Hussein Kalil Basma V. Allie Noureldine (1952)
LawGlobal Hub Judgment Report – West Africa Court of Appeal
Landlord and Tenant—Breach of covenant—Re-entry or Forfeiture—Notice of breach—Discretion of Court—Conveyancing Act, 1881, section 14 (1) and (2)—Circumstances—Compensation.
Shortly put, sub-section (1) of the above section requires a Lessor to give the lessee notice of breach of covenant and call on him to remedy it and make compensation, and sub-section (2) enables the Court in an action for forfeiture to grant relief to the lessee having regard to the conduct of the parties and the circumstances.
The appellant gave the respondent notice on 18th May, 1949, under the covenant for repairs, and again on 24th May, 1950, under the covenant to pay rates; the appellant sued for recovery of possession on 27th June, 1950, alleging default in the respondent on the covenants; the trial began on 21st November, 1951, and the Court visited the premises next day.
The respondent, in spite of receiving notice of the rates in November, 1949, did not pay them, and appellant paid them, with the poundage for delay, on 11th May, 1950 (before suing); he refused the tender of the amount he paid and respondent paid it into appellant’s banking account on 30th May, 1950 (before the action). The appellant justified his refusal on the ground that no compensation was offered.
As regards repairs the respondent testified that he had made the repairs stated in the notice of 18th May, 1949, but his architect testified to the contrary, and the visit of the Court showed that the respondent hurriedly painted a portion of the premises and laid linoleum to cover rotten boards requiring replacement.
The respondent expressed regret and undertook to repair to the satisfaction of the appellant, and the Court thought it was a proper case for relief and discretion in respondent’s favour.
The appellant appealed on the ground that the trial Judge “exercised his discretion on wrong principles or no principles at all”.
So far as compensation in regard to rates paid by Hie appellant was concerned, that could only mean interest between the 11th and the 27th May, 1950, when tender was made, which was a negligible amount.
In regard to repairs, however, the notice was given on 18th May, 1949, but the repairs had not been made by the 22nd November, 1951, when the Court visited the premises; moreover the respondent had alleged in his defence that he had carried out the repairs stated in the notice—which was untrue—and also tried to mislead the
Court by hasty painting at the last minute and covering of rotten boards: his conduct disentitled him to relief and the Judge was wrong in exercising his discretion in the respondent’s favour in the circumstances.