ISHAK MOUSA ISRAEL EL EINI v. GABRIEL MAGDESSI

Case No.:

H&CS--1957

Court:

The High Court

Issue No.:

1964

Principles

· Landlord and Tenant—Covenant of quiet enjoyment—Not breached by agreement to build second floor

· Contract—Breach by defendant’s refusal to allow performance

· Criminal law —House trespass—Not committed by landlords contractor entering in pursuance of agreement with tenant

Acting on an agreement with defendant (tenant) plaintiff (landlord) entered into a contract with a building contractor to erect a second storey to premises leased to defendant. However, when the contractor began operations, the defendant brought an action for house trespass against the plaintiff. the contractor and his workmen, claiming that the building of the second storey was only to be done during his absence on leave.
In this action by the landlord for an order to continue the building of the second storey, defendant relied on a covenant of quiet enjoyment. The court found that there was no time restriction on the building operation as defendant had alleged.
Held: the tenant cannot complain of a disturbance of quiet enjoyment when this resulted from his agreement with the landlord to construct a storey on the demised premises. Neither could he be heard to say that the landlord or his contractor had committed trespass by entering the building in pursuance of the agreement.

Judgment

(HIGH COURT(

ISHAK MOUSA ISRAEL EL EINI v. GABRIEL MAGDESSI

H&CS--1957

Michel Cotran D.J. June 26, 1959:—The plaintiff is the owner and the defendant is the tenant of a house known as Plot No. 2 in Block No. 4

F. East, Khartoum City. The tenancy commenced on June 15, 1956. Defendant used the house as a maternity clinic. In the early part of 1957 there were negotiations between plaintiff and defendant with regard to the construction of a second storey on the premises occupied by defendant It was actually the defendant who first approached the plaintiff and made the proposal to him. At the commencement of his evidence, defendant stated: “In March 1957 I made a proposal to plaintiff to build a second floor.” Plaintiff in principle agreed and obtained the necessary permit to build. This is Exhibit P. 4, dated October 31, 1957. On or about November 22, 1957, it was finally agreed between the parties that plaintiff should build the second storey, provided that, after completion, the said building be rented to defendant. The agreement was not reduced to writing and had to be proved by oral evidence. In pursuance of this agreement, plaintiff entered into a contract with a building contractor to erect the second storey at an approximate cost of £S.4,900 and paid him £S.1000 on account.

The dispute between the parties arose when the said building contractor, on or about December 7, 1957, started building operations. Defendant brought an action for house trespass in the Police Magistrates’ Court against plaintiff, the building contractor and his workmen.

The main issue in the present case is whether or not the agreement to build the second storey was restricted to a particular date. Plaintiff says it was not restricted and that he was free to build any time he likes, while defendant contends that the agreement was only to be executed during his absence on leave commencing May 1958.

Apart from plaintiff’s testimony that the agreement to build the second storey was not restricted to a particular date, there is the evidence of P.W. 2 and P.W. 3 who were both present at the meeting between plaintiff and defendant at the latter’s house on November 24, 1957. Both these witnesses clearly say that no date was fixed for commencing building operations and that defendant allowed plaintiff to start the constructions at any date convenient to him.

Defendant has failed to rebut plaintiff’s story. Except for the statement by defendant, there is not any convincing evidence to shake or contradict the testimony of plaintiff and his witnesses. The evidence of D.W. 1 Dr. Mohamed Rashid Farid, does not help defendant in relation to the matter in issue. He merely says that the building operations would endanger the health of defendant’s patients, and that therefore the defendant ought to stop his work while building operations are taking place. This does not mean, however, that defendant intended the building operations to take place while his clinic was closed. In fact, he had made arrangements with plaintiff and the building contractor, so that he (defendant) and his patients would have the minimum disturbance during building operations. Thus, P.W. 2 stated: “Defendant also raised the point of the disturbance by the labourers entering through the main door.

I explained to him and he agreed that the workers should enter through a back entrance without causing any inconvenience to him or to his patients.” P.W. 3 said something to the same effect. In fact, to prevent any disturbance or inconvenience during building operations, a wooden staircase was actually erected from the street direct to the roof at the back of the house.

The learned counsel for defendant, in his submissions, dwells at length on the covenant for quiet enjoyment by the tenant, contained in the contract of lease, and quotes authorities that the owner is not entitled to interfere or cause disturbance to the tenant. There is no issue beween the parties in connection with this matter, but I shall deal with the matter briefly. It is not denied that the contract of lease contains the usual provision for quiet enjoyment by the lessee (the defendant). In fact, the covenant for quiet enjoyment is always implied in leases, even though not expressly provided for in the agreement of lease. However, nothing precludes the landlord and tenant from entering into other agreements and arrangements. In the present case defendant admits having agreed to the second storey being built, and in fact he was the originator of the idea.

I am of opinion that the real reason behind the whole trouble is the fact that the parties did not agree over the rent to be paid for the second floor. I am inclined to believe that the meeting of December 8, 1957, was convened by defendant with the object of persuading plaintiff to agree to the rent offered by him, viz., £S.40 per month, but when plaintiff refused to accept this rent, defendant immediately went to the police and lodged a criminal action. I am fully satisfied that the agreement between the parties did not stipulate that plaintiff can only carry out building operations during defendant’s absence on leave, and that plaintiff was entitled to start building immediately or at any time he liked. This disposes of Issue No. 1.

The answer to Issue No. 2, as to whether defendant is in breach of his agreement with plaintiff, is clearly in the affirmative. Defendant has certainly committed a breach by preventing the contractor and his work men from carrying out building operations and by bringing a criminal case for trespass against plaintiff, his contractor and labourers.

Having found for plaintiff on Issues No. 1 and No. 2, it follows that he is entitled to an order allowing him to proceed with the building of the second storey, and a decree will be issued accordingly. In all the circumstances, I direct that building operations should not commence before October I, 1959.

In his statement of claim, plaintiff did not specifically ask for damages, nor was an issue framed in this respect. In his submissions, however, he claims £S.50 .per month on this head as from May 1958. The trial proceeded on the basis that plaintiff was only asking for an order to continue the building of the second storey. and the matter of damages was not dealt with or proved. I, therefore, refuse to award any damages in this case, but there is nothing to preclude plaintiff claiming same in a separate action.

Plaintiff will have his costs in the total sum of £S.57 being £S.37 court fees and £S.20 advocate’s costs.