ASHLEY v. JAMES COLLEDGE (COCOA) LTD [1961] GLR 469

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 6TH JULY, 1961

BEFORE: ADUMUA-BOSSMAN, J.

CASES REFERRED TO

(1) Proudfoot v. Hart (1890) 25 Q.B.D. 42, C.A.

(2) Lister v. Lane and Nesham [1893] 2 Q.B. 212, C.A.

(3) Wright v. Lawson (1903) 19 T.L.R. 510

NATURE OF PROCEEDINGS

ACTION by landlord for damages for breach of the covenant to yield up premises in “tenantable repair.”

COUNSEL

H. P. Swaniker for plaintiff.

C. C. Lokko for defendants.

JUDGMENT OF ADUMUA-BOSSMAN J.

By the plaintiff’s writ of summons, claim was made for £G100 general damages and £G794 special damages alleged to have been suffered by the plaintiff as the result of breaches by defendants of covenants contained in a tenancy agreement dated the 13th November, 1957, entered into between the parties.

JUDGMENT OF ADUMUA-BOSSMAN

By the statement of claim filed in support of the writ, it was alleged that by the agreement aforesaid the plaintiff as landlord let his property known as Ashgrove House to the defendants at the annual rent of £G480; that by clause 2(c) of the said agreement the defendants covenanted to keep all the internal parts of the dwelling-house and outhouses in tenantable order and sanitary condition (fair wear and tear excepted) during the tenancy; and by clause 2(h) the defendants further covenanted that at the end or sooner determination of the tenancy they would yield up the premises in good and tenantable repair, order and condition, together with certain articles set out in an inventory annexed to the said agreement; that for breaches of certain of the agreement the plaintiff after giving to the defendants 36 hours notice by letter dated the 12th May, 1958, as provided by the agreement, proceeded to determine the tenancy; that on the determination of the tenancy the plaintiff found the demises “in a terrible state of dilapidation as a result of reckless misuse in breach of clauses 2(c) and 2(h) of the agreement” and he was compelled to employ a contractor to put the premises in a tenantable state, and lost rent at £G70 per month for six months until the contractor completed his work. Particulars of the damages alleged suffered and comprised in the amount of £G794 8s. 0d. claimed were detailed in the statement of claim. The statement of defence filed on behalf of the defendants admitted the tenancy agreement pleaded in the writ and statement of claim, but denied breaches of clauses 2(c) and 2(h) of the said agreement.

The statement of defence then proceeded to allege firstly that the defendants vacated the premises on

30th June, 1958, and left same in a tenantable state of repair and in good order and sanitary condition according to the requirements of the tenancy agreement, and secondly that: “4. Plaintiff failed to maintain the premises adequately in breach of clause 3(a) of the tenancy agreement, and any damage or disrepair was contributed to by his own neglect, especially as regards windows and jalousies, the wood-work of which had warped by reason of the immature timber used, hinges rusted, and casement stays improperly fixed in the first instance and could not fulfil their function;

5. Pursuant to the provisions of the Tenancy Agreement the defendants were under no obligation to decorate the premises; and all internal timber and woodwork were the responsibility of the plaintiff”.

The statement of defence finally concluded with a denial of liability for all items of damages set out and claimed in the statement of claim.

It is clear from the pleadings that both parties respectively undertook obligations and/or responsibilities for repair and upkeep of the demised premises and that this is not the ordinary or usual case where the liability or obligation for repair is on the tenant only. It seems necessary therefore to examine the terms of the agreement more carefully in order to ascertain and determine the nature and character as well as the extent or scope—the full implications in fact of the responsibilities for repair and upkeep which were undertaken by each party.

Dealing firstly with the obligations and/or responsibilities undertaken by the plaintiff, they appear to be more extensive and general in scope under the terms of clause 3(a) of the agreement whereby the plaintiff covenanted:

“To keep in good and tenantable repair and structure (including the internal walls, timber and flooring and the structure of the ceiling) and the roofs and main drains of the buildings included in the tenancy”.

In the terms of the covenant as they appear above, it appears that a typographical error has been committed by the omission of the words “the buildings” after the word “structure” appearing in the second line—for the sentence should obviously read: “To keep in good and tenantable repair and structure the buildings . . .” Be that as it may, it is clear the plaintiff undertook obligations for general repairs to the whole buildings including even the internal parts, in respect of which, as we shall see presently, the defendants also undertook certain obligations for repair. Turning next to the obligations undertaken by the defendants they appear to be of a limited nature under the terms of clauses 2(c) and 2(h) whereby the defendants covenanted:

“2(c) To keep all the internal parts of the said dwelling-house and out buildings in tenantable repair, order and sanitary condition during the said term (fair wear and tear excepted) . . .

