Agip (SL) Ltd v Edmask And Another (SC CIV APP 10 of 1972) [1973] SLSC 5 (24 May 1973)

AGIP (SIERRA LEONE) LTD v EDMASK & PARAMOUNT CHIEF OF KAKUA CHIEFDOM & CHIEFDOM COUNCIL SC SUPREME COURT OF SIERRA LEONE, Supreme Court Civil Appeal 10 of 1972, Hon Mr Justice COB Cole CJ, Hon Mr Justice Forster JSC, The Hon Mr Justice Livesey Luke JSC, Hon Mr Justice Davies JA, Hon Mr Justice Tejan JA, 1973

[1] Landlord & Tenant – Relief against forfeiture – Waiver – Tenant’s failure to register lease – Whether acceptance of rents by landlord constituted waiver of breach – Conditional acceptance of rent does not prevent waiver – Order for possession of land should be made instead of damages – Provinces Land Act (Cap 122) s 9

[2] Landlord & Tenant – Lease – Termination – No condition that failure to register lease made lease void and gave landlord right to re-enter – Issue of writ seeking possession the correct course to terminate lease

[3] Landlord & Tenant – Wrongful termination of lease – Damages – Trespass – Inducing breach of contract – Breach of covenant for quiet enjoyment

[4] Tort – Inducing breach of contract – Lease – Ingredients – Breach of contract necessary – No liability where contract lawfully terminated – Payment of “shake-hand” and survey of land with knowledge of pre-existing lease amounted to evidence of inconsistent dealing by contract breaker On 16 May 1962 the second respondents, the Paramount Chief of Kakua Chiefdom and the Chiefdom Council (“the Tribal Authority”), leased land in the Bo District to the first respondent, Abess Ali Edmask (“Abess”). Under the terms of the lease and s 9 of the Provinces Land Act (Cap 122) the lease was voidable at the option of either party if it was not registered within 60 days of execution at the office of the Registrar-General. Although the lease was not registered until 27 November 1962, the Tribal Authority allowed the first respondent to take possession of the land and received rent for the years 1962 and 1963. On 20 January 1964, the Tribal Authority gave notice to Abess that it was voiding the lease and re-entering the land on the basis that the lease had not been registered within 60 days of its execution. On 31 January 1964, the Tribal Authority leased land to the appellant (“Agip”) which included area leased to Abess, and this lease was duly registered within 60 days. Abess took action against the Tribal Authority and Agip claiming damages for trespass, inducing breach of contract and breach of covenant for quiet enjoyment. The trial judge held in favour of Abess, finding that the lease had not been legally avoided and that the failure to register the lease which entitled the lease to be voided was waived by the Tribal Authority’s receipt of rents due under the lease. The trial judge awarded damages in lieu of possession, damages for inducing a breach of contract and damages under several other heads. On appeal, the Court of Appeal held that the trial judge was wrong to find that the lease was valid and had not been terminated according to law, and that Abess was therefore not entitled to possession or damages in lieu. However, the Court of Appeal agreed with the trial judge that Agip had induced a breach of contract between Abess and the Tribal Authority and awarded exemplary and special damages. Agip appealed to the Supreme Court against this decision and Abess also cross-appealed for recovery of possession on the basis that the trial judge was correct in finding that the lease had not been validly terminated. Held, per totam curiam, setting aside the Court of Appeal’s decision and affirming the decision of the trial judge , but substituting the order for damages with an order for recovery of possession: Per Cole CJ:

1. The Tribal Authority’s acceptance of rent while knowing that Abess had failed to register the lease effected a waiver of the breach as a matter of law. The intent or motive with which the rents were accepted by the Tribal Authority was not relevant. Matthews v Smallwood [1910] 1 Ch 777 and Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 1048 applied.

2. There were no special circumstances, namely miscarriage of justice or violation of any principle of law or procedure that would justify overturning the concurrent findings by the trial judge and the Court of Appeal on the facts that the appellant had induced a breach of contract. Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508 applied.

3. As the lease was valid and subsisting at all times, Abess was entitled to possession of the land in priority to the appellant. The trial judge therefore erred in awarding damages in lieu of an order for recovery of possession.

