MILLS-LAMPTEY v. YEBOAH [1971] 1 GLR 18

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 31 JULY 1970

BEFORE: ABBAN J.

CASES REFERRED TO

(1) Standard Pattern Co., Ltd. v. Ivey [1962] Ch. 432; [1962] 2 W.L.R. 656; 106 S.J. 195; [1962] 1 All E.R. 452.

(2) Sanders v. Pope (1806) 12 Ves. Jun. 282, 33 E.R. 108 [p.19] of [1971] 1 GLR 18

(3) Hill v. Barclay (1810) 16 Ves. Jun. 402; 33 E. R. 1037.

(4) Mensah v. Grant (1955) 14 W.A.C.A. 726.

NATURE OF PROCEEDINGS

ACTION for an order for ejectment and damages for the breach of covenant to pay rent. The facts are fully set out in the judgment of the court.

COUNSEL

I. Amoo-Lamptey for the plaintiff.

Yaw Asare for the defendant.

JUDGMENT OF ABBAN J.

The plaintiff in this case claims from the defendant: (a) the sum of N¢200.00 being arrears of rent as from 11 June to 1 October 1969, together with mesne profits; (b) general damages for breach of covenant; and

(c) an order for ejectment.

The undisputed facts in this case are as follows: By a lease dated 2 October 1961, the plaintiff demised to the defendant premises known as House No. D676/4, Jones Road, Accra. The lease excluded one room and a porch on the ground floor of the said house which prior to the lease of 2 October 1961, the plaintiff had already demised to Messrs. Emil J. Chahin and Khalil-Rokos Hage. The defendant covenanted, inter alia, to pay “every month during the said term a rent of £G20, i.e. N¢40.00 in advance on the first day of each month.” There was a provision for re-entry in case the lessee failed to perform and to observe the covenants in the said lease.

There are two clauses in the said lease which are very relevant to this action, namely, clauses 4 (a) and 5. Clause 4 (a) reads as follows:

“That if the rent hereby reserved or any part thereof shall be in arrears and unpaid for the space of one calendar month next after the same becoming payable (whether formally demanded or not) or if any covenant on the part of the Lessee herein contained shall not be performed or observed then and in any of the said cases it shall be lawful for the Lessor at any time thereafter and upon giving one month’s notice in writing to that effect to re-enter upon the said House or any part thereof in the name of the whole and thereupon this demise shall absolutely cease and determine but without prejudice to the right of action in respect of the Lessee’s covenants herein contained.”

Clause 5 reads:

“Provided always and it is hereby further agreed and declared that at the expiration of the ten years on or about 20th day of November, 1968 when the said Emil J. Chahin & Khalil-Rokos Hage peaceably and quietly surrender the said one Room and Porch to the Lessor, the Lessor shall automatically be deemed to have demised the said one room and one porch to the Lessee herein in addition to the other apartments herein before demised to him for the unexpired residue of the term of 25 years and the Lessee shall thenceforth pay [p.20] of [1971] 1 GLR 18 monthly and every month the rent of twenty-one Ghana pounds (£G21).”

The lease in question was tendered, without objection, by the plaintiff as exhibit A. According to the plaintiff, the defendant paid his rents regularly up to the end of May 1969. But in June 1969 when he called upon the defendant for his rent for June 1969, the defendant refused to pay. The defendant’s main reason for not paying the June 1969 rent, according to the plaintiff, was that the plaintiff had not forced out one Chahin from the one room and the porch in accordance with the terms of clause 5 of the lease (supra). The term of ten years given to Chahin expired on 20 November 1968. Until Chahin left the house the defendant stated that he would not pay any more rents. The plaintiff further averred that the defendant, true to his word, refused to pay his rent for the subsequent months as well, and by the time the present writ of summons was issued, that is, in October 1969, the arrears of rent due and owing by the defendant for June, July, August, September and October, 1969 amounted to N¢200.00.

