Costs and Fees-Discretion of court-Deprivation of a party of his costs under
Civil Justice Ordinance 1929, s. 100

Landlord and Tenant=Tender of rent

Landlord and Tenant-Uninhabitable premises-Remedies of tenant

Defendant was lessee' of a house and some shops in Khartoum owned .
by plaintiff. On a number of occasions defendant complained to plaintiff's
representatives about the uninhabitable condition of the house and in par-
ticular about the poor condition of the main walls. Plaintiff made no at-
tempt to improve or repair the premises. Defendant ceased paying rent. on
the house, though he remained in occupation for several months before quit-
ting the premises. The contract of lease of the house contained a covenant
by the landlord to repair the main walls on the condition that rent was
paid.

Plaintiff brought this action for the rent due on the house, and also for
rent due on the shops. The suit was defended in respect to the house on
the grounds of plaintiff's breach of the covenant to repair. In respect to
the shops, defendant proved that he had always been ready and willing to
pay against receipt, but that the plaintiff had not presented receipts.

Held: (i) The tenant may have legal remedies for the landlord's
breach of a covenant to repair, upon notice given of the need for repairs,
but he may not resort to self help by refusal to pay rent while remain-
ing in occupation.

(ii) As to the claim for rent due on the shops, plaintiff's action was
premature, since defendant had made sufficient tender.

"Court: Halford J.

Civil Justice Ordinance 1929, ss. 9 and 100.

Egyptian Native Civil Code, Art. 370.

French Civil Code, Art. 1720.

Action

April 12, 1930. Halford, J.: As regards the first item of the
claim, that is, for house rent from the 1st February to the 31st August,
1929, which the defendant admits he expressly refused, to pay, it is
common ground that he was in occupation till September, 1929 under
a lease dated 5th January, 1925. It is not suggested that until Febru-
ary, 1929, he had failed to pay rent due.

I am satisfied and find as a fact that in August the house was in
a dangerous condition and unfit for habitation. I accept the evi-
dence of defendant's witness that he, defendant, complained about the
condition of the premises in July. Nor have I reason to doubt de-
fendant's sworn statement that he complained in March, 1929, al-
though he may not have complained to Lymberopoulo, agent of the
plaintiff in charge of buildings.

From Philip Contomichalos's evidence it is clear that defendant
told him he had complained on numerous occasions and that no atten-
tion had been paid to his complaints; while from that of Frost, the
plaintiff's engineer, I am satisfied that the dangerous state "Of the.founda-
tions which was manifested by cracks in the walls may have started
several months before he visited the premises in August.

On the whole of the evidence I find as facts that the premises
demised were not in a habitable condition; that the foundations and
mainwalls had not been properly maintained by the landlord and that,
in March, 1929 defendant complained verbally to this effect to repre-
sentatives of the plaintiff but not to the manager in charge of plaintiff's
buildings.

On the English authorities, there is an implied condition in such
express covenants that notice of want of repair must be given. Wood-
fall, Law of Landlord and Tenant, 22nd Edition, p. 761. While
under certain statutes in England, in "cases of workmen's tenements,
the tenant in such cases is entitled to quit, although the usual remedy
is by way of action for damages.