AGIP (S.L.) Ltd v Edmask, 1972-73 ALR S.L. 218

5 10 15 20 25 30 35 SECTION 31 THE AFRICAN LAW REPORTS AGIP (SIERRA LEONE) LIMITED v. EDMASK (by his attorney ALLIE) and PARAMOUNT CHIEF OF KAKUA CHIEFDOM AND CHIEFDOM COUNCIL Supreme Court (Cole, C.J., Luke and Forster, JJ. S.C., Percy Davies and Tejan, JJ. A.): February 28th, 1973 (Civil App. No. 2/71) [1] Agency-rights of principal-rights against third party--agent's knowledge of tenant's breach of covenant and subsequent acceptance of rent on behalf of principal constitutes waiver of breach by principal-immaterial that waiver not intended: When a landlord or his agent with knowledge of a breach of covenant by a tenant, accepts rent accrued due after the date of the breach such acceptance of rent constitutes a waiver of the breach and it is immaterial that waiver is not intended (per Cole, C.J. at page 232, line 12- page 234, line 20; Luke, J.S.C. at page 246, lines 6-10, lines 15-42; page 247, lines 6-8, lines 17-27; Forster, J.S.C. at page 258, lines 8-21; Tejan, J.A. at page 266, lines 17-28). [ 2] Civil Procedure-appeals-matters of fact-appellate court should only set aside concurrent findings of fact by lower courts in special circum­ stances: If there are concurrent findings of two courts on a pure question of fact, an appellate court will review those findings only in special circumstances, such as a miscarriage of justice, or violation of a principle of law or procedure (per Cole, C.J. at page 234, line 35- page 236, line 8) and may in any case review the evidence in order to determine whether there was evidence to support the finding of fact, in the absence of a finding of such evidence by a lower court (per Luke, J.S.C. at page 253, lines 7-13). [ 3] Civil Procedure-pleading-matters which must be specifically pleaded- special damage-no special damages when not pleaded: A court should not award special damages when special damage has not been specifically pleaded (per Cole, C.J. at page 239, lines 19-32;per Tejan, J.A. at page 269, lines 30-32). [ 4] Documents-registered documents-failure to register-failure to register lease in compliance with Provinces Land Act (cap. 122), s.9, renders lease voidable, not void: The terms of s.9 of the Provinces Land Act (cap. 122), which provides that a lease should contain certain stipulations and be executed and registered within a certain time, are not mandatory (per Luke, J.S.C. at page 249, lines 22-24); failure to comply with s.9 renders the lease voidable, not void (per Cole, C.J. at page 227, lines 17-21; page 231, lines 29-33; Tejan, J.A. at page 262, lines 25-28) and the irregularity may therefore be waived (per Luke, J.S.C. at page 249, lines 25-27); breach of s.9 does not give a right of re..entry (per Luke, J.S.C. at page 243, lines 1-4; Tejan J.A. at page 265, lines 35-39). [ 5] Estoppel-conduct-"standing-by"-inequitable for landowner to assert 40 legal rights when with knowledge of rights has allowed trespasser to build on land in mistaken belief in title: It is inequitable for a land­ owner to assert his title to land when, with knowledge of his legal title, 218 1 , [6] [7] [8] [9] [10] AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. he has allowed a trespasser to build on his land in the mistaken belief that it is his own; but if a trespasser builds on land knowing that it is not his own, it is not inequitable for the rightful owner to claim the land and improvements (per Luke, J.S.C. at page 254, line 20 -page 255, line 10; Tejan, J.A. at page 268, lines 33-40). Land Law-recovery of possession-equitable relief-in action by land­ owner to recover land court's discretion not to be exercised to allow wrongdoer to remain in possession: In an action for recovery of pos­ session of land by a person having the legal title, the court's discretion to grant equitable relief should not be exercised to allow a wrongdoer to retain possession when it was obtained by means of a tort such as trespass (per Luke, J.S.C. at page 254, lines 14-20; page 254, line 41- page 255, line 4) or inducing breach of contract (per Cole, C.J. at page 236, lines 19-32). Land Law-title-mistaken belief in title-acquiescence by legal owner -inequitable for landowner to assert legal rights when with knowledge of rights has allowed trespasser to build on land in mistaken belief in title: See [ 5] above. Landlord and Tenant-determination of tenancy-avoidance of lease­ right exercised by unequivocal act indicating intention to avoid lease, by re-entry if right exists, or by issue and service of summons for recovery of possession: A voidable lease will be avoided by the person having the right doing an unequivocal act indicating his intention to avoid the lease; that act may be the exercise of the right of re-entry where one exists. or may be the issue and service of a writ of summons for recovery of possession (per Luke, J.S.C. at page 244, lines 11-35). Landlord and Tenant-determination of tenancy-breach of covenant­ waiver of breach··-agent's knowledge of tenant's breach of covenant and subsequent acceptance of rent on behalf of principal constitutes waiver of breach by principal-immaterial that waiver not intended: See [ 1] above. Landlord and Tenant-duration of tenancy-statutory term-validity of lease not affected when tenancy under Provinces Land Act (cap. 122) granted for longer than statutory term: Although s.4 of the Provinces Land Act (cap. 122) provides that a tenancy granted under the Act cannot exceed a term of 50 years, the validity of a lease is not affected if the term stated in the lease exceeds the statutory term (per Cole, C.J. at page 226, lines 27-31 ). [11] Landlord and Tenant-formalities of lease-failure to execute and register lease in compliance with Provinces Land Act (cap. 122), s.9, renders lease voidable not void: See [ 4] above. [12] Landlord and Tenant-possession-re-entry-no right of re-entry if failure to comply with Provinces Land Act (cap. 122), s.9: See [ 4] above. 219 5 10 15 20 25 30 35 40 5 10 15 20 25 THE AFRICAN LAW REPORTS [13] Landlord and Tenant-possession-re-entry-right of re-entry on breach of condition but not on breach of covenant unless expressly stipulated in lease: The mere breach of a covenant in a lease by a tenant does not entitle the landlord to resume possession by re-entry upon the premises, unless there is an express stipulation to that effect in the lease; the breach of a covenant which is framed as a condition, however, carries with it a common law right of re-entry (per Luke, J.S.C. at page 242, lines 15-31; Tejan, J.A. at page 265, lines 20-23). [ 14] Statutes-operation-mandatory and directory enactments-failure to register and execute lease in compliance with Provinces Land Act (cap. 122), s.9, renders lease voidable not void: See [ 4] above. [ 15] Statutes-operation-mandatory and directory enactments-validity of lease not aff~cted when tenancy under Provinces Land Act (cap. 122) granted for longer than statutory term: See [10] above. [16] Tort--damage~-general damages-definition: General damages are those which the law will presume without proof to be the direct natural or probable consequence of the act complained of (per Tejan, J.A. at page 269, lines 33-35 ). [ 17] Tort-damages-measure of damages-trespass to land-object of award is to put injured party in position he would have been in if trespass had not occurred: Where a person has suffered loss as a result of a trespass on his land, the object of an award of damages is to put him in the same position as he would have been in if the trespass had not taken place (per Cole, C.J. at page 237, line 29- page 238, line 1). [18] Tort-damages-special damage-definition: Special damages are damages which the law will not infer from the nature of the act complained of and must be claimed specifically and proved strictly (per Tejan, J.A. at page 269, lines 35-39). [ 19] Tort--damages-special damage-must be specifically pleaded-no special 30 damages when not pleaded: See [3] above. 35 40 [ 20] Tort-inducing breach of contract-elements of tort: The necessary ingredients of the tort of inducing a breach of contract are- (a) know­ ledge of the existence of a contract and the intention to induce its breach; (b) proof that the defendant induced the breach of the contract; (c) breach of the contract by the person induced; (d) proof that the breach of the contract was the necessary consequence of the induce-_ ment; and (e) the proof of damage to the plaintiff or its inference from the circumstances (per Luke, J.S.C. at page 250, lines 3-12; page 252, lines 9-13; page 253, lines 20-40). [21] Tort-trespass-trespass to land-damages-object of award is to put injured party in position he would have been in if trespass had not taken place: See [ 17] above. 