Gloria T. Williams v Gladys E.O. Strasser -King (CIV APP 30 of 2009) [2021] SLCA 21 (3 August 2021)

4 ‘CIV.APP. NO. 30/2009 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN GLORIA TESHE WILLIAMS ~ APPELLANT (formerly called GLORIA TESHE BROWN) AND GLADYS E.0. STRASSER-KING * RESPONDENT HON. JST. MIATTA MARIA SAMBA, SC ~ PRESIDING HON JST. JOHN BOSCO ALIEU, JA HON. JST. A. SESAY, JA DATED THE 3"° DAY OF AUGUST 2021 Counsel: | Berthan Macaulay Jnr. Esq for the Appellant Kweku M. Lisk E5q for the Respondent

Judgment

‘This matter commenced by way of Writ if Summons dated the 27" day of February 2007 for | and on behalf of the Plaintiff, now Appellant, at the Court of first Instance, for the following | relief: i. Possession ofthe premises situate and being at No. 18 Campbell Street, Freetown, in the Western Area of the Republic of Sierra Leone (hereinafter referred to as the “Premises”; ii ‘Mesne profit as from the date of service of the Writ of Summons herein until possession is delivered up; iii, Damages for breach of contract; iv. Amy other order that this Honourable Court may deem fit and just; ve Costs. ‘The Appellant claims that by lease dated the 26" day of July 1996, the Appellant leased property situate at No. 18 Campbell treet Freetown to the Respondent for a term of thirty (30) years for the rent and terms of payment therein stipulated. The Appellant claims that the Respondent isin breach of Clause 2() ofthe said Lease by the Respondent subletting part of the said property to one Mr. Prem, on or before the 1* day of March 2006, without the consent of the Appellant, the owner of the said property. The Court notes that the Lease Agreement hereinbefore referred to dated, the 26" day of July 1996 and registered as Volume 90 at page 139 of the Record Books of Conveyances kept in the Office of the Administrator and Registrar General, Roxy Building, Walpole Street, Freetown, is exhibited at pages 30 to 36 of the Records On file is a Defence and Counter-Claim dated the 26" day of March 2007 filed for and on behalf of the Respondent as at pages 7 and 9 of the Records praying for:

i Relief from forfeiture of Lease dated the 26” day of July 1996 ... | ii, Damages for breach of Clause 3(a) of the said Lease; | ili, Enforcement of the terms of the Memorandum made on or about the 16” day of April 1996 between the Plaintiff and the Defendant; iv. Further or other relief; ve Costs. The Records at page 10 shows the Appellant's Reply and Defence to the Respondent's Counter-Claim hereinbefore referred to. A Judgment by the Learned Trial Judge was delivered } on the 28" day of May 2009 which said judgment as contained at pages 104 through 128 of the Records, ordered as follows: i. That the action by the Plaintiff against the Defendant for possession of the premises situate at No. 18 Campbell Street, Freetown in the Western Area of the Republic of Sierra Leone (hereinafter referred to as the “Premises”); mesne profit from the date of service of the Writ of Summons herein until possession is delivered up and damages for breach of contract fails ii, The Defendant is granted relief against forfeiture ii, That the action by the Defendant in her Counter-Claim for damages for breach of Covenant for quiet enjoyment must fall iv. That each party must bear its own costs. The Appellant being dissatisfied with the above judgment of the Honourable Mr. Justice Desmond B. Edwards, J as he then was, delivered on the 28" day of May, 2009, appeals on the following grounds: Ground 1 ‘A. That the Learned Trial Judge, having found that the Defendant was in breach of Clause 2(f) of the Lease dated the 26” July 1996 made between the Plaintiff and the Defendant, which was in the following terms:

2. "The Lessee for herself and her assigns and to the intent that he obligations may Continue throughout the term hereby created covenants with the Lessor as follows: (f) Not to assign or underlet or otherwise part with possession of the said premises or ‘any part thereof without the prior consent in writing of the Lessor (such consent not to bbe unreasonably withheld)”. | erred in law in granting the Defendant relief from forfeiture. PARTICULARS (a) Subsection (6) of Section 14 of the Conveyancing and Law of Property Act, 1881, expressly ousted the Court's jurisdiction to grant relief from forfeiture in cases, inter alia, where there was a covenant or condition against assigning, under letting or parting with possession of the land leased; (b) That the Learned Trial Judge failed to take into consideration that neither Lord Justice Lopes nor Lord Justice Kay (who together constituted the majority of the Court

