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GEORGE KITCHELL
V.
SHERIFF J. CHARAFF
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
16TH DAY OF MARCH, 1942
2PLR/1942/21 (WACA)
OTHER CITATION(S)
2PLR/1942/21 (WACA)
(1942) VIII WACA PP. 99 – 105
LEX (1942) – WACA PP. 99 – 105
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
GEORGE KITCHELL – Plaintiff-Appellant
AND
SHERIFF J. CHARAFF – Defendant-Respondent
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REPRESENTATION
S. A. Benka-Coker with H. J. L. Boston — for Appellant
C. E. Wright with Hotobah During — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW — CONTRACT:- Claim for possession and mesne profits — Counterclaim for specific performance of agreement — Construction of correspondence — Special defence under section 12(1) of the Defence (Rent Assessment) Regs. 1941
REAL ESTATE AND PROPERTY LAW — LEASE:- Claim for possession and mesne profits — Rent in arrears — Counterclaim for agreement for lease — How treated
REAL ESTATE AND PROPERTY LAW — LEASE:- Tenant in unlawful possession — Right of landlord to bring action to recover possession and arrears of rent after giving a lease of same property to another lessee who had not been able to enter into exclusive possession — Whether a defence against landlord to assert that new lessee was the one entitled to a right of action
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Rule of court — Procedure stipulated thereunder for the amendment of court processes — Failure thereto — Waiver of by parties — Legal effect — Attitude of court thereto
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CASE SUMMARY
ORIGINATING FACTS
Plaintiff claimed to recover possession of premises and also mesne profits. Defendant counterclaimed for specific performance of an alleged agreement constituted by correspondence between the parties for a lease of the premises. During the trial the Court gave leave to amend the defence by adding a plea that the rental value of the premises had been assessed under the Defence Regulations 1941, to which the Plaintiff replied that the rent had been in arrear.
Judgment was given dismissing plaintiff’s claim and giving judgment for defendant on the counterclaim for performance of the agreement.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Judgment of Court below set aside and judgment substituted for appellant for recovery of possession and mesne profits and dismissed the counterclaim because –
(1) the Court below was wrong in holding that there was ever a concluded contract between the parties.
(2) Section 12 (1) of the Defence Regulations 1941 did not bar the appellant from obtaining a judgment for the recovery of possession to which he was entitled, and
(3) tender or payment of arrears after judgment could not avail the defendant in his defence under these Regulations.
Cases referred to:-
Davies v. Bristone (1920) 3 K.B. 428.
Brewer v. Jacobs (1923) 1 K.B. 528.
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DECISION OF THE JUDICIAL COMMITTEE, PRIVY COUNCIL
1. If in the counts of negotiations, one of the parties to the negotiations instructs his own agent to make an agreement in certain terms with the other party, these instructions in no way bind the person who gave them unless and until the agent has carried out the instructions and made the agreement. Up to that moment the instructions may be withdrawn. It is irrelevant if the other party was made aware of the instruction to the agent.
2. A contract is not deemed accepted because a party to the negotiation on becoming aware of the other party’s independent instruction to that other party’s agent – to make an offer or take steps to perfect the agreement – purported to accept that contract. It makes no difference whatever that the first party told the other party what instructions he had given to his agent. That did not make them anything more than instructions by a principal to his agent.
3. Where a purported acceptance of an offer contained an additional condition to be fulfilled or ‘special words’, it cannot be deemed accepted without the satisfaction of the condition(s).
4. The Court below was wrong in holding that there was ever a concluded contract between the parties and therefore, there could be no order for specific performance.
5. There is nothing in the proceedings to suggest that the appellant after the assessment of rent, did, write, or said, anything to show that if the rent were tendered it would not be accepted. He could have tendered the rent and if the tender had been refused the position might have been different. There is no weight whatever to be given to this excuse for the respondent’s being in arrear with the rent lawfully due and that therefore section 12 (1) of the regulations does not bar the appellant from obtaining a judgment for the recovery of possession to which he is clearly entitled.
6. Part payment of rent due is not evidence of rent not being in arrears, tender or payment of rent.
7. The new lessee has never at any time entered into possession of the premises. In such circumstances the landlord has a right to recover and retain possession against all parties except his tenant as the landlord is not deemed to have parted with his right to immediate possession as against the respondent.