220 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. [ 22] Tort-trespass-trespass to Iand-in action by landowner for recovery of land court's discretion not to be exercised to allow trespasser to remain in possession: See [ 6] above. The first respondent brought an action in the High Court for possession of land, seeking damages for trespass to land and for inducing breach of contract against the appellants, and damages for breach of covenant for quiet enjoyment from the second respondents. The second respondents leased land to the first respondent for a period of 7 5 years. The lease was governed by the provisions of the Provinces Land Act (cap. 122) since the first respondent was a "non-native" within the terms of the Act. Under the Act, and under the terms of the lease, the lease was voidable at the option of either party if it was not registered within 60 days of its execu­ tion. For technical reasons the lease was not registered within 60 days, nor had it been properly executed within the terms of the Act. The District Officer, who acted as the agent of the second respondents, acknowledged the late receipt of a registered copy of the lease, knowing of the defects. Despite this, the second respondents allowed the first respondent to take possession of the land and to spend considerable sums of money on its improve­ ment; and for two years through the District Officer, they accepted rent in respect of the land. The second respondents then wrote to the first respondent purporting, in view of his failure to register the lease within the required time, to exercise their right of re-entry and d~termining the lease. The District Officer forwarded a copy of this notice of re-entry to the appellants and a few days later the second respon­ dents granted a lease of land to the appellants including that which they had previously leased to the first respondent. The appellants took possession of the land together with the improvements made by the first respondent, and began to construct a petrol filling station on the land. The first respondent's agent wrote to the appellants informing them that they were trespassing, but they continued to build. The first respondent then commenced the present proceedings, claiming possession of the land from both the appellants and second respondents, damages for trespass and for inducing breach of contract from the appellants, and from th.e second respondents, 221 5 10 15 20 25 30 35 40 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS damages for breach of the covenant for quiet enjoyment. He made no claim for special damages. The Supreme (now High) Court (Browne-Marke, J.) found that (a) the lease by the second respondents to the first respondent was still subsisting and had not been avoided by the second respon­ dents; (b) the first respondent's failure to register the lease had been waived by the second respondents' receipt of rent; and (c) the appellants had induced a breach of the contract made between the first and second respondents, though the court did not make any finding of fact in relation to the inducement. The court awarded damages against both the appellants and second respondents, including damages in lieu of recovery of possession. The appellants and second respondents appealed, and the first respondent cross-appealed. The Court of Appeal held that the original lease had been legally avoided and that the first respondent was not entitled to possession, or damages in lieu of possession but having held that there was no breach of contract by the second respondents it went on to agree with the trial judge's finding of fact that the appellants induced a breach of contract between the first and second respondents and awarded exemplary damages. It also awarded special damages. The proceedings in the Court of Appeal are reported at 1970-71 ALR S.L. 332. The appellants appealed further against these awards and the first respondent cross-appealed for recovery of possession of the land from the appellants and the second respondents. The first respondent contended: (i) that the serivce of a "notice of re-entry" on him by the second respondents was not sufficient to avoid the lease; (ii) that the second respondents had waived their right to avoid the lease by the acceptance of rent; (iii) that if, as the trial judge had found, the lease had not been lawfully terminated, then he was entitled to an order for recovery of possession; (iv) on the issue of inducing breach of contract, that no breach of contract need be proved for the plaintiff to be entitled to recover damages in tort; (v) that there being concurrent findings of fact by the trial court and the Court of Appeal on this issue, the evidence ought not to be reviewed a third time. The appellants contended that the intention or motive of the second respondents when they accepted rent from the first respon­ dent should be examined when the court was considering whether the breach of covenant had been waived. Both the appellants and 222 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. second respondents argued that the provisions of the Provinces Land Act (cap. 122), s.9 were mandatory and that breach of them could not therefore be waived. The court considered; (a) whether the Court of Appeal should have awarded special damages when they had not been pleaded; 5 (b) the object of an award of general damages for trespass to land; (c) the effect of failure to comply with the Provinces Land Act (cap. 122) s.4 whereby a tenancy granted under the Act cannot exceed a term of 50 years; and (d) the remedies available to a landlord on breach of covenants or conditions. 10 The court allowed the cross·appeal by the first respondent, made an order for recovery of possession of land in his favour against the other parties, and varied the award of damages. Cases referred to: 15 (1) Stool of Abinabina v. Chief Kojo Enyimadu, [1953] A.C. 207; 97 Sol. Jo. 146. (2) Allen v. Flood, [1898] A.C. 1; [1895-9] All E.R. Rep. 52, followed. (3) Bonham-Carter v. Hyde Park Hotel, [1948] W.N. 89; (1948), 64 T.L.R. 20 177. (4) Canas Property Co. Ltd. v. K.L. Television Services Ltd., [1970] 2 Q.B. 433; [1970] 2 All E.R. 895. (5) Central Estates (Belgravia) Ltd. v. Woolgar, (No. 2), [1972] 1 W.L.R. 1048; [1972] 3 All E.R. 610, applied. 25 (6) Creery v. Summersell, [1949] Ch. 751; [1949] L.J.R. 1166, applied. (7) Croft v. Lumley (1858), 6 H.L. Cas. 672; 10 E.R. 1459, followed. (8) Davenport v. R. (1877), 3 App. Cas. 115; [1878-80] All E.R. Rep. 157, followed. (9) Emerald Construction Co. Ltd. v. Lowthian, [1966] 1 W.L.R. 691; [ 1966] 1 All E.R. 1013, distinguished. (10) Jones v. Carter (1844), 15 M. & W. 718, 153 E.R. 1040, dicta of Parke, B. applied. (11) Mac{oy v. U.A.C. Ltd., [1962] A.C. 152; [1961] 3 All E.R. 1169, dicta of Lord Denning approved. (12) Matthews v. Smallwood, [1910] Ch. 777; [1908-10] All E.R. Rep. 536, dicta of Parker, J. applied. 30 35 (13) Edward Ramia Ltd. v. African Woods Ltd., [1960] 1 W.L.R. 86; 40 [ 1960] 1 All E.R. 627, distinguished. 223 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS (14) Ramsden v. Dyson (1866), L.R. 1 H.L. 129; 14 W.R. 926, dicta of Lord Cranworth, L.C. applied. (15) Segal Securities Ltd. v. Thoseby, [1963] 1 Q.B. 887; [1963] 1 All E.R. 500, applied. (16) Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy, [1946] A.C. 508; (1947), 176 L.T. 209, considered. (17) Thomson (D.C.) & Co. Ltd. v. Deakin (1952] Ch. 646; [1952] 2 All E.R. 361, dicta of Jenkins, L.J. applied. (18) United Australia Ltd. v. Barclays Bank Ltd., (1941] A.C. 1; [1940] 4 All E.R. 20. (19) Windmill Investments (London) Ltd. v. Milano Restaurant Ltd., [1962] 2 Q.B. 373; [ 1962] 2 All E.R. 680, considered. (20) Yachuk v. Oliver Blais Co. [1949] A.C. 386; (1949] 2 All E.R. 150. Legislation construed: Provinces Act (Laws of Sierra Leone, 1960, cap. 60), s.2(1): The relevant terms of this sub-section are set out at page 225, lines 14-17. Provinces Land Act (Laws of Sierra Leone, 1960, cap. 122), s.2: The relevant terms of this section are set out at page 225, lines 20-23. s.4: "No non-native shall acquire a greater interest in land in the Provinces than a tenancy for a term of fifty years; but nothing in this section shall prevent the insertion in any lease of a clause providing for the renewal of such lease, for a second or further terms not exceeding twenty-one years." s.9: The relevant terms of this section are set out at page 226, line 39- page 227, line 16. Interpretation Act, 1961 (No. 46 of 1961), s.3: The relevant terms of this section are set out at page 225, lines 2-11. Gelaga-King and Mackay for the appellants; Cotran and Miss Dworzak for the first respondent; George Davies for the second respondents. COLE, C.J.: My lords, the portion of land in dispute in this appeal is situated at Bo in the Kakua Chiefdom in what was in the old days the Protectorate, but is now the Provinces of Sierra Leone. The site was of great commercial value or at least had great potential commercial value. I shall hereafter refer to it as "the land." Being situated in the Provinces the land was and is still subject to the provisions of the Provinces Land Act (cap. 122). I shall hereafter refer to it as "the Act." By s.1 thereof the Act should be read and construed as one with the Provinces Act (cap. 60). I have 224 AGIP (S.L.) LTD. v. EDMASK. 1972-73 ALR S.L. 218 S.C. mentioned this because of the fact that both the appellants and the first respondent are non-natives. The expression "non-native" is defined in s.3 of the Interpretation Act, 1961 which is relevant to this appeal, as ". . . any person other than a native." The same Interpretation Act by that same section defines "a native" as - 5 " ... any person who is a member of a race tribe or com- munity settled in Sierra Leone (or the territories adjacent thereto), other than a race, tribe or community- (a) which is of European or Asiatic origin; or (b) whose principal place of settlement is in the Western 10 Ar a , e .... The Provinces Act (cap. 60), does not define the expression "non-native", but it does define the expression "native". That definition which is contained in s.2(1) thereof states that - " ... Native means any member of the aboriginal races or tribes of 15 Africa ordinarily resident within the Provinces or within the territories adjacent thereto outside Sierra Leone .... " Under the Provinces Land Act (cap. 122) all land in the Provinces is vested in the Tribal Authorities who hold such land for and on behalf of the native communities concerned. Section 2 20 of the Act defines "Tribal Authority" as " ... paramount chiefs and their councillors, and men of note, or sub-chiefs and their councillors, and men of note .... " The second respondents fall within this definition. By s.3 of the Act a non-native cannot occupy land in the 25 Provinces unless he first obtains