DWOMOH v. OBUASI URBAN COUNCIL [1972] 1 GLR 404
COURT OF APPEAL
Date: 14 FEBRUARY 1972
BEFORE: AZU CRABBE J.S.C., LASSEY AND SOWAH JJ.A.
CASES REFERRED TO
(1) Matthews v. Smallwood [1910] 1 Ch. 777; 79 L.J.Ch. 322. 102 L.T. 228.
(2) Doe d. Cheny v. Batten (1775) 1 Cowp. 243; 89 E.R. 1006.
(3) Croft v. Lumley (1858) 6 H.L.Cas. 672; 27 L.J.Q.B. 321, 31 L.T. (o.s.) 382; 22 J.P. 639; 6 W.R.
523; 10 E.A. 1459. [p.406] of [1972] 1 GLR 404
(4) Doe d. Nash v. Birch (1836) 1 M. & W. 402; 2 Gale 26; 5 L.J.Ex.185; 150 E.R. 490.
(5) Greery v. Summersell and Flowerdew & Co., Ltd. [1949] Ch. 751; [1949] L.J.R. 1166; 93 S.J. 357.
(6) Civil Service Co-operative Society Ltd. v. McGrigor’s Trustee [1923] 2 Ch. 347; 92 L.J.Ch. 616;
126 L.T. 788.
(7) Evans v. Enever [1920] 2 K.B. 315; 89 L.J.K.B. 845; 123 L.T. 328; 36 T.L.R. 441; 64 S.J. 464.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Kumasi, dismissing an action for damages for wrongfully determining a lease of two plots. The facts as set out in the headnote are taken from the judgment of Azu Crabbe J.S.C.
COUNSEL
Lutterodt for the appellant.
No appearance by or for the respondent.
JUDGMENT OF LASSEY J.
This appeal was by the plaintiff, the appellant herein, against the decision of the High Court, Kumasi,
which dismissed a claim for damages against the defendants, the respondents herein. The appellant was the lawful owner of a house on plot number 301 situate on Insuta Street, Obuasi, which he bought. By a scheme of development and layout by the respondent council, the appellant’s property became affected and, as a result, the respondents recovered possession of it. In replacement, the appellant was given a new lease of two plots known as No. 9 at Kwabrafoso and No. 101 at Tutuka, respectively. Both plots are within the Obuasi area under the administration of the respondent council which administered all the lands in Obuasi for and on behalf of the Ashanti Goldfields Corporation, the owners thereof.
The respective plots were re-allocated to the appellant in 1951, and he entered both and paid the annual rents regularly and these were received from the commencement of the lease in 1951 up to the period 1960 that is, one year in advance. The appellant said after that he applied for and obtained from the respondent council building permits Nos. 547 and 548 preparatory to engaging on building activities on the two plots. He said he had virtually completed the building on one of the plots which had reached roofing level when the respondent council in November 1956 gave notice of its intention to re-enter the plots on the ground of failure to build on time, and did enter. Thereupon the appellant sued the council to recover damages for unlawfully determining his occupation of the plots.
The ground given by the respondent council for its decision to re-enter the plots was that the appellant had failed to develop the two plots assigned to him by the council by not having buildings erected on them in compliance with the councils building regulations and also in breach of the condition which required him to build on the plots within twelve months of going into occupation.
[p.407] of [1972] 1 GLR 404 It seems when the plots were being allocated to the appellant, no written lease or agreement embodying the vital condition to build within twelve months was produced and shown to him. The appellant said he was never told of this condition by the clerk of council at the time of the reallocation of the plots. This the clerk denied in his evidence, and said he communicated to the appellant verbally that occupation of the plots was subject to the fulfilment of the condition to build within twelve months, and the appellant seemed to have understood the same.
A vital condition of occupying the two plots originally belonging to the respondent council was that the buildings were to be completed and finished to the satisfaction of the council within the time stipulated.
This appeared not to have been done by the appellant at the time the council exercised its right of
re-entry. The right of re-entry relied on by the respondents arose upon breach of the condition to build contained in the verbal lease which the appellant’s own pleadings showed clearly had been communicated to him and that he knew of this condition before he accepted the offer of the plots.
On the issue whether or not the appellant had partly developed either of the two plots by commencing building work on it, the learned judge preferred the evidence of the officials of the council who inspected the sites and found no existing building on either of them, and made a positive finding. The judge was also satisfied that the appellant knew that the condition of the allocation of the plots was that he was required to build on both within twelve months. In my opinion, no valid argument can be raised against these findings of fact by the judge.
