Alfred Olu-Williams v Riad Moullem (CIV APP 23 of 2004) [2010] SLCA 30 (16 February 2010)

* CLV APPEAL 23/2004 «IN THE COURT OF APPEAL OF SIERRA LEONE : BETWEEN: ALFRED OLU-WILLTAMS > APPELLANT ‘AND RIAD MOULLEM - RESPONDENT CORAM: i Hon Mrs Justice S. Bash-Taqi, JSC. Hon Mr Justice N C Browne-Marke: TA, Hon Mr Justice € E Roberts TA. COUNSEL: Berthan Macauley Jnr, For the Appellant JB Jenkins-Johnston for the Respondent th JUDGMENT DELIVERED ON THE [6 DAY OF FEBRUARY,2010 BROWNE-MARKE, T.A,

Introduction

1. This is an appeal brought by'the Appellant, now deceased, ALFRED E OLUKOTUN WILLIAMS, against a Judgment of the High Court, NYLANDER.J presiding, dated 21 April,2004. The Notice of Appeal was filed on 15 June,2004.

The Appeal

2, The Grounds of Appeal are Stated in the Notice. Briefly, they are that the Learned Trial Judge (LTJ) erred in Law in holding that certain things should be done by the Respéndent to Appellant's property within a specified time, when, the clear words of the Lease which, he had himself . upheld, did not provide for an optional term beyond that agreed to be granted by the parties, in clause 3(3) of the Lease. That optional term expired on 31 Morch,2004 before Judgment was delivered. Secondly, that the LTJ erred in Law when he Ordered the Appellant to refund to the Respondent, the sum of Le11,993,520/00, plus interest thereon at the:

Be : rate of 25% from July,2004 to Judgment, in that the Respondent's . Counter Claim for that sum, was made as an alternative, to the

Respondent's claim that he was entitled to an optional term, which tem had in any event expired on 31 March,2004, Thirdly, that the award af this sum to the Respondent, was erroneous in that the same had not been

Ps properly quantified by the LT, and was not supported by evidence. Fourthly, that the LTJ erred in law when he Ordered Solicitors on both sides and the parties, to meet to agree, and to give Respondent 3 months to complete the remaining 20% of development to be done, when at the same time, he had also found that the Respondent was in breach of hi's obligations under the Lease; once he had so found, the LTJ should have awarded the Appellant, Damages. Also, the Respondent did not pray for such an Order in his Counter Claim. Fifthly, that the LTJ failed to adjudicate on the Appellant's claims notwithstanding the evidence adduced, Sixthly, that the LTJ erred in Ordering that each party bears its own costs, when it was clear, that the Appellant had won the action, The Appellant asks this Court to Set Aside the Judgment, and that Judgment be entered for the Appellant.

3. On 19 November,2007, the Appellant filed an Amended Notice of Appeal pursuant to an Order of this Court dated 13 November,2007. In place of the original Appellant, CORNELIUS AYO HUDSON WILLIAMS and RERTHAN MACAULAY Jnr (Trustees of the Trust created by a Deed of Gift dated 4 February 1988) were substituted as Appellants, due to the demise of the original Appellant. Notwithstanding this amendment, references in this Judgment to "the Appellants" or “the Appellant” mean the present Appellants or, the deceased Appellant. The Grounds of ‘Appeal remained unchanged. The Appellants, argued their joint case by way of written submissions dated 14 June,2008, and by way of oral arguments before us on 25 November,2008. The Respondent, in turn, addressed written submissions to us dated 24 November,2008, and also oral submissions on 25 November,2008.