While the case was pending, the defendant went to the plaintiff and offered to pay all the arrears of rent but the plaintiff refused to accept it, on the ground that the case was already before the court. The defendant therefore on 15 November 1969, paid into court the sum of N¢240.00 representing the arrears of rent for the months of June, July, August, September, October and November, 1969. On 22 May 1970 the further sum of N¢240. 00 was paid into court by the defendant to cover the rents for December 1969, January, February, March, April and May, 1970. The plaintiff however denied having himself committed a breach of any of the covenants in the said exhibit A. In his evidence, the defendant also denied having refused to pay his rent as alleged by the plaintiff. He said that ever since he took possession of the premises his rents had always been paid in advance. He stated that by clause 5 of exhibit A, the said Chahin should have been asked by the plaintiff to vacate the one room by 20 November 1968. This room was to be added to rooms in his possession for an additional rent of £G1, i.e. N¢2.00. But the plaintiff failed to get Chahin out in compliance with the said clause 5. The defendant further averred that he has been pressing the plaintiff for Chahin’s room since November 1968 and because of this, the plaintiff took offence in April 1969 and became indifferent towards him in the sense that the plaintiff would not converse with him whenever the plaintiff went to the defendant to collect his rent.

The defendant stated in his evidence that it was rather the plaintiff who in June 1969 made it clear to the defendant that he would not collect any more rents from the defendant until the plaintiff had been able to throw Chahin out of the house; and even though the plaintiff, since that time, refused to approach him for his rent, the defendant sent his wife to the plaintiff with the rent but the plaintiff refused to accept it. The plaintiff according to the defendant refused to comply with clause 3 (a) of exhibit A. Consequently the defendant was compelled by circumstances

[p.21] of [1971] 1 GLR 18 to build an extra kitchen, dining hall, garage, verandah and stairs. He tiled the rooms, cemented the yard of the house and installed water pipes in the yard. He also paid the house rates for 1966–1969 amounting to N¢289.64 and paid N¢24.74 in respect of the water rate for 1966–69. The defendant tendered receipts for these payments, see exhibits 1 and 2. The defendant said the plaintiff had not refunded to him the amount shown on exhibits 1 and 2; neither has the plaintiff re-imbursed him for the cost of the additional buildings that he has constructed.

After carefully considering the evidence as a whole, I am inclined to believe the plaintiff. I am convinced that it was rather the defendant who refused to pay his rent for June 1969 and intended to persist in his refusal until such time that the plaintiff was able to get Chahin out of the said room on the ground floor. The defendant said he was even assisting the plaintiff financially and that he gave the plaintiff money to enable the plaintiff to perform his mother’s funeral rites. Comparatively, the plaintiff who is an old P.W.D. pensioner had not been financially well-off and was mainly depending on these rents for his livelihood. It would therefore be absurd and unreasonable for the plaintiff to leave his house and travel all the way to the defendant’s shop in June 1969, when the rent was due to be paid, just to tell the defendant that it would not be until Chahin left the premises that he would take any more rent from him, the very rent on which he depended for his maintenance and upkeep.

According to the defendant when the plaintiff left his shop, after the plaintiff had refused to collect the rent, the defendant sent his wife to the plaintiff’s house with the rent, but again the plaintiff refused it. It is significant to note that for reasons best known only to the defendant, he never called his wife to testify on this point despite the plaintiff’s denial that the said wife ever went to him with any rent. Indeed at no time did the defendant himself go to the plaintiff with a view to paying the rent; and it is also clear that he never at all made any attempt to pay the rents for the subsequent months of July, August, September and October, 1969. It was only after the present action had been instituted against him, that the defendant, probably realising the seriousness of his default and folly, quickly approached the plaintiff and offered to pay all of the arrears.

