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ELDRED E. E. WILLIAMS
V.
NICOLAS GRANT MENDS AND ANOTHER
WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
22ND DAY OF MARCH, 1943
2PLR/1943/23 (WACA)
OTHER CITATION(S)
2PLR/1943/23 (WACA)
(1943) IX WACA PP. 50 – 60
LEX (1943) – WACA PP. 50 – 60
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J, NIGERIA
MARTINDALE, J.
BRACE, J.
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BETWEEN:
ELDRED E. E. WILLIAMS — Plaintiff-Appellant
AND
1. NICOLAS GRANT MENDS;
2. CLEMENTINA JOCELYN WILLIAMS — Defendants-Respondents
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REPRESENTATION
S. A. Benka-Coker and E. F. Luke — for Appellant
M. C. Marke — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenant — Unlawful occupation — Acquiescence — Recovery of possession and damages — Tenancy by operation of law — Estoppel — Waiver —Defence (Rent Assessment) Regulations, 1941, regulation 12(1))
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CASE SUMMARY
A house situate at 32 Kisay Street, Freetown, was owned by the plaintiff. It consisted of a ground floor and two storeys. In 1940 during the plaintiff’s absence in Nigeria, the 2nd defendant, his sister, leased the 1st and 2nd floors to the 1st defendant without the knowledge of the plaintiff. The fact came to the knowledge of the plaintiff, then in Nigeria, late in 1940, and he thereupon instructed the 2nd defendant to give the tenant notice to quit, and at the earliest opportunity returned to Freetown.
He arrived in Freetown on the 13th October, 1941, and then became aware of the identity of the 1st defendant. The 2nd defendant then attempted to set up a claim to co-ownership in the property, which the plaintiff attempted to settle amicably out of Court. In the meantime the 1st defendant, with the plaintiff’s knowledge, continued to pay rent to the 2nd defendant.
An attempt at settlement between plaintiff and 2nd defendant proved abortive. On the 7th January, 1942, the plaintiff’s Solicitor wrote to the 1st defendant alleging unlawful occupation and requiring immediate possession.
No reply being received from the 1st defendant a writ was issued against him claiming recovery of possession of the part of the premises occupied by him, and damages.
At the date on which the suit was instituted, the 1st defendant had applied for the rental value of the premises to be determined under the Defence (Rent Assessment) Regulations, 1941.
The 1st defendant by way of defence set up his lease with the 2nd defendant, and also pleaded that he was protected in possession by reason of the operation of regulation 12 of the Defence (Rent Argument) Regulations, 1941.
The Chief Justice (the trial Judge) found that the action of damages must fail by reason of the acquiescence of the plaintiff after his return to Freetown, and he held that the plaintiff was precluded from recovery of possession by the provisions of regulation 12 of the Defence (Rent Assessment) Regulations, 1941, for the reason that the rental value of the premises in question was, at the date on which the suit was instituted, in course of being determined under these Regulations.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:-
1. Although the defence of estoppel was not especially pleaded, it was inherent in the 1st defendant’s defence. By the plaintiff’s acquiescence in the receipt of rent by the 2nd defendant from the 1st defendant, a tenancy of the premises in the 1st defendant had been created from 13th October, 1943, but the plaintiff was not deprived by estoppel of his legal right to possession. He had however waived any claim for damages against the 1st defendant and was estopped from enforcing much claim.
2. Further, that in the circumstances disclosed the plaintiff was debarred by the provisions of regulation 12 (1) of the Defence (Rent Assessment) from recovering possession.
Case referred to:
De Busche v. Alt [1878] 8 Ch. Div., at p. 286.
Willmott v. Barber [1880] 15 Ch. Div. 96, 105.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., MARTINDALE AND BRACE, JJ.
The plaintiff-appellant’s claim is that he is entitled
(a) to recover possession of the middle floor of house situate in Kissy Street and numbered thirty-two by the Municipal Corporation for the purposes of rates and taxes unlawfully occupied by the defendant,
(b) to damages.
The above claim is amplified in the statement of claim as follows:-
“(1) Possession of the middle floor and back portion of the said premises.
(2) Damages for unlawful possession”.
The 1st defendant-respondent, N. G. Mends, by his statement of defence set up a lease dated 6th February, 1941, granted to him by the 2nd defendant-respondent, C. J. Williams, as co-owner and lessor in respect of the second and third floors of the premises at 32, Kissy Street, Freetown, for a period of two years certain with an option to renew.
