YAMAK v. YAWSON [1971] 2 GLR 465

DIVISION: IN THE HIGH COURT, SEKONDI

DATE: 30 JULY 1971

BEFORE: EDUSEI J.

CASES REFERRED TO

(1) Baylis v. Le Gros (1858) 4 C.B. (N.S.) 537; 140 E.R. 1201.

(2) Johnson v. Todd (1843) 5 Beav. 597; 49 E.R. 710.

(3) Edun v. Koledoye (1954) 14 W.A.C.A. 642.

(4) Basma v. Noureldine (1952) 14 W.A.C.A. 231.

(5) Ribeiro v. Chahin (1954) 14 W.A.C.A. 476.

NATURE OF PROCEEDINGS

ACTION for account of rents collected by the defendant and an injunction restraining the defendant from interfering with the plaintiff’s right to collect rents. The facts are fully set out in the judgment.

COUNSEL

J. K. Polley for the plaintiff.

J. K. Essiem for the defendant.

[p.467] of [1971] 2 GLR 465

JUDGMENT OF EDUSEI J.

By his writ of summons, the plaintiff Samil Yamak, agent for Faud Fattal and Anwar Yamak, claims from the defendant:

(a) an account of all rents collected by the defendant from tenants occupying house No. 3/12, Boundary Road, Sekondi, and for payment to the plaintiff of whatever amount may be found due, and

(b) an order for injunction restraining the defendant from interfering with the plaintiff’s right to collect rents in respect of the said house.

By an indenture of lease made on 27 May 1954 between the defendant as lessor and Faud Fattal and Anwar Yamak as lessees, the lessor leased the property known as house No. 3/12, Boundary Road, Sekondi, to the lessees for a term of twenty years at an annual rent of £G20 0s. 0d. and a further term of twenty years at the annual rent of £G20 0s.0d. after the expiration of the first term of twenty years. This lease is exhibit 1.

It was a term of the lease, exhibit 1, that the lessees should break down the existing building on the said plot No. 3/12, Boundary Road, Sekondi, and put up a substantial house in its place according to certain plans and specifications. This the plaintiff’s principals did. The lessees further covenanted with the lessor “to pay and discharge all municipal council rates and dues and observe all conditions imposed by the Sekondi Takoradi Municipal Council”: and also “to pay regularly the rents herein reserved and at the times specified.” The lessees also covenanted with the lessor in clause (6) of exhibit 1 as follows: “At the end of or sooner determination of the said term hereby granted, peaceably yield up possession of the said premises to the lessor, the said premises so substantially repaired and painted together with all fixtures belonging thereto to the lessor. Provided always that if and whenever the said rent hereby reserved or any part thereof whether lawfully demanded or not shall be unpaid for a period of three (3) calendar months or if the lessees do not observe and perform all and singular the covenants and agreements herein contained then at any time afterwards the lessor shall be at liberty to enter into the demised premises or any part thereof in the name of the whole and the same to have again repossess and enjoy as in their former estate . ..” (The emphasis is mine.)

The lessees let part of the demised premises to sub-tenants including one Dan Sam on monthly rental, and the plaintiff was responsible for the collection of rents from these sub-tenants. The lessees left Sekondi in 1958 but the plaintiff continued to live in the demised premises until 1962 when he also left Sekondi for Accra.

On or about 3 September 1964 the defendant through her solicitor served notices on the sub-tenants in the house asking them not to pay rents to the plaintiff but to her solicitor on her behalf. As a result of this letter, exhibit C, the sub-tenants did not pay any more rents to the plaintiff but [p.468] of [1971] 2 GLR 465 to the defendant, the lessor herein. The refusal of the sub-tenants to pay house rents to the plaintiff, agent of the lessees, provoked this action in which the plaintiff is seeking the reliefs set out at the beginning of this judgment.

The defence put up by the lessor was simply that there were breaches of the covenants and conditions imposed by exhibit 1 and, as such, she exercised her right of re-entry.