FACTS OF THE CASE *

4. The brief facts of the case could be gleaned from the pleadings filed in the High Court by both sides, The case turns on whether the Appellants are entitled to possession of the Ground and 1" floors of property situate at, and known as 12 Percival Street, Freetown presently in the occupation of the Respondent. is

SS 5, By Lease dated 26 May,1994 and duly registered as No 63 at Page 131 in 7 Volume 88 of the Record Books of Leases kept in the office of the Registrar-General, Freetown, the Appellant leased this property to the Respondent for a term of 5 years commencing 1 April,1994 and ending on 31 Morch,1999, The Respondent covenanted.to carry out, and to execute 3 * repairs to the demised premises, within 8 months of the commencement of the Lease, certain works specified therein, which were to cost the respective sums of USD27,091 then equivalent to Le15,713,231, and Le2,966,000. The Respondent, according to the Appellant, failed to carry ‘out these works. He was notified of the breach, and requested to remedy the same, By letter dated 29 October,1998 the Respondent promised to remedy the breach complained of, He however failed to do so. The original term granted in the Lease expired on 31 March,1999 but the Respondent failed to deliver up possession to the Appellant. PLEADINGS

6. Thus the action was brought by way of Writ of Summons dated 4 May,1999. In that Writ, The Appellant claimed, inter alia, possession of ‘the Ground Floor premises situate at 12 Percival Street, Freetown: Damages for Breach of Contract; Mesne profts at the rate of USD10,000 with effect from 1 April,1999 until possession is delivered up; and interest on any sums awarded by the Court: and the costs of the action.

7. The Respondent filed a Defence and Counter Claim dated 8 June,1999. In that pleading, the Respondent contended that he did not fail to carry out the repairs he had agreed to carry out: that he was in the process of doing so, when it became apparent that required repairs were more extensive than he had anticipated, and that the roof would have to be removed and changed; and that the Ministry of Housing and Country Planning would not grant its approval for the agreed repairs to be carried cout without repairs being done to the roof: and that he did carry out the repairs with the knowledge and consent of the Appellant. Respondent claims he spent Le11,993,520, He averred also, that, at that point in time, work on the premises was ongoing, that he had greatly improved the value

be of the property; and that the Coup dietat in May,1997, and rebel invasion of Freetown in January,1999 respectively, delayed the completion of the work: and lastly, that he wag still willing and able to continue the work,

8. In paragraph 6 of his pleading, the Respondent readily concedes that the ¢ term of his Lease had expired, but claimed he was entitled to « further aS)

5b Ps grant by virtue of Sub-Clause 3(3) of the Lease, and surprisingly, at a : rent to be agreed.

9. In the Counterclaim, the Respondent argues that the Appellant is Estopped by his conduct from insisting on his strict legal right to recover possession of his property because of the money spent by the Responclent

+ in carrying out repairs to Appellant's property which sum was over and above that agreed by the parties. He therefore prayed the Court below ‘to Grant him Specific Performance of Sub-Clause 3(3) of the Lease; and alternatively, the refund of the sum of Le11,993,520 spent by him in carrying out repairs, plus interest thereon.

10. Appellant's Reply was a refutation of the claims made by the Respondent as to his entitlement to a further term. The Appellant averred in that pleading that there fad been correspondence between both sides as to Defendant's breach f Sub-Clause 2(3) of the Lease, and denied giving his consent to the Respondent to carry out the additional repair works to the roof. He contended that the Respondent was not entitled to a grant of a further term, because of his breach of the terms of the Lease. ‘Additionally, the Appellant argued, that did not at any time encourage the Appellant to expend the sum of Letim on his, the Appellant's property: nor did he represent by conduct or otherwise, that he was minded to grant the Respondent a further term, and that in any event, the Respondent had not provided any consideration to support his contention that the Appellant was stopped by his conduct from insisting on his, the Appellant's strict legal rights. The Appellant, in this pleading, joined issue

with the Respondent, TRIAL

11. The trial commenced before NYLANDER,J on 3 December,1999. PW1,

John Casa Sesay, tendered in evidence the Lease dated 26 May,1994 as exhibit "A", Next was AYODELE HUDSON WILLIAMS, a brother of the Plaintiff. He testified that he gave professional advice to the Appellant ‘as regards the Lease and the schedule of works to be carried out by the Respondent: and that he gave @ written report on the state of the

‘ec property to the Appellant. By September,1998 the work remained uncompleted. No one consulted him before work was done on the roof, and ‘that the work specified in the schedule, was never done. He tendered in evidence, exhibit “B", an estimate for the renovation work: and exhibit

¢ ‘C" an estimate for the extension work. He agreed with Counsel for the

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