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On 02-05-2006, the plaintiff
issued a writ in this court in
which he claims the following
reliefs:
“1. The sum of GH¢1,840.00
being cost of repairs.
2. Interest at the
prevailing bank rate till date
of final payment.
3. Cost.”
The facts the plaintiff rely on
to support his claims as set out
in the statement of claim are as
follows:
Sometime in November, 2004, the
plaintiff entered into a tenancy
agreement with the defendant for
the renting of his house in
Kenyase, in the Brong Ahafo
Region of the Republic of Ghana.
At the expiration of the tenancy
agreement, the defendant left
the premises in an untenantable
condition, e.g. gaping air
conditioner holes on the walls
of the building, removal of
floor tiles, unpainted walls,
damaged electrical sockets, etc.
The plaintiff had verbal
discussion of the state of the
house with the officers of the
defendants in Accra and followed
it up with a letter requesting
the defendant to repair the
damage to the property but the
latter failed and/or neglected
to repair it. He, therefore,
repaired the property to restore
same to a tenantable condition
at the cost of GH ¢1,840.00.
Thereafter, he requested the
defendant to reimburse him but
the latter refused or failed to
do so. He, therefore, brought
the instant action.
The defendant disputes the
plaintiff’s action. The facts
upon which the defendant relies
as stated in the statement of
defence are as follows:
Sometime in November, 2004, the
plaintiff presented an unsigned
tenancy agreement to the Project
Manager of the defendant’s
Kenyase site and the latter
signed the said agreement only
after making certain amendments.
The plaintiff took away the
agreement but did not return a
copy signed by himself to the
defendant. The said tenancy
agreement was for a year’s lease
which was to expire sometime in
October, 2005.
The defendant denies that it
left the premises in an
untenantable condition at the
expiration of the tenancy. The
defendant states that sometime
in July 2005, the defendant gave
the plaintiff notice to quite
the premises and indicated that
it wanted to seal up holes which
would be left after it removed
air conditioners it had fixed
for the duration of occupancy by
its employee. The plaintiff
responded that the defendant
should hold on until he had
secured new tenants who might
want to use the same holes for
fixing air conditioners.
Furthermore, the defendant
denies that its officers had a
verbal discussion with the
plaintiff, in Accra, in respect
of the state of the house. The
defendant, also, denies that the
plaintiff followed up the
discussion with a letter
requesting it to repair the
damage to the property and it
failed or neglected to repair
same. On the contrary, the
plaintiff contacted its officers
when he secured new tenants who
did not require the air
condition holes and requested
the defendant to send workmen
over to seal up the holes. The
defendant dispatched workmen to
the premises about three days
after the request only to find
that the holes had been sealed
up and other extensive works had
been done obviously to upgrade
the premises to the new tenant’s
taste. The plaintiff, by his
solicitor, wrote to the
defendant after he had
unilaterally caused the air
condition holes to be sealed up.
The defendant denies that the
plaintiff spent an amount of
GH¢1,840.00 to repair the house
and says that after effecting
the so-called repairs, the
plaintiff sent inflated receipts
including receipts for works
which were undertaken purposely
to suit the peculiar tastes of
the new tenant and which has
absolutely nothing to do with
the air condition holes left by
the defendant.
In reaction to the plaintiff’s
letter in which he demanded
payment for works undertaken,
the defendant says it invited
the plaintiff over and pointed
out to him that the bills he had
presented were grossly inflated
and that a number of them
related to works done which was
totally unrelated to the
defendant’s stay on the
premises. The plaintiff admitted
the fact and agreed to correct
the bills but he did not. The
defendant, therefore, says that
the plaintiff’s greed motivated
him to unilaterally carry out
the works on the premises and
this informed his request for an
amount far above what he
expended in carrying out the
works.
Following from the facts averred
by the defendant, it says the
plaintiff is not entitled to his
claim or any part of it.
