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KABBA AND FRANK FRASER
V.
DANIEL S. YOUNG
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
29TH DAY OF MARCH, 1944
2PLR/1944/83 (WACA)
OTHER CITATION(S)
2PLR/1944/83 (WACA)
(1944) X WACA PP. 135 – 140
LEX (1944) — X WACA PP. 135 – 140
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, J.
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BETWEEN:
KABBA AND FRANK FRASER – Defendants-Appellants
AND
DANIEL S. YOUNG – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal by Defendants from the judgment of the Supreme Court sitting in its summary jurisdiction.
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REPRESENTATION
R. B. Marke — for Appellants
C. S. T. Edmondson — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Claim to possession of premises — Equitable defence — Purchase of legal estate with notice of equitable right — Summary hearing County Court Rules, O.IX, R.T; R.15; Supreme Court Ordinance, 1932, s.8; s.57
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CASE SUMMARY
Plaintiff claimed possession and mesne profits in respect of certain premises whereof Frank Fraser (Defendant 2) claimed to be in possession by his tenant Kabba (Defendant 1) and another. The law of Sierra Leone requires such a case to be tried summarily in the Supreme Court without pleadings. In opening Plaintiff’s Counsel stated that the premises were purchased in 1938; it was not until his final address that Counsel for the Defendants made it clear that they resisted the claim for possession. The Judge found –
A-that Plaintiff bought from vendor on 28-7-38 but Defendant 2 had paid vendor £24 out of £33 agreed upon for the premises ;
B-that before Plaintiff’s purchase vendor had told Defendant 1 to pay the rent to Defendant 2;
C-that Plaintiff was aware of facts affecting his title and was a purchaser for value with notice.
The Judge thought Plaintiff was entitled to possession and Defendant 2 to compensation for his lien.
Plaintiff was admittedly owner of the legal estate. The defence relied on equity on those findings as a prior purchaser put in possession, of which Plaintiff had notice. Plaintiff relied mainly on the fact that that defence had not been raised in time as required by the County Court Rules (which governed the procedure).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
1. Failure to comply with Rule 7 of Order IX of the County Court Rules did not bar the equitable relief sought in view of section 8 of the Supreme Court Ordinance, 1932.
2. As part of the price had been paid and the balance tendered within the time stipulated, the Defendants would have had a perfect defence against the vendor.
3. Notice of the land, being in the occupation of a person other than the vendor, is notice to a purchaser that the person in possession has some interest in the land, and a purchaser having notice of that fact is bound either to inquire what that interest is or to give effect to it whatever it may be, being bound on this principle by all the equities which the tenant could enforce against the vendor; and that in the circumstances of the case Plaintiff’s claim for possession must fail and consequently no question of lien arises.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Plaintiff-Respondent brought the following claim in the Supreme Court of the Colony of Sierra Leone, sitting in summary jurisdiction, against Kabba, the first Defendant-Appellant and one Yalla Boy:-
“The Plaintiff demands of you payment of this account:
”To Possession of all that piece or parcel of land with the building thereon situate at Edward Lane, Freetown, in the Colony of Sierra Leone and numbered 2, by the Freetown City Council and formerly 3505 by the Colonial Government and bounded on the North by property now or lately in the possession of William Cole sixty-one feet on the South by Edward Lane aforesaid fifty-five feet on the East by property now or lately in the possession of Mary Johnson seventy-three feet on the West by property now or lately in the possession of Isaac Emmanuel Seventy-eight feet with the appurtenances thereto belonging.
“2. Mesne profits from the 28th July, 1938, till the plaintiff recovers possession at the rate of £I per month.
‘He also states that neither the rent nor the value of the premises exceeds £I5 by the year.”
Yalla Boy was never served and has no part in the case either in the Supreme Court or in this Court; but on his own Application Frank Fraser, the second Defendant-Appellant was added as Defendant claiming to be in possession of the premises in dispute by his tenants, Kabba and Valla Boy.
