Charan ats Witherow [1946] FijiLawRp 14; [1875-1946] 3 FLR 433 (9 September 1946)

[1875-1946] 3 FLR 433

SUPREME COURT OF FIJI

Appellate Jurisdiction

RAM CHARAN

ats

WITHEROW

Thomson, J.

September 9, 1946

Agreement to lease-covenant to keep clean of noxious weeds-breach of covenant-damages for injury to reversion from failure to keep clear of noxious weeds-measure of damages-agreement not stamped-notice to produce original agreement served on defendant-defendant declined production-plaintiff forced to stamp original agreement-costs.

Ram Charan was in occupation of land owned by Witherow under an agreement for lease which contained a covenant "the said land to be kept clear of noxious weeds" this was not observed and Witherow, in an action for, inter alia, arrears of rent also claimed damages for breach of the covenant to keep clear of weeds. The Magistrate assessed damages on the cost of restoring the land to its condition as at the date of the agreement. For purposes of evidence at the trial Witherow gave Ram Charan notice to produce the original agreement. Ram Charan refused and Witherow had to pay stamp duty on a duplicate prior to producing it.

HELD –

(1) There is an actionable breach of a covenant to keep clear of weeds if at any time the property is not clear of weeds.

(2) In case of breach of a covenant to keep clear of weeds the measure of damages is the injury to the value of the reversion which must be assessed with regard to the time which will elapse before expiry of the lease; unless the term is about to expire it is not the amount it would cost a purchaser of the reversion to restore the land to a state of cleanliness.

(3) A party who has to stamp a document in order to produce it in evidence must bear the cost of stamp duty himself.

Cases referred to:-

Gardner v Hirawanu [1927] AC 388.

APPEAL by plaintiff from the judgment of Magistrate for arrears of rent and damages. The facts fully appear from the judgment.

Haricharan, for the appellant.

W. L. Davidson, for the respondent.

THOMSON, J.- This is an appeal from the judgment of the Magistrate for the Nausori District.

On 6th June, 1945, the parties entered into an agreement for a lease of certain land for a period of ten years which contained inter alia the following covenants:-

"3. The annual rent is to be £12 paid in advance.

'4. Charley (i.e. the present appellant) has to securely fence the land and fence to be kept in good order by Charley.

6. Said land to be kept clean of noxious weeds by Charley."

On 5th June, 1946, the respondent commenced proceedings in the Magistrate's Court. He alleged breach of all the covenants set out above and claimed arrears of rent due and damages for injury to his reversion caused by appellant's breach of the fencing and noxious weeds covenants. In the event he obtained judgment for £24 made up as follows:-

Arrears of rent	£6
Damages by reason of breach of the fencing covenant	1
Damages by reason of breach of the noxious weeds covenant	17
	£24

and costs which were allowed at £6 18s. 6d.

It is against that judgment that the appellant now appeals.

As regards so much of the judgment as relates to arrears of rent it is not unfair to say that the ground of appeal is that it is against the weight of the evidence and in particular that it failed to give sufficient weight to the two receipts (each for. £6) produced by the appellant. On the perusal of the evidence, however, it is clear that there was sufficient evidence to support either possible view of the question in issue. The question was one of fact for the Magistrate to decide after hearing the evidence and so long as there was evidence to support the view he took (as I have said there was) it would be improper for this Court to interfere.

As regards the alleged breach of the fencing covenant, here again the question is purely a question of fact, there was sufficient evidence to support the conclusion at which the Magistrate arrived and again, in the circumstances, his decision must stand.

As regards the alleged breach of the noxious weeds covenant this, to my mind, resolves itself into three questions which it would be well to consider separately. (1) Did the appellant in fact fail to keep the land clean of noxious weeds? (2) If there was in fact such a failure on the part of the appellant did it on 5th June, 1946 constitute an actionable breach of the agreement between the parties? and (3) If there was an actionable breach of the agreement did the Magistrate apply a correct principle to the assessment of damages.

To the first of these questions the Magistrate has given an affirmative answer which there is sufficient evidence to support and that answer must be accepted here. The answer to the second question is equally clear. The covenant to keep the land clean was not to clean it at any specified or unspecified time and it was not to deliver it up in a clean condition on the expiry of the term of the lease; it was to keep the land clean. The Magistrate has found in fact (and I am bound to accept this conclusion) that respondent failed to keep it clean and I see no cause to except the case from the ordinary rule of law that in the absence of anything to the contrary there was a breach which became actionable as soon as it occurred.

I pause here to observe that I have considered but fail to see the relevance of Gardner v Hirawanu (1927 AC 388) which counsel on each side mentioned in support of his case. The question in that case was in effect whether or not the lessee had taken steps to observe a covenant to clear too early in the term of his lease. Here the question was whether he had failed to observe the covenant early enough.