In reply, the plaintiff avers
that he presented the tenancy
agreement to the Project Manager
of the defendant but the latter
made some amendments by altering
the agreed rent from GH¢9,000.00
to GH¢7,000.00, among other
things. However, after
discussing the issue with the
Project Manager, it was agreed
that the rent should revert to
the original figure of GH¢9,000.00
and also the defendant should
put the premises in tenantable
condition at the expiration of
the tenancy. Upon that oral
agreement, the tenancy took
effect and the defendant paid
him the GH¢9,000.00 and the
agreement has since governed
their relationship.
In further reply, the plaintiff
avers that the defendant decided
to terminate the tenancy
agreement three clear months
before the date of expiration.
The defendant then decided to
give him two 700 litres water
tank in lieu of the sealing of
the air condition holes and
other repair works on the
premises, an offer which he
refused. As the defendant was
delaying in the repairs of the
premises, he had no choice than
to undertake the repairs himself
as the premises were
deteriorating and as a measure
to protect the property and also
give it to another tenant.
Thereafter, all efforts to get
the defendant to pay for the
renovations failed and
eventually he was referred to
the Accra office of the
defendant for payment.
The plaintiff says that, after
the defendant refused to pay
him, he instructed his solicitor
to write to demand payments.
The plaintiff filed an
application for directions in
which he set out the following
issues:
“1. Whether the
plaintiff entered into a tenancy
agreement with the defendant.
2. Whether or not
the defendant left the premises
in an untenantable condition.
3. Whether the plaintiff
requested the defendant to put
the premises in a tenantable
condition.
4. Whether the defendant abided
by the plaintiff’s instructions.
5. Whether the plaintiff
undertook to repair the premises
himself.
6. Whether expenses were
incurred by the plaintiff.”
The defendant, also, filed
additional issues as follows:
“a. Whether or not sometime in
November, 2004 the plaintiff
presented a tenancy agreement to
the Project Manager of the
defendant’s Kenyase site when he
had not signed.
b. Whether or not plaintiff’s
greed motivated him to
unilaterally carry out the works
on the premises.
c. Whether or not the defendant
had verbal discussion with the
plaintiff which culminated in an
oral agreement varying the
written agreement.
d. Whether or not the defendant
left the premises in an
untenantable condition.
e. Whether or not the defendant
invited the plaintiff over and
pointed out bills presented by
the plaintiff which was grossly
inflated.”
From the pleadings alone,
without the evidence of both
parties, it is clear that there
was a tenancy agreement between
the parties by which the
plaintiff let his house at
Kenyase to the defendant for one
year which covered the period
November, 2004, to October,
2005.
The only issues of relevance for
the determination of this case
are as follows:
(a)
Whether or not the defendant
left the premises in an
untenantable condition.
(b)
Whether or not the defendant
failed, neglected or refused to
put the property in a tenantable
condition despite request by the
plaintiff.
(c)
Whether the plaintiff spent an
amount of GH¢1,840.00 to put the
premises in a tenantable
condition.
The other issues set out by both
parties are of no relevance to
the resolution of the dispute. I
would now examine the evidence
led to resolve the issues.
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Whether or not the defendant
left the premises in an
untenantable condition.
The full bench of the Court of
Appeal in Thome v.
Barclays Bank (D.C.O) [1976] 2
GLR 126 stated one of
the principles to apply in
determining whether a tenant is
in breach of his covenant to
repair as that the tenant must
deliver up premises of the same
character as those which were
demised to him. So, the question
in the instant case is whether
the defendant company delivered
up the premises they rented from
the plaintiff in the same state
in which it was before they
rented same and took occupation.
The plaintiff’s case is that the
defendant left the premises in a
state of disrepair. The
plaintiff, in his evidence, said
that the agreement he had with
the defendant included painting
both the interior and exterior
of the premises after vacating
which the defendant did not do.
