–
CECIL EVANS RIBEIRO
V.
JAMIL CHARIN AND PHILIP CHARIN
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
2ND DAY OF APRIL, 1954
W.A.C.A. NO. 48/53
LEX (1954) – XIV WACA 476-479
OTHER CITATION(S)
2PLR/1954/90 (WACA)
(1954) XIV WACA PP. 476-479
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSE, J.A.
ABBOTT, J.
–
BETWEEN:
CECIL EVANS RIBEIRO – Appellant
AND
JAMIL CHARIN AND PHILIP CHARIN – Respondents
–
ORIGINATING COURT(S)
Appeal by defendant against the decision of the Land Court, Accra
–
REPRESENTATION
Hayfron-Benjamin — for Appellant
Franklin — for Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LEASE:- Claim for declaration that lease is valid and for possession — Re-entry by lessors — Relief against forfeiture for non-payment of rent — Common Law Procedure Act, 1852, sections 210 to 212
REAL ESTATE AND PROPERTY LAW – LEASE:- Notices of demand and finally of re-entry under the terms of the lease thereby adopted it — Where given by a co-lessor who refused to grant possession to lessee to move in in the first place – Legal effect
–
CASE SUMMARY
The respondents as plaintiffs sued the defendant (now appellant) alleging that he and his brother and sisters executed a lease with the plaintiffs with these conditions: that the plaintiffs should pay a certain amount, and that the lessors should give vacant possession by a certain date; and alleging also that the plaintiffs were ready to pay that amount but that the defendant refused to give possession whilst his co-lessors were willing to give it; and the plaintiff claimed (1) a declaration that the lease was valid, (2) specific performance, and (3) possession.
Claims (1) and (3) were granted. The Judge also granted relief against forfeiture for non-payment of rent though not claimed, as the lessors had re-entered.
Such evidence as there was on the averment that the other co-lessors were willing to grant possession was to the contrary of the averment.
The defendant appealed and raised for the first time the point that his co-lessors were not parties to the suit and therefore the judgment was ineffective; and he also suggested that the Common Law Procedure Act, under which the Judge had granted relief against forfeiture, did not apply.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) The plaintiffs were entitled to sue the defendant alone and take the risk of the judgment not binding the other co-lessors; there was no objection to binding the rights of the parties before the Court, whose judgment rightly abstained from decreeing specific performance.
(2) Relief against forfeiture for non-payment of rent though the lessors had re-entered was rightly granted under sections 210 to 212 of the Common Law Procedure Act, 1852.
(Per Foster-Sutton, P., and Coussey, J.) A. Even if non-payment were a failure of a condition precedent, relief could be granted where compensation was possible; and the case for relief here was stronger as the defendant by giving notices of demand and finally of re-entry under the terms of the lease thereby adopted it.
Cases cited:-
(1) Sheehan v. Great Eastern Railway Co., 16 Ch. D. 59, at p. 64.
(2) Meux v. Maltby, 36 E.R. 621.
(3) Bowser v. Colby, 1 Hare 109; 66 E.R. 909.
(4) Hayward v. Angell, 1 Vern. 223.
–
–
MAIN JUDGMENT
The following judgments were delivered:
ABBOTT, J.
This is an appeal against the judgment of the Land Court, Accra.
The claim of the plaintiffs-respondents is as follows:-
“1. On the first day of April, 1952, a lease was executed between the defendant, Cecil Evans Ribeiro, his brother and four sisters of the one part (hereinafter called ‘the Lessors’) and the plaintiffs of the other part of certain premises known as Belvista Terrace, Knutsford Avenue, Accra, described in the said lease.
“2. Conditions of the said lease were:-
“(a) That the plaintiffs should pay to the lessors, the sum of £2,000.
“(b) That the lessors should give vacant possession of the said premises by the 30th day of April, 1952.
“3. The plaintiffs are ready and willing to pay the said £2,000. The lessors, other than the defendant are ready and willing to give vacant possession but the defendant has refused and refuses to do so.
“And the plaintiffs claim against the defendant:-
“1. A declaration that the said lease is valid.
”2. Specific performance thereof.
“3. Possession of the said premises.”
To deal with the third item of claim, there was no direct evidence of the averment in the first sentence but the learned trial Judge quite properly assumed the truth thereof. There was no evidence of any kind in support of the averment in the second sentence and such evidence as there was relating to this point is to the contrary of the averment.
The lease referred to in the particulars of claim is made between the defendant-appellant and five other persons (his brother and sisters), of the one part and the plaintiffs-respondents of the other part. The plaintiffs-respondents brought their action against only the first-named lessor (the defendant-appellant).
The learned trial Judge came to the conclusion first that the plaintiffs-respondents were entitled to relief against forfeiture for non-payment of rent. This they had not asked for in their claim but, in my view, the learned trial Judge was right to consider and decide this point because there was evidence before him th.at all the lessors had re-entered under Clause 6 of the lease (see exhibit “C”).