The issue as I see it is whether or not the principals of the plaintiff committed any breaches of the covenants or conditions in exhibit 1. The defendant in her statement of defence relied mainly on the failure of the plaintiff’s principals to pay house rates and property tax in respect of the demised premises to the Sekondi-Takoradi Municipal Council, and also their failure to pay the annual rents reserved in exhibit 1 to the lessor. The plaintiff by his evidence as supported by exhibit Al-A20 (receipts from lessor to lessees) established that at the time of the re-entry by the lessor rents payable under exhibit 1 had been fully paid. As a matter of fact the lessees at the time of re-entry by the lessor in September 1964 had overpaid the rents by £G134 5s. 6d. (i.e. £G334 5s. 6d. less £G200 0s. 0d i.e. £G20 0s. 0d. per year for ten years commencing from 27 May 1954 to 26 May 1964). It is quite clear therefore that the plaintiff’s principals, the lessees, had not committed any breach in respect of the annual rents which were payable to the lessor under exhibit 1.

I now turn my attention to the consideration of the alleged breach in respect of the house or town rates imposed by the Sekondi-Takoradi Municipal Council. There is admitted evidence from the plaintiff that the house or town rates were in arrears in 1962 when he, the plaintiff, left Sekondi for Accra. This is what the plaintiff said, “In 1962 when I left house rates in respect of the leased property were in arrears. I think the arrears covered three or four years.” This piece of evidence came from the plaintiff in his examination-in-chief. It does seem to me that the lessees, at least, had not paid any house or town rates since 1959. However, when the plaintiff visited Sekondi in 1964 he was told by one Dan Sam, a sub-tenant, that he, the plaintiff was indebted to the municipal council in house rates and the council had put up a notice on the wall of the demised premises threatening to sell the house if the rates were not paid. The plaintiff testified that he went to the offices of the municipal council where he was told that he owed £G274 15s. 0d. in house or town rates. The plaintiff further stated that he paid £G30 0s. 0d. on account and agreed with the council to pay the balance by monthly instalments of £G40 0s. 0d. The payment of the £G30 0s. 0d. is evidenced by exhibit B, a receipt dated 30 October 1964.

It is to be observed that when the plaintiff visited Sekondi, probably in October 1964, to demand house rents from Dan Sam, he refused to pay, and he (Dan Sam) made it abundantly clear to the plaintiff that he had received instructions from the defendant not to pay the rents to him (the plaintiff) but to the defendant. The plaintiff, as a result of the answer he received from Dan Sam, contacted the defendant who confirmed that

[p.469] of [1971] 2 GLR 465 she gave such instructions to the sub-tenants of the demised premises to pay rents to her and not to him, the plaintiff.

The defendant in her evidence stated that she went to Accra in the company of one of her children to see the plaintiff about the payment of the rates which were in arrears. She informed the plaintiff that a notice for the sale of the demised premises had been put up on the wall of the house because the house rates had fallen in arrears. The defendant stated further that the plaintiff asked her to return to Sekondi and to see his (the plaintiff’s) brothers in Takoradi who would give her money for the payment of the house rates. The brothers of the plaintiff did not give the defendant any money for that purpose. She therefore instructed a solicitor to write to the plaintiff in Accra but the letter was returned to the solicitor unclaimed by the addressee. This is evidenced by exhibits 2A, 2B and 2C.

It is quite clear from the evidence that the plaintiff since 1962 knew that the house rates had fallen in arrears for three or four years, and he did not do anything until October 1964 when he made part payment of £G30 0s. 0d. with a promise to pay the balance by monthly instalments of £G40 0s. 0d. but not a single instalment was paid. He also admitted owing property tax.

It is quite evident that long before the time the defendant asked the sub-tenants to pay the rents to her and not to the plaintiff in September 1964, the plaintiff’s principals had committed a breach of the covenant contained in clause (2) of exhibit 1, “to pay and discharge all municipal council rates and dues, and observe all conditions imposed by the Sekondi Takoradi Municipal Council,” and this breach, in my view, entitled the defendant to exercise her rights of re-entry under clause (6). It is my considered view that at the time the plaintiff made a part-payment of £G30 0s. 0d. on 30 October 1964, the defendant as lessor, had re-entered the demised premises on or about 3 September 1964.

Counsel for the plaintiff pressed upon the court that no notice to remedy the default was served on the plaintiff and since the lessor was relying on a forfeiture clause in exhibit 1 her rights of re-entry were defeated by section 14 (1) of the English Conveyancing Act, 1881 (44 & 45 Vict., c. 41), which, he said, was a statute of general application. There is a simple answer to this submission of learned counsel. The English Conveyancing Act, 1881, is not a statute of general application if reference is made to paragraph 93 (2) of the Courts Decree, 1966 (N.L.C.D. 84). It is not even referred to in the Courts Bill, 1971, which passed through Parliament recently: see clause 110 (1) and the First Schedule to the said Bill. There is no mention of the English Conveyancing Act, 1881, in exhibit 1, so as to enable either party to rely on its provisions. The English Conveyancing Act, 1881 does not therefore apply to this case, and the submission of counsel therefore fails.