the consent of the Tribal Authority as well as the approval of the District Commissioner to his occupa- tion of such land. As a matter of law no non-native can occupy land in the Provinces except under and in accordance with the Act. Let me here and now state that it is my considered view that 30 from the whole tenor of the Act the legislature intended to confer just as great a benefit on non-natives whose wish to hold land in the Provinces as on the Tribal Authorities, who, as I have already stated, hold such lands on trust for the native communities. On a proper construction of the Act I hold the view that non-natives 35 holding land of the Tribal Authorities under and by virtue of the Act are meant to ha.ve their tenancies not only regulated but also made secure. At the same time the Act protects Tribal Authorities against unlimited squatting. By a lease dated May 16th, 1962, the second respondents leased 40 to the first respondent - 225 THE AFRICAN LAW REPORTS "All that piece or parcel of land situate at Bo in the Kakua Chiefdom of the Bo District of the Protectorate of Sierra Leone the boundary whereof commencing at a property beacon marked AAl which beacon is 130 ft. on a bearing of 5 150 degrees 45 minutes to property beacon marked AA2; thence on a distance of 8 7 ft. on a bearing 240 degrees 45 minutes to property beacon marked AA3; thence on a dis­ tance of 130 ft. on a bearing 328 degrees 06 minutes to pro­ perty beacon marked AA4; thence on a distance of 93 ft. on 10 a bearing of 60 degrees 40 minutes to property beacon marked AAl which is the point of commencement, thus enclosing the area of 0.268 5 acre by the same several dimensions little more or less as the same premises or more particularly delineated and shown edged red on the cadastral plan No. LS/471/58 15 attached, which piece or parcel of land for greater clearness and so as not to restrict or enlarge the description hereinbefore contained is delineated on the plan attached hereto and there­ on coloured red together with the buildings and other fixtures and fittings now thereon and specified in the schedule hereto 20 to hold the said premises hereby demised unto the tenant from May 16th, 1962, for the term of 75 years yielding and paying therefor during the said term the yearly rent of £65. (Le.130) in the manner hereinafter set forth.'' I shall hereafter refer to it as "the lease". The lease is Exhibit 25 B. No question arises here that the lease was not obtained with the prior consent of the Tribal Authority and the prior approval of the District Commissioner. Although the term demised is said to be 75 years yet by virtue of s.4 of the Act the first respondent's tenancy could not exceed a term of 50 years. I do not think that 30 the term stated in the lease by exceeding the statutory term in any way affects the validity of the lease and I so hold. In any case this point was never at any stage raised nor was it ever made an issue. It was amongst other things mutually agreed between the 35 parties to the lease that if the lease was not registered within 60 days of its execution in the office of the Registrar-General in Freetown then the lease was voidable at the option of either party. Section 9 of the Act provides as follows: "Every deed creating a tenancy of land shall be voidable by 40 either party, unless it - (a) is executed in the presence of two witnesses by the 226 - -- AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. lessor before the District Commissioner of the district in which the land is situated; and is executed, in the presence of two witnesses, by the lessee or his attorney or his agent before a Magistrate; and (b) has endorsed upon it certificates of execution in their 5 presence signed respectively by the District Commissioner and the Magistrate before whom it was executed; and (c) provides that the lessee shall not sublet or assign his interest thereunder except with the consent of the Tribal Authority with the approval in writing of the District Com· 10 missioner, provided that such consent shall not be un­ reasonably withheld; and (d) contains stipulations with regard to all the matters set out in rule 3 to the schedule to this Act; and (e) is registered within sixty days in the office of the 15 Registrar-General., It should at once be noted that what both the Act and the lease confer is the right of avoidance of the lease in certain specified circumstances. It is quite clear that the Act does not make a lease void ab initio or invalid if the provisions of s.9 of the Act are not 20 complied with. To go back to the facts. The lease, though executed on May 16th, 1962, was due to some technical reasons concerning the plan to be attached to the lease, not registered within 60 days as required by s.9(e) of the Act nor did it comply with s.9(a). The 25 lease was in fact registered on or about November 27th, 1962. According to Exhibit J which is dated December 28th, 1962, the District Officer acknowledged receipt of a registered copy of the lease. At that date he must or ought to have been aware that certain provisions of s.9 of the Act had not been complied with. It 30 is my considered view that knowledge of the District Officer (formerly District Commissioner) of any non-compliance with the provisions of the Act was in the circumstances also knowledge of the second respondents. I am of the opinion that the whole structure not only of the Act but also of the Provinces Act (cap. 35 60) with which as I have already pointed out it should be read as one, shows that the District Officer (formerly District Com­ missioner) is legally the main pivot on which the whole of the administration of the districts in the Provinces and all that went with them revolves. 40 With this knowledge of non-compliance by the first respondent 227 THE AFRICAN LAW REPORTS not only did the second respondents allow the first respondent to take possession of the land and to spend considerable sums of money on its improvement but they also received rents in respect of the land for the years 1962 and 1963. I am satisfied on the 5 evidence that the second respondents did receive the full rent stipulated in the lease for the years 1962 and 1963 in spite of the fact that the commencement date of the lease was May 16th, 1962. By Exhibit V2 dated January 20th, 1964, the second respon- 10 dents wrote to the first respondent as follows: "Notice of Re-entry To Abess Allie Lebanese trader and ex diamond dealer of Bo, Kakua Chiefdom, Bo District, South Western Province, Sierra Leone or his attorney Nayef Abbess of 22 Kissy Street, Free- 15 town or other interested persons. We the undersigned Chief and members of the Tribal Authority, Kakua Chiefdom, for and on behalf of the Para­ mount Chief and Tribal Authority of the said Kakua Chief­ dom, Bo District, give you notice as follows: 20 1. The lease dated May 16th, 1962 registered as No. 168 in vol. 50 at p.5 in the Register of leases kept in the Registrar-General's Office in Freetown and made between the Paramount Chief and Tribal Authority of Kakua Chief­ dom aforesaid of the one part and yourself of the other 25 part under which you hold a piece plot or parcel of land situate lying and being at the angle of Bo Bye-Pass and Fanton Roads in Bo Town Kakua Chiefdom aforesaid contains a proviso as follows - 'Provided always that if this indenture is not registered 30 within sixty days of its execution in the office of the Registrar-General in Freetown then the said deed shall be voidable at the option of either party to the same.' 2. You have failed to register the said lease within sixty days of its execution and have so committed a breach of 35 the said proviso or condition contained in the said lease. 3. You have also failed to execute the aforesaid lease. 4. In view of the matters stated above we, the said lessors have decided to avoid and determine the said lease and have therefore this day exercised our right of re-entry on 40 the land in respect of which the said lease was made and henceforth the said lease shall determine. Dated January 20th, 1964." 228 AGIP (S.L.) LTD. v. EDMASK. 1972-73 ALR S.L. 218 S.C. Exhibit V2 was issued after the second respondents had received rents although the lease had not been avoided and was therefore valid and subsisting. Mr. Gelaga-King concedes that at least up to January 20th, 1964 (the date of the notice) the lease was still valid. I shall deal with what I consider to be the legal effect of 5 this at a later stage. Proceeding on with the facts, on that same date, i.e. January 20th, 1964 the first respondent by a letter bearing that date forwarded to the District Commissioner, Bo, a cheque covering payment of rent for the land as well as three others. The cheque was returned but no reason was given. 10 In the meantime the appellants had come into the picture because I find that by a letter dated January 28th, 1964, the District Commissioner was forwarding to the appellants for information and for record purposes a copy of the notice. Also on January 31st, 1964, the second respondents leased certain 15 lands at Bo in the Kakua Chiefdom to the appellants. Those lands included the area leased to the first respondent. From the evidence it is clear that the appellants had been involved in the land long before January 1964. It is interesting to note that this lease to the appellants contains a provision regarding registra- 20 tion similar to that contained in the first lease. I find the District Commissioner on June 30th, 1964 writing to the appellants in these terms: "Lease of Land to Agip (S.L.) Ltd. I have to refer to the above subject and to forward herewith 25 original and copy of lease duly registered for your retention. Please acknowledge receipt." It is reasonable to conclude that the District Commissioner registered or caused to be registered the lease granted to the appellants. Why then did he not register or cause to be registered 30 the lease to the first respondent? In pursuance of their lease the appellants took possession of the area called for which, as I have said, included the land in question as well as all the improvements which the appellants found thereon. 