He, 1st defendant-respondent, also set up the defence that he was protected in his occupation in reference by the operation of regulation 12 of the Defence (Rent Assessment) Regulations, 1941, (Sierra Leone).
The 2nd defendant-respondent in addition set up the defence that she as co-owner of the house at 32, Kissy Street, Freetown, rightly demised the second and third floors thereof to the 1st defendant-respondent. Alternatively the 2nd defendant-respondent set up long occupation. The 2nd defendant-respondent also pleaded that the plaintiff-appellant, having acquiesced in the demise by the Lessor to the Lessee of the said premises, is now estopped from denying her title to grant the Lease to the 1st defendant-respondent.
The facts antecedent to these proceedings are as follows:- In 1921 the plaintiff-appellant bought in the house at 32, Kissey Street, from the Curator of Intestate Estates, which property was connveyed by the Curator of Intestate Estates to the plaintiff-appellant the 2nd respondent and one Emma Cole (now deceased as co-owners.
By a deed dated the 31st August, 1921, made between Emma Cole and 2nd defendant-respondent of the one part and the plaintiff-appellant of the other part, all the undivided share estate and interest of Emma Cole and of the 2nd defendant-respondent in these premises (32, Kissy Street), were conveyed to the plaintiff-appellant.
The plaintiff-appellant since that date has been mainly resident at Onitsha in Nigeria, and from time to time part of the ground floor of the premises has been let to various tenants as a shop, the 2nd defendant-respondent occupying the remainder of the ground floor as a residence for the plaintiff-appellant’s daughter and herself and using some of the rents received from the tenants for the maintenance of the plaintiff-appellant’s daughter and herself.
In 1931, the plaintiff-appellant built on to these premises what is referred to during the proceedings as a second and third floor but more accurately should be termed a first and second floor.
In February, 1940, the 2nd defendant-respondent, in the absence of the plaintiff-appellant in Nigeria, leased the second and third floors of the premises to the 1st defendant-respondent, at first under a verbal agreement but later under a formal lease (Ex “G”), purporting so to do as principal and as the owner of a portion of the premises.
The 1st defendant-respondent entered into possession as the tenant under this lease on the 1st February, 1940, and has regularly paid the rent reserved to the 2nd defendant-respondent. Upon receiving by letter whilst at Onitsha intimation from the Freetown Council that the rates of this Kissy Street house had been increased as a consequence of the occupation of the upper storeys, the plaintiff-appellant on 13th November, 1940, wrote Ex. “L. 52” to the 2nd defendant-respondent protesting in strong terms against the occupation in question, should it indeed exist.
In fact the plaintiff-appellant expressed a refusal to believe that the 2nd defendant-respondent would in any circumstances be the upper floors of his house without his plaintiff-appellant’s consent.
Here it is to be noted that other than the ground floor, the remainder of the building had never been lived in until as stated above, on 1st February, 1940, the 2nd defendant-respondent leased the second and third floors to the 1st defendant-respondent.
In reply to plaintiff-appellant’s letter of 13th November, 1940, (“L. 52”), the 2nd defendant-respondent on 4th December, 1940, replied that she had in fact let the rooms in reference, but did not give the name of the lessee (“L. 17”).
Shortly after, if not immediately upon, receipt of the above communication, for it is only reasonable to assume that in the present emergency the 2nd defendant-respondent’s letter would take a very considerable period of time to reach Onitsha in Nigeria from Freetown, Sierra Leone, the plaintiff-appellant cabled (on 17th February, 1941), in the following terms:-
“Quit tenant require house coming “. (Exhibit “H”).
The plaintiff-appellant did not in fact reach Freetown until 13th October, 1941, but having regard to existing shipping difficulties he (the plaintiff-appellant) would indeed have been fortunate had he obtained a passage at an earlier date.
The above facts certainly do not indicate acquiescence on the part of the plaintiff-appellant. Upon a mere suspicion derived from a demand for an increased payment of rates that the upper part of the house might have been occupied, the plaintiff-appellant wrote protesting in strong terms against such violation of his rights of ownership, should such violation have occurred.
Upon receiving the reply from 2nd defendant-respondent that she had actually rented a part of the house, the plaintiff-appellant cabled to the 2nd defendant-respondent demanding that the tenant should be given notice to quit and stating that he himself was returning to Freetown and required his house for his own use.
As stated above the plaintiff returned to Freetown without undue delay arriving on 13th October, 1941.