He, also, testified that the
defendant sought permission from
him and fixed window type air
conditioners. In fixing the air
conditioners, they cut his
original internal wiring and did
surface wiring. The defendant,
also, erected a summer hut in
front of the house.
The plaintiff testified,
further, that, when the
defendant vacated the premises
at the end of the tenancy, they
left the summer hut; they
removed the air conditioners and
left the holes and all the
windows opened with the louvre
blades not in place; they left
switches that were burnt; the
main board where their wires
were was left uncovered with
some wires hanging; some of the
bathrooms, toilet and kitchen
tiles were peeled off; some
pipes were leaking; they did not
paint the house both inside and
outside leaving it in a very
dirty state.
The plaintiff tendered in
evidence pictures to show the
extent of damage to the house.
The defendant gave evidence
through the Administrative
Manager, Jonathan Adongo (D.W.1)
and the company representative
at Kenyase, Eric Oppong (D.W.2).
Their evidence is that they did
not agree to paint the exterior
of the house after the end of
the tenancy. They admitted they
sought permission from the
plaintiff and installed window
air-conditioners. They used
their own cables and connected
electricity from the meter to
the areas where they fixed the
air conditioners. They, also,
removed the louvre blades to
install them. They, also,
noticed the living area was too
small so they sought permission
from the plaintiff and put up a
shed outside the house to allow
people to be able to relax.
D.W.1 and 2, further, testified
that the defendant occupied the
property from November, 2004,
till June, 2005, when their
project ended so they informed
the plaintiff that they were
leaving the property so they
would replace the louvre blades
they removed in order to fix the
air conditioners. The plaintiff
told them they should leave the
property in the state that it
was that is the louvre blades
they removed, the air
conditioners they removed and
left the holes, the internal
painting that they did not do,
the water containers in the
house, the electrical lines they
installed to their air
conditioners. The plaintiff said
they should leave them in that
state for he might find tenants
who may want to use the same
facility in which case he would
discuss with them the cost of
doing the repairs, which is
fixing the louvre blades, frames
as well as painting as against
the cost of the items that they
have left there and strike the
balance. The plaintiff then
collected the keys so that he
could show the property to
prospective tenants. So, the
defendant left leaving their
security men who were watching
over their property in the
building.
According to D.W.1 and 2, it was
towards the end of October,
2005, that the plaintiff called
them and told them that he had
found tenants but they were not
interested in their fixtures
that they had left in the house
so they should remove them and
fix back the louvre blades and
frames, paint the building and
put it in a state so that he can
give it to the tenants.
The plaintiff called on a Friday
and D.W.2 informed him that he
would be at Kenyase that weekend
so, as soon as he gets there, he
would send workmen to the house
to fix up the place. To the
defendant’s surprise, on the
Monday following the Friday, he
sent workmen to the property
only to see that the work had
already been carried out by the
plaintiff, that is he had fixed
the louvre frames and had
painted the house. When D.W.2
called the plaintiff and
confronted him he said the
prospective tenants were in a
hurry so he had to do the
repairs so he would send his
bill for payment. The plaintiff,
later on 19-11-2005, submitted
his bill to the defendant.
So, from the evidence of both
parties, the property was not
delivered up to the plaintiff in
the state in which it was before
it was rented. The only dispute
is the extent of disrepair. The
plaintiff’s case is that there
was extensive disrepair to the
property. The defendant’s case,
on the contrary, is that their
responsibility was limited to
fixing the window frames and
louvers, closing the air
condition holes and painting the
inside of the house.
There is no dispute that, after
renting the property, the
defendant erected a summer hut
outside. So, if the plaintiff
does not need the hut, it is the
responsibility of the defendant
to remove it.
Furthermore, the plaintiff’s
oral evidence as regards the
state of disrepair to the
building is corroborated by the
photographs that he tendered
(Exhibit A, A1 to A12).