35 The first respondent then consulted a solicitor and on July 13th, 1966 commenced legal proceedings in the High Court. Although the first lease which was the subject-matter of the action and of this appeal was granted to "A bess Allie" we find the writ of summons was issued in the name of "Abbass Ali 40 Mohamed Edmask by his attorney Adnan Nayef Abbess Al 229 THE AFRICAN LAW REPORTS Allie" as plaintiff. The relevant power of attorney was put in evidence at the trial. It was made at Beirut on April 19th, 1966. On perusal thereof it would be seen that the person appointing Adnan Nayef Abbess AI Allie as his attorney was not the "Abess 5 Allie" described in Exhibit B as the lessee but one Abbass Ali Mohamed Edmask. Learned counsel for the appellants tried to make the point therefore before us that the "Abess Allie" des­ cribed in Exhibit B as the lessee could not be one and the same person as Abbass Ali Mohamed Edmask referred to in the power 10 of attorney and in whose name the action was brought. In effect he was saying that the first respondent had no locus standi in this matter. We stopped him from pursuing the point as we felt it was too belated. The action as well as the trial had proceeded on the footing that "Abess Allie" and Abbass Ali Mohamed Edmask 15 were one and the same person. The position appears to have remained the same before the Court of Appeal. That disposes of this point. By his amended statement of claim the first respondent claimed from the appellants and the second respondents possession of the 20 land. From the appellants he claimed damages for trespass to the land and for inducing a breach of contract between the second respondents and himself. He also claimed from the second respon­ dents damages for breach of covenant for quiet enjoyment. There was at no time any claim for special damages. 25 The learned trial judge after reviewing the evidence found - (i) that the lease between the first and second respondents was a valid subsisting lease which had not been avoided or terminated according to law; (ii) that the failure to register the lease entitling the second 30 respondents to claim that the lease was voidable was waived by the second respondents' receipt of rents due under and in terms of the said lease. The learned trial judge then proceeded to make the following awards: 35 (a) damages for breach of covenant for quiet enjoyment- Le2,500. (b) refund of expenses during negotiations, shake-hand and refund of two years' rent- Le6,260. (c) damages for trespass - Le20 ,000. 40 (d) damages for inducing a breach of contract- Le5,000. (e) damages in lieu of recovery of possession- Le9,000. 230 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. Against this judgment the appellants appealed to the Court of Appeal. That court (Sir Samuel Bankole Jones, Dove-Edwin and Marcus-Jones, JJ.S.C.) held that the learned trial judge was wrong in law in coming to the conclusion that the lease was a valid sub- sisting lease which had not been avoided or terminated according 5 to law. Accordingly they held that the first respondent was not entitled to possession or damages in lieu thereof. By a majority decision of two to one (Dove-Edwin, J.S.C. dissenting) that court agreed with the findings of fact by the learned trial judge that the appellants induced a breach of contract between the first 10 and second respondents "albeit a voidable one". The Court of Appeal awarded exemplary damages of Le30,000 thereby varying the award of the High Court under this head. The Court of Appeal also awarded special damages of Le15,390 which again was a vari- ation of the damages awarded by the learned trial judge. Dove- 15 Edwin, J.S.C., naturally, in view of his opinion, would have awarded no damages but allowed the appeal. It is against the judgment of the learned trial judge as well as that of the majority decision of the Court of Appeal that this appeal arises. There is also a cross-appeal by the first respondent as to 20 recovery of possession. It is the contention of the first respondent in this regard that if the proposition that the lease was not avoided or terminated according to law as the learned trial judge found, was right in law, then the first respondent was entitled to an order for recovery of possession. 25 It is therefore of the essence of this appeal that one of the first questions that should be disposed of is whether the lease was properly terminated or avoided according to law. In this regard it should be remembered that all that s.9 of the Act confers is a right to avoid at the option of either party. It 30 follows therefore that until a lease made under the provisions of the Act is avoided in accordance with law such a lease remains valid and subsisting. The Imperial Statutes (Law of Property) Adoption Act (cap. 18) came into force on January 1st, 1933. It was an Act passed 35 to adopt and apply to Sierra Leone certain statutes of the British Parliament relating to real and personal property, and to make provisions for amending the law of real and personal property. This Act applied to the then Colony of Sierra Leone, amongst others, certain sections of the Conveyancing and Law of Property 40 Act, 1881. One of the sections so applied is s.14 which imposes 231 THE AFRICAN LAW REPORTS restrictions on, and relief against, forfeiture of leases. The lease in question was made in May 1962. It is clearly stated in s.11 of the Interpretation Act, 1961 as follows: "No Act passed before the 1st day of July, 1953 shall apply to the Provinces unless it is 5 so provided by the Act itself or is extended thereto by an Act." Since the Imperial Statutes (Law of Property) Adoption Act (cap. 18) at the material time did not apply to the Provinces, the provisions of s.14 thereof cannot be relied upon. I do hope the authorities will look into this matter within the near future 10 because in the present constitutional set-up such a situation would appear highly discriminatory. The next point I think that should be considered is the question of waiver. Where a person entitled to anything expressly and in terms gives it up, it is said to be express waiver. It is implied when 15 the person entitled to anything acquiesces in something else which is inconsistent with that to which he is so entitled. One of the main questions in this appeal therefore is whether there was waiver in law. I hold the view that the second respondents' accept­ ance of rent with knowledge of the breaches complained of in 20 the notice of re-entry effected in law a waiver. I consider the propositions of law set out with approval in this regard in the case of Central Estates (Belgrauia) Ltd. v. Woolgar (No.2) (5), sound and I would adopt and apply them. Lord Denning, M.R. said, inter alia ([1972] 1 W.L.R. at 1051; [1972] 3 All E.R. at 613): 25 "The cases on waiver are collected in the notes to Dumper's Case (1603) 4 Co. Ref. [sic] 1196 in Smith's Leading Cases, 13th ed. (1929), pp. 39-44. Those notes show that the demand and acceptance of rent has a very different effect according to how the question arises. If it is sought to say there 30 is a new tenancy by acceptance of rent; for instance, after a notice to quit has expired, the question always is, as Lord Mansfield said: 'Quo animo the rent was received and what the real intention of both parties was': see Doe d Cheny v. Batten (1775) 1 Cowp. 243, 245; and Clark v. Grant [1950] 1 K.B. 35 104. But, if it is sought to say that an existing lease continues in existence by waiver of forfeiture, then the intention of the parties does not matter. It is sufficient if there is an unequivocal act done by the landlord which recognises the existence of the lease after having knowledge of the ground of forfeiture. The 40 law was well stated by Parker J. in Matthews v. Smallwood [1910] 1 Ch. 777, 786, which was accepted by this court in Oak Property Co. Ltd. v. Chapman [1947] K.B. 886, 898: 232 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. 'It is also, I think, reasonably clear upon the cases that whether the act, coupled with the knowledge, constitutes a waiver is a question which the law decides, and therefore it is not open to a lessor who has knowledge of the breach to say "I will treat the tenancy as existing and I will receive the 5 rent, or I will take advantage of my power as landlord to distrain; but I tell you that all I shall do will be without pre- judice to my right to re-enter, which I intend to reserve". That is a position which he is not entitled to take up. If, knowing of the breach, he does distrain, or does receive the 10 rent, then by law he waives the breach, and nothing which he can say by way of protest against the law will avail him anything.' I know that Harman J. in Creery v. Summersell and Flowerdew & Co. Ltd. [1949] Ch. 751, 761, said that in waiver of for- 15 feiture 'the question remains quo amino was the act done.' But that statement was explained by Megaw J. in Windmill Investments (London) Ltd. v. Milano Restaurant Ltd. [1962] 2 Q.B. 373. He said at p. 376, that it meant only that 'It is a question of fact whether the money tendered is 20 tendered as, and accepted as, rent, ... Once it is decided as a fact that the money was tendered and accepted as rent, the question of its consequence as a waiver is a matter of law.' Similarly Sachs J. in Segal Securities Ltd. v. Thoseby [1963] 25 1 Q.B. 887 said, at page 898: 'It is thus a matter of law that once rent is accepted a