Again Mr. Polley, the plaintiff’s counsel, further submitted that the mere notice to the sub-tenants by the lessor to pay rents to her and not to the plaintiff was not a sufficient step on the part of the lessor to exercise her rights of re-entry. For re-entry to arise, counsel submitted, the lessor [p.470] of [1971] 2 GLR 465 should take one of two steps, namely (a) retake physical possession of the premises peaceably or (b) issue a writ of possession, and her failure to do either disentitled her to the exercise of her right of re-entry and she must therefore account to the plaintiff.

This submission is a correct statement of the law, but it will be seen shortly whether or not the defendant resumed physical possession of the demised premises so as to constitute a re-entry. In order to determine whether or not there was a re-entry, it is pertinent to ask for the purpose underlying the concept of re-entry.

It is my view that to re-enter a demised property is to put an end to the lease which gave possession to the lease. The lessor, in the instant case, by asking the sub-tenants to pay rents to her and not to the plaintiff was in fact saying that she was re-letting the premises to them and that they must consider her as their landlady from that moment, and the subsequent receipt of rents by the lessor from them amounted to re-entry. It has been held in Baylis v. Le Gros (1858) 4 C.B. (N.S.) 537 that where the premises are in the possession of an under-lessee a re-letting of the premises to him by the landlord is a sufficient re-entry to avoid the lease. In the same case Cockburn C.J. at p. 554 made the point clear when he said: “As to the entry also, my mind is equally free from doubt. Finding the premises in a dilapidated state, the landlord comes upon them and enters into an agreement with a man he finds in possession, to become his tenant,—intending thereby to act upon the forfeiture and to oust the lessee. I think that was quite sufficient to constitute an entry by the landlord so as to put an end to the lease.”

Again in the same case at p. 555 Williams J. vividly put the matter of re-entry as follows: “As to the other point, if Barnewell had entered and desired the person he found upon the premises to go out, and then desired him to resume possession as his tenant, the case would have been clear beyond all doubt. They did not go through that idle ceremony; but the facts set out in the special case shew a re-entry by the landlord, and something more.”

And this is also what Crowder J. said at the same page:

“Then it is said there has been no re-entry. The landlord, however, is in and occupying the premises by a tenant who is paying him rent. I think this is the strongest possible case of entry.”

I am fortified in my view by these statements falling from the lips of three eminent judges that as soon as the defendant by her solicitor re-let the premises to the sub-tenants by asking them to pay rents to her and not to the plaintiff and she subsequently received rents from them, the lessor (the defendant) re-entered on the demised premises. This, in my view, amounted to resumption of physical possession of the demised premises by the lessor.

The final submission made by learned counsel for the plaintiff was that since the defendant was relying on a forfeiture clause in exhibit 1 for

[p.471] of [1971] 2 GLR 465 re-entry the lessor was bound to act in accordance with the principles of equity. He submitted that the conduct of the lessor in collecting rents from Dan Sam prior to the “purported” re-entry and not using them to pay the house rates was most inequitable and relief against forfeiture should be granted to the plaintiff.

It is correct that exhibit C was sent out on 3 September 1964 to the sub-tenants but it is not precisely known when the defendant started to collect rents from Dan Sam, though she said this was before the re-entry. Though the defendant said that Dan Sam came to stay in the house in 1963, the plaintiff stated that he, Dan Sam, came to live in the house between 1963 and 1964. The plaintiff who appeared more intelligent than the defendant was not quite sure himself of the date when Dan Sam came to live in the house. It is not impossible to imagine that the defendant, an old illiterate woman, who was not conversant with dates could not rely on her memory to remember dates correctly and more so when some six or seven years had elapsed between the time of the event and the time she gave evidence. If Dan Sam was paying rent to the lessor before 3 September 1964 1 do not see the necessity for a copy of the said letter, exhibit C to be sent to him. It does seem to me that the defendant, being an illiterate woman, was confused about dates and she could not be held strictly to the evidence about the date she started to receive rents from Dan Sam. Some indulgence is due to an illiterate party. As Lord Langdale M.R. said in Johnston v. Todd (1843) 5 Beav. 597 at pp. 601-602:

“[W]itnesses, and particularly ignorant and illiterate witnesses, must always be liable to give imperfect or erroneous evidence even when orally examined in open Court. The novelty of the situation, the agitation and hurry which accompanies it, the cajolery or intimidation to which the witness may be subjected, the want of questions calculated to excite those recollections which might clear up every difficulty, and the confusion occasioned by cross-examination, as it is too often conducted, may give rise to important errors and omissions.”

