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HUSSEIN KALIL BASMA
V.
ALLIE NOURELDINE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH DAY OF DECEMBER, 1952
2PLR/1952/51 (WACA)
OTHER CITATION(S)
2PLR/1952/51 (WACA)
(1952) XIV WACA PP. 231-235
LEX (1952) – XIV WACA 231-235
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
HUSSEIN KALIL BASMA – Appellant
AND
ALLIE NOURELDINE – Respondent
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ORIGINATING COURT(S)
Appeal from Supreme Court by plaintiff (the lessor)
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REPRESENTATION
C. B. Rogers Wright — for Appellant
R. B. Marke — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenants – Breach of covenants – Re-entry or Forfeiture – Notice of breach – Discretion of Court – Conveyancing Act, 1881, section 14(1) and (2) Circumstances – Compensation
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CASE SUMMARY
Shortly put, sub-section (1) of the above section requires a lessor to give the lessee notice of breach of covenant and call on him to remedy it and make compensation, and sub-section (2) enables the Court in an action for forfeiture to grant relief to the lessee having regard to the conduct of the parties and the circumstances.
The appellant gave the respondent notice on 18th May, 1949, under the covenant for repairs, and again on 24th May, 1950, under the covenant to pay rates; the appellant sued for recovery of possession on 27th June, 1950, alleging default in the respondent on the covenants; the trial began on 21st November, 1951, and the Court visited the premises next day.
The respondent, in spite of receiving notice of the rates in November, 1949, did not pay them, and appellant paid them, with the poundage for delay, on 11th May, 1950 (before suing); he refused the tender of the amount he paid and respondent paid it into appellant’s banking account on 30th May, 1950 (before the action). The appellant justified his refusal on the ground that no compensation was offered.
As regards repairs the respondent testified that he had made the repairs stated in the notice of 18th May, 1949, but his architect testified to the contrary, and the visit of the Court showed that the respondent hurriedly painted a portion of the premises and laid linoleum to cover rotten boards requiring replacement. The respondent expressed regret and undertook to repair to the satisfaction of the appellant, and the Court thought it was a proper case for relief and discretion in respondent’s favour.
The appellant appealed on the ground that the trial Judge “exercised his discretion on wrong principles or no principles at all”.
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DECISION(S) FROM THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. So far as compensation in regard to rates paid by the appellant was concerned, that could only mean interest between the 11th and the 27th May, 1950, when tender was made, which was a negligible amount.
2. In regard to repairs, however, the notice was given on 18th May, 1949, but the repairs had not been made by the 22nd November, 1951, when the Court visited the premises.
3. The respondent had alleged in his defence that he had carried out the repairs stated in the notice – which was untrue – and also tried to mislead the Court by hasty painting at the last minute and covering of rotten boards.
4. His conduct disentitled him to relief and the Judge was wrong in exercising his discretion in the respondent’s favour in the circumstances.
Cases cited:-
(1) The Skinner’s Company v. Knight and Others, 60 L.J., Q.B., 630.
(2) Evans v. Bartlam (1937) A. C., at pp. 480 and 486.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
By a lease dated the 21st day of June, 1948, the appellant demised premises known as 3 and 3A Kissy Street, Freetown for a term now unexpired, to the respondent who covenanted, inter alia, to pay and discharge all rates, taxes and assessments charged or imposed upon the premises demised and to keep such premises and the fixtures, painting and decorations thereof in good and tenantable repair, order and condition internally and externally.
On the 27th June, 1950, the appellant filed the Writ in these proceedings claiming recovery of possession of the premises in question, alleging that the respondent had made default in his covenants to pay the rates and keep the premises in good and tenantable repair.
On the 18th May, 1949, the appellant, through his solicitor served on the respondent a notice, alleging that the latter had broken his covenant to keep the premises in good and tenantable repair, specifying the breaches complained of, and requiring that they be remedied within two calendar months from the date of the notice.
A further notice, dated 24th May, 1950, was served on the respondent alleging that he had broken his covenant to pay the rates assessed on the premises and requiring him to remedy the breach and pay reasonable compensation on or before the 27th May, 1950.
The trial of the action was commenced on the 21st November, 1951, and the premises were inspected by the learned trial Judge, accompanied by Counsel and the parties on the 22nd November, 1951.
