Mangula Transport and Sales (PVT) LTD v Kulisewa (Civil Cause 926 of 1989) [1992] MWHC 5 (1 May 1992)

IN THE HIGH COURT OF MALAWIPRINCIPAL REGISTRYCIVIL CAUSE NO. 926 OF 1989BETWEEN:MANGULA TRANSPORT AND SALES (PVT) LTD.............. PLAINTIFF - and -ELTON M R KULISEWA ................................. DEFENDANTCORAM: MTEGHA, J. Zimba, of Counsel, for the PlaintiffMatupi, of Counsel, for the DefendantKaundama, Official Interpreter Phiri, Senior Court ReporterJUDGMENTThe plaintiff in this case, a limited liability company, is claiming for the sum of K9,000.00, being a refund of rent due from the defendant. Alternatively, it is claiming the said sum as money had and received by the defendant for consideration which has failed or money had or received to the use of the plaintiff. The plaintiff is a private limited company. It has, in its employ, Mr & Mrs Morell. It was the evidence of Mrs Morell, a bookkeeper in the company, that she and her husband wanted to move to Blantyre from Lilongwe and as such they required accommodation immediately. In response to an advertisement, they contacted the defendant who informed them that he had a house at Namiwawa for rent. A meeting was arranged to view the house. Accordingly, they went to Namiwawa, met the defendant, who was living in the house, and had a brief inspection of the property. They noticed a number of small defects with the property. It was her evidence that the defendant then said that if they wanted the property they had to sign the lease agreement. Accordingly, on 30th June 1989 the defendant signed the lease and on 4th July 1989 Mr Kaliwo, a director of the company, signed the lease. The lease provided, inter alia, that the rent would be KI,500.00 per month, payable for six months in advance. Meanwhile, the defendant was still living in the house. When he vacated the house the Morells went to have a proper look. They discovered that the house needed a coat of paint” there were termites both inside and outside, particularly in the bedrooms. There was a big hole in the bathroom through which animals like cats, etc. could - 2 -enter the house; bedroom cupboards had no handles, etc. The servants quarters were also inspected. According to Mrs Morell and Mr Kaliwo, the premises were extremely dirty, the walls had soot. According to Mrs Morell, the defendant said he would rectify all these defects if he would be paid the rent in advance, as he needed the money to rectify these defects. Accordingly, they paid him by cheque dated 14th July 1989. The lease agreement stipulated that the plaintiff would occupy the premises by 1st August 198$. It was her evidence that the defendant promised to rectify all the defects within two weeks, but he never did. They waited until the end of August, but nothing was done. Eventually, they declined to occupy the house, and they handed the keys to the defendant. The evidence of Mrs Morell Wets substantially corroborated by the evidence of Mr Kaliwo. It was the evidence of the defendant that Mr & MrsMorell were looking for a house. Mr Morell and a friend came to him and together they went to the house. At that time he was living in the house with his children. It was his evidence that after inspecting the house they were satisfied and asked him to draw up a lease agreement. The lease was signed and a cheque for K9,000.00 was sent to him together with the lease. It was his evidence that the Morells gave him two weeks in which to paint the house. Ke did paint the house and a carpenter did some repairs. He spent K4,200.00 on the repairs, and this amount was part of the money the plaintiff gave him as rent for six months. Subsequently, Mr Morel-1 rang him to say that he did not want the house and that he should refund the money, and after a month he found another tenant at the same rate. It was his evidence that it was the plaintiff who broke the agreement, He is, therefore, claiming K9,000.00 for the remaining six months. In cross-examinationthe defendant said that he wasgiven one month in which to do the repairs. He, therefore, employed a contractor who did the job, but the hole in the bathroom was not repaired at that time. He further said that there were no termites in the house. This then is the evidence before meThe clear facts that emerae from this evidence arethat there was an agreement for lease. 'The lease provided that the plaintiff would occupy the defendant's house at a monthly rental of KI,500.00. The plaintiff was to occupy the house by 1st August 1989. It is quite clear as well that the defendant signed the lease on 30th June 198$ and the plaintiff signed it on 4th July 1989. There is no doubt, according to the evidence, that the plaintiff did - 3 -inspect the house briefly before the lease was signed. There was brief inspection because at that time the defendant was occupying the house. There is no doubt again that there was another inspection of the premises after the lease had been signed, which revealed that the house had very many defects which needed rectifying before the plaintiff could occupy it. The plaintiff says that at this juncture the defendant agreed to repair the house provided they paid the defendant in advance for six months, so that he could use part of the money to do the repairs. This the plaintiff did - a cheque for K9,000.00 was issued. The defendant says that the plaintiff was satisfied with the house; that is why they signed the lease; he did not request for the money to be paid to him because he needed the money to repair the house, but because they were occupying the house. I do not believe the defendant's story. I accept