Edward and Ors. v. Shah Civ. Case 6-A-70; 20/8/71; Bramble J.

 

 Edward and Ors. v. Shah Civ. Case 6-A-70; 20/8/71; Bramble J.

By a lease dated the 31^st December, 1968, the defendant let to the plaintiffs certain premises for a term of three years at a monthly rental of Shs. 800/-. There was the usual lessor’s covenant for quiet and peaceful enjoyment. The demised premises were part of a large building. The defendant later contracted to sell the whole building to Moshi and District Consumers Cooperative Society Limited and on the 23^rd April, 1969, served upon the plaintiff notice to quit the premises on 31^st May, 1969. Sometime after the receipt of the notice, the plaintiff vacated the premises. The plaintiff sued the defendant for damages claiming that by issuing the notice to quit and selling the premises he defendant had frustrated the performance of the contract. In support of this contention he cited Cort v. Ambergate Rly. Co. (1851) 17 Q. B. 127; and O’ neil v. Armstrong (1895 2 Q. B. 418.

            Held: (1) “The lease, which was put in evidence as Exhibit 1, fixed a term certain of three years provided the lessors fulfilled certain covenants. The notice to quit did not say that the plaintiff were in breach of any of the covenants. There was no provision in the lease for such notice. The position would be that the plaintiffs should have ignored the notice. Even though the notice was served there was no physical interference with the plaintiff’s possession and the defendant still continued to perform his part of the bargain.”  (2) “In …. Cort v. Amergate Railway Company ………… the plaintiff contracted with the defendant Company to supply them with 3,900 tons of railway chairs at a certain price to be delivered in certain quantities at specified dates. After a certain amount was delivered the Company directed the plaintiff to deliver no more, as they would not be wanted. The plaintiff succeeded in a action for breach of contract claiming that he was ready and willing to perform his part and the defendant was unwilling to accept his performance. Another case quoted was O’Neil v. Armstrong in which the plaintiff, a British subject, was engaged by the captain of a warship owned by the Japanese Government; the Japanese Government declared Japanese Government; the Japanese Government declared war with China and in the course of the voyage the plaintiff was informed that a performance of the contract would expose him to penalties under the Foreign Enlistment Act. He left the ship and successfully sued for the agreed wages on the ground that the defendant’s principals had made the performance of the contract legally impossible. In the 21^st Edition of Anson’s Law of Contract page 415 it is stated that: - ‘If during the performance of a contract one of the parties by word or act definitely

Refuses to continue to perform his contract in some essential respect, the other party is forthwith exonerated from any further, performance of his promise and is at once entitled to bring his action.’ At its highest the service of the notice was an expression of a desire to bring the contract to an end. The defendant still performed the contract in its essential terms in that the plaintiff remained in possession. I cannot hold that service of the notice gave a right of action to the plaintiffs.” (3) “It was argued that the sale of the premises and the promise of vacant possession made it impossible for the defendant to fulfill the contract. There was no proof of any physical interference with the plaintiff’s possession and it is trite law that the right and obligations of the defendant passed to his successor in title. By the sale of the premises the Co-operative Society stepped into the defendant’s shoes and all the rights of the plaintiff were protected. This was a contract in which the rights were attached to the land and moved with the land. There was no case of the defendant’s making performance impossible.” (4) Judgment entered for the defendant.