4. On the question of damages, the Court of Appeal ought not to have awarded special damages, as it was never pleaded or raised as an issue. The Court of Appeal’s award of Le30,000 in respect of inducement for breach of contract was excessive, and the trial judge’s award of Le5,000 was sufficient. In all the circumstances, the trial judge’s award of Le20,000 as damages for trespass was excessive and should be reduced to Le10,000. Per Forster JSC:

5. Where money was paid and received as rent under a lease, a mere protest that it was accepted conditionally and without prejudice to the right to insist on a prior forfeiture, did not prevent a waiver of the forfeiture. Davenport v The Queen (1877-78) LR 3 App Cas 115 referred to. Per Livesey Luke JSC:

6. Neither s 9 of the Provinces Land Act (Cap 122) nor clause 4 of the Abess lease made the lease determinable on the failure of the lessee to meet his contractual duties. Therefore, there was no condition created which allowed the landlord a right of re-entry upon the tenant’s breach.

7. The right to avoid a lease is exercised by the person having the right doing some unequivocal act which indicates the intention to avail himself of the option conferred on him to avoid the lease. The unequivocal act in a case where the party avoiding the lease does not have a right of re-entry (such as the present) is the issue and service of a writ of summons for recovery of possession. Canas Property Co Ltd v K L Television Services Ltd [1970] 2 All ER 795; [1970] 2 QB 433 applied.

8. A breach of contract is a necessary ingredient of an action for damages for inducing a breach of contract. If a contract is lawfully terminated, there can be no liability in an action for damages for inducing a breach of contract. Allen v Flood [1898] AC 1 and DC Thompson & Co Ltd v Deakin & Ors [1952] 2 All ER 361 applied. Emerald Construction Co Ltd v Lowthian & Ors [1966] 1 All ER 1013 distinguished.

9. The evidence of inducement by the appellant was the fact that, after they had knowledge of the Abess lease, they paid “shake-hand” to the Paramount Chief and they went on the land and surveyed it. This amounted to inconsistent dealing with knowledge of the existence of the contract. Inconsistent dealing with a contract breaker by a third party, begun or continued after the third party has notice of the contract, constitutes the tort of inducing a breach of contract. All the ingredients of the tort of inducing a breach of contract were present in this case. DC Thompson & Co Ltd v Deakin & Ors [1952] 2 All ER 361applied.

10. In all the circumstances, the award of damages for trespass of Le2,500 would be fair, reasonable and adequate compensation to Abess. Per Tejan JA:

11. The fact that the appellant had expended money on the land did not deprive Abess of its right to possession of the land. Ramsden v Dyson (1866) LR 1 HL 129 applied. Cases referred to Allen v Flood [1898] AC 1 Bonham-Carter v Hyde Park Hotel [1948] 64 TLR 177 Canas Property Co Ltd v K L Television Services Ltd [1970] 2 All ER 795; [1970] 2 QB 433 Central Estates (Belgravia) Ltd v Woolgar (No 2) [1972] 1 WLR 1048 Creery v Summersell and Flowerdew & Co Ltd [1949] Ch 751

Croft v Lumley (1858) 6 HL Cas 672 Davenport v The Queen (1877-78) LR 3 App Cas 115 DC Thompson & Co Ltd v Deakin & Ors [1952] 2 All ER 361 Edward Ramia Ltd v African Woods Ltd [1960] 1 All ER 627 Emerald Construction Co Ltd v Lowthian & Ors [1966] 1 All ER 1013 Jones v Carter (1846) 15 M&WM 718 MacFoy v United Africa Company Ltd [1962] AC 152 Matthews v Smallwood [1910] 1 Ch 777 Ramsden v Dyson (1866) LR 1 HL 129 Segal Securities Ltd v Thoseby (1963) 1 QB 887 Stool of Abinabina v Chief Kojo Enyimadu [1953] AC 207 Srimati Bibhabati Devi v Kumar Ramendra Narayan Roy [1946] AC 508 United Australia Ltd v Barclays Bank Ltd [1941] AC 1 Windmill Investments (London) Ltd v Milano Restaurant Ltd (1962) 2 QB 373 Yachuk & Anor v Oliver Blais Co Ltd [1949] AC 386 Legislation referred to Agricultural Reserves Act 1863 s 8 [Aust] Conveyancing and Law of Property Act 1881 s 14 [UK] Gold Coast Concessions Ordinance ss 12, 13(11) [Ghana] Imperial Statutes (Law of Property) Adoption Act (Cap 18) Interpretation Act 1961 ss 3, 11 Leasing Act 1866 s 8 (Australia) Law Reform (Miscellaneous Provisions) Act (Cap 19) s 4 Provinces Act (Cap 60) s 2(1) Provinces Land Act (Cap 122) ss 2, 3, 4, 9 Other sources referred to Cheshire’s Modern Law of Real Property [6th Ed] p183; [11th Ed] pp 424, 425 Woodfall on Landlord and Tenant [27th Ed] at p 877 Appeal This was an appeal against the majority decision of the Court of Appeal and the trial judge which found that the appellant had induced the second respondents to breach its lease agreement with the first respondent. The first respondent also cross appealed to recover possession of the land which it had leased. The facts appear sufficiently in the judgments of Cole CJ and Livesey-Luke JSC. Mr George Gelaga-King for the appellant. Mr Eugene Cotran for the first respondent and Mr Davies for the second respondents. COLE CJ: 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 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) of our laws. I shall hereafter refer to it as “the Act”. By s 2 thereof, the Act should be read and construed as one with the Provinces Act (Cap 60). I have mentioned this because of the fact that both the appellant and the first respondent are non-natives. The expression “non-native” is defined in s 3 of the Interpretation Act 1961 (No 46 of 1961, which is the Act relevant to this appeal) to mean “any person other than a native”. The same Interpretation Act by that same section defines “a native” as being: “any person who is a member of a race, tribe or community 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 Area”.

