Agip v Edmask & Another (CIV APP 2 of 1971) [1973] SLSC 6 (28 February 1973)

SECTION 31

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 pleadedspecial 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,

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.

[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.

[ 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.

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,

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

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

(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.

(13) Edward Ramia Ltd. v. African Woods Ltd., [1960] 1 W.L.R. 86; 40 [ 1960] 1 All E.R. 627, distinguished.

(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