2(h) At the end or sooner determination of the tenancy hereby created to yield up the demised premises in good and tenantable repair order and condition—except as mentioned in clause 2(c).”

In every one of the material covenants reproduced supra, appear the words “tenantable repair, order and condition” and it seems necessary therefore to ascertain the legal meaning and/or significance of those words.

Fortunately we find guidance in the discussion of and explanation as to those words by Lord Esher, M. R. in Proudfoot v. Hart.1(1) The learned Master of the Rolls begins by asking and himself answering: “Now what is ‘tenantable repair’? Definitions have been given at different times by the Courts”. He then proceeds to consider several of the older authorities and then concludes as follows:

“The result of the cases seems to be this: the question whether the house was, or was not, in tenantable repair when the tenancy began is immaterial; but the age of the house is very material with respect to the obligation both to keep and to leave it in tenantable repair. It is obvious that the obligation is very different when the house is fifty years older than it was when the tenancy began. Lopes, L.J. [who with the M.R. constituted the court hearing the Appeal from a Divisional Court] has drawn up a definition of the term tenantable repair’ with which I entirely agree. It is this: “Good tenantable repair” is such repair as, having regard to the age, character, and locality of the house would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it.’ The age of the house must be taken into account because nobody could reasonably expect that a house 200 years old should be in the same condition of repair as a house lately built; the character of the house must be taken into account, because the same class of repairs as would be necessary to a palace would be wholly unnecessary to a cottage; and the locality of the house must be taken into account, because the state of repair necessary for a house in Grosvenor Square [a richer quarter] would be wholly different from the state of repair necessary for a house in Spitalfields [a poorer quarter]. The house need not be put into the same condition as when the tenant took it; it need not be put into perfect repair; it need only be put into such a state of repair as renders it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it. I think our definition is an expansion of the definitions given in the earlier cases or rather it is a collocation of all the different parts of the definition to be collected from those cases.”

Having with his colleague (Lopes, L.J.) worked out the definition, he proceeds to apply it to the facts of that particular case thereby making it all the more instructive and comprehensible, and proceeds as follows:

“It will add a few words as to the way in which the definition should be worked out in the present case.

The official referee appears to have said that in his view `tenantable repair’ included painting, papering and decorating. If he meant, as I think he must have meant, that it included all papering, painting and decorating, I have no hesitation in saying that his construction of the term ‘tenantable repair’ was wrong.

Again, he has said that the tenant’s obligation is to ‘repaper with similar paper to that which was on the walls before, and repaint with similar paint to that which was on the painted portion of the premises before’. I think that view was also wrong. With regard to the papering, Cave, J. in the Court below said:

‘I cannot see how in any case a man can be bound to put new paper on the walls simply because the old paper which was on at the time when he took the house has become worn out’. I agree that he is not bound to repaper simply because the old paper has become worn out, but I do not agree with the view that under a covenant to keep a house in tenantable repair the tenant can never be required to put up new paper. Take a house in Grosvenor Square. If when the tenancy ends, the paper on the walls is merely in a worse condition than when the tenant went in, I think the mere fact of its being in a worse condition does not impose upon the tenant any obligation to repaper under the covenant, if it is in such a condition that a reasonably minded tenant of the class who takes houses in Grosvenor Square would not think the house unfit for his occupation. But suppose that the damp has caused the paper to peel of the walls, and it is lying upon the floor, so that such a tenant would think it a disgrace, I should say then that the tenant was bound, under his covenant to leave the premises in tenantable repair, to put up new paper. He need not put up paper of a similar kind – which I take to mean of equal value – to the paper which was on the walls when his tenancy began. He need not put up paper of a richer character than would satisfy a reasonable man within the definition.

The same view applies as to painting. If the paint is in such a state that the woodwork will decay unless it is repainted, it is obvious that the tenant must repaint. But I think that his obligation goes further than that. A house in Spitalfields [poorer quarter] is never painted in the same way as one in Grosvenor Square [richer quarter]. If the tenant leaves a house in Grosvenor Square with painting only good enough for a house in Spitalfields, he has not discharged his obligation. He must paint it in such a way as would satisfy a reasonable tenant taking a house in Grosvenor Square . . . As to the floor, it may have been rotten when the tenancy began. If it was in such a state when the tenancy began that no reasonable man would take the house with a floor in that state, then the tenant’s obligation is to put the floor into tenantable repair. The question is, what is the state of the floor when the tenant is called upon to fulfil his covenant? If is has become perfectly rotten he must put down a new floor, but if he can make it good in the sense in which I have spoken of all the other things – the paper [and] the paint – he is not bound to put down a new floor. He may satisfy his obligation under the covenant by repairing it .. I think we have explained more fully than it was explained in the Court below what is the true construction of the contract to keep premises in tenantable repair”.2(2)

Guided by these instructive and illuminating explanations made available as above in Proudfoot v.