Mr. Lutterodt, counsel for the appellant, next urged that even if there was a valid exercise of the right of re-entry by the respondents, the subsequent conduct of the council’s employee in accepting further rent from the appellant after knowledge of the exercise of the right of re-entry, amounted to a waiver of the re-entry and, therefore, the court ought not to have found against the appellant. The plea of waiver relied on by the appellant was that the respondent council accepted rent in advance offered by the appellant after knowledge of the exercise of the right of re-entry upon breach of condition to build on time. Learned counsel argued that having accepted the rent after the council had in fact re-entered the plot in question, it meant that the council must have waived their right to re-enter, and that being so, the learned judge was wrong in finding against the plaintiff.
In my view, the mere acceptance of rent by the officials of the council in the normal routine of business was in itself no valid ground for implying that the council had waived its right to re-enter the plots for breach of condition to build on time. As the learned judge rightly observed in his judgment, the acceptance of rent after the exercise of the right of re-entry, was a positive act which could amount to a recognition of the continuance of the tenancy and could have been a waiver provided it involved a conscious decision by the council. There was no evidence in this case indicating that the council as a body knew that its officials continued to accept rents from the appellant after it re-entered the particular plots in [p.408] of [1972] 1 GLR 404 question. Such being the position, the appellant could not say on the established facts that merely because he offered the rent which was accepted on behalf of the council amounted to the council itself agreeing that it would not insist on re-entry of the plots. There may be conduct by the council from which it can be reasonably implied that there was a waiver or abandonment of its right but I do not think in the circumstances in which the rent was tendered and accepted by the treasurer of the council the respondent council may be regarded as having been bound vicariously by the act of the treasurer.
I quite agree with the argument of counsel for the appellant that the learned judge’s ground for concluding that the appellant must have had a hint of the respondent council’s decision to re-occupy the two plots and so rushed to offer the rent which was accepted did not derive support from the evidence on record. No evidence was offered that the appellant was informed or was in a position to have known that the council had intended to re-enter the two plots for breach of condition to build. The evidence rather satisfied me that the acceptance of the rent by the treasurer of the council after knowledge that the council had exercised the right of re-entry was in error.
In my judgment, the position would have been different if the evidence had been of such a nature that the respondent council after it had become aware of the exercise of the right of re-entry, ordered that the rent offered by the appellant should be accepted. Only then will it be presumed that the council had waived the right to re-enter, and the learned judge would be entitled to hold that the exercise of the right of re-entry in that circumstance was unlawful. If there was nothing more than the mere act of accepting the further rent, unless it was shown that the council knowing the full circumstances approved of the act of the treasurer there would be no waiver. In my opinion, the learned judge was right in his conclusion that there was no waiver, and the result must be that this appeal fails and is therefore dismissed.
JUDGMENT OF AZU CRABBE J.S.C.
In this case the appellant (hereinafter referred to as the plaintiff) issued a writ against the respondents, the Obuasi Urban Council (hereinafter referred to as the defendant council) claiming £G200 (N¢400.00) for trespass, and for an order upon the defendant council to make a re-allocation to him of two building plots, described as plot No. 9 Kwabrafoso and plot No. 101 Tutuka, both situated at Obuasi, and within the administrative area of the defendant council.
The facts are fully and clearly set out in the judgment of the learned judge of the High Court, and also in the judgment of my brother Lassey, and I do not wish to recapitulate them here, except so much as is necessary to elucidate my own judgment.
The real issues, which the learned trial judge thought he was called upon to decide, were these: (1) Did the defendant council have a right of re-entry? (2) If it had, was it validly exercised ? (3) If it was,
whether the breach of contract, for which the right of re-entry was exercised, was
[p.409] of [1972] 1 GLR 404 waived by the subsequent acceptance of rent by a servant or employee of the defendant council?
With regard to the first issue, the learned trial judge reached the conclusion that when the plots were
allocated to the plaintiff in 1951, they were subject to a condition that the plaintiff should develop them by erecting buildings thereon within one year, and that a breach of this condition entitled the defendant council, as a matter of law, to re-enter the two plots. On the second issue, the learned trial judge also decided in favour of the defendant council, and this is how he expressed his decision in his judgment: “I accept the evidence of Mr. Shaw, the defendant council’s foreman, that in 1956, when the council re-entered the plots, neither was developed. The plot at Kwabrafoso had a trench dug on it obviously as a foundation for a building. The plot at Tutuka had nothing on it. I accept the evidence of Mr. Fordjuor, the clerk of council, that the council gave notice of its intention to re-enter all the undeveloped plots including the plots in dispute by announcement in the local broadcast and by publication in the Ashanti Times newspaper. I also find, accepting the evidence of Mr. Shaw, that the council in about November, 1956, posted notices of re-entry on the plots in dispute. I hold therefore that the right of re-entry, which I have held the council entitled to, was validly exercised.”