The learned trial Judge, after giving an interlocutory judgment on the 2nd November, 1942, containing his findings of fact and decisions on points of law, delivered on the 25th January, 1943, the following further judgment which the parties have regarded as final, though in fact, it is still only interlocutory since it does not finally determine the rights of the parties, but gives directions for working out those rights, one step still remaining to perfect the judgment (Norton v. Norton (1909) 99 L.T. 709; Collins v. Vestry of Paddington 5 9.B.D.368):
“Judgment for £13 8s. 2d. plus the £24 already ordered, plus 4% on the £24 for 4 years = £3 16s. 10d. to Fraser — less the rents collected, since date of conveyance to Plaintiff to date ; if that amount is smaller-if greater, balance of rents to Plaintiff, Possession to Plaintiff forthwith and costs to Plaintiff by Defendants.”
It is against the grant of possession to the Plaintiff that the Defendants now appeal. Fraser does not complain of the amount awarded to him, if possession has to be given up. We desire to say at once that we regard it as most unfortunate that the law of Sierra Leone requires a case of this nature to be tried in the summary jurisdiction of the Supreme Court, which does not admit of pleadings; it is even more unfortunate that at the outset of the case the learned trial Judge did not require the Defendants to disclose their defence to the Plaintiff’s claim. Openings by Counsel can form a substitute though often not a very satisfactory substitute for pleadings. Here the only opening is the short one by Plaintiff’s Counsel “Premises purchased 1938. Plaintiff claims possession.” Nothing from the Defendants’ Counsel at Daniel s. that stage to indicate whether they resisted the claim to possession or were prepared to give up possession on certain terms or what those terms might be. It was not until the final address of Counsel for the defence that the position was clarified, and it can have been apparent to the learned trial Judge what were the real issues he had to decide, then Counsel made it abundantly clear that his clients were resisting the claim for possession. The learned trial Judge in his first interlocutory judgment made the following findings:
“A. That the Plaintiff purchased these premises from the vendor Williams, on the 28th July, 1938, but that at that date the second Defendant was interested in the property, having paid £24 as part payment of the agreed purchase price of £33 to the vendor for the same premises.
“B. That the first Defendant was in actual physical possession of these premises at the material times, but that early in July, 1938, and prior to the Plaintiff’s purchase the second Defendant was put into the receipt of the rents and profits from the first Defendant by the vendor.
”C. That the Plaintiff was aware of various facts which indicated to him that a certain state of things was in existence prejudicially affecting his title, but that he took no steps to remedy this, and was in fact purchaser for value with notice.
“Possession does not mean personal occupation. If the first Defendant pays his monthly rental as tenant of the premises 13s per mensem — to the second Defendant at the request of the vendor, then he, the second Defendant, has in fact thereby been put into possession of the premises in the same manner as if he were in physical possession for the purpose of asserting any rights he may have in the premises. He was so put into possession early in July, 1938, and has been receiving the rent of 2, Edward Lane from the first Defendant ever since.”
The Judge then went on to consider the legal position, but he seems to have taken it for granted that the Plaintiff was entitled to possession, and to have thought that the only point requiring decision Wail the value of the lien enjoyed by Fraser and what sum he ought to grant to Fraser in respect of that lien. At any rate he omitted altogether to deal with the arguments adduced or authorities quoted by Counsel for Defendants in support of their resistance to an order for possession. It is possible that he meant to dispose of these arguments with the words:
“If I were wrong in holding this to be a common law lien, then, in my view, the second Defendant has not carried out the requisite formalities as laid down in the County Court Rules as being essential before such a defence can be dealt with, and I should have given judgment for the Plaintiff as claimed although it would only have meant further litigation.”
If that is the case we are of opinion that he was wrong in that such a decision ignores the provisions of Order IX Rule 7 of the County Court Rules and of section 8 of the Supreme Court Ordinance, 1932 (No. 39 of 1932).