In this regard it is to be noted that until this time that is 13th October, 1941, there is no evidence that he (plaintiff-appellant) was even aware of the identity of the 1st defendant-respondent.
Upon learning this and also learning on or about 30th November, 1941, again for the first time, the fact that the 2nd defendant-respondent had granted to the 1st defendant-respondent a deed of lease under seal for a period of two years certain with an option to extend for an indefinite period of time the plaintiff-appellant attempted by negotiation with the 2nd defendant-respondent to assert his rights in respect of his property in an amicable manner and without having recourse to litigation.
To this and firstly on the 31st October, 1941, the plaintiff appellant offered to permit the 2nd defendant-respondent to continue to occupy the ground floor rooms upon a nominal rental and secondly asked her for an account of the rent she had received from the let defendant-respondent.
This offer and the request for an account were both refused by 2nd defendant-respondent who in her letter of 10th November, 1941 (Ex. “J.2”) claimed, erroneously as it transpired, to be co-owner of the property and as such entitled to lease a portion of the building.
The plaintiff-appellant on 12th November, 1941, (Ex. “J.3”) replied to the effect that the 2nd defendant-respondent was incorrect in her belief that she was part owner of the house and expressed a hope that litigation and the attendant family scandal might be avoided.
Other correspondence was exchanged and family meetings were held but without success.
The plaintiff-appellant accordingly, as stated above, having become aware of the terms of the lease in issue, wrote on 3rd January, 1942, by his solicitor Mr E. F. Luke, to the 1st defendant-respondent alleging unlawful occupation and requiring immediate possession.
The 1st defendant-respondent neither complying with nor replying to the above communication the plaintiff-appellant on 7th January, 1942, issued the writ which instituted these proceedings.
It is to be borne in mind that from the date of the plaintiff-appellant’s arrival in Freetown (13th October, 1941,) to the date of the writ 7th January, 1942, the second defendant-respondent continued to receive the monthly rentals from the 1st defendant-respondent which were paid by him to her as they fell due.
It is therefore our opinion that, albeit that throughout this period the plaintiff-appellant was endeavouring to regain possession without recourse to litigation, yet by his acquiescence in these transactions, there was created in the let defendant-respondent a tenancy of the premises (though not under the lease) and the 2nd defendant-respondent became the plaintiff-appellant’s agent in respect of the receipt of these payments of rent, as from the 13th October, 1941.
To revert to the history, on 9th January, 1942, C. J. Williams sued plaintiff-appellant, in effect, for a declaration that she was co-owner with the plaintiff-appellant in respect of the premises at 32, Kissy Street, Freetown.
That suit and the one now under appeal were consolidated and on 24th February, 1942, the 2nd defendant-respondent was joined as co-defendant in the present suit.
At the trial the learned Chief Justice first considered the claim of the 2nd defendant-respondent in respect of the Kissy Street house and on 27th August, 1942, dismissed it, thus establishing the fact that she, the 2nd defendant-respondent, at no material period of time possessed any beneficial interest in the property. In the course of his final judgment in the present suit dated 4th September, 1942, the learned Chief Justice made the following findings of fact:-
”(1) The first defendant in occupying the premises as tenant under the lease prepared for him by his solicitor (who is now counsel for the plaintiff) was not aware that he was in any way infringing the rights of the plaintiff or anyone else.
(2) That the first defendant to the knowledge of the plaintiff has been paying rent on the faith that his occupation as tenant under the lease was in order and that rent has been punctually paid up to date.
(3) The plaintiff knew of the lease and of the first defendant’s bona fide occupation as tenant under that lease; and of the rent regularly paid by the first defendant under that lease.
(4) The plaintiff deliberately stood by allowing the first defendant to continue in occupation and in payment of the rents to the second defendant under the lease.
(5) The plaintiff was quite aware that these rents of his property were being paid to, and expended by, his sister the second defendant and he was agreeable to this and acquiesced in it because from these rents the second defendant was paying for his daughter’s maintenance and generally looking after his daughter.
(6) The plaintiff allowed the first defendant to continue paying rent under the deed of lease without making any suggestion whatever until Exhibit ‘M’ that the deed of lease had not been granted with his full consent and approval or that his, the plaintiff’s rights were in any way infringed by the lease or by the first defendant’s occupation thereunder.