waiver results. The question of quo amino it is accepted in forfeiture cases is irrelevant in relation to such acceptance.' So we have simply to ask: Was this rent demanded and 30 accepted by the landlords' agents with knowledge of the breach? It does not matter that they did not intend to waive. The very fact that they accepted the rent with the knowledge constitutes the waiver." Cairns, L.J. puts it this way ([1972] 1 W.L.R. at 1056; [1972] 35 3 All E.R. at 618): "I agree that the demand for and acceptance of rent by the landlords did effect a waiver of the forfeiture. It is clear on the authorities that an unequivocal act is required to bring about a waiver. When money is demanded as rent after the 40 landlord knows of the facts giving rise to the forfeiture and is paid as rent and accepted as rent, then the law regards the 233 THE AFRICAN LAW REPORTS demand and acceptance as an unequivocal act. I regard this proposition as established by Matthews v. Smallwood [1910] 1 Ch. 777, approved in this Court in Oak Property Co. Ltd. v. Chapman [194 7] K.B. 886; and I consider that 5 if the decision of Harman J. in Creery v. Summersell and Flowerdew & Co. Ltd. [1949] Ch. 751 can be supported, it must be on the basis suggested by Megaw J. in Windmill Investments (London) Ltd. v. Milano Restaurant Ltd. [1962] 2 Q.B. 373. This being so, the state of mind of the 10 landlord is irrelevant; and if he acts through an agent who has actual or ostensible authority to demand and receive the rent, it does not seem to me that the state of mind of the agent can be enquired into." That being the legal position, in my view, when the second 15 respondents accepted rents with knowledge of the breaches com­ plained of, as the District Officer's acknowledgement indicates, they waived any and all such breaches. Here the rents were paid and accepted whilst there was in existence a valid subsisting lease. The question of quo animo the rents were accepted does not 20 therefore arise. The learned trial judge in my view came to the correct conclusion in this regard. To hold otherwise would, in my view, be repugnant to natural justice, equity and good conscience. Nor do I seriously think that such a finding is incompatible either directly or by necessary implication with the Imperial Statutes 25 (Law of Property) Adoption Act to which I have already referred, or any other Act applying to the Provinces. It should not be forgotten that the Provinces Land Act more or less (with the emphasis on more) by s.9 imported, without limitations as to the circumstances in which waiver can be exercised, certain English 30 legal and equitable notions into the land law of the Provinces. In construing the Act, therefore, this indisputable fact has clearly to be borne in kind. I am satisfied that my construction does not run contrary to the Act. Before I deal with the consequences that flow from my finding 35 in regard to the legal position I would at this stage like to dispose of what I consider to be another very important issue in this appeal, namely, whether there was inducement on the part of the appellants of the breach of contract contained in the lease. In this connection I am of the view that the propositions of law and 40 practice laid down in the case of Srimati Bibhabati Devi v. Kumar Ramendra Narayan Roy (16) relating to concurrent findings of 234 -- AGIP (S.L.) LTD. v. EDMASK. 1972-73 ALR S.L. 218 S.C. fact contain good sense and I have no reason to depart from or modify or vary them. Those propositions, by way of reminder, are stated, according to the headnote in the Law Reports, in these words ([1946] A.C. at 508): "From a review of previous decisions of the Judicial Com- 5 mittee of the Privy Council the following propositions are derived as to the present practice of the Board to decline to review the evidence for a third time where there are concurrent judgments of two courts on a pure question of fact, and as to the nature of the special circumstances which will justify a 10 departure from the practice :- ( 1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board. (2) That is applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who 15 compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice. ( 3) That a difference in the reasons which bring the judges to the same finding of fact will not obviate the practice. (4) That, in order to obviate the practice, there must be 20 some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some 25 principle of law or procedure must be such an erroneous pro­ position of law that if that proposition be corrected the find- ing cannot stand; or it may be the neglect of some principle of law or procedure whose application will have the same effect. The question whether there is evidence on which the courts 30 could arrive at their finding is such a question of law. (5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice. 35 (6) That the practice is not a cast-iron one, and the fore­ going statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice. (7) That the Board will always be reluctant to depart from 40 the practice in cases which involve questions of manners, 235 THE AFRICAN LAW REPORTS customs or sentiments peculiar to the country or locality from which the case comes, whose significance is specially within the knowledge of the courts of that country. ( 8) That the practice relates to the findings of the courts 5 below, which are generally stated in the order of the court, but may be stated as findings on the issues before the court in the judgments, provided that they are directly related to the final decision of the court." In the present appeal I find no special circumstances, namely, any 10 miscarriage of justice or any violation of some principle of law or procedure, nor do I consider it a case of an unusual nature on this particular question, to justify a departure from this well-estab­ lished practice. There is evidence in support of the concurrent findings of both the trial court and the Court of Appeal on the 15 issue of inducement. I would not disturb these concurrent find­ ings. As regards the issue of damages I shall give due consider­ ation to it later. Having stated these propositions of law I now come to the question of the remedies sought. I shall deal with the first, which 20 is recovery of possession. It having been established that the lease was and is still valid and subsisting, the first respondent had and still has a legal estate in the land prior in time to that created to the appellants. The appellants took subject to that legal estate. The first respondent is in these circumstances entitled to pos- 25 session of the land. The first respondent has shown in law a better title to that of the appellants. Furthermore, because of the con­ current finding of fact, supported by law, that the appellants induced a breach of contract, which finding, as I have stated, I will not disturb, the appellants cannot invoke equity to their aid. 30 He who comes to equity must come with clean hands. The learned trial judge therefore erred in awarding damages in lieu of an order for recovery of possession. The first respondent was entitled to possession on the strength of his title. I would therefore award the first respondent his claim for recovery of possession of the 35 land the area of which I have already set out in the course of this judgment. I would vary the judgment accordingly and set aside the damages awarded. I now tum to the question of damages. In this connection it is my opinion that where an appellate court finds that an award 40 is either erroneous or excessive or based on wrong principles of law or because of any other good and sufficient reason such an 236 Q r f AGIP (S.L.) LTD. v. EDMASK. 1972-73 ALR S.L. 218 S.C. award ought to be varied or set aside, that court should and must interfere. Of course where an appellate court varies an award such a variation must be based on its own estimate of a proper award. With regard to special damages I hold the view that the Court of Appeal went astray in awarding this item. It was never pleaded 5 as it should have been done and the fact that no objection was raised does not in my view cure this defect. Furthermore it was never an issue raised before the Court of Appeal. In those circum­ stances I would disallow this item awarded by the Court of Appeal. 