BOSTON AND ANOTHER v. KHEMLAND BROTHERS AND OTHERS
[HIGH COURT, SEKONDI]
DATE: 13TH FEBRUARY, 1962
COUNSEL
S. Baidoo for the plaintiffs.
H. V. A. Franklin with him E. B. Gaisie for Messrs. Giles Hunt & Co. for the defendants.
JUDGMENT OF CHARLES J.
The first plaintiff in his capacity as successor and administrator of the estate of the late T. E. Kwofie
and the second plaintiff in his capacity as head of the family of the late T. E. Kwofie instituted an
action against the defendants claiming:
“1. Possession of Plot No. 101, Prince of Wales Road, African Township Area, Takoradi, together
with the building situate thereon and known as house No. 36/8 Prince of Wales Road, Takoradi,
on the grounds that the sub-lease granted to Madge Boehm, the defendants’ landlady, has been
forfeited by reason of the breaches of the covenants and conditions contained in the sub-lease granted to the said Madge Boehm by the late T. E. Kwofie, the original lessee of the said
premises.
“2. Mesne profits from the date of the writ until delivery of possession, £G80 being the total rents
payable monthly in respect of the premises.”
[p.70] of [1962] 1 GLR 68
By order of the court dated the 8th May, 1961, the executors of the estate of Madge Evans alias
Madge Boehm (deceased) were made codefendants.
The late T. E. Kwofie had acquired the term created by a lease dated the 5th May, 1934, under which
the government granted a lease of the piece of land situate at plot 101, Prince of Wales Road,
Takoradi. The most relevant term of the said lease which has been marked exhibit A is contained in
clause 10 thereof which reads as follows:
“And also will bear pay and discharge all existing and future rates taxes charges assessments impositions
whatsoever imposed on the said demised premises or upon any messuage and buildings which may be
erected thereon during the said term or imposed upon or payable by the owner or occupier in respect
thereof Provided that in the event of the government at any future date being found liable for the
payment of all or any part of any such rates taxes charges assessments impositions and outgoings
whatsoever as aforesaid then and in any such case it shall be lawful for the government to add such
amounts so paid to the amount of rent payable next after such payment by the government and to enforce
the payment by the lessee of such amount as if the same had been rent hereby reserved and then due and
in arrear.”
By an under-lease dated the 29th September, 1945, and made between T. E. Kwofie and Madge Evans
deceased and marked exhibit B, the said T. E. Kwofie sub-let the said plot 101, Prince of Wales Road,
Takoradi, for a term of eighteen years with a right to renew the lease for a further term of ten years.
The most relevant covenants contained in this under-lease by the sub-lessee are as follows:
“(a) To pay the rent reserved herein on the days and in the manner above provided.
(b) To bear, pay and discharge all existing and future rates, taxes, duties, assessments, impositions
and outgoings whatsoever charged or imposed upon the premises or any part thereof.
(c) Not to assign, underlet or part with the possession of the said premises or any part thereof without
the previous written consent of the sub-lessor or the Governor or his representative in accordance
with the covenants in the headlease; and
(d) To insure any building erected on the said premises with an Insurance Company to be approved
of by the Governor or his representative in the sum of …. And not to do or permit to be done
anything whereby any policy of insurance on the premises against any risk insurance against
which is stipulated for in the landlord or sub-lessor’s covenants or in the headlease may become
voidable or be avoided or whereby the rate of premium on any such policy may be increased, and
to repay to the landlord or sub-lessor forthwith all sums from time to time paid to him, and
(e) To perform and to observe all the lessor’s covenants, conditions and agreements contained in the
headlease (which has been produced to the lessee and who has been supplied with a copy)
excepting the covenant for the payment of rent.”
There is also a proviso for re-entry if the sub-lessee fails to perform and observe the covenants in the
said under-lease. I should indicate at this stage that counsel for the plaintiffs attempted to tender in
evidence a draft lease between T. E. Kwofie and Madge Evans to prove that Madge Evans had
covenanted to render accounts of all rents received from the tenants occupying the building to be
erected on the said plot, but I ruled that the draft agreement was inadmissible in evidence because the
final sub-lease as executed by the parties and registered in the Deeds Registry contained no such
clause. Moreover Mr. Awoonor Williams, solicitor for the parties to the sub-lease gave evidence on
behalf of the plaintiff and said that the sub-lease, of which exhibit B is a copy, was the sub-lease
agreed upon between the parties. I therefore hold that there is no such covenant in the lease.
[p.71] of [1962] 1 GLR 68
According to the statement of claim, the plaintiffs claim that Madge Evans, who is also called Madge
Boehm, committed breaches of the following covenant:
(i) To pay to the government the annual ground rent of £G1 15s. payable half yearly on the 21st
day of April and the 21st day of October each year.
(ii) To pay all existing and future rates, taxes, duties, or impositions whatsoever charged or
imposed upon the premises.