The judgment goes on to declare that the lease is valid and to give possession to the plaintiffs-respondents on certain terms.
Against this judgment the defendant-appellant appeals and it is contended on his behalf that the judgment of the Land Court is ineffective because not all the lessors were parties to the suit. This point was not raised in the Court below. It seems to me that the plaintiffs-respondents are entitled to sue the defendant-appellant alone if they think fit. They take the risk, if they do not sue all the lessors, that the judgment may be ineffective, but that is the plaintiffs-respondents’ affair.
Furthermore, I consider that the defendant-appellant should have raised this point much earlier than be has and that it is now too late to raise it. It was within his power to apply to the trial Court at any time that the plaintiffs-respondents be ordered to make his co-lessors parties to this action (Sheehan v. Great Eastern Railway Co. (1)). Even if that were not so, the general rule requiring the plaintiffs to bring before the Court all the parties interested in the subject in question admits of exceptions. In Meux v. Maltby(2) the Master of the Rolls said:-
“The liberality of this Court has long held that there is of necessity an exception to the general rule when a failure of justice would ensue from its enforcement.”
At p. 624 of the same report the Master of the Rolls continues:-
“The only novelty is that the bill requires an act to be done by the absentees. Not having them before the Court, though their rights may be bound, there is a difficulty in making them act. The plaintiff requires specific performance of the agreement; and it would hardly be sufficient, supposing it proper, for a few to execute a lease on behalf of the rest … But that difficulty presents no objection to binding the rights of the parties not before the Court. That is authorised by every one of the Customs referred to. If the Court cannot proceed to compel the defendants to do the act required, it must go as far as it can.”
That it seems is just what the learned trial Judge did in declaring the lease valid. He rightly says nothing about specific performance.
I now pass on to consider the question of relief against forfeiture for non-payment of rent, and the first question is, can this relief be granted when the lessors have actually re-entered and re-taken possession which, according to exhibit “C “, they have done? I am clearly of opinion that it can. In former days, according to the judgment of Wigram, V.C., in Bouuer v. Colby (3), the Court used to consider (the lease being gone, at law, by the re-entry), that the only way it could give relief was by creating a new lease, until the statute (in that case the Landlord and Tenant Act, 1730), recognising the right of the tenant to be relieved, dispensed with that form of relief and declared that the last lease should be deemed to have continuance. “The object of the proviso,” (for re-entry) continues the Vice-Chancellor, “is to secure to the landlord the payment of his rent and the principle of the Court is-whether right or wrong is not the question-that, if the landlord has his- rent paid him at any time, it is as beneficial to him as if it were paid on the prescribed day.”
It was suggested in the grounds of appeal that the Common Law Procedure Act, 1852, under which the learned trial Judge granted the plaintiffs the relief against forfeiture, does not apply to this case. I am of the contrary opinion. Sections 210 to 212 of the Common Law Procedure Act replace the repealed sections 2 to 4 of the Landlord and Tenant Act, 1730.
For the above reasons I consider that the relief against forfeiture was properly granted by the Land Court.
Applying the principle above stated that “the Court must go as far as it can”, I would amend paragraph 8 of the judgment of the Land Court to read as follows:-
“8. A declaration is granted against Cecil Evans Ribeiro, that the lease is valid and subsisting, and it is hereby ordered:-
“(i) that the plaintiffs do pay into Court on or before the 8th day of April, 1954, the sum of £2,000 with interest at the rate of 8 per cent per annum from the 1st day of April, 1952, until the date of payment into Court;
“(ii) that within seven days of the payment into Court of the sum mentioned in paragraph (i), the defendant Cecil Evans Ribeiro shall take all such steps as are within his power to give possession of the premises to the plaintiffs;
“(iii) that the defendant and his co-lessors, Lindley Alverstone Ribeiro, Irene Ione N’Amale Hoyte (nee Ribeiro), Ruby Ellaline Ribeiro, Matilda Vesta Thompson (nee Ribeiro), and Celestina Vera Cora Ayodele Tagoe (nee Ribeiro) or any one or more of them, shall have liberty to apply for payment out to him, her or them of such proportion or proportions of the sum of £2,000 as he, she or they may satisfy the Court he, she or they is or are entitled to; and
“(iv) that the defendant shall have liberty to re-open the accounts between himself and his co-lessors and the plaintiffs with regard to the sums of £600 and £1,240 mentioned in clause 2 (a) of the lease.”
In all other respects I would dismiss this appeal with costs.
–
FOSTER-SUTTON, P., and COUSSEY, J. A.
We concur but would add:- It was argued that the non-payment of the £2,000 on the due date was such a failure of a condition precedent that the lease was thereby vitiated and there was nothing that could be validated or relieved against. But equity in this context makes no distinction between conditions precedent and conditions subsequent if compensation is possible (Hayward v. Angell (4)).
Moreover the case for relief is stronger in this case, for the appellant by giving notices of demand and finally a notice of re-entry under the terms of the lease thereby adopted it.
Appeal dismissed but the Judgment below varied.