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 African ordinarily resident within the Provinces or within the territories adjacent thereto outside Sierra Leone”. Under the Act all land in the provinces is vested in the Tribal Authorities who hold such land for and on behalf of the native communities concerned. “Tribal Authority” is defined to mean: “the Paramount Chief, the Chiefs, the 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 Provinces unless he first obtains the consent of the Tribal Authority as well as the approval of the District Commissioner to his occupation 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 from the whole tenor of the Act the legislature intended to confer just as great a benefit on non-natives who 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 holding land of the Tribal Authorities under and by virtue of the Act are meant to have 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 16 May 1962, the second respondents leased to the first respondent: “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 AA1 which beacon is 130 ft on a bearing of 150 degrees 45 minutes to Property Beacon marked AA2; thence on a distance of 87.0 ft on a bearing 240 degrees 45 minutes is Property Beacon marked AA3; thence on a distance of 130.0 ft on a bearing 328 degree 06 minutes to Property Beacon marked AA4; thence on a distance of 93.0 ft with a bearing of 60 degrees 40 minutes to Property Beacon marked AA1, which is the point of commencement thus enclosing the area of 0.2685 acre of the same several dimensions little more or less as the same premises or more particular delineated and shown edged RED on the Cadastral plan No. LS/471/58 attached, which piece or parcel of land for great clearness and so as not to restrict or enlarge the description hereinbefore contained is delineated on the plan attached here t o and thereon coloured RED together with the buildings and other fixture and fittings now the room and specified in the schedule hereto, TO HOLD the said premises hereby unto the format from the 16th of May 1962, for the term of the seventy five years yielding the paying therefore during the said term the yearly rent of Le65.00 (Le130) in the manner hereinafter set forth”. I shall hereafter refer to it as “the lease”. The lease is Exhibit 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 seventy-five years, yet by virtue of s 4 of the Act the first respondent’s tenancy could not exceed a term of fifty years. I do not think that 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 on issue. It was amongst other things mutually agreed between the parties to the lease that if the lease was not registered within sixty 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 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 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 presence signed respectively by the District Commissioner and the Magistrate before when it was executed; and (c) provides that the lessee shall not sublet or assign him interest thereunder except with the consent of the Tribal Authority with approval in writing of the District Commissioner, provided that such consent shall not be unreasonable withheld; and (d) contains stipulations with regard to all the matters set out in rule 3 of the Schedule to this Act; and (e) is registered within sixty days in the office of the 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 Section 9 of the Act are not complied with. To go back to the facts. The lease, though executed on 16 May 1962, was due to some technical reasons concerning the plan to be attached to the lease, not registered within sixty days as required by s 9(e) of the Act nor did it comply with s 9(a). The lease was in fact registered on or about 27 November 1962. According to Exhibit J which is dated 28 December 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 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 circumstance 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 60) (with which, as I have already pointed out, it should be re ad as one) shows that the District Officer (formerly District Commissioner) 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. With this knowledge of non -compliance by the first respondent 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 it also received rents in respect of the land in the years 1962 and 1963. I am satisfied on the 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 16 May 1962. By Exhibit V2 dated 20 January 1964, the second respondents 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 ABESS of 22 Kissy Street, Freetown OR Other interested persons. WE the undersigned chief and members of the Tribal Authority Kakua Chiefdom for and on behalf of the Paramount Chief and Tribal authority for the said Kakua Chiefdom Bo District give you notice as follows: The lease dated the 16th day of May, 1962 registered as No 168 in value 50 at Page 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 Chiefdom aforesaid of the one part and YOURSELF of the other 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 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”.