Matupa v Walube (Civil Cause 528 of 1985) [1986] MWHC 14 (12 December 1986)

UU 1 IN THE HIGH COURT OF MALA\! PRIWCIPAL REGISTRY CIVIL CAUSE HO.528 OF 1985 BETWEEN: 5. HATUPA (HALE) eee eee eee reece nee e eee renee ce eeceestecssseteeeetees PLALNTEFF - and - J. VALUBE (HALE)... occ cece cscs cen ceevceeevecens We 9 WI 8 WE RAL BE Rie a Sue DEFENGANT Coram: BANDA, J. Ntaba of counsel for the plaintiff Nyirenda of counsel for the defendant Kalimbuka Gama, Official Interpreter Longwe, Court Reporter JuDHENT The claim in this case is for possession of property on Plot flo. CC 258 Hudi Estate, The plaintiff is also claiming arrears of rent in the sum of K900 and there js a further clain for mesne profits at the rate of 450 per month with effect from ist August, 1985, until pos- session is given up. | should like at the outset to make an observation on some of the evidence which was adduced in this case. Evidence of allegations and counter-allegations allegedly made by either party against the other was led. There was also the evidence of meetings each party held with the officials of the District ilalavi Congress Party in Blantyre and also there was evidence of meetings which the defendant held with certain members of the Police Force and the views they expressed on the merit or demerits of the dispute between the parties. | shall completely disregard all that evidence which | consider was totally irrelevant to the issue | have to determine in this case. The effect of that evidence was in my view essentially diversionary and a red herring. The facts leading up to the 11th April 1985 are not greatly disputed, [t would appear that in Harch 1985, the plaintiff approached Property Auctions who are Estate Agents to find a tenant for him for the property at fludi Estate. He apparently met fir, Jones Chirwa, a witness in this case, to whom he gave instructions. fr. Chirwa said that those instructions were verbal and after their receipt he went to inspect the property. He stated that after inspection he wrote to the plaintiff to attend to internal decoration although he conceded that that was a duty of the previous tenant who vas still in the house when he made his initial inspection, It was flr. Chirwa's further evidence that he wanted the main house to be in a tenantable condition. He stated that the main house was substantially in a good condition except for minor touches to replace broken window panes, faulty electrical lamp holder, and a crack in the floor of the corridor. He stated that these were the repairs he was referring to in exhibit 13, After that initial inspection lr. Chirwa advertised in the press indicating that the - house was available for letting. He stated that among the many responses to the advert was the defendant's, He stated that the defendant came to his office an 11th April, 1985 and they, together, went to inspect the house at fludi Estate. It vas fir, Chirwa's evidence that on the same afternoon the defendant confirmed that he was interested in the house and that he would take it. Wr, Chirwa stated that the defendant made his confirmation in writing. There can be no doubt that the confirmation to which Hr. Chirwa was referring is exhibit 14. According to Hr. Chirwa the rental which was mentioned to the defendant and which the latter accepted to pay was K450 and that figure is mentioned in exhibit 14. fir. Chirwa stated that the rental of K450 was on "is basis" and was not contingent upon other vorks being done to the property. fir. Chirva then drev up what he called a draft Jease which the defen- dant signed but the plaintiff refused to sign because he felt that it was not sufficiently extensive and that he would first seek the opinion of his solicitors. It was Hr. Chirwa's evidence that the plaintiff did not give him specific terms to agree with the defendant. He stated that he sent the agreement to the plaintiff for his comments on its contents, He stated that he inserted a term of two years after he had found out from the defendant that that would be the period he would want to rent the house. The defendant took occupation on the tst May, 1985, and he paid rent for the month of Hay at the rate of K450 and in advance. lr, ftaba for the plaintiff has submitted that it is essential for there to be a relationship of landlord and tenant that there should be a demise which is created by the execution of legal demise to the tenant, He contended that in that situation the Court looks to what term the landlord has created in favour of the tenant and what conditions are attached thereto. He submitted that in the present case a legal demise was lacking. He contended that it is on that basis that the plaintiff is disputing the existence of a two-year tern between him and the defendant. ilr, ltaba has pointed out that what has been produced is an agreement signed by the defendant at the offices of Property Auctions on 11th April, 1985 and uhich. the defendant has sought to show that it was binding on the plaintiff. fir. fltaba