10 As regards the award of Le30,000 in respect of inducement made by the Court of Appeal I do feel that it is most excessive. The learned trial judge's award of Le5,000 is in my view exe1nplary enough. I would set aside the award of Le30,000 made by the Court of Appeal and restore the trial judge's award, in this 15 regard, of Le5,000. The learned trial judge awarded a return by the second respon­ dents of the customary shake-hand of Le6,000 as well as the two years' rent of Le260. In view of the fact that I would order recovery of possession of the land I would disallow these two 20 items and the learned trial judge's judgment is hereby varied accordingly. I now come to the award of the trial judge of Le20,000 as damages for trespass. He did not give any reason why he awarded such an enormous amount. Maybe he was greatly influenced by 25 the fact that recovery of possession was not being ordered. Since I am of the view that the first respondent is in law entitled to recovery of possession, this award needs some reconsideration. I agree that the trespass here is a continuing trespass and that the first respondent has been kept away from the use of the land 30 for over nine years. I also take into consideration the fact that because of the provisions of the lease granted by the second respondents to the appellants, as well as the oral evidence before the learned trial judge, the character of the land has substantially been changed. I am aware that in order to perform the covenants 35 stipulated in the first lease, the first respondent would, because of the order for possession, have to expend money in reconstruct- ing the land. I also take into consideration the point of law that the object of an award of damages is to put the party who has been injured, or who has suffered, in the same position as he 40 would have been in if he had not sustained the wrong for which 237 THE AFRICAN LAW REPORTS he is now getting his compensation or reparation. I have also con­ sidered the proposition that the appellants' conduct has been calculated to make a profit for themselves and that in such a case it is the object of the law to teach the appellants that tort does 5 not pay. This, in my view, is certainly not a case where this court can say to the first respondent: "You are technically right, but morally wrong." Taking all the circumstances into consider­ ation, however, I would reduce the award of Le20,000 to Le10,000. The learned trial judge's award in this regard is hereby varied 10 accordingly. With regard to the question of interest raised under s.4 of the Law Reform (Miscellaneous Provisions) Act (cap. 19), it is my considered view that it is a matter which should have been raised before the court of trial. I do not think we can at this stage 15 properly interfere. In may judgment the final results of this appeal should there­ fore be as follows: (i) The judgment of the Court of Appeal is hereby reversed and set aside. The cross-appeal succeeds. 20 (ii) The judgment of the High Court is upheld and affirmed subject to the following: (a) The order of the learned trial judge awarding the first respondent damages in lieu of an order for recovery of pos­ session is hereby set aside and an order for recovery of pos- 25 session of the land in favour of the first respondent against the appellants and the second respondents substituted there­ for for the residue of a term of fifty years from May 16th, 1962. I would order that if the sum of Le9 ,000 awarded by the High Court has been paid it should be refunded. 30 (b) The order of the learned trial judge ordering the return by the second respondents to the first respondent of the cus­ tomary shake-hand of Le6,000 as well as the two years' rent paid amounting to Le260 is hereby set aside and, if already paid, should be refunded. 35 (c) The order of the learned trial judge awarding Le20 ,000 for damages for trespass is hereby varied to Lel 0,000. The difference, if already paid, should be refunded. LUKE, J.S.C.: 40 By virtue of the Provinces Land Act (cap. 122), Chiefdom Councils in the Provinces may, with the consent of the District 238 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. Commissioner, grant leases of land in their Chiefdoms to "non­ natives" for periods of up to 50 years under the terms and condi­ tions laid down in the Act. On May 16th, 1962 the Paramount Chief and the Chiefdom Councillors of Kakua Chiefdom, Bo District (the second respon- 5 dents in this appeal), granted a lease of land situated at Bye Pass Road, Bo, to Abbass Ali (the first respondent in this appeal) for a period of 75 years (hereafter referred to as the "Abbass lease"). The Abbass lease was by deed and was executed by the Paramount Chief and the principal men of the Chiefdom. The consent of the 10 District Commissioner was duly endorsed thereon. But the lease was not executed by the lessee or his attorney and has still not been executed. On November 27th, 1962, the Abbass lease was registered at the office of the Registrar-General, Freetown. By notice dated January 20th, 1964 and served on the agents of 15 Abbass Ali, Kakua Chiefdom purported to avoid and determine the Abbass lease in exercise of powers under the proviso to cl.4 of the Abbass lease, on the grounds that Abbass Ali had failed to execute the lease and had failed to register it within 60 days from the date of execution. Prior to the service of the notice, the 20 lessee executed some works on the land. On January 31st, 1964 the Paramount Chief and the Chiefdom Councillors of the said Chiefdom, with the consent of the District Commissioner, granted a lease of the said land together with another small piece of land to Agip (Sierra Leone) Ltd., the 25 appellants in this appeal, for the term of 21 years (hereafter referred to as the "Agip lease"). The Agip lease was by deed and was executed by the Paramount Chief and principal men of the Chiefdom and the consent of the District Commissioner was endorsed thereon. The lease was registered in the office of the 30 Registrar-General, Freetown, on February 19th, 1964. The parties will be referred to hereafter as "Kakua Chiefdom", "Abbass" and "Agip". Thereafter Agip proceeded to construct a petrol filling station on the land. On May 28th, 1965, while the construction. was in 35 progress, the agent of Abbass wrote to Agip informing them that they were trespassing on Abbass's land. But Agip continued with the construction. On July 13th, 1966, Abbass issued a writ of summons against Agip and the Kakua Chiefdom claiming damages for trespass against Agip and damages for breach of covenant for 40 quiet enjoyment against Kakua Chiefdom. An order for amend- ment of the writ was made on May 6th, 1968. In the amended 239 THE AFRICAN LAW REPORTS writ Abbass claimed recovery of possession of the land, damages for trespass to land and damages for inducing a breach of contract from Agip and damages for breach of covenant for quiet enjoy­ ment from Kakua Chiefdom. 5 The action was tried by Browne-Marke, J. According to the pleadings, the main issues at the trial were: (i) whether Kakua Chiefdom had properly and validly avoided the Abbass lease; (ii) whether Kakua Chiefdom had waived their right to avoid 10 the Abbass lease by acceptance of rent; and (iii) whether Agip }:lad induced a breach by Kakua Chiefdom of the Abbass lease. Browne-Marke, J. reserved judgment on May 1st, 1969 and after an inexplicable delay of some 14 months gave judgment on June 15 16th, 1970 for Abbass. On the issue of the avoidance of the lease, Browne-Marke, J. held that the Abbass lease was a valid lease and that it had not been avoided or terminated. On the issue of waiver, he held that the right to avoid the Abbass lease had been waived by Kakua Chiefdom by the receipt of rent. On the issue of induce- 20 ment of a breach of contract, he held that Agip had induced a breach of the Abbass lease by Kakua Chiefdom. The learned judge accordingly made the following order: (i) Damages for breach of covenant for quiet enjoyment Le2,500. 25 (ii) Refund of expenses during negotiations and shake-hand Le6,000. (iii) Refund of two years' rent Le260. (iv) Damages for trespass by Agip Le20,000. (v) Damages for inducing a breach of contract Le5,000. 30 (vi) Damages in lieu of recovery of possession Le9,000. Agip appealed to the Court of Appeal against the decision, complaining against the findings of trespass and inducement and the measure of damages awarded. Kakua Chiefdom also appealed, complaining against the finding of breach of covenant for quiet 35 enjoyment and the order for refund of Le6,000 expenses. Abbass also cross-appealed, complaining against the failure of the judge to order recovery of possession and the measure of damages awarded. Thus all the parties to the action were in one way or another dissatisfied with the decision of Browne-Marke, J. The appeal was 40 heard by the Court of Appeal consisting of Sir Samuel Bankole Jones, Dove-Edwin and Marcus-Jones, JJ.S.C. on March 1st, 1971 240 ... AGIP (S.L.) LTD. u. EDMASK,l972-73 ALR S.L. 218 S.C. and subsequent days. Judgment was delivered on July 30th, 1971 varying the order of Browne-Marke, J. (Dove-Edwin, J.S.C. dissenting). In the majority judgment delivered by Marcus-Jones, J.S.C., it was held that the Abbass lease had been properly avoided and terminated and that the right of Kakua Chiefdom to avoid 5 the Abbass lease had not been waived by acceptance of rent. The majority of the Court of Appeal also held that Agip had induced a breach of contract by Kakua Chiefdom. The court refused an order for possession and varied the award of damages to this extent: Damages for inducing a breach of contract-Le30,000; 10 special damages-Le,15,390. No damages were awarded for breach of contract or breach of covenant for quiet enjoyment. This is not surprising· in view of the finding of the majority that Kakua Chiefdom had not committed a breach of contract by terminating the Abbass lease. 15 Dove-Edwin, J.S.C. agreed with the majority that the Abbass lease had been properly avoided and terminated and that Kakua Chiefdom had not waived their right to avoid the Abbass lease. He however disagreed with the majority on the question of inducing a breach of contract. He held that Agip had not com- 20 mitted any inducement of breach of contract. He accordingly would have allowed the appeal and set aside the judgment of Browne-Marke, J. and dismissed Abbass's claim. The main issues in this appeal are: (i) Whether Kakua Chiefdom had lawfully avoided the Abbass 25 lease. (ii) Whether the right to avoid a lease conferred by s.9 of the Provinces Land Act (cap. 122) can be waived. (iii) If the right to avoid existed, whether in fact Kakua Chief- dom had waived their right to avoid the Abbass lease. 