of Appeal) in the case of Barrow vs. Isaacs & Son (1881) 1.0.8 417, held that the courts had jurisdiction to grant relief from forfeiture in cases relating to breaches of the covenant against assigning, subletting or parting with possession. {tis not in dispute that there was a Lease Agreement between the parties. Itis also not in dispute that the Respondent was in breach of Clause 2(f) above referred of the Lease ‘Agreement to which there has been no appeal. This position is confirmed by the Respondent's testimony on oath at page 84 of the records where she said at lines 11 and 12 that “I did not have the written consent to sublet”. This position is also supported at page 114 paragraphs {9-15 of the judgment delivered on the 28" day of May 2009 by the Learned Trial Judge's, ‘which reads in part: | The effect here is that the defendant did not seek consent as was required by clause 2) of | Exhibit A... The consent to subject not having been sought prior to the subletting of 18 Campbell Street to Messrs PREM in March 2006, this was clearly a breach of the Lease Agreement and this court could not begrudge the plaintiff... | shall deal with the issue of the Respondent's breach of Section 2(f) of the Lease Agreement inline with the claim for damages prayed for by the Plaintiff in paragraph 3 of the Plaintiff's | ‘Statement of Claim in the Writ of Summons which commenced this action. ‘At page 8 of the records, the Respondent counter-claims against the Appellant for relief from forfeiture of the Lease Agreement hereinbefore referred to on the basis stipulated in paragraph 4(:-v) of the Respondent's Defence as at page 7 of the Records including her having parent for 15 yeas commence 15 ul 198hovng BORG compels tormae tote payments; having spent money to renovate the property and her having taken steps to remedy the breach complained of. The question then is whether or not the Respondent was entitled to relief from forfeiture upon breach of Section 2(f) of the said Lease Agreement. Section 3() of the Lease Agreement provides that If. there shall be any breach of any of the foregoing covenants on the part of the Lessee then or in any such case the Lessor may (without prejudice to any right in respect of any ‘antecedent breach of covenant by the Lessee) re-enter upon the said premises and determine the lease. Section 141) of the Conveyancing and Law of Property Act, 1881 provides: Aight of re-entry or forfeiture under any proviso or stipulation in a lease, for a breach of any of the covenant or condition ina lease, shall not be enforceable, by action, or otherwise, unless ‘and until the Lessor serves on the Lessee a notice specifying the particular breach complained of, and ifthe breach is copable of remedy, requiring the Lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach, and the lessee fails, within a reasonable time thereafter, to remedy the breach, ifit is capable of remedy and ‘to make reasonable compensation in money to the satisfaction of the lessor for the breach.

‘The above provision states the conditions for bringing an action for forfeiture. Section 14(2) confers a right upon the Defendant/tenant to apply for relief from forfeiture either in the ‘action brought by the plaintiff or in a separate action which the Respondent herein did under paragraph 4 of her Defence on grounds stipulated thereunder. Counsel for the Appellant refers to page 98 of the records and submits that the Respondent has no right to relief against forfeiture under law because of the provisions of Section 14(6). He argues that Section 14(2) of the Conveyancing and Law of Property Act, 1881 is inapplicable in the present case. | Counsel forthe Appellant refers to the case of Borrow v Isaacs 1884 1 QB 417 which he told the Court was cited in support of the contention that relief for forfeiture could be granted ‘under equity where there is @ mistake. He submits that there is nothing set out in paragraph 4(i-) of the Respondent's Defence hereinbefore referred to, which could be described as a mistake under equity. Section 14(6)() of the Conveyancing and Law of Property Act 1881 provides: This section does not extend- To a covenant or condition against the assigning, under-letting, parting with the possession or disposing with the land leased; .. Counsel for the Respondent argues and submits that Section 14(6)(i) (I believe Counsel meant Section 14(6)(i) of the Conveyancing and Law of Property Act, 1881 does not oust the jurisdiction of the Court in granting relief against forfeiture. Counsel argues that the Section rather removes the requirements placed on the Lessor in Section 14(1) of the Act, 50, ‘according to Counsel, the privilege granted to a Lessee under Section 14(1) does not apply if the Lessee is in breach of one of the covenants stipulated in Section 14(6)i) including subletting as in the instant case. ‘My understanding of Section 14(1) is that it goes to the issue of eligibility or qualification to bring an action pursuant to which the right of re-entry or forfeiture can be enforced. It creates pre-conditions that must first be fulfilled before the Lessor is eligible to or qualified to bring ‘an action in court for the enforcement of the right of re-entry or forfeiture. This simply means that no such action can be entertained by a Court of law ifthe Lessor has not already satisfied the pre-conditions contained in Section 14(1) of the Conveyancing and Law of Property Act,

In my view, Section 14(6)(i) merely makes the Lessor eligible to directly bring an action in Court for the right to re-entry or forfeiture without first having to satisfy the pre-conditions contained in Section 14(1). Section 14(6)(1) does not automatically guarantee that the Lessor’s action will be successful which is what the trial at the High Court was meant to determine. Section 14(6)(i) merely avails a Lessor of a direct opportunity to bring his case against a Lessee. It merely puts a Lessee in the position of a normal litigant or Plaintiff who ‘an file a claim in Court without having to satisfy any pre-condition. it does not oust the jurisdiction of the Court, expressly or otherwise, to grant relief from forfeiture in cases where there was a covenant against assigning or underletting, as the matter, once filed in Court is

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