has submitted that that document cannot bind the plaintiff who did not sign it. He contended therefore that there vas no document or other memo signed by the plaintiff creating a term CERTAIN of 2 years. hile conceding that the plaintiff gave instructions to Property Auctions to find a tenant, ilr. Ntaba submitted that where a landlord instructs an agent to merely find a tenant the agent has no authority to enter into a contract of lease, lr. taba has further contended that as the defendant went into occupation on the 1st Hay, 1985, having paid rent for a period of a month, it is the entry into possession, ir, Ntaba has argued, which created the relationship of landlord and tenant betyeen the olaintiff and the defendant. He submitted that such tenancy in law is a tenancy at will and runs periodically in line with the period of rental which, in this case, vas on monthly basis. He submitted therefore that a tenancy having been created in this manner the rights of the par- ties must be determined. He submitted that it is a fundamental obligation of the tenant to pay rent for the property occupied by him, He stated that apart from the rent for the month of Hay the defendant has not paid rent for any other month, He argued that the defendant's contention that the justification for the non-payment of rent vas that the plaintiff had not carried out his obligations which were conditions precedent should be dismissed. He contended that the defendant went into the house after he had thoroughly inspected it and he immediately accepted to rent the property, He submitted that the repairs were minor as the defendant ces- cribed them himself and that the fact that the period was short within which they were required to be carried out, : before occupation, confirms his submission. lir, iitaba has also submitted that the refusal by the defendant to pay rent to the plaintiff was a breach which entitled the plaintiff to terminate the tenancy by giving proper notice. He contended that proper notice vas duly given to the defendant commencing from Ist July, 1985. He submitted that for periodic tenancies the proper notice is the neriod of the rent, Hr. Nyirenda has submitted that there was an agreement for a lease and that this is supported by the agreement which was signed by the defendant on 11th April, 1985. hile con- ceding that the plaintiff did not sign the agreement, Mr. llyirenda contended that that fact did not mean that some of the terms contained in the agreement were not agreed upon, fir, Nyirenda pointed out that the agreement vas drawn by the plaintiff's own agent and the issue of whether the agent had authority or not was a matter between the plaintiff and the agent and that as far as the defendant was concerned the agent had held himself out as having the neces- sary authority to prepare the tenancy. ir. Nyirenda contended that from the facts of this case ' ~~sthe plaintiff must have ratified the agent!s action because he received the agreement before the defendant entered into possession and that the defendant had not been told by the plain- tiff that the agent had no authority. Hr. llyirenda further submitted that the plaintiff allowed the defendant to take occupation without saying that the tenancy agreement was unacceptable to him. fir. Nyirenda has argued that the defendant took occupation on the basis that it was a two-year lease. fr, flyirenda submitted that the only reason the plaintiff gave for not accep- ting the lease was that it was not comprehensive enough. It vas, therefore, ilr, [lyirenda's contention that at its most favourable interpretation to the plaintiff there vas a consensus on the period if no agreement vas agreed on the other terms. ‘ith greatest respect to ilr. Nyirenda, | find that it would be a contusion of facts to draw such a conclusion fron the available evidence and say that although there was no agreement on other terms there vas cer- tainly an agreement on the period of the tenancy. | can find no facts which would support such a conclusion, ir, Nyirenda has further submitted that there was an undertaking regarding repairs and that it vas upon that undertaking that the defendant indicated his willingness to enter and did enter into the tenancy agreement with the plaintiff. Hr. Hyirenda has contended that exhibit 14, a letter vritten by the defendant soon after he had inspected the property, clearly shous that the reason the defendant could mottake occupation on the 11th April, 1985 was because of certain works which had to be done. He submitted that it vas the defendant's understanding that by Ist Hay 1985 the paint work and repairs would have been made and that he would be requi- red to pay a rental of K450. flr. Hyirenda conceded that exhibit 14 does refer to minor repairs but he contended that the letter should not be looked at in isolation. He argued that the plaintiff agreed that there were major repairs to be done in April, He contended that by 30th April the agreed repairs and paint work had not