C.F.A.O. vs. THOME [1966]DLSC1669

Date	1966-01-31
Suit No.
Citation No.	[1966]DLSC1669

AZU CRABBE JSC

APALOO JSC

BRUCE-LYLE J.S.C.

B. J. DA ROCHA FOR THE APPELLANTS.

W. OFORI-ATTA FOR THE RESPONDENT.

[1966]DLSC1669
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													<main id="main" class="content" style="min-height: 60rem" >C.F.A.O.<o:p></o:p>&nbsp;vs. <o:p></o:p>THOME <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 107<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
31 JANUARY 1966.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

B. J. DA ROCHA FOR THE APPELLANTS.<o:p></o:p>

W. OFORI-ATTA FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE, APALOO AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>The
respondent (whom I shall hereinafter refer to as the plaintiff) is the owner of
a building situate on plots 21 and 22, Antoa Road, Kumasi. That building
comprises a store on the ground floor and flats on the first floor. The
evidence shows that the building was erected in 1930. Early in 1949, the
appellant company (hereinafter called the company) were desirous of letting the
entire premises. It seems that the terms of the letting were orally agreed upon
between the plaintiff and the company. These terms were subsequently embodied
in a letter written by the company to the plaintiff and dated 1 April 1949
(exhibit A). It seems to have been the intention of the parties that these
terms should be embodied in a formal lease to be subsequently executed between
the parties. It appears no formal lease was in fact executed between the
parties but nothing in this case has turned upon this.<o:p></o:p><o:p>&nbsp;</o:p>Although
this was a home-made agreement, it in fact contains most of the terms usually
met with in leases drawn up by professional conveyancers. The agreement
reserved a rent of £G45 which was to be paid quarterly in advance. The company
were entitled to sublet the whole or part of the premises without consent, to
have quiet possession and so forth. It would seem that at the date of the
letting, the premises were in a state of disrepair. Accordingly, the company
agreed to put them in a habitable condition and to spend for this purpose a sum
of money estimated at £G500. As an addendum to the letter embodying the terms
of the agreement, there was also written in long hand, the following: “At the
expiration of the tenancy, the premises to be handed over in good and
tenantable condition.” According to the agreement, the entire premises were let
to the company for a term of five years certain, with an option for a similar
duration on the same terms and conditions.<o:p></o:p><o:p>&nbsp;</o:p>This
agreement took effect from 1 April 1949. The initial term expired on 31 March
1954, but the company exercised their option and renewed it for a further five
years. The whole agreement expired by effluxion of time on 31 March 1959 and
the company were then under an obligation to give to the plaintiff vacant
possession of the entire premises and in accordance with their agreement, in a
“good and tenantable condition.” The company however renewed their tenancy of
the stores only. They offered to pay the plaintiff rent at the rate of £G75 per
month. This, the latter accepted. They relinquished to the plaintiff, the
backyard and magazine of the premises. They were however unable to give vacant
possession of the first floor to the plaintiff apparently because, it was at
that time in the occupation of a tenant protected by the Rent Control
Ordinance, 1952.1<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that at some time prior to January 1960, the tenant was ejected
but even at this time, the company were unable to deliver the first floor to
the plaintiff, obviously because they could not conformably with their
agreement deliver it to him in a “good and tenantable condition.” On 18 January
1960, they wrote to the plaintiff promising to carry out certain repairs as
would enable them to honour their original agreement and in the meantime,
offered to pay to the plaintiff a monthly rental of £G30. The plaintiff
declined to accept £G30 but said he would content himself with £G60. The
position therefore was that as to the first floor no rent was agreed.<o:p></o:p><o:p>&nbsp;</o:p>It would
seem that by 31 March 1960, the company completed some sort of repairs on the
top floor. They intimated this to the plaintiff’s solicitor by a letter dated 31
March 1960 (exhibit 1). They then said they were treating the tenancy as at end
with effect from that date. The plaintiff’s solicitor addressed to the
company’s solicitor a reply to this letter dated 28 April 1960 in which he took
the position that the repairs allegedly carried out by the company did not
conform with the contract and insisted that that should be done (exhibit 3).
The evidence is imprecise as to what the company’s reaction was to this but it
is reasonably clear that the company did not then contend that they had carried
out the repairs which the<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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