30 (iv) Whether Agip had induced a breach by Kakua Chiefdom of the Abbass lease. (v) Whether possession of the land should be granted to Abbass. (vi) Whether the damages awarded were excessive or inadequate. The right to avoid a lease is conferred by s.9 of the Provinces 35 Land Act (cap. 122). The section reads: "Every deed creating a tenancy of land shall be voidable by either party, unless it- (a) is executed in the presence of two witnesses by the lessor before the District Commissioner of the district in which the 40 land is situated; and is executed, in the presence of two 241 i THE AFRICAN LAW REPORTS witnesses, by the lessee or his attorney or his agent before a Magistrate; and (b) has endorsed upon it certificates of execution in their presence signed respectively by the District Commissioner 5 and the Magistrate before whom it was executed; and (c) provides that the lessee shall not sublet or assign his interest thereunder except with the consent of the Tribal Authority with the approval in writing of the District Com­ missioner provided that such consent shall not be unreason- 10 ably withheld; and (d) contains stipulations with regard to all the matters set out in rule 3 to the schedule to this Act; and (e) is registered within sixty days in the office of the Registrar-General." 15 The proviso to cl.4 of the Abbass lease also conferred a right of avoidance in these terms: "Provided always that if this indenture is not registered with­ in sixty days of its execution in the office of the Registrar­ General in Freetown then the said deed shall be avoidable at 20 the option of either party to the same." The question arises, how is the right to avoid thus conferred exercisable? The answer would depend on, first, whether or not s.9 of the Act or the proviso to cl.4 creates a condition; and secondly, whether or not the section or the proviso confers a right 25 of re-entry. The importance of the distinction is this: breach of a covenant by a tenant does not entitle the lessor to resume pos­ session by re-entry upon the premises, unless an express stipula­ tion to that effect is contained in the lease. On the other hand, a stipulation which is framed, not as a mere covenant, but as a 30 condition, carries with it a common law a right of re-entry if the condition is broken. A condition is defined in Cheshire's Modern Law of Real Property, 11th ed., at 424 (1972) as follows: " ... a clause which shows clear intention on the part of the 35 landlord, not merely that the tenant shall be personally liable if he fails in his contractual duties, but that the lease shall determine in the event of such a failure." In my opinion, none of the sub-sections of s. 9, nor the proviso to cl.4 of the lease make the lease determinable on the failure of 40 the lessee in his contractual duties. In my judgment therefore neither s.9 nor the proviso to cl.4 create a condition. 242 9 ~---- - - -------, AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. Turning now to the right of re-entry, it is perfectly clear that what s.9 confers is a right to avoid and not a right to re-enter. Also is is quite clear that the proviso to cl.4 does not confer a right of re-entry. The position therefore is that neither s.9 of the Act nor the 5 proviso to cl.4 constitutes a condition or confers the right of re- entry. Consequently Kakua Chiefdom did not have a right to re- enter on the land. In my opinion, since the proviso to cl.4 is not a condition and does not confer a right of re-entry, its inclusion in the Abbass 10 lease does not in any way add to or subtract from the right of avoidance conferred on both parties by s.9 of the Act. The parties would still have had the right to avoid under s.9 of the Act for non-registration within 60 days even if the proviso to cl.4 had been omitted. In my judgment therefore the proviso to cl.4 is 15 surplusage. The question then arises, how is the right to avoid conferred by s.9 of the Act exercisable? Kakua Chiefdom purported to exercise the right by service of a notice on Abbass. The notice was headed "Notice of Re-entry" and it stated inter alia: 20 "4. In view of the matters stated above, we the said lessors have decided to avoid and determine the said lease and have therefore this day exercised our right of re-entry on the land in respect of which the said lease was made and henceforth the said lease shall determine." 25 It was contended on behalf of Abbass that that notice was not sufficient to avoid the lease. Mr. Cotran submitted that the proper mode of exercising the right of avoidance by a lessor was for the lessor to give the lessee reasonable notice followed by an action for ejectment. He cited no authority for this proposition. Mr. 30 Gelaga-King submitted that all that a lessor has to do to avoid a lease is to do some act evidencing his intention to determine the lease and that the act must be a final and positive act which cannot be retracted. Mr. Davies submitted that a lessor could avoid the lease by re-entry or by leasing to some other person. He relied 35 on a passage in Cheshire's Modern Law of Real Property, 11th ed., at 425 (1972) which reads: "However clearly the proviso may state that the lease shall be void on breach of condition, it has been held in a long series of decisions that its only effect is to render the lease voidable. 40 It is at the option of the landlord whether the tenancy shall be 243 THE AFRICAN LAW REPORTS determined or not, and it is only if he does some act which shows his intention to end it that the lease will be avoided. Thus an actual entry by the landlord or the grant of a lease to a new tenant works a forfeiture, but the usual practice at the 5 present day is to sue for the recovery of possession instead of kin t " rna g a re-en ry . . . . It seems to me that this statement of the law is applicable to cases where there is a proviso conferring a right of re-entry, as clearly indicated in the opening words of the passage. It does not 10 apply where the lessor does not have a right of re-entry. In my judgment the right to avoid a lease is exercised by the person having the right doing some unequivocal act indicating the intention to avail himself of the option conferred on him to avoid the lease. But the unequivocal act would depend on whether 15 or not a right of re-entry exists. The position with regard to leases where there is a right of re-entry was stated by Parke, B. in Jones v Carter (10), who said (15 M. & W. at 725; 153 E.R. at 1043): "In like manner, the lease would be rendered invalid by some 20 unequivocal act, indicating the intention of the lessor to avail himself of the option given to him, and notified to the lessee, after which he could no longer consider himself bound to per­ form the other covenants in the lease; and if once rendered void, it could not again be set up. An entry, or ejectment, in 25 which an entry is admitted, would be necessary in the case of a freehold lease, or of a chattel interest, where the terms of the lease provided that it should be avoided by re-entry." Thus if a party has a right of re-entry, he may exercise his right of avoidance by re-entry, by granting a lease to a new tenant 30 or by action for ejectment. But if a party does not have a right of re-entry it would be unlawful for him to exercise his right of avoidance by re-entry or by granting a lease to a new tenant. In my judgment the unequivocal act in a case where the party avoid­ ing the lease does not have a right of re-entry is the issue and 35 service of a writ of summons for recovery of possession: see Canas Property Co. Ltd. v. K.L. Television Services Ltd. (4). In my judgment, therefore, the purported determination of the Abbass lease by Kakua Chiefdom was unlawful and con­ stituted a breach of contract and of the covenant for quiet enjoy- 40 ment. The next question is whether Kakua Chiefdom still had the 244 AGIP (S.L.) LTD. v. EDMASK. 1972-73 ALR S.L. 218 S.C. right to avoid the lease when they purported to exercise it. The case of Abbass is that Kakua Chiefdom had waived their right to avoid the lease by acceptance of rent and had thereby lost their right to avoid the lease. It is therefore necessary to determine whether Kakua Chiefdom accepted rent after knowledge of the 5 cause of avoidance and whether such acceptance of rent amounted to waiver in law. The undisputed evidence is that on or before December 28th, 1962 the District Commissioner, Bo had received the registered Abbass lease. Indeed he acknowledged receipt of it by letter dated 10 December 28th, 1962. It is also not disputed that the District Commissioner was the agent for Kakua Chiefdom. So it must be accepted that Kakua Chiefdom received the registered Abbass lease on or before December 28th, 1962. On that date they knew or ought to have known of the defects in the registered Abbass 15 lease of which they later complained, i.e. late registration and non­ execution by the lessee or his attorney. Yet with that knowledge Kakua Chiefdom, according to the evidence, took no steps to avoid the lease for several months. In the meantime, on March 7th, 1963, Abbass paid rent for two years to the Accountant General, 20 Bo. Admittedly, according to cl.2( 5) of the Abbass lease the rent should be paid "into the office of the District Commissioner." But the payment of rent to the Accountant General instead of "into the office of the District Commissioner" was not com- plained of by Kakua Chiefdom, nor was it made an issue in this 25 case. Indeed, payment of rent to the Accountant General instead of "into the office of the District Commissioner" was not men­ tioned in the notice of January 20th, 1964 as one of the grounds on which Kakua Chiefdom purported to determine the lease. So nothing turns on the payment of rent to the Accountant General. 