been done. fir. ilyirenda has submitted therefore that the defendant's version of the story should be accepted. He has argued that the defendant entered inte the house because he had reached a position when he could not clain his money back and that the only choice left to hin was to enter into occupation and renegotiate with the plaintiff while the repairs vould be carried out when he was already in the house. On the defendant's evidence it would appear that although major repairs to the house had not been done as undertaken by the plaintiff, the defendant nevertheless occupied the house, In my view that situation can only be described, for the moment, as curious. | have carefully considered the submission which both counsel have made before me and | have considered the authorities which they cited to me. A considerable amount of evidence vas adduced at this trial but in my view the main issue of contention betveen the parties and which | must determine is a simple one, That issue is whether the payment of rental at the rate of K450 was contingent on repairs being made to the house. There are, of course, other issues which are raised and which | will consider but the hub of the case and from which other issues spread is whether the payment of K450 rental was contingent on the repairs being made. After listening to counsel's submission and after reviewing the evidence, | am satis- fied that there was no legal demise between the parties. The plaintiff cannot be bound by the agreement which he never signed and in which the agent had no authority to make. | find that the only instruction given to llr. Chirwa of Property Auctions was to find a tenant for the plaintiff. In those circumstances, fir, iltaba's contention must be correct when he submits that lr, Chirwa had no authority to enter into a contract of lease, The plaintiff cannot be bound by it; Vide Keen y, Hear (1920) 2 Ch 574 at 579, However, even if it is accepted and | am able to find that there was a binding contract of lease between the plaintiff and the defendant, it seems to me that a contract of lease per se does not amount to a legal demise, {tis only an undertaking by the landlord that he will grant a lease of terms stipulated coupled with an undertaking by the leasee or tenant that he will take the property subject to a proper lease being drawn; Vide Svain v. Ayres (1888) 21 0.8. 289. | am satisfied and | find that it was the entry into possession on tst llay 1985 by the defendant and his payment of one month rent which created the relationship of landlord and tenant between hin and the plaintiff. That relationship which was then created betveen them uas a tenancy at will vhich runs perio- dically in line with the period of the rental which in this case was on monthly basis. On that basis | am satisfied and | find that the defendant was properly served with a notice to quit with effect from Ist August 1985, ‘hen there is an undertaking to repair in consideration of which a party agrees to take a tenancy of the premises the undertaking is a collateral agreement. The tenant will not necessarily be regarded as disentitling himself to damages by continuing to use premises pending the carrying out of repairs. The contention by the defendant vas that the agreed rental of K450 per month was only payable on condition that the plaintiff effected the repairs. The description by the defendant of the nature of repairs which were required to be done portrayed to the Court a picture of a house which was almost unhabitable. This Court was, however, invited by the defen- dant to visit the house and inspected it both externally and internally. After the visit to the property | find that the outside walls of the main house could do with a coat of painting so too the valls of the fence. The crack in the floor of the corridor did not measure up to the description given by the defendant. Although the crack vas visible it was not large or as serious as the defendant tried to portray it. The pieces of paper on the wall of the defen- dant's present main bedroom could not in my judgment give the room a clumsy look. Indeed, the pieces of paper on the wall were so small that | could not believe they were the pieces of paper the defencant described as giving a clumsy look to the room. Jt is indeed curious to note that although the defendant described the room as clumsy because of the pieces of paper on the wall, “he chose it to be his main bedroom, [tis clear in my judgment that the pieces of paper on the vall did not offend his sight nor did they deprive hin of the full enjoyment of the room, The repairs we found could not in my view be described, by any stretch of imagi- nation, as major repair work. One toilet needed a handle which could achieve a full fulcrun; the second toilet only needed fixing the seat so that it dogs not move about but was being used. And stopping the leakage in the toilet could not be described as a major repair. The peeling of paint in the kitchen vas not in my view a