The Appellants do not quarrel with the learned trial Judge’s findings of fact; they naturally would not do so as the findings are all in their favour. We also accept those findings as the basis of fact upon which this appeal must be decided, explaining, however, that the actual vendor was Patience Williams, wife of C. K. Williams, whose part in the matter was as her agent. The defence to the claim for possession of the premises by the Plaintiff, Young, who is admittedly owner of the legal estate, is a claim to equitable relief on the basis that the second Defendant Fraser is a prior purchaser who has fulfilled the conditions of purchase and been put into possession by the vendor and is in possession through his teat the first Defendant Kabba, that the Plaintiff being a purchaser with notice is bound to give effect to the interests of the Defendants and is bound by all the equities which they or any of them could enforce against the vendor, and that one of those equities is the right to relief against a claim for possession.
The only answer which Plaintiff’s Counsel put forward in the Court below to meet this defence was that it could not be set up because no notice of it had been given as required by the County Court Rules in force in England in 1880 which apply to a summary trial in the Supreme Court by virtue of section 57 of the Supreme Court Ordinance, 1932. He relies upon O.IX r.15 of those Rules which reads:
”Where a defendant claims to be entitled as matter of defence to any equitable estate or right, or to relief upon any equitable ground against the claim of the plaintiff, or any part thereof, he shall five clear days before the return-day file a concise statement in the estate or right he so claims, and shall show concisely the circumstances which gave rise to such defence, and set forth separately each of the grounds of equitable defence.”
The Defendants failed to comply with this rule, but that failure, though, by virtue of O.IX r.7 of the County Court Rules, it would properly have been a ground for an adjournment with the Defendants being mulcted in costs, could not result in their being barred against the equitable relief sought, more especially in view of the provisions of section 8 of the Supreme Court Ordinance, 1932, which reads:
“In every civil cause or matter in dependence in the Court, law and equity shall be administered concurrently, and the Court, in exercise of the jurisdiction vested in it by this Ordinance, shall have power to grant, either absolutely or on such reasonable terms and conditions as shall seem just, all such remedies or relief whatsoever, interlocutory or final, as any of the parties thereto may appear to be entitled to in respect of any and every legal and equitable claim or defence properly brought forward by them respectively, or which shall appear in such cause or matter, so that as far as possible all matters in controversy between the said parties respectively may be completely and finally determined, and all multiplicity of legal proceedings concerning any such matters avoided, and in all matters in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rules of equity shall prevail.”
Faced with this position in this Court Counsel for the Plaintiff-Respondent fell back on the proposition that the Defendants could not set up this claim to equitable relief unless and until they had established their right to it by· themselves bringing a substantive action claiming it. In support of this proposition he quoted the case of Tacon v. National Standard Land Mortgage and Investment Company (56 L.T.R. (N.S.) page 165). The proposition is not supported by that case and we do not accept it. The case of Daniels v. Davison (33 Eng. Rep. p. 978), from which we shall presently quote, shows that our view is correct. In this connection we may mention that in 1938 the present second Defendant-Respondent, Frank Fraser, had brought an action against C. K. Williams claiming specific performance of the contract for the sale of these premises. That action was naturally dismissed as misconceived since the legal estate- was not and never had been vested in C. K. Williams. It remains for us to consider whether the Defendants are entitled to the equitable belief claimed, and we have no hesitation in deciding that they are. There can be no doubt that this defence would be a complete answer to an action by a vendor who brought an action against a purchaser who was in possession, who had paid part of the purchase price and had fulfilled his part of the bargain by tendering the balance within the time stipulated for full payment, as was unquestionably done in the present case. It is indeed difficult to imagine such a futile action being brought by a vendor.
What is the position of a second purchaser for value with notice? It is put like this in Dart on the Law of Vendors and Purchasers (6th Edition) at page 975:
”Notice of the land, being in the occupation of a person other than the vendor, is notice to a purchaser that the person in possession has some interest in the land, for possession is prima facie evidence of seisin, and a purchaser having notice of that fact is bound either to enquire what that interest is, or to give effect to it whatever it may be., On this principle a purchaser is bound by all the equities which the tenant could enforce against the vendor.”