(iii) To render to the sub-lessor or his successor accounts of all rents received from the tenants
occupying the house erected on the said land whenever called for.
(iv) To insure the building erected on the premises.
I have already held that there was no covenant by the sub-lessee to account for rents received from
tenants so there is no necessity to deal with any alleged breach of such covenant. As regards the
covenants to pay the annual ground rent of £G1 15s. half yearly, I find on the evidence that the
executors of Madge Evans (the co-defendants herein) did fail to pay the ground rent for the period
ending October, 1959, but this occurred because according to the letter dated the 30th September,
1959, and written by Giles Hunt & Co. (exhibit J), Giles Hunt & Co. were returning a demand note
addressed to T. E. Kwofie in respect of plot 101 (rear), Prince of Wales Road, Takoradi, as they were
not acting for T. E. Kwofie. However the demand note, exhibit H, which was tendered in evidence by
the plaintiff is in respect of plot 101 simply and although exhibit H is dated the 1st October, 1959, it is
postmarked the 29th September, 1959. I am not impressed with the explanation given by the witness
J. C. Quao having regard to his demeanour, and although I am not prepared to say definitely that
exhibit H is a forgery, nevertheless I entertain grave doubts about its genuineness because I find it
difficult to believe that Giles Hunt & Co. would have stated that the demand note was in respect of
plot 101 (rear) if the demand note simply referred to plot 101. It is rather significant that the demand
note dated the 1st October, 1957 (exhibit 1), which was addressed to Madge Evans, c/o Giles Hunt &
Co. was paid by Giles Hunt & Co. Furthermore plot 101 (rear) was in the name of Madge Evans in
the books of the Lands Department, so I can very well understand why Giles Hunt & Co. returned the
demand note. I do not believe that Giles Hunt & Co. returned exhibit H and refused to pay the rent
because they knew that plot 101 was in the name of T. E. Kwofie in the books of the Lands
Department and they had previously received demand notes in respect of plot 101 in the name of T. E.
Kwofie and they paid the rent. The facts surrounding the demand note exhibit H, bristle with
suspicion but I nevertheless hold that the codefendants should have paid the rent when due and that
failure to send a demand note does not relieve the co-defendants of the breach of covenant to pay the
rent even though the rent was duly paid from 1945 to April, 1959.
As regards the rates, the co-defendants were under an obligation to pay them in advance. In a letter
dated the 20th February, 1958 (exhibit 5) Madge Evans wrote to the Sekondi Municipal Council
requesting them to send demand notices in respect of the rates to Giles Hunt & Company, but no
demand notices for the payment of rates were sent to Giles Hunt & Company. Failure to send demand
notices does not relieve the co-defendants of their obligation to pay the rates as they fall due. The
rates were paid from 1945 up to the 31st March, 1959 by Madge Evans and the co-defendants, but the
first plaintiff paid the rates for the period the 1st April, 1960 to the 31st March, 1961.
[p.72] of [1962] 1 GLR 68
The co-defendants paid the rates for the period the 1st April, 1961, the 31st March, 1961, but the first
plaintiff in his anxiety and desire to establish a persistent breach of covenant by the co-defendants to
pay rates paid the rates for the period the 1st April, 1962 to the 31st March, 1963, although the rates
are not yet due for this period. I find it rather surprising that although counsel for the plaintiffs knew this, he nevertheless tendered in evidence the receipt in respect of payment for rates not yet due.
Mr. Franklin submitted that the courts in Ghana exercise a wider discretion in equity than the courts in
England. See Agyako v. Zok,1(1) and Danquah v. Wuta-Ofei.2(2) He also contended that failure to
pay rent and rates were technical breaches and in view of the circumstances of the case the court
should grant relief against forfeiture. He further submitted that there was no evidence to prove that
Madge Evans sublet the premises without the consent of T. E. Kwofie. He also submitted that the
plaintiffs failed to prove that Madge Evans did not insure the premises and as the amount for which
the property was to be insured is not stated herein there can be no breach. He further argued that if the
plaintiffs could be compensated by payment in cash the court should grant relief, see Howard v.
Fanshawe.3(3) He finally stated that the co-defendants tendered £G201 to settle the matter but it was
refused. At this stage Mr. Baidoo denied that any money was tendered but admitted that the clerk of
Giles Hunt & Company, did suggest a sum which he could not remember to settle the matter but his
clients refused to accept it. However Mr. Franklin informed the court that his clients were prepared to
pay into court all the out-of-pocket expenses of the plaintiff. Mr. Franklin further contended that the
first plaintiff was an agent of necessity when he paid the rent and rates and therefore the
co-defendants have not committed breaches of the covenants in respect of rent and rates.