serious problem and | certainly did not accept the defendant's assertion that the condition of the kitchen floor was in the same con- dition as he found it 18 months ago. The defendant agreed that the kitchen is used everyday. The defendant's assertion therefore cannot be true. There vere gravel stones in the yard of the house and there was also an old engine in the garage. The engine vas of a smal] size and it could not interfere with the parking of acar in it. If the defendant's contention is that the presence of the gravel stones in the yard deprived him Tull enjoyment of the facilities the house vas able to offer then there was no evidence to shov that he is a man who likes good surroundings about hin. There vas no evidence of any flowers and all flower beds in the yard were without any flowers, To be fair to the defendant he told the court that gardening was not a fascination of his. | an satisfied, on further view of the property, that there was a desperate need of painting the servant's kitchen and bathroom, It is conceded by the defendant that some repair work was done perhaps not competently but done nevertheless. Sinilarly, sone painting work vas done and there can be no doubt on the evidence before me that the plaintiff vas willing to do the necessary repair and paint work, | an satiofled and | find that the repairs which were required to be done to the house were minor. | an also satisfied and | find that the defendant did not take occupation of the house in “onsideration of any undertaking to repair, The defendant on his own evidence was in desperate need of accommodation and he vas not, in ay judgnent, in a position to insist on any collateral agrceaent for repair before he could take occupation. | find that the paint york and the repairs could not be completed because of the un-cooperative attitude of the defendant. | find that he refused a painter to dray uater fron his house and | find that he refused to move his car fron the garage to enable a painter to do his work ane ie he rebuked the prai nti f for using the defendant's servant to off-load a baa of linc which vas to be used in the painting of the house, | accept, of course, that the cefondant's we tude vas due to the ae of ch occurod on 12th June 1905 vhen the relations betucen the plaintif? and defendant became extremely bitter, In ay view 1 the defendant's attitude made it extremely difficult for the plaintit? to carry out the repairs and the paintwork. | an satisfied that if the + rolationshio between the plaintif? and t 1 the defendant did not go bad the plaintiff vould also have renoved the gravel stones and the engine, | an satisfied that the repairs vere minor and they did not interferc with or diminish the defendant's full enjoyment of the facilities of the “house. The defendant has continued to live in the house for the past 10 months. | satisfied that the paynent o7 KL50 per month was not contingent on the repairs and vainting york being done, {f it vere B so the defendant, a very intelligent nan, would have included it in his oun Jetter uhich he wrote himself soon after he had inspected the property. On the evidence before me | an satisfied that there is insufficient evidence to show that the defendant had put the house to improper use, nor was there any evidence to show wanton use of the housc. But | am satisfied that the plaintiff have proved their case against the defendant on a balance of probability, on the clain for possession, arrears of rent and on the clain for nesne provits. The defendant has counterclained against the plaintiff for specific perfornance that the plaintiff be ordered to carry the repair works, The defendant has als o counter- clained in the alternative for damages for deprivation of full enjoyment of the valuc of tne sremises, | have already found that the minor repairs which yore required to be done to the house {and it should be noted sone vere done) did not deprive the defendant fron the full enjoyment of the house as up to this time he continues to live in the house, os) vas in breach of his fundamental obligation to pay rent and he cannot b veard tc say that the plaintiff oust carry out the agreenent for repairs when he hinself is in breach of Ais obligation. Indeed | have already found that there vas no collateral agreement for repair. vould therefore disaiss the defondant's counterclain with costs as having no verit. There Will therefore be judguent for the plaintiff for possession of the sroporty, for arrears of Specific serfornance is an equitable remedy and a party seeking it must have per- formed his obligation. "lle vho comes to equity must come with clean 7 ens The defendant ya rent in the sum of X900 and for mesne profits at the rate of K450 fron Ist August 198) Til possession is given up and costs of this action, It is order ed that the defendant should give up possession on or before the 12th January, 1957. PRONGUICES in open Court on this 12th dayof Decenber,, 1986 at Blantyre. a — _ 7 C . 5 Nee A a “ rye: &