The question turns on sub-sections (1) and (2) of section 14 of the Conveyancing Act, 1881. Sub-section (1) provides that a right of re-entry or forfeiture, under any stipulation in a lease, for breach of. any covenant shall not be enforceable unless and until the lessor serves on the lessee a notice specifying the particular breach complained of, and, if the breach is capable of remedy, requiring the lessee to remedy the breach, and in any case requiring the lessee to make compensation in money for the breach, and the lessee fails within a reasonable time thereafter to remedy the breach, if it is capable of remedy, and to make compensation in money, to the satisfaction of the lessor, for the breach.
Sub-section (2) provides that where a lessor is proceeding, by action, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor’s action, apply to the Court for relief; and the Court may grant or refuse relief, as the Court having regard to the proceedings and conduct of the parties under the provisions of sub-section (1) of the section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, as the Court, in the circumstances of each case, thinks fit.
Regarding the rates, the appellant proved through his witness the City Bailiff that the notice of assessment of rates in respect of the premises for the Municipal Year 1st November, 1949 to 31st October, 1950, was served on the respondent on the 9th November, 1949. Owing to the respondent’s failure to pay on the due date, that is to say, on or before the 31st January, 1950, the sum of £2 12s. 0d. became payable by way of poundage under the provisions of section 84 of Chapter 91, and as the rates and poundage had not been paid by the end of the first week in May, 1950, the total amount due, £26 18s. 0d. Was paid by the appellant to the Freetown City Council on the 11th May, 1950.
On the 27th May, 1950, the sum of £26 18s. 0d. was tendered to the appellant, on behalf of the respondent, and the appellant having refused to accept the payment, it was paid into his banking account on the 30th May, 1950, but no offer of compensation was made.
The trial Judge found as a fact that there had been a breach of the covenant to pay the rates, but as the appellant could not claim forfeiture until a notice of the breach had been served on the respondent and a reasonable time given to him in which to remedy the breach, he held that the three days given in the notice was not a reasonable time.
It was submitted on behalf of the appellant that the refusal to accept the amount tendered on the 27th May, 1950, was justified because no compensation was offered, and that the trial Judge erred in holding that the appellant was not entitled to any in respect of this breach of covenant.
The question whether compensation is payable in every case of a breach is discussed in the judgment of the Court, delivered by Fry, L.J.. in the case of The Skinners’ Company v. Knight and Others (1), where he said:
“The section creates some difficulty, first, because it seems to contemplate compensation as payable in every case of a breach; and secondly, because it uses, not the familiar word ‘damages’ for a breach, but ‘compensation’. But it is evident that many cases may occur in which, where the breach has been perfectly made good and no expense or loss incurred, there may be nothing for which to make compensation; and we are therefore of opinion that, notwithstanding the general terms of the notice required by the Statute, the lessee is bound to make compensation not absolutely in every case, but only when there is something to compensate. With regard to the word ‘compensation’, we incline to the view that the word ‘damages’ was not used because that is most appropriate to the compensation for a breach when ascertained by the verdict of a jury or the judgment of a Court, but that compensation under the section in question is to be measured by the same rule as damages in an action for the breach”.
It seems to me that the only compensation payable in the case before us would be interest on the amount paid by the appellant from the date he made the payment, 11th May, 1950 to the 27th May, 1950, the date upon which the amount was tendered to him on behalf of the respondent. Such a sum would have been negligible and the failure to offer it would not, in my view, have justified the Court in declining to grant relief from forfeiture on that score.
The respondent gave evidence at the trial that he had done all the repairs specified in the notice which was served upon him on the 18th May, 1949. This evidence was contradicted by the architect called as a witness on his behalf, who testified that he was engaged by the respondent in the year 1949 to effect repairs to the premises in question, but that the respondent was not prepared to furnish the materials required to do them. In answer to a question put by the Court this witness said: “He furnished me with half the materials I required”, He also gave evidence that the materials required to do the repairs were available for purchase, and in re-examination he said: “I do not think the defendant was prepared to part with the funds to do all the repairs that were required”.
It is abundantly clear from the evidence that the respondent had not completed the repairs specified in the notice of 18th May, 1949, at the time the Writ in this action was filed, and that this state of affairs still prevailed when the Court made its inspection of the premises on the 22nd November, 1951. It is also clear from the evidence that the respondent was well aware of his default, because ‘he knew on the 21st November, 1951. that the premises were to be inspected on the following day and hurriedly painted a portion of the premises and laid some linoleum down to cover floor boarding which was rotten and required replacement.