30 According to the evidence, the District Commissioner made an entry of the receipt of the rent paid by Abbass in the Kakua Chief- dom lease decree book kept by him. In my opinion the entry in the decree book by the District Commissioner clearly evidenced a receipt and acceptance of the rent by him. The question then 35 arises, was acceptance by the District Commissioner, acceptance by the Kakua Chiefdom? The answer to this question is provided by cl.2(5) of the Abbass lease which stipulates inter alia that "the receipt of the District Commissioner shall be sufficient dis- charge for the payment of such rent." The District Commissioner 40 was thus the agent for the receipt of rent for and on behalf of 245 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS Kakua Chiefdom, and it follows that acceptance of rent by him is equivalent to acceptance of rent by the Kakua Chiefdom. I there­ fore hold that Kakua Chiefdom accepted rent from Abbass in­ March 1963. What then is the legal effect of the acceptance of rent by Kakua Chiefdom with knowledge of the cause of avoidance? In my opinion it is well-settled that acceptance by a landlord of rent accrued due after the cause of forfeiture (or avoidance) with knowledge of the cause of forfeiture (or avoidance) constitutes a waiver of the right of forfeiture (or avoidance). A comprehensive and what has been accepted as an authoritative statement of the principles governing this field of law is to be found in the judgment of Parker, J. in Matthews v. Smallwood (12) ([1910] 1 Ch. at 786; [1908-10] All E.R. Rep. at 542): "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 recognize 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. Therefore ... though an act of waiver operates with regard to all known breaches, it does not operate with regard to breaches which were un­ known to the lessor at the time when the act took place. It is also, I think, reasonably clear upon the cases that whether the act, coupled with the knowledge, constitutes a waiver is a question which the law decides, and therefore it is not open to a lessor who has knowledge of the breach to say 'I will treat the tenancy as existing, and I will receive the rent, or I will take advantage of my power as landlord to distrain; but I tell you that all I shall do will be without prejudice to my right to re-enter, which I intend to reserve.' That is a position which he is not entitled to take up. If, knowing of the breach, he does distrain, or does receive the rent, then by law he waives the breach, and nothing which he can say by way of protest against the law will avail him anything. Logically therefore, a person who relies upon waiver ought to shew, first, an act unequivocally recognizing 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." 246 l I I ' l AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. I would not have considered it necessary to refer to any other authority on this point, but for a submission made by Mr. Gelaga­ King to the effect that the important question always is "quo animo was the act done?'' In the case of payment of rent "quo animo was the rent accepted?" The question of quo animo has 5 been considered by the English courts in a number of cases. The principle laid down in these cases is that the intention or motive of the landlord in doing the act relied on as a waiver is irrelevant. Thus in Segal Securities Ltd. v. Thoseby (15), Sachs, J. said ([1963] 1 Q.B. at 898; [1963] 1 All E.R. at 505): 10 "It is thus a matter of law that once rent is accepted a waiver results. The question of quo animo it is accepted in forfeiture cases is irrelevant in relation to such acceptance." In the recent case of Central Estates (Belgravia) Ltd. v. Woolgar (No.2) (5), Lord Denning, M.R. said ([1972] 1 W.L.R. at 1052; 15 [1972] 3 All E.R. at 614): "So we have simply to ask: Was this rent demanded and accepted by the landlord's agents with knowledge of .the breach? It does not matter that they did not intend to waive. The very fact that they accepted the rent with the knowledge 20 constitutes the waiver .... I know that the judge found that the agents had no intention to waive, and finds also that the tenant knew they had no intention to waive. That seems to me to make no difference. The law says that if the agents stated in terms: 'we do not intend to waive,' it would not 25 have availed them. If an express statement does not avail a landlord, nor does an implied one." Buckley, L.J. also said ([1972] 1 W.L.R. at 1054; [1972] 3 All E.R. at 616): "In my judgment, the effect in law of an act relied on as 30 constituting a waiver of a right to forfeit a lease must be con- sidered objectively, without regard to the motive or intention of the landlord or the understanding or belief of the tenant." Applying the above-stated principles, I hold that the intention or motive with which the District Commissioner accepted the rent 35 paid by Abbass and the understanding or belief with which Abbass paid the rent are irrelevant. In my judgment, the rent having been accepted with knowledge of the cause of avoidance, the right of Kakua Chiefdom to avoid the lease was waived and the lease was thereby confirmed and ratified. Therefore the right to avoid the 40 lease under s.9 of the Provinces Land Act (cap. 122) was 247 THE AFRICAN LAW REPORTS non-existent on January 20th, 1964 when Kakua Chiefdom pur­ ported to exercise it. In the circumstances, I hold that the pur­ ported avoidance of the lease by Kakua Chiefdom was unlawful and consequently constituted a breach of contract and of the 5 covenant for quiet enjoyment. It was in the forefront of Mr. Gelaga-King's and Mr. Davies' arguments that the provisions of s.9 of the Provinces Land Act (cap. 122) are mandatory and for the public good and as such they cannot be waived. Reliance was placed on the decision of the 10 Privy Council in Edward Ramia Ltd. v. African Woods Ltd. (13), where it was held that a concession of timber rights to land in Ashanti, Gold Coast, under the Gold Coast Concessions Ordinance was invalid because the words in s.12 and s.13 (11) of the Ordinance were clearly imperative, being designed to protect the 15 grantor in the public interest, and there could be no waiver of any of the conditions laid down in s.12. Section 12 of the Ordinance lays down certain conditions which an applicant for a concession should comply with and certain steps which certain officials should take and then 13 (11) provides: 20 "13. No concession shall be certified as valid ... (11) unless, in the case of a concession granted in respect of an area of land of which either the whole or the greater part is situate in Ashanti, the concession has been ob­ tained in accordance with the provisions of s.12." 25 Delivering the judgment of the West African Court of Appeal, Sir Henley Coussey, P. said inter alia: "It is true that there are no negative words in the sections referred to but the affirmative words are absolute, explicit and peremptory and when you find in an ordinance only one 30 particular mode of effecting the object, one train of formal­ ities to be observed, the regulative provisions which the section prescribes are essential and imperative. To render the purpose of s.12 unmistakable, sub-s.( 4) provides that the terms of the agreement can only be embodied in a concession 35 after they have been agreed upon before the official named. The policy of the law clearly insists upon strict observance of the steps already alluded to before there can be a concession. Section 12 and s.13(11) are so clearly designed to protect the grantor in the public interest that in my opinion the 40 learned judge erred in holding that a waiver is possible of any of the conditions of s.12 and that the grantors had 248 AGIP (S.L.) LTD. v. EDMASK, 1972-73 ALR S.L. 218 S.C. waived them. To accede to this proposition would be to entirely ignore the intention of the legislature for the public good and to defeat one of the main purposes of the Con­ cessions Ordinance.'' The Privy Council agreed with this statement of the law. 5 In my opinion the provisions of ss. 12 & 13 of the Gold Coast Ordinance are quite different from the provisions of s.9 of the Provinces Land Act (cap. 122). The Gold Coast Ordinance provides that if certain conditions are not complied with or if certain steps are not taken the concession shall be invalid, whilst s.9 provides 10 that if certain things are not done or certain provisions are not included in the lease, the lease shall be "voidable by either party." Section 9 confers on either party the right to avoid the lease at his option, and if neither party chooses to exercise the right of avoiding the lease, it remains a valid lease. In my opinion, if the 15 right to avoid is left to the option of either party, that right, being a right which neither party is obliged to exercise, could be waived by non-exercise of it or by other means. Quite clearly it could not be said in relation to s.9 that "the policy of the law clearly insists upon strict observance of the steps already alluded 20 to before there can be a concession." In my judgment the provisions of s.9 of the Provinces Land Act (cap. 122) are not mandatory and strict observance of them cannot be insisted upon. I therefore find the submissions of Messrs. Gelaga-King and Davies untenable and I hold that the 25 rights conferred by s.9 of the Provinces Land Act (cap. 122) can be waived. I now turn to the question of inducing of a breach of contract. I have already held that Kakua Chiefdom committed a breach of contract by purporting to determine the Abbass lease. But 30 it was contended on behalf of Abbass that there need be no breach of contract for the plaintiff to be entitled to succeed in an action for damages for inducing a breach of contract. The majority of the Court of Appeal seem to have accepted this contention, because having held that Kakua Chiefdom had not 35 committed a breach of contract by determining the Abbass lease, they proceeded to hold that Agip had committed the tort of inducing a breach of contract. The contract, the breach of which Agip was found to have induced, was the Abbass lease, which the majority in the appeal court held had not been breached. 40 The question then arises, does a plaintiff in an action for damages 249