The burning question about ejecting a tenant | Daily News

The burning question about ejecting a tenant

A tenant had the house she rented burn down. The police apparently took no action, and subsequently the landlord filed action pleading for the ejectment of the tenant because the house had completely burned down, and according to him the contract was therefore at an end. The contract provided that if its subject matter is completely destroyed the contract is at an end.

Turns out, the plaintiff, who was the subsequent appellant when the case was taken up in the Court of Appeal, had burned the house himself! (Tikiri Banda v. Pathuma Beebee and Others - SLR - 46, Vol 3 of 1998 [1998] LKCA 51; (1998) 3 Sri LR 46 (August 17, 1998.)

This is how what transpired was recorded in the Appeal Court judgement.

“The plaintiff-appellant instituted action seeking a declaration of title to the land and ejectment of the defendant-respondents therefrom. The District Judge held that the plaintiff-appellant had set fire to the house in question and observing that the house that was burnt down was renovated subject to an order made by the Rent Board which was based on the premise that there existed a building which could be repaired, dismissed the action of the plaintiff-appellant; on appeal.”

In the District Court the plaintiff had contended that the witness had stated he saw one Dissanayake holding the firebrand the day the house was burned down. The plaintiff’s lawyer referred to this witness statement to claim that the plaintiff hadn’t burned down the house, because there was a discrepancy between the name (Dissanayake) that the witness mentioned, and the real name of the plaintiff.

 

The Appeal Court did not accept that argument.

This is the excerpt on the Appeal Court judgement on that aspect of the case:

“Further, attention of the witness was not drawn to this portion of the statement to enable her to explain the discrepancy. It is to be noted that section 145 (1) of the Evidence Ordinance requires that attention of a witness must be drawn to any portion of a statement which is inconsistent, to enable the witness to explain the inconsistency before such portion could be produced as a contradiction. It is regrettable that this procedure was not followed when Pathuma Beebe gave evidence in the District Court.”

Apparently the police did nothing to prosecute the plaintiff for setting fire to the house, but the Court of Appeal noted in judgement that this should not detract from the fact that the plaintiff had done so. “Coming to a conclusion about the truth or otherwise of the complaint does not depend on the police attitude in not prosecuting particularly, because there was a background of ‘violence against an ethnic group’,” the judgement went on to state.

Anyhow, the Rent Board had allowed the tenants to repair the house after an inquiry into the matter, and the plaintiff did not present himself at the inquiry though he had been noticed to be present.

Court of Appeal cited Wille’s Principles of South African Law by J.T.R. Gibson (seventh edition) in chapter XXV and held the following in judgement:

“Under contracts in general at page 377 contains the following: Where performance of the obligation by the debtor becomes impossible, either physically or legally, after the contract was made, the debtor is discharged from liability if he was prevented from performing his obligation by viz major or casus fortuitus but not if the impossibility was due to his own fault. For instance, if a house is let and it is destroyed by fire without the fault of the lessee, for example, by lightning, the lease is at an end and the lessee need pay no further rent; but if the fire is due to the negligence of the lessee, the lease continues and he remains liable for rent accruing after the fire.”

In the same way, liability lies with the lessor if the fire is caused by his own doing.

Basically it meant in the case under review, that if the plaintiff had set fire to his own house, he cannot claim that the contract has ended, because he was himself responsible for the deed.

The plaintiff wanted specific performance of the contract claiming that since the house that was the subject of the contract no longer existed, the tenant ought to be ejected. However, Court of Appeal noted in judgement that it is an accepted principle in this regard that where damages are an adequate remedy, specific performance will not be granted. (Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, to complete performance of the contract. This is as opposed to granting money as damages, for instance.)

After an inquiry by the Rent Board by its order dated 11.10.1983, the Board had allowed the application of Sultan who was the tenant of the house to repair the damaged building on conditions approved by the Rent Board.

In the circumstances, Court of Appeal saw no basis to interfere with the findings of the District Judge – that the plaintiff’s case for ejectment of tenant be dismissed – and the appeal was dismissed with costs.

Things would have turned out differently had the house caught fire and burned down accidentally.

In the leading English case of Taylor v Caldwell (1983) 122ER 309, Caldwell hired a music hall to Taylor. Before Taylor could arrange the first performance at the music hall, it caught fire and burnt down. Taylor claimed damages from Caldwell for the expenses he had incurred in arranging several performances. The Court held that since the destruction of the music hall had occurred without the fault of either party, the contract was frustrated and therefore both parties to the contract were discharged from their obligations. Accordingly, Caldwell was not liable to pay Taylor as demanded for breach of contract.