I am satisfied that the learned trial judge’s conclusions on the first and second issues are amply justified by the evidence on record, and I find no merit in the argument in support of the grounds of appeal challenging these conclusions.
The question whether money had been tendered and accepted as rent is always one of fact, but whether this amounts to a waiver is a question of law. On the third issue, therefore though the learned trial judge found as a fact that rent was accepted from the plaintiff by a servant of the defendant council, yet he held that the acceptance of the rent did not, in the particular circumstances, amount to a waiver by the defendant council of the exercise of its right of re-entry.
In my judgment, the only important, and indeed the only crucial, issue in this appeal is whether the
acceptance of rent from the plaintiff by the defendant council’s employee, after the exercise of the right of re-entry amounted to a waiver of that right. In Matthews v. Smallwood [1910] 1 Ch. 777 Parker J. stated the law upon this question of waiver, and this has often been approved ever since. He said at p. 786: “Waiver of a right of re-entry can only occur where the lessor with knowledge of the facts upon which his right to re-enter arises, does some unequivocal act recognising the continued existence of the lease. It is not enough that he should do the act which recognizes, or appears to recognise, the continued existence of the lease, unless, at the time when the act is done, he has knowledge of the facts under which, or from which, his right of entry arose.” [p.410] of [1972] 1 GLR 404 Later, Parker J. in the course of his judgment, said at p. 787, “Logically, therefore, a person who relies upon waiver ought to show, first, an act unequivocally recognising the subsistence of the lease, and, secondly, knowledge of the circumstances from which the right of re-entry arises at the time when that act is performed.”
As I have already stated, the question whether there has been a waiver is ultimately one of law, and the onus is on the lessee to adduce some evidence of the lessor’s knowledge, and proof of an act showing recognition of the tenancy does not shift the onus of proving want of knowledge on to the lessor. In considering whether there has been a waiver, governing factor is the intention of the party to whom waiver is attributed Thus, as Lord Mansfield observed in Doe d. Cheny v. Batten (1775) 1 Cowp. 243 at p. 245, “The question therefore is quo animo the rent was received, and what the real intention of both parties was?” See also Croft v. Lumley (1858) 6 H.L.Cas. 672 at pp. 705 and 713. Every man, no doubt, is held responsible for the consequences of his act, and, as Lord Wensleydale observed in Croft v. Lumley (supra), that question seems be a matter of fact rather than a matter of law. The mere receipt of rent after forfeiture, does not by itself operate as a waiver of the forfeiture, it is only evidence of the election of the lessor to retain the reversion and its incidents instead of taking possession of the land.
In this case the learned trial judge found as a fact that the two plots were re-entered validly in November 1956, and the question whether there was a subsequent waiver may be resolved by an examination of the facts. At a meeting of the defendant council held on 11 October 1956, it was decided that all persons to whom plots had been allocated by the defendant council for building purposes should endeavour to develop their plots within a period of three months from 15 October 1956, and that failure to develop would render the plots liable to re-entry and to re-allocation. It was further decided that all persons affected should be informed of this decision, and also that the general public be informed of the decision through the local rediffusion radio and the Ashanti Times newspaper, which was published in Obuasi.
The learned trial judge made a positive finding that announcements on the radio and in the newspaper were made. There is also evidence, which the learned trial judge accepted, that 26 November 1958, the foreman of works of the defendant council placed a re-entry notice on plot No. 101 Tutuka with the object of reminding the plaintiff that his plot would be re-allocated if he failed to develop it within one week. But at a subsequent council meeting, the re-allocation of plot was deferred until January 1959. There is, however, no evidence that a letter was written to the plaintiff to inform him of the defendant council’s intention to re-allocate his plots.
No further action appears to have been taken by the defendant council in this matter, and on 16 February 1959, the plaintiff paid ground rents for his two plots for the period 1 January 1957 to 31 December 1960, and this sum was accepted at the office of the defendant council by the treasurer
[p.411] of [1972] 1 GLR 404 of the council, and the plaintiff was given two official receipts—exhibit D1 and exhibit D2. It would seem, according to the plaintiff’s evidence, that the plaintiff, after the payment of ground rent, proceeded to build on the two plots, but his buildings were subsequently demolished by the defendant council. The plaintiff protested to the defendant council, and the following reply (exhibit 4) was addressed to him: “27 May 1961, Sir, Plots—No. 101 Tutuka and No. 9 Kwabrafoso-Obuasi Ref. your letters dated 2 September 1959, and 7 December, 1960 I am directed to inform you that your complaint has been carefully considered, and it is regrettable to say that the plots cannot be re-allocated to you, as the main condition attached to re-allocation of plots within the Council’s area of authority ‘is the failure or inability to develop plots after a period of one year’.