(7) The plaintiff went into occupation first of the middle floor and afterwards of the attic in the full knowledge that his doing so was a concession made ex gratia by the first plaintiff’s sister and his nephew Dr. Bright that the plaintiff was only to be in Freetown for about two months”.
Upon these findings the learned Chief Justice held that the plaintiff-appellant’s claim was barred by estoppel. The extent to which we agree with these findings hereinafter appears.
In regard to (1), it is to be noted that the 1st defendant-respondent himself stated in cross-examination that he had been informed by Dr. Bright, the nephew of the plaintiff-appellant, incorrectly in fact, that the house belonged to the plaintiff-appellant and the 2nd defendant-respondent and a sister now dead, before he, the first defendant-respondent, had entered into the lease with the second defendant-respondent. As to (2), there is no evidence that the plaintiff-appellant knew that the first defendant-respondent was paying rent to the second defendant-respondent before he, the plaintiff-appellant, returned to Freetown, that is, before 13th October, 1941, the finding can therefore apply only to the period after that date. As to (3), there is no evidence that the plaintiff-appellant knew of the existence of the lease before 13th October, 1941, or of the terms of the lease until 30th November, 1941, at the earliest. As to (4), the plaintiff-appellant stood by in the sense that from the date of his return to the date of the institution of legal proceedings he endeavoured to establish his rights of ownership amicably, as we have indicated above. We think that there is no evidence that can justify a finding that he stood by whilst at Onitsha.
As to (5), it is not in issue that the second defendant-respondent collected rents in respect of the ground floor over a period of years. That was acquiesced in and the matter of the possession of the ground floor is not in dispute. It cannot be said that the plaintiff-appellant acquiesced in the payment of rents by the first defendant-respondent to second defendant-respondent in respect of the other floors and the conversion of these sums to her own use or for the maintenance of the plaintiff-appellant’s daughter prior to 13th October, 1941, if at all, having· regard to the terms of his letter of the 13th November, 1940, (“L.52”), (already referred to) and of his letter of 31st October, 1941, (Ex. “J.1”) in which he calls for an account of these particular tents. As to (6), it is correct that plaintiff-appellant permitted a continuance of rent payments being made by first defendant-respondent to second defendant-respondent after the end of November, 1941., when he first became aware of the contents of the lease and that he did not bring to the first defendant-respondent’s notice his attitude towards the lease until Ex. “M” dated 3rd January, 1942, was delivered; but between those dates he certainly made his attitude plain to the second defendant-respondent.
Another finding of fact that the second defendant-respondent was the agent of the plaintiff-appellant is, in our opinion, correct only in so far as the period after the date of the plaintiff-appellant’s return to Freetown on 13th October, 1941, is concerned.
The second defendant-respondent until the judgment of 27th August, 1942, against which she has not appealed, in fact claimed to be the co-owner of the building with plaintiff-appellant, and it has never been part of her case that she granted the lease to first defendant-respondent as agent for the plaintiff-appellant. Her counsel made this quite clear in this Court.
In this regard, it is also to be noted that counsel for the respondents made it clear that he could not support a case of acquiescence in agency.
Again, it is the fact that a suggestion of agency was never set out in the pleadings by either of the defendants-respondents. We, however, agree with the learned Chief Justice that the plaintiff-appellant by conduct constituted the second defendant-respondent his agent as from 13th October, 1941.
Taking these findings, modified in the indicated, as the basis of fact on which this questions arise for decision, vis:-
(1) Is the plaintiff-appellant entitled to recover possession of the premises or is he estopped from doing so by acquiescence? and
(2) Is he entitled to be awarded damages against the first defendant-respondent in respect of unlawful occupation of the premises, or has he waived his right to recover damages by his conduct?
(There is no claim for damages against the second-defendant-respondent).
As to the first question, we may perhaps point out that the first defendant-respondent did not plead estoppel, but as the learned Chief Justice has based his judgment on a finding of estoppel against the plaintiff-appellant we think it necessary to treat the defence of estoppel as inherent in the first defendant-respondent’s defence. A right of action to recover possession undoubtedly vested in the plaintiff-appellant as from the 1st February, 1940. In order to divest the plaintiff-appellant of this right of action it is necessary for the first defendant-respondent to show either that there has been “some-conduct amounting to release or accord and satisfaction, x x x although, on account of laches, relief may be refused under special circumstances.” (De Busche v. Alt (1878) 8 Ch. Div. p. 286).