That seems perfectly plain and the text is amply supported by decided cases. In Barnhart v. Greenshields (14 Eng. Rep. p. 204) the Right Honourable T. Pemberton Leigh in giving the Judgment of the Court said at p. 209:-
“With respect to the effect of possession merely, we take the law to be, that if there be a tenant in possession of land, a purchaser is bound by all the equities which the tenant could enforce against the vendor, and that the equity of the tenant extends not only to interests connected with his tenancy, as in Taylor v. Stibbert (2 Ves. jun. 437), but also to interests under collateral agreements, as in Daniels v. Davison (16 Ves. 249), Allen v. Anthony (1 Mer. 282), the principle being the same in both classes of cases ; namely, that the possession of the tenant is notice that he has some interest in the land, and that a purchaser having notice of that fact, is bound, according to the ordinary rule, either to inquire what that interest is, or to give effect to it, whatever it may be.
This is the doctrine to be collected from the judgment of Lord Rosslyn, in the case of Taylor v. Stibbert (2 Ves. jun. 437), and from the earlier authority to which he refers; and the decision itself, and the principles on which it is rested, are referred to with approbation, by Lord Redesdale, in his judgment in Crofton v. Ormsby (2 Sch. and Lef. 583). The language of Lord Eldon, in Daniels v. Davison (16 Ves. 249), which was decided in 1809, is to the same effect ; and when, some years afterwards, in Allen v. Anthony ( I Mer. 282), he had again occasion to consider the subject, he states the rule in these words:
”It is so far settled as not to be disputed, that a person purchasing, when there is a tenant in possession, if he neglects to inquire into the title, must take, subject to such rights as the tenant may have.”
”The rule is stated in the same way by Sir James Wigram, in his most elaborate judgment in the case of Jones v. Smith (I Hare, 60). “If a person purchases an estate which he knows to be in the occupation of another than the vendor, he is bound by all the equities which the party in such occupation may have in the land;” and, referring to the authorities which I have mentioned, he adds, for possession is prima facie evidence of a seisin in fee”.
In Daniels v. Davison (33 Eng. Rep. p. 978) Eldon, Lord Chancellor, said at page 980:-
”My opinion therefore, considering this as depending upon notice, is, that this tenant, being in possession under a lease, with an agreement in his pocket to become the purchaser, those circumstances altogether give him an equity repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession.”
In Potter v. Sanders (67 Eng. Rep. p.1057) it was decided that:
“If a vendor contract with two different persons for the sale to each of them of the same estate, the Court will, prima facie, enforce the contract which was first made; and if the party with whom the second contract was made should, after notice of the first contract, procure a conveyance of the legal estate in pursuance of the second contract, the Court will, in a suit for specific performance by the first purchaser against the vendor and the second purchaser, decree the latter to convey the estate to the Plaintiff.”
and at page 1060 Wigram, Vice-Chancellor said:-
”The first question is whether the Plaintiff’s contract has not priority, in point of time, over the verbal contract made with Coates on the 24th of April. If that question be answered in the affirmative, it will dispose of the whole case. For the property comprised in the contract would cease to belong to the vendor from the moment that contract was concluded; and I am quite clear (in the circumstances which I have detailed) that Coates can derive no advantage from the conveyance of the legal estate taken after notice of the Plaintiff’s agreement for purchase, and whilst his own position was unaltered by payment of purchase-money, or otherwise, under an agreement which, if the Plaintiff’s contract had priority, would be void from the beginning.”
The attention of the learned trial Judge was not drawn to either of these two last-mentioned cases. Other cases in point are Hunt v. Luck (68 Eng. Rep. p. 711., 1902 1 Ch. 428); and Jared v. Clements (1903 1 Ch. 428). We hold that the Plaintiff’s claim for possession must fail; consequently no question of lien arises.
For these reasons the appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that any sum or sums paid in pursuance of that judgment shall be refunded. It is directed that final judgment be entered in the Court below dismissing the Plaintiff’s claim with costs to be taxed. The Defendants-Appellants are awarded costs in this Court to be taxed.
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