Bernard v. Asha Civ. App. 7-A-69; 21/1/70; Platt J.

Bernard v. Asha Civ. App. 7-A-69; 21/1/70; Platt J.

The respondent brought an action in the District Court claiming Shs. 900/- being arrears of rent due from the appellant and possession on the grounds of non payment of rent for nine months. The appellant admitted owing Shs. 600/- being six months rent but denied the balance of Shs. 300/-. He then set up a set-off and counterclaim in the sum of Shs. 4,000/- on the ground that the respondent had been negligent in failing to complete a reconstruction of the premises which resulted in loss of business to the appellant. The Magistrate found that Shs. 300/- three months rent was due from the appellant and he awarded nominal damages of Shs. 200/- against respondent for the appellant’s loss of business owing to the reconstruction. On appeal it was argued that the suit was commenced in the wrong ‘court because by virtue of Section 11A (1) of the Rent Restriction (Amendment) (No. 2) Act 1966, all claims, proceedings or other matters of a civil nature arising out of the Act had to be commenced in a court of a Resident Magistrate. The respondent argued that the main claim being arrears of rent, it arose from a debtor /creditor relationship and was not a matter specifically arising out of the Act. He also intended that the counterclaim was separate action concerning a matter not covered by the Act and that therefore at least the counter claim was decided by a court of competent jurisdiction.

            Held: (1) “In my view, the plaint must be seen as a whole and the sense of it is that the respondent had asked for possession on the basis of non-payment of rent. There seems no doubt that viewing the plaint in this way, it came squarely within the terms of section 11A (1) (b) referred to above. It follows that the suit was commenced in the wrong court.” (2) “It seems to me that one must consider the basis of the claim, which is that the tenant has been put to dis-advantage by the actions of the landlord. It is now generally agreed that contractual tenancy has an implied term as to quiet enjoyment. Thus whether the landlord has entered lawfully but disturbed the tenant, the landlord may be liable on the implied covenant. Where he has entered unlawfully he may be liable for that reason. (See WOODFALL ON LANDLORD & TENANT 26^TH Ed. Vol. 1, Para 1448). In the instant case, the land-lord had been required to make alterations by the Land Office, and it was held that the appellant had agreed that he should do so. In as much as the landlord had disturbed the tenant lawfully, she would be liable for damages. In this case it was said that the respondent had caused damaged to the appellant by delay and in leaving the premises in an improper state, in fact, in a state worse than they had been before the re-construction, because of her impecuniosity’s. On the terms of the agreement that the appellant had allowed the respondent to carry out the re-construction it must surely have been implied that the respondent was to leave the premises in a proper state of repair, at least equivalent to the state of the premises before re-construction, as soon as possible. Of course, if the respondent had deliberately disturbed the appellant by altering the building, it might have been a case such as LAVENDER v. BETTS (1942) 167 L. T. 70, quoted by Woodfall. At any rate, as far as the contractual tenancy was concerned, a dispute had arisen as between the landlord and the tenant as a result of the landlord’s actions. Section 29 of the Act provides

That it shall be deemed to be the obligation of the landlord to keep and maintain the premises in a state of good structural repair and goes on to make provision for the issue of a certificate given by the local authority as to whether or not the premises are in a proper state of repair. There was evidence here, called by the appellant, that the local authority did not consider that the premises were in a proper state of repair. It is true that section 11A(1) (f) might have been resorted to by  the appellant, a provision indeed which the learned  Magistrate may have had in mind,  but if the basis of the claim was a resort to the provisions of the Act, it would seem that the appellant’s dispute equally stemmed from his statutory or contractual position. Had the appellant been a statutory tenant, he still had his contractual rights. (See Magarry the Rent Acts 9^th Ed. pp. 186-187).

            Section 11B of the Act provides for the investigation of complaints relating to the tenancy, made to the court by either the landlord or the tenant, and this power is in addition to any other powers specifically conferred on it by the Act. Sub section (2) of section 11B, recites that nothing in this section or in other provisions of the Act shall be deemed to preclude the court from taking cognizance of any infringement or alleged infringement of this Act of any dispute or matter likely to lead to a dispute between a tenant and a landlord, although such tenant and such landlord has not made a complaint to the court under the provisions of this Act. The section further provides in ensuing sub section, that where a complaint has been make, the court may summon the parties before it and having investigated the complaint, may make such order as the justice of the case may require. Section 11 B seems to be a new provision giving the court power to deal with  any matters arising out of a tenancy; brought before it by complaint of which it has taken cognizance. It seems to me to have empowered the learned Magistrate to authorize this appellant to carry out the repairs and deduct the cost against the rent, although it was not an issue strictly raised on the pleadings. Equally I think that the counterclaim must be taken as complaint concerning a dispute arising out of the tenancy, which the court decided along with other matters such as arrears of rent and possession, with which the counterclaim was closely connected.” (3) “In the result then, the proceedings as a whole must be set aside and both the plaint and the counter- claim must be returned to the court having proper jurisdiction.”