8. The right to immediate possession and enjoyment of land is one of the ordinary incidents of ownership of land. By the mere granting of a lease of land the owner gives his lessee a contractual right to receive from the owner exclusive possession and enjoyment of the land within the terms of the lease but it is only when the lessee has entered into possession under the lease that he becomes entitled as against all the world including the owner to retain and if necessary sue for recovery of possession.
9. The lessee Saab in this case has never entered into possession so he has not yet anything more than his contractual right to receive vacant possession in order that he may put himself in a position to give vacant possession to his lessee.
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MAIN JUDGMENT
The following judgments were delivered:
GRAHAM PAUL, C.J., SIERRA LEONE.
The plaintiff in the court below claimed to recover possession of certain premises in Freetown and also mesne profits until possession is given up by the defendant. The defendant counterclaimed for specific performance of an alleged agreement constituted by certain correspondence between the parties by which the plaintiff agreed to let to the defendant and the defendant agreed to take on lease from the plaintiff the premises in question for six years from 29th March, 1941. In the course of the trial in the Court below the defendant obtained leave to amend his defence by adding a plea that the rental value of the premises had been assessed under Defence Regulations and the plaintiff obtained leave to add to his reply to this plea that the rent had been in arrear.
The proper procedure to effect these amendments under the Rules of Court was not followed but it was apparently waived by both parties with the consent of the Court and the whole subsequent proceedings were on the basis that the amendments had been made. We deprecate this slipshod way of dealing with a vital matter of this nature and cannot too emphatically emphasise our views that in the drawing or amendment of pleadings the Rules of Court should be strictly observed.
The evidence at the trial was brief and there was no important issue of fact between the parties. The Court below gave judgment dismissing the plaintiff’s claim with costs and giving judgment for the defendant on the counterclaim for the specific performance of the agreement alleged by the defendant with costs on the counterclaim. The judgment of the Court below dismissing the plaintiff’s claim for possession was partly based upon the special defence under section 12 (1) of the Defence (Rent Assessment) Regulations, 1941, which was upheld by the Court below.
From that judgment the plaintiff has appealed to this Court. There are seven grounds of appeal, the first being:-
“The learned trial judge was wrong in law in holding that there was a binding agreement between the plaintiff and defendant for the renewal of the lease which expired on 28th March, 1941”.
It will be convenient to deal with this ground of appeal first. The facts as admitted or proved may be shortly stated. The respondent was the tenant of the appellant under a written lease of the premises. This lease which was for three years at £100 a year rent expired on 29th March, 1941. Since then the respondent has remained in possession of the premises, refusing to quit, claiming that the appellant by letters and cables made an agreement with him for a new lease as from the expiry of the old lease. The appellant was in Kano, Nigeria, and this action was brought in the appellant’s name by his agent in Freetown, JOHN Anon, specially authorised to do so by a formal Power of Attorney from the appellant.
The fundamental question in the case is the construction of the letters and cables upon which the defendant-respondent’s case is based. They may be set out in chronological order, omitting from each the irrelevant matter.
First there is the letter of 27th November, 1940, (Ex. A. 2) from the appellant in Nigeria to the respondent in Freetown received by respondent on 21st December, 1940 :-
“I have received your letter and understood all your explanations.
I wrote to Mr. John Aboud to pay you the amount of £94 being the balance of the kola account which I still owe you.
Concerning the house, in a short time the lease shall expire, and I wrote to Mr. John Aboud that the rent from now on should be £120 instead of £100, because somebody is willing to pay this amount; but you have the priority.
If you do not agree to pay this amount, write to me and I shall send you the letter which I have received from the person who is willing to pay the amount of £120. Besides the expenses for the repairs in the house”.
The respondent replied by cable (Ex. C) on 23rd December, 1940, as follows:-
“Letter November received accept £120 and all expenses John Aboud refused make agreement until another instruction from you stop. If agreement made for six years I do repairs cost £100 my own responsibility stop. If condition accepted make agreement then send same.”