I therefore accept the plaintiff’s version and find as a fact that it was rather the defendant who, when he was approached by the plaintiff for the rent for June 1969, refused to pay it and also refused to pay the rents for the subsequent months, and that at the time the present action was instituted, the defendant was in arrears of rent to the tune of N¢200.00. In the circumstances, I hold that the defendant has committed a breach of the covenant as contained in clause 4 (a) of exhibit A and that the plaintiff is at least entitled to some damages. I also find that the defendant’s excuse for not paying his rents was very unreasonable. The defendant in his evidence stated that the plaintiff committed a breach of clause 5 by not ejecting Chahin; and by accepting an advance from

[p.22] of [1971] 1 GLR 18

Chahin the plaintiff made it difficult for Chahin to leave the house on 20 November 1968. Hitherto the defendant never called Chahin to testify as to why he had not left the premises. The defendant wants this court to assume that it is the advance which the plaintiff had got from Chahin which made it impossible for Chahin to leave the house. I think it will be most unsafe in the particular circumstances of this case, to accept such an assumption. There is no evidence as to when the said advance was taken from Chahin. Whether it was taken before 20 November 1968 or after that date, the defendant never told the court how he came by this piece of information, that is, that it was the payment of the advance to the plaintiff which prevented Chahin from leaving the premises. On the contrary, it appears to me, that the plaintiff has been making unsuccessful attempts to get Chahin out of the premises “peaceably and quietly.” Probably the defendant had wanted the plaintiff to use force of some kind on the said Chahin before the defendant could be convinced of the plaintiff’s said efforts. But that would not have been within the terms and the spirit of the said clause 5 of exhibit A. Under these circumstances, I do not share the view that the plaintiff himself has breached clause 5 of exhibit A.

The defendant further contended that the plaintiff failed to pay house rates and general water rates and that he, the defendant, was obliged to pay these bills in the name of the plaintiff as shown in exhibits 1 and 2 and that the plaintiff has up to this date not refunded to him this amount. It must be pointed out that the action was brought in October 1969; but exhibits 1 and 2 show that the defendant paid these bills on 8 January 1970 and 20 May 1970 respectively. I am therefore of the view that the defendant knowing that he had no defence to the action, made these payments to the Accra-Tema City Council in the hope that such payments might have mitigating effects on the consequences of his default. Otherwise I do not see the defendant’s reason or excuse in choosing to pay (at a time an action was pending against him) the bills of the plaintiff, the payment of which bills became due and payable some two years before the action was instituted. Under clause 4 (d) if the plaintiff failed to pay the rates it was for the defendant to “discharge the amount involved against the rent to be paid to the Lessor.” The defendant was aware of this clause and was also aware all these years that the plaintiff had defaulted to pay the said rates. Yet he also never bothered. But he conveniently went and paid the said outstanding arrears of rates after this case had been pending against him in this court for about three months. As I have already said, payments shown by exhibits 1 and 2 were made to lay a foundation for mitigation.

The defendant also contended that because he wanted to be on good terms with the plaintiff, he had not even called upon the plaintiff to reimburse him for the cost of the additions and repairs to the premises. But that is neither here nor there. The fact still remains that he refused to pay his rents, not because he had not been reimbursed for the cost of the said repairs and the extensions, but because the plaintiff had not [p.23] of [1971] 1 GLR 18 removed Chahin from the premises. The defendant had every right to counterclaim in this action for the cost of the alleged extensions and repairs but he chose not to do so.

On the totality of the evidence, I find that the defendant’s conduct in refusing to pay the rent was calculated to coerce the plaintiff to adopt some drastic means to eject the said Chahin from the house and it is clear that the defendant was determined not pay any more rent until Chahin left the premises. This attitude of the defendant, in my opinion is callous and inhuman, knowing very well that the plaintiff is an old pensioner who depends mainly on these rents for his existence.

I would therefore have had no hesitation in ordering the defendant to give up possession, but for the fact that all the arrears of rent actually due to the time the action was instituted were paid before the hearing commenced and for the fact that plaintiff himself admitted that the defendant on the whole had been a good tenant to him and also for the fact that the rents were in arrears for just five months. The authorities clearly establish that the court may grant relief against forfeiture for re-entry on non-payment of rent provided the rent was in arrears for six months and were paid before the trial and provided that the lessor could be put in the same position as before.