In the light of this, the payment of the annual ground rent of 2/6, does not in any way prevent the Council from re-entering undeveloped plots.
Regarding your argument that you did not receive any previous written notice of the re-entry of the plots, I have to point out further that as lessees of undeveloped plots are not easily traced, the local newspaper isused as the medium of disseminating information relating to re-entry of plots, and that following the publication which appeared in the Ashanti Times in 1956, the above-named plots were re-entered and re-allocated along with other undeveloped ones in July 1959.
The ground rent paid after the re-entry of the plots will be refunded to you. Yours faithfully,
(Sgd.) ? ? Clerk of Council. Opanin Kwasi Dwumo, c/o Mr. Atta Osei, P.O. Box 18,
Mampong.” The clerk of the defendant council, Mr. Edward Kingsley Fordjuor, who gave evidence on behalf of the council, admitted the acceptance of the ground rent by their treasurer, and offered the following explanation:
“The plots were re-entered by the council in 1956. The cashier keeps a book which he checks before
receiving ground rents from tenants. That rent ought not to have been accepted after 1 January 1957. The council discovered in 1961 that rent had been accepted from the [p.412] of [1972] 1 GLR 404 plaintiff in error. As a result of this, we wrote exhibit 4 to repay the the ground rent to the plaintiff. Not correct the plaintiff wrote us to be allowed to continue his building on the plot. We wrote to him ourselves ….After the plaintiff received exhibit 4, he wrote to the council to the effect that if he was not allowed to continue his building within a month, he would sue the council. We wrote back saying we adhered to what we said in exhibit 4.”
It is not disputed that it was the normal duty of the treasurer to accept, and issue receipts for, all moneys paid to the defendant council. The treasurer was thus the defendant council’s general agent for accepting ground rents in respect of plots allocated to individuals by the defendant council, and his act was the council’s act. It appears from the judgment of Parke B. in Doe d. Nash v. Birch (1836) 1 M. & W. 402 at p. 408, that a demand for or acceptance of rent, if made unequivocally and with knowledge and by a person authorised to make it or accept it, may waive a forfeiture. In this case there can be no doubt that the treasurer of the defendant council accepted the ground rents from the plaintiff, but the question still remains quo animo was the act done. The plaintiff led no evidence of an unequivocal act by the defendant council intending to waive the forfeiture or affirming the existence of the leases. The evidence, on the contrary, shows the determination of the defendant council to forfeit the leases granted to the plaintiff, and the routine and mistaken acceptance of the ground rent by an official of the defendant council does not, in my judgment, amount to an acceptance by the defendant council with intent to waive the re-entry.
A similar point arose in Creery v. Summersell and Flowerdew & Co., Ltd. [1949] Ch.751 to which I wish to refer. In that case, after the lessor had become aware of the facts entitling him to forfeit, his clerk, in ignorance of the facts and as a routine matter sent a demand for rent. Harman J. held that, in the circumstances, there had been no waiver.
In this case the learned trial judge made these observations on the vital issue of waiver, “It is plain on the evidence that the defendant council did not authorise the acceptance of rent from the plaintiff after entering into possession of the plots. Indeed, it seems obvious that the council were unaware of such payment by the plaintiff until 1961.”
It seems to me that once a landlord unequivocally and finally elects to treat a lease as void, no subsequent receipt of rent or other acts will amount to a waiver so as to prejudice his right to enforce the condition of re-entry: See Civil Service Co-operative Society Ltd. v. McGrigor’s Trustee [1923] 2 Ch. 347; Evans v. Enever [1920] 2 K.B. 315. In my view, the posting of notices of re-entry on the plots in dispute, and the re-allocation of these plots to other individuals constitute such an unequivocal and final election by the defendant council to determine the tenancy of these plots that a subsequent receipt of ground rent from the plaintiff would not be a waiver of the forfeiture. [p.413] of [1972] 1 GLR 404 Having regard to all the circumstances of this case, I think that the learned trial judge was right in rejecting the contention that there was a waiver of the re-entry of the two plots by the defendant council. In the result, I would also dismiss this appeal.
JUDGMENT OF SOWAH J.A.
I also agree and have nothing more to add.
DECISION
Appeal dismissed.