The appellant then wrote on 28th December, 1940 (Ex. B 2) as follows:-
“I have received your cable and understood all your explanations about the house. I wrote to Mr. John Aboud to make an agreement for the house to you for six years according to your demand; but on condition that you paint and repair it as if it were your own property. The moment you receive this letter see Mr. John Aboud and tell me soon what he says.
“Certain time ago I wrote to lawyer Wright to take a permission for me to go to Freetown for a short time and up till now I did not receive any reply from him. I beg you seeing lawyer Wright and tell me what he says to you. If he says he can have the permission leave making the agreement until I am in Freetown and I shall do whatever you like; and don’t think that I forget the love which is in between us.
“Send me the reply soon and I thank you in advance.”
On 30th December, 1940, before the respondent had received the appellant’s letter of 28th December, 1940, he received the following letter from the solicitor of the appellant’s Freetown agent:-
“I have been instructed by Mr John Aboud of 31, Little East Street, Freetown, Agent of Mr George Mitchell of Nigeria, to notify you that the premises which you now occupy at 5 Westmoreland Street, will be required on the 29th March, 1941, on the expiration of the present lease. I shall therefore be much obliged if you will make arrangements to give up possession immediately on the expiration of the lease”.
And on 7th January, 1941, the respondent cabled to the appellant follows:-
“Your letter December 28 condition therein accepted as final agreement “.
This last cable is what the respondent’s counsel now founds upon as clinching a binding agreement between the parties, although he did not found upon it specifically in his pleadings, and the question of law upon this point is whether upon the correspondence there was at the date of this cable a definite offer by the appellant to the respondent open to respondent to convert by acceptance into a binding legal contract.
The parties were undoubtedly discussing in correspondence the terms of an agreement and the appellant informed respondent that he had written to Aboud as his agent to make an agreement in the terms which the respondent asked for but subject to an extra condition. It seems to me clear that if in the course of negotiations one of the parties to the negotiations instructs his own agent to make an agreement in certain terms with the other party these instructions in no way bind the person who gave them unless and until the agent has carried out the instructions and made the agreement. Up to that moment the instructions may be withdrawn. It seems to me to make no difference whatever that the appellant told the respondent what instructions he had given to his agent. That did not make them anything more than instructions by a principal to his agent. If these instructions represented terms which the respondent was prepared to accept he could cable to that effect but he could not, just because he knew what instructions the appellant had given to his agent, by cabling to the appellant take away from the appellant his undoubted right to vary or cancel his instructions to his agent.
Generally speaking, that would seem to me to be the legal position between the parties but in that general reasoning I have not taken into account the special and important words in Exhibit B.2. “The moment on receive this letter see Mr. John Aboud and tell me soon what he says”. These words seem to me to make it clear that the appellant and quite reasonably wanted to know what his agent (who had been in charge of the property and knew the local conditions) thought about it before the deal went through. The respondent chose to ignore that part of the letter for, as was demonstrated by appellant’s counsel from the evidence and not controverted by respondent’s counsel, the respondent did not go to see John Aboud on receipt of that letter. He did not go to see John Aboud till after 7th January and did not tell the plaintiff what John Aboud had said until the letter of 24th January which did not reach the plaintiff until after he had granted a lease to someone else. These special words in the letter strengthen the view I have formed that there was in Ex. B.2, no offer by plaintiff to defendant which could be converted by defendant’s acceptance into a contract.
Taking that view of the negotiations between the parties I am of opinion that the Court below was wrong in holding that there was ever a concluded contract between the parties and therefore of course in my opinion there could be no order for specific performance.
There remains for consideration the special defence based on section 12 (1) of the Defence (Rent Assessment) Regulations which is in the following terms:
“12(1) 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 be 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.