Finally, with the issue of
painting the exterior of the
house, the plaintiff gave the
reason that, because of the
nature of the work the defendant
was engaged in, it would affect
the exterior of the house and
that was one of the reasons why
he objected to the tenancy
agreement that was altered by
the defendant. The defendant had
to go back to the plaintiff to
withdraw the amendment and take
occupation on the plaintiff’s
terms which included painting
the outside upon vacating the
property.
Accordingly, my findings of
facts are that the extent of
disrepair includes the window
frames and louvers, the air
condition holes, floor tiles,
unpainted walls, both inside and
outside, electrical fittings and
the summer hut.
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Whether or not the defendant
failed, neglected or refused
to put the property in a
tenantable condition despite
request by the plaintiff.
The plaintiff’s testimony is
that he asked D.W.2 about what
they would do about the state of
the house and the latter told
him that they had two poly tanks
and a water pump in the yard so
they have decided to give him
those properties in lieu of
repairing the premises so that
he, the plaintiff, would carry
out the repairs at his own
expense which he objected. Some
weeks to the end of the tenancy,
D.W. 2 asked him to carry out
the repairs and send his bill.
He, therefore, bought materials
and carried out the repairs.
Thereafter, he sent his bill to
D.W.2 but he did not get any
response. So he followed up to
the defendant, had discussions
with D.W.1 but there was no
fruitful results for D.W.1 told
him that if the defendant had
used their workers to effect the
repairs it would have cost less
so they were prepared to pay GH¢700.00,
which offer he refused.
D.W.1 and 2 testimonies, on the
other hand, is that they wanted
to fix the place in June, 2005,
when they were leaving but the
plaintiff asked them to leave it
for he might get new tenants who
may want to use the same
facility so that they would
discuss the cost of the repairs
against the value of the items
that the defendant had in the
house and they would strike a
balance. So, the defendant left,
leaving only security men who
were watching over their
properties in the house. It was
towards the end of October, the
plaintiff called them to come
and fix the place but when they
went he had already done it.
This testimony of D.W.1 and 2 is
similar to the plaintiff’s
testimony that the defendants
wanted to give him their two
poly tanks and water pump as an
exchange for the repair works
which offer he refused. I find
that D.W.1 and D.W.2 are very
economical with the truth on
this issue. What I find to be
the truth is that the defendant
failed to carry out the repairs
and wanted the plaintiff to take
their two poly tanks and water
pump in lieu. This offer, the
plaintiff rejected and the
defendant asked him to repair
the premises and submit his
bill. When the plaintiff
submitted his bill, the
defendant thought it was on the
high side and offered to pay
GH¢700.00. This is even evident
from the cross-examination of
the plaintiff. The defendant’s
counsel put this question to the
plaintiff:
“I am putting it to you that the
only reason why the defendant
made this offer to you was after
a careful scrutiny of the bills
they realized that most of the
receipts did not relate to the
property?”
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Whether the plaintiff spent
an amount of GH¢1,840.00 to
put the premises in a
tenantable condition.
The plaintiff sent the bill to
the defendant supported by
receipts. The defendants
challenged the bill not so much
on the cost of the materials
bought or workmanship but on the
extent of their responsibility
for the extent of disrepair.
Once I have found that the
defendant is liable for the
extent of disrepair that the
plaintiff testified to, the
defendant’s objection to the
bill breaks down. With the
exception of the padlocks, which
the plaintiff himself admits
should not be part of the bill,
the defendant is liable to
refund the cost of repairs to
the property. From Exhibit 1H,
the padlocks were bought for GH¢35.00.
Accordingly, the plaintiff would
be entitled to judgment for the
sum of GH¢1,805.00 with interest
from October, 2005 to date of
payment. Cost of GH¢1,000.00 to
plaintiff.
COUNSEL:
1. Mr. Kwamina Baiden for the
Plaintiff.
2. Ms. Leslie Brown for the
Defendant.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT.
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