In Hill and Redman’s Law of Landlord and Tenant (13th ed.) at pp. 506-7, para. 379, the learned editors make the position clear in the following language:

“The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent, and accordingly, provided the lessor and other persons interested can be put in the same position as before, the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the lessor has been put, . . . If the lessor has brought an action to recover possession, the lessee or his assign may, at any time before trial, pay, or tender to the lessor, or pay into Court, all the rent in arrear, together with costs; thereupon all further proceedings are stayed, and the lessee or his assigns, hold the demised lands under the lease.”

From the evidence, at the time the writ was filed, the rent had been in arrears for five months. The plaintiff admitted that the defendant tendered the arrears but that he refused to accept the arrears because the case was already before the court. Consequently the defendant paid the said outstanding arrears into court. The plaintiff under cross-examination also admitted that he had withdrawn all the amount paid into court by the defendant.

In view of this evidence, I have to consider whether it will be right to eject the defendant from the premises. In the case of Standard Pattern Co., Ltd. v. Ivey [1962] Ch. 432, Wilberforce J. after referring to section 212 of the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76), in the course [p.24] of [1971] 1 GLR 18 of his judgment, made the following observation at p. 437:

“So if the section applies and if the payment-in is validly made under that section, then the defendant is automatically entitled to have the proceedings stayed and no question of the exercise of the court’s discretionary jurisdiction in equity arises.”

The learned judge having reviewed several authorities on this section concluded as follows at p. 439: “I therefore adhere to the opinion, which I am led to by the words of the sections themselves, that the particular remedy under section 212 only applies where there is six months’ rent in arrear and that in other cases where there is not six months’ rent in arrear the jurisdiction of the court to relieve against forfeiture and the right of the tenant to obtain relief against forfeiture must be exercised according to the general principles which are stated in section 46 of the Act of 1925.”

See also the case of Sanders v. Pope (1806) 33 E.R. 108. In this case the court when granting relief against forfeiture incurred by not laying out a specific amount of money in repairs within a specified period, held that the court had jurisdiction to grant relief in all cases if full compensation could be made even though the breach complained of was wilful. But in the later case of Hill v. Barclay (1810) 33 E.R. 1037, Lord Eldon stated that relief for breach of a covenant other than non-payment of rent will only be granted in cases where the lessee can prove fraud, mistake, accident or surprise.

In Mensah v. Grant (1955) 14 W.A.C.A. 726 the West African Court of Appeal held, inter alia that the court has an inherent equitable jurisdiction under certain circumstances to grant relief against forfeiture. In the course of delivering the judgment of the court Foster-Sutton P. said at p. 728: “The history of the subject relating to the relief granted in equity against forfeitures and penalties is given by Kay, L.J., in Barrow v. Isaacs & Son ([1891] 1 Q.B. at p.425) as follows: ‘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 no 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 Will. 3, Cap.11, which enabled Courts of law to give the same relief. Also against forfeiture for non-payment of rent. . .”

In view of these authorities and having regard to the facts of this particular case, and also having regard to the subsequent conduct of the defendant after the writ had been issued, which conduct was suggestive of a repentant sinner, I am inclined to exercise and I do hereby exercise my inherent equitable jurisdiction and grant the defendant relief against forfeiture. Consequently the claim for an order for ejectment will be dismissed.

[p.25] of [1971] 1 GLR 18

It is on the record that the defendant, before the hearing actually commenced, paid all the outstanding arrears of’ rent up to May 1970. So that the mesne profits, being claimed by the plaintiff, will only cover rents for June and July 1970.

Accordingly, judgment is hereby entered against the defendant for the sum of N¢80.00 being rent for June and July 1970. The plaintiff is also awarded damages of N¢200.00, with costs assessed at N¢250.00.

DECISION

Judgment for the plaintiff with costs.

T.G.K.