The respondent did not get his rent assessed until sometime in August, 1941, while the actual trial was going on. At that time the respondent had been in possession of the premises since 29th March, 1941, without any payment of rent. His possession was based on his claim that he had a concluded contract for a lease for six years from 29th March, 1941, at a rental of £120 a year but he had neither paid nor tendered rent. From the date of the rent assessment at any rate, there was rent lawfully due and neither paid nor tendered. The respondent’s counsel says that it is not necessary to pay or tender the rent, that it is enough if the appellant made it clear that rent would not be accepted if tendered. No authority for that proposition was produced and I am by no means satisfied that the proposition is sound; and in any case there is nothing in the proceedings to suggest that the appellant after the assessment of rent, did, write, or said, anything to show that if the rent were tendered it would not be accepted. On the contrary immediately the respondent’s counsel at the trial in the Court below obtained leave to amend by introducing this special plea, the appellant’s counsel obtained leave to add in reply that the rent has been in arrear”. It was then open to the respondent’s counsel to plead in answer that his client had always been and still was willing to pay. He could then have tendered the rent and if the tender had been refused the position might have been different. It is true that there was this case pending but it is clear that acceptance of the assessed rent would in no way prejudice the appellant’s case (Davies v. Bristow, 1920 3 K.B. 428). I find it impossible to hold that there is any weight whatever to be given to this excuse for the respondent’s being in arrear with the rent lawfully due and that therefore section 12 (1) of the regulations does not bar the appellant from obtaining a judgment for the recovery of possession to which he is in my opinion clearly entitled.
It is said that subsequent to the judgment of the court below the respondent has instructed a bank to tender to the appellant £60 on account of rent and that this court ought to take that into account and hold that section 12 (1) therefore applies to bar the claim now. I attach no importance to this point. A year’s rent is now due since 29th March, 1941, and if only £60 has even been paid the assessed rent is still in arrear. So that if we were to uphold the appellant’s contention that the position now is to be taken as the criterion it would not help him on this point. In fact there is no evidence of any tender or payment of rent. The case of Brewer v. Jacob, (1923 1 K.B. 528) is important on this point. There a statutory tenant who had been in arrear was sued for possession. He paid the arrears into court before trial but that did not suffice to give him the statutory protection against ejectment. Tender or payment of the arrears after judgment a fortiori cannot avail the defendant here.
It is further contended by the respondent’s counsel that the appellant has no right to sue for recovery of possession because of the formal lease which he has executed in favour of one Saab, the effect of which was to make Saab and not the appellant the person who could rightfully bring an action to recover possession. That lease was put in evidence (Ex. 4). It is dated 21st January, 1941, but the period of the lease did not begin till 1st April, 1941, i.e. two days after the lease to the defendant expired – and the right to possession reverted to the appellant. Moreover, the lessee Saab has never at any time entered into possession of the premises. It is clear that in such circumstances the appellant has a right to recover and retain possession against all parties except his tenant Saab. The authorities quoted by the respondent’s counsel do not support his proposition that the appellant has parted with his right to immediate possession as against the respondent. The law on this point is of course elementary but it seems to be necessary to state it. The right to immediate possession and enjoyment of land is one of the ordinary incidents of ownership of land. By the mere granting of a lease of land the owner gives his lessee a contractual right to receive from the owner exclusive possession and enjoyment of the land within the terms of the lease but it is only when the lessee has entered into possession under the lease that he becomes entitled as against all the world including the owner to retain and if necessary sue for recovery of possession. The lessee Saab in this case has never entered into possession so he has not yet anything more than his contractual right to receive vacant possession in order that he may put himself in a position to give vacant possession to his lessee.
There was a further ground of appeal:
“As the document leasing the premises to Abraham Saab was duly registered in Sierra Leone in the office of the Registrar General on the 7th March, 1941, the learned trial Judge was wrong in ignoring it and decreeing specific performance of the alleged contract between the plaintiff and defendant”.
The view I have taken that there was no concluded contract between the appellant and respondent makes it unnecessary to deal with this ground.
In my opinion the judgment of the court below, including the orders as to costs, should be set aside, and any costs paid thereunder should be refunded; there should be substituted for the judgment of the court below a judgment
(1) for the appellant for recovery of possession as claimed and for mesne profits up to the date when the appellant is given possession, the final order fixing the amount of the mesne profits to be made by the court below after they are ascertained and
(2) dismissing the counterclaim. The appellant should in my opinion have the costs of this appeal and the claim and counterclaim in the court below.
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KINGDON, C.J., NIGERIA
I concur.
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PETRIDES, C.J., GOLD COAST
I concur.
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