Hart, we are able to say that the defendants’ obligations under the two covenants hereinbefore set out were to keep, or maintain, the interior only of the demised premises in such condition that no reasonably-minded tenant of the class who obtains leases of premises in that locality, can find the premises, the subject-matter of this action, such that he can honestly condemn it as unfit for habitation and in that condition, to surrender or yield up possession to the plaintiff. Before leaving for the time-being the question of the defendants’ obligations under clauses 2(c) and 2(h) one point should be specially noticed and considered, and it is this: that whereas under clause 2(c) the defendants undertook to keep only the internal parts of the demised premises in tenantable repair order and condition, under clause 2(h) they appear to have undertaken to surrender or yield up the whole premises in good tenantable repair and condition. It seems clear however that clause 2(h) should be read together with and in the light of clause 2(c), as indeed the terms of clause 2(h) themselves expressly provide, in which case, in the light of the limitation contained in clause 2(c) of keeping only the interior part of the dwelling-house and outhouses in tenantable repair, fair wear and tear excepted, it becomes obvious that the logical and proper effect or interpretation to be given to clause (2h) is that the defendants as tenants should surrender the premises, with the internal part, which is their responsibility, in good tenantable repair and condition. Having ascertained the extent and/or the full implications of the obligations of the parties respectively, it falls now to consider and determine the question of fact as to the condition in which the premises was at the time it was vacated.

[His lordship then examined the evidence, both oral and documentary, and continued:] The damage to the glass and louvred windows, having been caused, as I have found on the evidence of the letters, by the inherent defects in their construction the defendants cannot be liable for that damage, even if their covenant to repair extended to repair of windows. As observed by Lord Esher, M. R. in Lister v. Lane and Nesham: “Those cases seem to me to shew that, if a tenant takes a house which is of such a kind that by its own inherent nature it will in course of time fall into a particular condition, the effects of that result are not within the tenant’s covenant to repair”.3(3) (See also Wright v. Lawson.4(4)) In any event I do not believe that the damages were of such a nature as to make any reasonably-minded person who would desire to be a tenant of that class of premises avoid or shun the house as unfit for habitation. After all, in spite of the damaged condition of the glass and louvred windows, Mr. Forster was using the premises until discourteous letters following a dispute as to plaintiff’s account with the defendants caused the defendants to terminate the lease. The premises therefore cannot be in all that “terrible state of dilapidation” as alleged. Nor did the letter written immediately after the premises were vacated describe the premises as being in “a terrible state of dilapidation”. I have seen the photographs of what are alleged to be the damaged parts of the house. But the photographs do not necessarily establish that the premises were left in that condition between 26th to 30 June, 1958 when the premises were vacated.

As regards internal decoration, I am satisfied that on the formula provided by the Proudfoot v. Hart[5] case, no case whatsoever of any liability on the part of the defendants has been established. In his letter exhibit H the plaintiff indeed requests defendants to “re-decorate the entire internal walls in a fit and tenantable condition”. The point however is that there is no credible and reliable evidence whatsoever that the internal walls had fallen into that state or condition as to make it necessary for the defendants to have necessary repairs done to them. And as for general internal decoration, it is sufficient to say the terms of the lease do not impose any such obligation on the defendants.

As to the claim for missing effects specified in the particulars to the statement of claim, I am not satisfied from the plaintiff’s own letter exhibit 2 and from Mr. Forster’s last letter in reply exhibit 3 that there was any question outstanding of “2 bathroom cabinets, 1 garden water hose, 1 rake and 1 sheers” still missing at the dates of those two letters. Indeed the only claim which with considerable hesitation I am disposed to grant – and I am reluctant because no good or sufficient explanation has been advanced as to why the claim was not made or pressed earlier when Mr. Forster who was the person actually using the premises was here – is the item for garage door destroyed. I am allowing that item because in spite of the denial in the statement of defence, the correspondence admitting liability has been produced, exhibit C. On the contrary nothing has been produced to show that since admission of liability the debt has been discharged. That would be the defendant’s responsibility to establish payment or discharge of that admitted liability, and that has not been done.

I therefore award the sum of £G55 being half the amount of £G110 claimed for repairs (see item 1 of particulars) to the plaintiff for replacement of the garage door, together with the sum of £G2 to cover cost of filing a claim for that amount. Subject to that the action is dismissed with costs assessed at 30 guineas including 25 guineas counsel’s fee.

DECISION

Appeal dismissed.