THOME v. BARCLAYS BANK (D.C.O.)

JUDGMENT OF AZU CRABBE C.J.

This is an application for a review of the decision of the ordinary bench of this court dated 7 May 1973 and reported in [1973] 2 G.L.R. 137, by virtue of section 3 (2) of the Courts (Amendment) Decree' 1972 (N.R.C.D. 101), and it raises the fundamental question whether a tenant has an absolute right, in the absence of any prohibitory covenant to the contrary, to adapt or alter to any extent the premises [p.130] demised by the landlord. The sub-lease between the parties in this particular case contained no express prohibitions as to user or alterations of the premises.

On 27 November 1965, the plaintiff - respondent - applicant (hereinafter referred to as the applicant) filed a writ in the High Court, Accra, against the defendants - appellants - respondents (hereinafter referred to as the respondents) claiming possession of the premises on the first (top) floor of house No. D 762B/4, Kimberley Avenue, Accra. By an indenture of underlease made between the applicant and the respondents on 16 September 1952, the applicant demised to the respondents the said premises which comprised two parts - one part suitable for the formal business of banking, and the other part, constructed by the applicant at the request of the respondents, to be used for the private residence of two European members of the respondents' staff. The respondents covenanted "to keep the interior of the said premises and the doors, windows, fittings and landlord's fixtures in good and tenantable repair and condition." The underlease also contained a proviso for re-entry by the applicant in the event of any breach of the covenants.

In paragraphs (6) and (7) of the statement of claim the applicant alleged as follows:

"(6) In breach of the said covenant 'to keep the interior of the said premises and the doors, windows, fittings and landlord's fixtures in good tenantable repair and condition' the defendants in or about July 1965 extensively altered the entire structure of the interior of the said premises in the following manner, that is to say.

(a) by demolishing the room described [above] as 'the manager's room';

(b) by pulling down a number of walls of the residential apartment and altering the internal partition thereof by erecting a number of new walls and rooms;

(c) by removing a number of doors in the residential apartment aforesaid and stopping up the doorways with sandcrete;

(d) by erecting new walls and constructing new rooms in the remainder of