In Willmott v. Barber (1880) 15 Ch. Div. p. 96 at p. 105 Fry, J. stated:-
“It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other act, which he has done, either directly or by abstaining from asserting his legal right. Where, all these elements exist there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.”
(In the present case the positions of plaintiff and defendant are, of course, reversed).
We are of opinion that the plaintiff-appellant did not act in such a way as to deprive him of his legal right to recover possession. Up to the date of his arrival in Freetown on the 13th October, 1941, there is, in our view, nothing which could possibly justify a finding that he did, and so far as the period subsequent to that date is concerned, we think that it is clear that he acted in the manner in which he did in order that litigation might be avoided by the parties coming to some amicable arrangement, and that his failure to assert his rights immediately was for this reason and this reason only, and that as soon as he realised that his efforts were useless, he at once gave instructions for his legal rights to be asserted.
In our view, there has been neither accord and satisfaction nor release nor laches, and we hold that the plaintiff-appellant is not deprived on any of these grounds of his right to regain possession of the premises. But since we are of opinion that on and after the 13th October, 1941, the first defendant-respondent became by operation of law tenant of the plaintiff-appellant through his agent (as she then became) the second defendant-respondent, the plaintiff-appellant would, if it were not for the provisions of the Defence (Rent Assessment) Regulations, 1941, be entitled to regain possession of the premises, but only after giving the necessary notice in the appropriate form and terms. There is no evidence that he has done this and consequently the present action for possession is misconceived.
As to the second question-the plaintiff-appellant’s claim for damages against the first defendant-respondent— no question of express waiver arises but the law as to implied waiver in such cases is thus stated in Vol. 13 of Halsbury’s Laws of England (2nd Ed para. 197 at p. 208:-
“The person entitled to the right may so conduct himself that it becomes inequitable to enforce it, and this is sometimes called an implied waiver. But in such cases the right is lost either on the ground of estoppel, or of acquiescence, whether by itself or accompanied by delay.”
Here we are of opinion that the plaintiff-appellant by his conduct subsequent to the 13th October, 1941, has waived any claim for damages he may have had against the first defendant-respondent and is now barred on the ground of estoppel from enforcing any such claim.
It remains to consider the effect of the first defendant-respondent’s application to the Rent Assessment Committee under regulation 5 of the Defence (Rent Assessment) Regulations, 1941. Reg. 12(1) of these regulations reads:-
”Where the rental value of any dwelling house or shop has been determined under these regulations or is in course of being so determined no order or judgment for the recovery of possession of such dwelling house or shop or the ejectment of a tenant therefrom shall he made or given by any Court unless—
“(a) any rent lawfully due from the tenant has not been paid or any obligation of the tenancy (whether under the contract of tenancy or under an order made under these regulations) so far as it is consistent with the provisions of these regulations has been broken or not performed; or
(b) the tenant or any person residing or lodging with him or being the sub-tenant has been guilty of conduct which is a nuisance or annoyance to adjoining occupiers or has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose, or the conditions of the dwelling house or shop has in the opinion of the Court, deteriorated owing to acts of waste by or the neglect or default of the tenant or any such person and where such person is a lodger or sub-tenant the Court is satisfied that the tenant has not before the making or giving of the order or judgment taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant; or
(c) the tenant has given notice to quit and in consequence of that notice the landlord has contracted to sell or let the dwelling house or shop or has taken any other step, as a result of which he would in the opinion of the Court be seriously prejudiced if he could not obtain possession; or
(d) in the case of a dwelling house, it is reasonably required by the landlord for occupation as a residence for himself or his family or for some person engaged in his whole time employment, and, in the case of a shop, it is reasonably required by the landlord for the purpose of carrying on his own profession, trade or business and that no other and reasonable accommodation is available to him for such purpose;
(e) the dwelling house or shop is reasonably required “for any purpose which is in the opinion of the Court “in the public interest.”
It was, in effect, pleaded and not traversed that on the first defendant-respondent’s application the rental value of the premises in question was, at the date on which this suit was instituted, in course of being determined under the regulations, the Court below was therefore precluded by the provisions of the regulations from making an order for recovery of possession of the premises as prayed in the writ unless the plaintiff-appellant could bring himself within any of the exceptions to regulation 12(1).
The learned Chief Justice has held that on the evidence before him the plaintiff-appellant has failed to do so, and we see no reason to differ from this finding.
On this ground alone, therefore, if for no other, the claim for possession must fail. The appeal is dismissed with costs to be taxed.
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