In reply Mr. Baidoo submitted that the court may grant relief for breach of a covenant to pay rent and
order compensation to be paid to the plaintiffs. As regards a breach of covenant to pay rates and taxes
the court never granted any relief prior to the Conveyancing Act of 18814(4) which does not apply in
Ghana. The courts of equity would not grant relief against forfeiture unless fraud, accident, surprise or
mistake was established, but mistake is not synonymous with the negligence of a suppliant. The
tenants of the sub-lessee cannot be protected if the court refuses to grant relief against forfeiture.
As regards the payment of the ground rent both counsel agree that this court has power to grant relief
against forfeiture and this is supported by the cases cited by them.
As regards the alleged breaches of covenants to insure and not to sub-let without the consent of the
sub-lessor the onus is on the plaintiff to prove the forfeiture. See Jackson & Co. v. Northampton
Street Tramways Co.5(5) The onus is on the plaintiffs to prove the non-insurance and they have failed
to do so, see Chaplin v. Reid,6(6) and I therefore hold that there is no proof of the breach of covenant
to insure. Moreover as no amount is stated in the covenant I also hold that there could be no
[p.73] of [1962] 1 GLR 68
breach. As regards the covenant not to sub-let without consent I also hold that the plaintiffs have
failed to prove a breach as the plaintiffs would have to prove that the sub-lessor did not give his
consent and this would be almost impossible as he is dead and there is no written evidence in support
of this. See Toleman v. Portbury.7(7) The cases decided before the Conveyancing Act of 1881 in
which relief against forfeiture may be granted are not quite uniform. In Sanders v. Pope8(8) Lord
Erskine granted relief against forfeiture of a public house incurred by not laying out a particular sum
in repairs within a specified time and held that the court had jurisdiction to grant relief in all cases
where full compensation could be made even though the breach complained of was wilful. However
in Hill v. Barclay9(9) Lord Eldon held a contrary view and stated that relief for breach of a covenant
other than non-payment of rent will only be granted where the suppliant can prove fraud, mistake,
accident or surprise.
When the courts are called upon to construe forfeiture clauses, the court has to ascertain the meaning
of the covenant without regard to the forfeiture and then decide upon the ascertained meaning whether
the forfeiture has been incurred. See Bristol Corporation v. Westcott.10(10) However, subject to this
principle the court construes a forfeiture clause literally or strictly and as it destroys or defeats the
estate, the court construes it most strongly against the lessor or sub-lessor. See Doe v. Stevens.11(11)
In construing the covenant to pay rates it is necessary to read the provision in the head-lease as well as
in the under-lease. In the head-lease it is provided that if the lessee therein (that is the sub-lessor) fails to pay his rates it was to be regarded as rent. Under the sub-lease the sub-lessee agreed to perform and
observe this covenant to be performed on behalf of the sub-lessor and according to clause 1 (K) of the
sub-lease, the headlease was produced to the lessee and she was supplied with a copy. I hold that the
covenant to pay rates in the sub-lease must be construes with the corresponding covenant in the
head-lease and as failure to pay rates was to be considered as rent if paid by the lessor in the
headlease, I hold that failure by the executors of the sub-lessee to pay the rates on behalf of the lessee
(sub-lessor) must also be considered as rent if paid by the sub-lessor or those claiming through him. I
also hold that the first plaintiff was not an agent of necessity when he paid the rent, rates and taxes
which had fallen due.
Moreover in Barrow v. Isaacs Sons12(12) Kay, L.J. stated:
“Long ago courts of equity assumed jurisdiction to relieve against forfeiture and penalties where the only
object was to secure payment of a definite sum of money, even though there was fraud, accident,
surprise or mistake. On this principle it relieved against payment of the whole penalty on a money bond
before the Statutes 4 and 5 Anne Cap. 16 sections 12 and 13, and 8 and 9. William 3, Cap. 11, which
enabled the Courts of law to give the same relief. Also against forfeiture for non-payment of rent . . . “
This case was followed by the West African Court of Appeal in Mensah v. Grant13(13) when the
court granted relief against forfeiture in respect of a breach of covenant to pay royalty. The court held
that there was an
[p.74] of [1962] 1 GLR 68
plaintiffs inherent jurisdiction in equity to grant relief against forfeiture. I have carefully considered
the conduct of the co-defendant and the plaintiffs in this case and the circumstances surrounding the
breach of convenants to pay rent and rates and by virtue of the inherent jurisdiction vested in me I
hereby grant relief against forfeiture.
A declaration is granted against the plaintiffs that the sub-lease is valid and subsisting and it is hereby
ordered that the co-defendants do pay to the first plaintiff the amounts paid by him for rent and taxes
due with interest at rate of ten per centum per annum from the date of such payments. Both claims of
the plaintiff are dismissed.
The co-defendants are also ordered to pay to the plaintiff costs fixed at one hundred and thirty
guineas, inclusive of fee to counsel.
DECISION
Claims dismissed.
