganyika)

On appeal the High court held that regulation 3 only applied to legal documents and did not affect oral agreements, and thus dismissed the appeal.

ON APPEAL TO THE E.A.C.A

Appellants' Argument AT EACA:

1. That the High Court was wrong in holding that regulation 3 only applies to transactions which have been reduced into writing, that the letting, being a dealing with an interest in a right of occupancy was inoperative for lack of the approval required by regulation 3.
   
2. That the finding of the Resident Magistrate that the first appellant was stopped from invoking the provision of regulation 3 should have been rejected.
   

HELD (at EACA)

1. The Respondent (originally, plaintiff) was seeking to enforce at law a claim against a third party which he could only establish by relying on a transaction declared by law to be inoperative for lack of approval.
   
2. There can be no estoppels against an Act of the Parliament.
   
   
   
   CONCLUSION
   
   Appeal allowed. Decrees of the District Court, and High Court set aside. The Resident Magistrate directed to enter a decree dismissing the suit.
   

• Per Worley J, at Page 111 that;
  
  "…… the true position is that the Respondent (originally, plaintiff) seeks to enforce at law a claim against a third party which he can only establish by relying upon a transaction declared by law to be inoperative for lack of approval. That, in my opinion, is exactly what he
  can not do…"
  
  Continues….
  
  "……it is not disputed that the main reason for the change was the practical difficulty of getting the Governor's approval before the transaction was put through. How far the present regulation nullifies a dealing which is not subsequently approved may be a matter for argument: such a transaction may still be valid for some other purposes E.g. if there are collateral undertakings. But, at least it is clear that without approval no dealing can operate to effect a sale or mortgage or to create a change or a sublease…………"
  
  Cases referred to;
  
  • Dyal Singh v. Kenya Insurance Ltd. [1954] AC 287
    
  • Herman v. Teuchner (1885) 15 QDB 561