Madhavji v Keshavji (C.A. 16/1930.) [1930] EACA 31 (1 January 1930)

### COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR CHARLES GRIFFIN, C. J. (Uganda), PICKERING, C. J. (Zanzibar), and Gower, J. (Kenva).

## KANJI MADHAVJI

### (Appellant) (Original Defendant)

### LADHA KESHAVJI

# (Respondent) (Original Plaintiff).

### C. A. $16/1930$ .

Tenancy agreements—law applicable to.

Indian Evidence Act, 1872—evidence of terms of a written lease.

Held: —That the case was governed by the law relating to landlord and tenant in force in England by virtue of the provisions of Section 2 of the Law of Property and Conveyancing Ordinance, Revised Edition (Tangany did not apply to tenancy agreements.

Further held that parol evidence of a verbal agreement to build a kitchen and bathroom was not admissible.

Further held that in the absence of an express condition to keep premises suitable for the purposes intended no such condition could be implied.

Pillai for appellant.

Masters for respondent.

PICKERING, C. J.—The respondent brought an action in the Second Class Subordinate Court at Tabora asking for the cancellation of a lease which he had entered into on the 1st January, 1929, and under which he had occupied the demised premises for four months. He alleged that it had been made a condition precedent to the currency of the lease that the health officer would sanction the use of the shop for the purpose of the respondent's cloth business. It was alleged that the appellant had That this taken no step whatever to get the necessary sanction. averment was irrelevant was patent in view of the statement that the respondent had in fact obtained a transfer of his trading licence to the demised premises on the 1st January and had carried on his cloth business there for four months. The respondent further averred that the licence to carry on the said business had been refused by the health officer. A perusal of the record shows that this statment also is untrue. After the respondent had occupied the premises for three months he invited the public health officer to declare the existing sanitary arrangements to be inadequate. The sanitary authority made no such declaration, and served no notice either upon the respondent or the appellant requiring any work to be done in respect of the

demised premises. Moreover the sanitary authorities are not the statutory licence issuers and have no power to refuse the issue of a trading licence. There is ample evidence that the issue of the renewal of the trading licence applied for on the 4th April was suspended only by the administrative officer, and that the respondent could have paid for and received his licence on the 30th April. During April the respondent and many of his neighbours continued to trade.

The respondent also alleged in his plaint that "it was also a condition prior to carrying out the terms of the said lease that the appellant would carry out certain essential structural alterations within a reasonable time." At the hearing these alterations were said to be the erection of a kitchen and bathroom. The Subordinate Judge admitted evidence of this agreement by the appellant to build a kitchen and bathroom.

It has been alleged before us that evidence purporting to prove any such agreement ought not to have been admitted. The admissibility of this evidence, as was stated by BLACK-BURN, J., in Angell v. Duke (32 L. T. 320), depends upon the question whether the lease drawn up on the 1st January was or was not intended to be the record of all the terms agreed upon between the parties. The learned Judge before whom an appeal in these proceedings came, referred to the document as " a homemade agreement setting forth the conditions of the lease." The document in fact deals with such detail as the injury to existing cement floor when spices were being pounded. For myself I strongly incline to the opinion that the terms of this tenancy were reduced in the form of a document within the meaning of those words in Sec. 91 of the Evidence Act. The lease was It becomes necessary to decide whether the proof of produced. an agreement to build a kitchen, a bathroom, and according to the respondent's letter of the 20th March a water-closet, during the currency of the tenancy, constitutes a variation of the lease, and such a separate oral agreement is inconsistent with its terms. The lease contains a promise to pay a rent of Sh. 125 a month for the house No. 13 Market Street. It was suggested that this rent was not to be paid for the house No. 13 as it stood on the 1st January, but the description "house No. 13" should be taken to include a kitchen, bathroom and closet which should be constructed within a reasonable time after the commencement of the tenancy. In my opinion the evidence purporting to prove an agreement to add these buildings was not admissible and should have been excluded. Moreover should it be held that this agreement to make additions to house No. 13 could properly be proved, a breach of such an agreement would not give the tenant a right to quit the premises. A tenant's right upon a. landlord's failure to repair is that he may himself execute the

An omission to add a kitchen and bathroom to premises repairs. which sufficed for four months out of twelve is not, in my opinion, a good ground for the cancellation of the lease.

At the hearing of the appeal in the High Court the learned Chief Justice held that even if there were no evidence that the appellant had undertaken to procure the grant of a trading licence, a condition that the premises should remain suitable for occupation as a shop would be implied from the terms of the lease. The broad rule at common law is that there is no implied covenant by a lessor of an unfurnished house that it is reasonably fit for habitation or occupation; nor even that the house will endure during the term; nor that the lessor will do any repairs whatever. Nor, as I have already pointed out, has it been proved that the respondent was at any time threatened with eviction by the sanitary authorities; whilst under the Trades Licensing Ordinance, Cap. 64, which in form is simply a revenue Ordinance, no discretion is given to the issuing officer to withhold a licence for which payment is tendered.

The learned Judge referred to the provisions of Sec. 56 of the Contract Act as an authority for upholding the order against which the appeal had been brought rescinding the lease of the 1st January. In my opinion the Contract Act would have no application in a matter of the determination of a tenancy. The law of land tenure, and here a tenancy has come into existence, is not affected by the provisions of the Contract Act, but by virtue of Cap. 67, Sec. 2 (1) leases and tenancies are controlled by the English law in force in England on the 1st January, 1922.