the plaintiff's story that the money was paid to him well in advance because he needed it to repair the house. I also believe the plaintiff's version of the story that the defendant promised to repair the house before the plaintiff went in. This was not done. The defendant's evidence is so inconsistent that the truth of what happened does not emerge clearly. I, therefore, hold that after the lease was signed by both parties there was a verbal agreement that the defendant would repair the defects, provided the plaintiff paid the defendant K9,000.00. The defendant partially repaired the defects. It has been submitted by Mr Matupi that the plaintiff signed the agreement because he was satisfied with the house. This, coupled with the payment of the rental, created a binding contract. The oral agreement to repair the defects did not concern the defendant; he was not bound to repair the house. I think the question to be determined here is whether the oral agreement was binding on the parties. The general rule is that the courts have long insisted that the parties are to be confined within the document in which they have expressed their agreement. Lawrence J. put it succinctly in Jacobs v. Batavia and General Plantations Trust (1924) 1 Ch. 287 at p.295, when he said:"It is firmly established as a rule of lew that parol evidence cannot be admitted to add to, vary or contradict a deed or other written instrument.. Accordingly, it has been held that ...... parol evidence will not be admitted to prove that some particular term, which had been verbally agreed upon, had been omitted (by design or otherwise) from a written instrument constituting a valid and operative contract between the parties." - 4 -A Canadian case illustrates this rule admirably, ‘The case is Hawrish v, Bank of Montreal (1969) 2 DLR. In that case a Solicitor, acting on behalf of a company signed a document guaranteeing personally and continuously "all present and future debts" of the company. It was his contention and wished to give evidence to show that the guarantee was intended to be only of a then current overdraft of $6,000. The Supreme Court of Canada held that such evidence was not admissible. However, this rule, that is the exclusion of oral evidence to add to, vary or contradict a written document is subject to a number of exceptions. One such exception is in relation to contracts partly written and partly oral. Therefore, Mr Matupi's argument that the agreement was the lease agreement only may not be absolute. In Walker Property Investments (Brighton) Ltd. v. Walker (1947) 177 LT.204:"the defendant in 1938 then in treaty for the lease of a flat in a house belonging to the plaintiffs, stipulated that, if he took their flat, he was to have the use of two basement rooms for the storage of his surplus furniture and also the use of the garden. Subsequently, a written agreement was drawn up for the lease of the flat which made no reference either to the storage rooms or to the garden."The Court of /Appeal held that the oral agreement should be read with the written instrument so as to form one agreement. The same principle was applied in Couchman v. Hill (1957) KB.554 and in the case of Ardennes (Cargo Owners) v. Ardennes (Owners) (1951) 1 KB.55. It would appear to me, on the totality of the evidence before me, and I have earlier on accepted the evidence of the plaintiff to be more reliable than that of the defendant, that the plaintiff signed the lease agreement because the defendant said he would offer it to other people, and the plaintiff paid the money at the request of the defendant so that he could effect repairs which the plaintiff had pointed out to him. These repairs, according to the plaintiff, were not all effected at all - even the defendant admitted that the hole in the bathroom, through which small animals could enter, was not closed at all. This oral evidence that the defendant was going to effect the repairs is, in my view, admissible and it was condition precedent to the occupation of the premises. The oral promise made by the defendant was equally part of the contract and was binding on both of them. It was submitted by Mr Matupi that at Common Law the Landlord is not liable to the tenant for defects in the house rendering it dangerous for occupation or unfit for him - 5 -on occupation - he cited to me the case of Bottomley v. Bannister (1332) 1 KB .458. I have looked at the case and indeed Scruton, L. J. said at p.468:"Now, it is at present well established in English law that in the absence of express contract a landlord of an unfurnished house is not liable to his tenant...... for defects in the house or land rendering it dangerous or unfit for occupation......"But in the present case there was a contract which I have held existed. Miss Zimba has submitted that if a landlord lets out a house, there is implied a term that the house must be fit for habitation.- She- cited to me the case of Smith v. Marrable, 152 ER. 693. What Miss Zimba said is not correct. What she said only applies to a furnished house and not to unfurnished. The case of Smith v. Marrable confirms this principle. For these reasons, the judgment for the plaintiff in interest at current bank rate.action succeeds. I enter the sum of K9,000.00 withThe counterclaim fails. The defendant was in the wrong; he put in a tenant within two months after he was told that the plaintiffs were not occupying the house. He suffered no damage at all. I, therefore, dismiss the counterclaim. The defendant is condemned in costs. PRONOUNCED in open Court this 1st day of May 1992 , at Blantyre. H M Mtegha JUDGE