This passage can easily be found also in the case of Edun v. Koledoye (1954) 14 W.A.C.A. 642 at p. 643. I do not therefore place much reliance on this piece of evidence of date given by the defendant. At any rate, there is evidence that the plaintiff’s principals were in arrears of house rates and water rates amounting to £G40 4s. 0d., and £G62 10s. 8d. in property tax, see exhibit 2A, and even if Dan Sam who was paying rent of £G30 0s. 0d. per month took occupation in December 1963 (for the plaintiff said Dan Sam came to stay in the house between 1963 and 1964) he could not have paid house rents amounting to more than £G210 0s. 0d. (December 1963 to June 1964) and this amount was insufficient to liquidate the house and water rates of £G340 4s.0d., let alone the property tax of £G62 10s. 8d. The plaintiff admitted that when he left Sekondi in 1962 the rates due to the municipal council had not been paid and there is no evidence that since that time he paid any rates to the council until October 1964 when he visited Sekondi. He further admitted that in 1964 the property tax had not been paid, and when he gave evidence [p.472] of [1971] 2 GLR 465 on 18 November 1970, he said he had still not paid the property tax. The upshot of it all is that before the defendant re-entered in September 1964 the plaintiff’s principals were in arrears in respect of rates to the municipal council, of at least £G274 15s. 0d. as the plaintiff himself stated to the court. The defendant denied that the plaintiff ever showed her any receipt for the £G30 0s. 0d. he paid to the municipal council and I accept the evidence of the defendant in this regard. In any case by 30 October 1964 she had re-entered the demised premises and it is not impossible that the plaintiff only paid the £G30 0s. 0d. on 30 October 1964 when he realised that the re-entry had taken place so as to try to fight out a case in future. But this has not availed him. Again, the plaintiff’s story that the defendant in October 1964 agreed to use the rents from the sub-tenants to pay for the house rates on his behalf cannot be true for by that time she had re-entered the demised premises. I reject the plaintiff’s contention. Be that as it may, it is the plaintiff who mounted this action and the burden is on him to show that his conduct merits sympathy from the court and that the conduct of the defendant is reprehensible. By his reply the plaintiff in paragraph (2) stated that, “he observed and performed all the covenants and conditions contained in the lease between the defendant and the plaintiff’s principals.” This assertion is palpably false for the plaintiff admitted in evidence that the rates were in arrears since 1962. He further admitted that if the rates were not paid the demised premises would be sold and yet he did nothing. I accept the evidence of the defendant that she visited the plaintiff in Accra to remind him of the house rates which had fallen in arrears, but still the plaintiff did nothing. My view of the plaintiff is that he adopted an “I could not care less” attitude, for even in October 1964 when he said he paid £G30 0s. 0d. to the municipal offices he failed to honour his promise to pay the monthly instalment of £G40 0s. 0d. At the time he testified before this court he had not made any attempt to pay the house rates. On the contrary the conduct of the defendant was one of great concern about the security of the demised premises. Apart from her visit to the plaintiff in Accra to discuss the payment of the house rates which were in arrears, she caused her solicitor to write to him on 22 July 1964 about the sale of the demised premises if the house rates were not paid to the municipal council. This letter, exhibit 2A, however, did not reach the plaintiff and was returned to the solicitor. But it is some evidence, at least, of the defendant’s honest and sincere conduct as regards the whole transaction under discussion.

I am inclined to the view, on the evidence, that the conduct of the plaintiff does not merit sympathy from the court which would enable it to exercise its discretion in his favour. The hands of the plaintiff are unclean and dirty and equity cannot lend its aid to him. Seeking equity the plaintiff should have done equity but he did not. Any such discretion, I think, should rather be exercised in favour of the defendant. In coming to this decision I have considered such authorities as Basma v. Noureldine (1952) 14 W.A.C.A. 231, and Ribeiro v. Chahin (1954) 14 W.A.C.A. 476.

[p.473] of [1971] 2 GLR 465

In the result the plaintiff’s action fails and it is dismissed with costs of N¢300.00 to the defendant.

DECISION

Action dismissed with costs.

J.D.