In my opinion the respondent's claim for a cancellation of the lease was not well founded. The plaint as lodged set up the existence of two separate oral agreements put forward as being conditions precedent to the attaching of any obligation under the lease. It was alleged that the lease should be declared to be null and void. This allegation was inconsistent with the fact of occupation and the payment of rent under the lease as set out in paragraph 2 of the plaint. It was also inconsistent with the prayer for a cancellation of the lease. The respondent should have been called upon to file a plaint which disclosed a good cause of action. Paragraph 3 of the complaint was clearly an attempt to allege oral agreements of the character described in proviso 3 to section 92 of the Evidence Act. Paragraph 2 of the complaint disclosed a complete defence to such a suit. $\frac{1}{2}$ Without amendment the respondent was allowed to prove alleged separate oral agreements, not as conditions precedent, but as referring to matters upon which the document was silent and not inconsistent with the terms of the lease.

As I have said, in my opinion the alleged agreement that a kitchen and bathroom should be built (when the interference of the health officer was invited, a water-closet was added to the list) is inconsistent with the lease; whilst of the vague allegation that the appellant undertook to procure the issue of a trading licence for the respondent no breach has been proved.

In my opinion this appeal should be allowed and the decree of the Subordinate Court should be set aside and the respondent should bear the appellant's costs in that Court and in the High Court and of this appeal.

GOWER, J.-By an agreement in writing made on the 1st January, 1929, between the appellant (the landlord) and the respondent (the tenant) the respondent rented his house No. 13 Market Street for the purpose of a shop for a period of one year from the 1st January, 1929, at a rental of Sh. 125 p.m. The respondent went into possession and after four months occupation brought a suit for cancellation of the agreement on the grounds that the appellant had failed (1) to carry out a verbal agreement to build a kitchen and bathroom, and $(2)$ to put the premises in such condition as to enable the respondent to procure a trading With regard to the condition to build a kitchen and licence. bathroom I am of the opinion that the parol evidence of such promise should not have been admitted. The rule of law was laid down by DENHAM, C. J., in Goss v. Lord Nugent, 5 B and Ad. at page 64.-" If there be a contract which has been reduced into writing, verbal evidence is not to be allowed to be given of what passed between the parties either before the written instrument was made or during the time it was in a state of preparation so as to add to or subtract from or in any manner to vary or qualify the written contract".

Angell v. Duke 32 L. T. R. 320 is to the like effect. In that case the lessor granted a lease of a house and furniture to the lessee. In an action by the lessee held that he might not prove a prior oral promise that the lessor would send in more furniture and change some that was already there; per COCKBURN, C. J., because this conflicts with the lease; per MELLOR, J., because it added a new term thereto; per BLACKBURN, J., because the lease expressed the whole of the terms, the house and furniture were let at a certain rent, the oral agreement gave more furniture for the same rent, how was that collateral?

The oral evidence admitted in this instance conflicts with the terms of the agreement by adding a new condition to build a kitchen and a bathroom. The agreement on which the respondent relied is perfectly clear in its terms and he must be held bound by it.

Now with regard to the second point to put the premises in such condition as to enable the respondent to procure a trading licence, the learned Chief Justice has held that in the absence of an express condition to keep the premises suitable for the purposes intended such a condition is implied. I respectfully disagree. I have not been able to find a single case, and none was cited, to support the conclusion. The decisions are to

the contrary, e.g., there is no implied covenant by a lessor that the house will endure for the term. And if a landlord is bound to do repairs there is no implied condition that if not done the tenant may quit; or is not liable for rent. The cases are collected at page 215. Woodfall's Landlord and Tenant, 21st Edition. $On$ this point the learned Magistrate in the Court of first instance found there was an implied warranty that the premises were suitable for the purpose leased and a licence to carry on business in them obtainable. Here again I cannot agree. But assuming a warranty, the respondent could not maintain the action because it was succeeded by the more formal agreement and the so-called warranty was merged in it, see Greswold Williams v. Barnaby, 17 T. L. R. 110, a case in which a statement in the particluars of sale at an auction as to the sanitary condition of the premises alleged to constitute a warranty was held to merge in the subsequent conveyance.

The respondent used the premises without any objection $\mathbf{b}\mathbf{v} =$ the sanitary or licensing authorities up to the 31st March, 1929, but on the 20th March, 1929, he wrote to the health office complaining that the appellant had not carried out" a promise to build a water-closet, bathroom and kitchen, and asked that such steps might be taken to make the owner build a water-closet or declare the building insanitary and unfit for living purposes. This is the first and only mention of a watercloset. The respondent having invited this dispute about the premises was refused a licence by the health authorities on the 4th April. The health authorities took no action and made no order after receiving this letter, so it may be presumed they were satisfied with the then existing conditions. The obligation to take out a trading licence rests on the respondent alone, but subsequent to the 4th April he does not appear to have renewed his application as he might have done on or before the 30th April when other licences were granted. The appellant cannot be held responsible for the respondent's own fault.

This case is governed by the law relating to landlord and tenant in force in England by virtue of the provisions of Sec. 2 of the Law of Property and Conveyancing Ordinance Revised Edition, Cap. 67.

The appellant has committed no breach of the written agreement and it is not void. Section 56 of the Contract Act does not apply to tenancy agreements.

I accordingly allow the appeal in so far as it affects the specific appeal before this Court. The appellant is allowed his costs of this appeal and in both Courts below.

SI.: CHARLES GRIFFIN, C. J.-I concur.