In dealing with this aspect of the case the learned trial Judge said:-
“In this case, the defendant committed a breach of the covenant in failing to do repairs which would make the premises in a good and tenantable condition. From the evidence the defendant did not spend even what his architect decided was necessary to do the repairs. When he was required to spend what would be sufficient to meet the repairs he decided what was sufficient and as a result the premises were not repaired as was necessary.
The defendant tried to gloss over the matter and to hide his neglect, put a new piece of linoleum, and hurriedly painted part of the property. He did not allow the plaintiff to inspect the property and on the whole was most indiscreet in his attitude”.
But he went on to say:-
“The defendant has however shown complete regret for his action and learned counsel for the defendant has stated that his client is willing that all the necessary repairs should be done by Boston, the architect of the plaintiff, and to the satisfaction of the plaintiff. It is the law that the discretion of the Court is such that even where the premises are in a very bad condition of repair the Court may still grant relief against forfeiture. I have carefully considered the whole case and I think this is a case in which I should exercise my discretion in favour of the defendant.”
Counsel for the appellant submitted that the trial Judge was wrong in exercising his discretion in the respondent’s favour by relieving him from forfeiture and that the respondent’s conduct in committing the breach of covenant to pay the rates should have been examined, not as an isolated incident, but in the light of his conduct over the repairs. Counsel also submitted that the learned trial Judge “exercised his discretion on wrong principles or no principles at all “.
The respondent’s counsel submitted that in exercising his discretion in the respondent’s favour the trial Judge was no doubt influenced by the amount of damage likely to have been caused to the reversion by the breach of covenant to repair, which he suggested was nil, and he argued that the trial Judge had all the facts before him and that this Court should not, therefore, interfere with a discretion exercised in such circumstances.
The principles which should guide a Court of Appeal when considering the question whether it should or should not interfere with the discretion of a trial Judge are clearly set out in the Judgment of Lord Wright in the case of Evans v. Bartlam (2), where he said:-
“It is clear that the Court of Appeal should not interfere with the discretion of a Judge acting within his jurisdiction unless the Court is clearly satisfied that he was wrong. But the Court is not entitled simply to say that if the Judge had jurisdiction and had all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle. The Court must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order”.
And in the same case Lord Atkin said at page 480:-
“While the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the Judge’s discretion except on grounds of law, yet if it sees that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.”
In this case the respondent in his Statement of Defence alleged that he had caused the premises to be repaired pursuant to the notice dated 18th May, 1949. “in so far as the age of the premises permitted”, and, as I have already pointed out, he asserted in his evidence at the trial that he had done all the repairs specified in the notice. It is true that he also said – “If it is found out that some repairs remain to be done I am ready to do them to the satisfaction of the plaintiff”, but this change of front took place two years and seven months after the notice had been served upon him and then only after he had deliberately tried to mislead the Court by painting a portion of the premises and laying down linoleum in an endeavour to conceal what he must himself have considered an obvious breach of his covenant to repair.
There is no doubt that the discretion conferred upon the Court to grant relief from forfeiture by sub-section (2) of section 14 of the Act is very wide, but the sub-section also requires the Court to have regard to “the proceedings and conduct of the parties … and to all the other circumstances”.
The learned trial Judge said: “I have carefully considered the whole case and I think this is a case in which I should exercise my discretion in favour of the defendant”. Apart, however, from the statement in his judgment that “the defendant has however shown complete regret for his action and learned counsel for the defendant has stated that his client is willing that all the necessary repairs should be done by Boston, the architect of the plaintiff, and to the satisfaction of the plaintiff”, the circumstances which led him to exercise his discretion in favour of the respondent, in connection with the breach of covenant to repair, are not apparent. Nor can I find any “regret” of the nature that a Court should take cognizance of, in the conduct of the respondent.
I have already indicated that I do not think the complaint that the learned trial Judge wrongly exercised his discretion in connection with the breach of covenant regarding the rates is well founded, but, in my view, in the circumstances of this case, the trial Judge was clearly wrong in exercising his discretion in favour of the respondent on the breach of covenant to repair.
I would, therefore, allow this appeal with costs to be taxed, and set aside that portion of the judgment of the Court below which grants relief from forfeiture and direct that the respondent deliver up to the appellant the premises 3 and 3A Kissy Street, Freetown, within three calendar months from the 31st day of December, 1952.
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SMITH, C.J.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal allowed.
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