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Land. - Leasehold
agreement. - Non-payment of
rent - Recovery of possession of
or ejectment - Whether or not
defendant had by his action
denied the landlords title and
had made his lease liable for
forfeiture - Whether the
defendant and his late brother
have committed a breach of their
fundamental obligation as
tenants - Whether or not
decision given High Court was
without jurisdiction.
HEADNOTES
The defendants, entered into an
agreement with the
plaintiff/respondents, plaintiff
in respect of a plot of land.
They and a third person Fisal
Danawi also entered into a lease
agreement in respect of an
adjoining land this time with
one E.C. Quist-Therson. They
developed the two plots into
commercial premises from where
they conducted their business.
Sometime later, Osu Alata Mantse,
brought an action against them
in respect of the land granted
by Quist Therson claiming that
the land formed part of Osu
Alata stool. The High Court,
declared title in respect of the
other plot of land in the Osu
Alata Mantse making him the new
landlord of the defendants in
respect of the adjoining plot of
land. On 21/April/1992, claiming
that the defendants were in
arrears of rent from 1982, the
plaintiff wrote a letter to the
defendants reminding them of the
arrears of rent The letter
carried speculation that the
defendants’ failure to pay rent
was due to an opinion the
defendants had formed that the
plaintiff was no longer their
landlord by virtue of the
judgment of the High Court The
letter that started with a
reminder of nonpayment of rent
ended as a notice to quit, not
for arrears of rent but on the
grounds of denial of title In
reply the defendant counsel
wrote denying that there was an
arrears of rent for that length
of time saying the
receiptsshowed that rent had
been paid leaving arrears of
rent of only about 4 months. and
until the appeal is disposed of
it will be unwise for my clients
to pay rent and ended it with
Three days later, i.e. on
27/4/92 the counsel again wrote
another letter repeating the
fact of having paid rent up to
1991 and concluded as follows
“Be that as it may, I enclose
herewith cheque in the sum of
¢12,000 cedis being 10 years
ground rent from 1992 to 2002 at
¢1,200 per annum as per the
terms of the leasehold
agreement. Please acknowledge
receipt.” plaintiff’s counsel
again wrote a letter emphasising
that the defendant had by his
action denied the landlords
title and had made his lease
liable for forfeiture. And that
the cheque that had been put in
to entice him to abandon his
legal right to forfeit the
lease, had been spurned by his
refusal to cash the cheque which
was being duly returned.the High
Court held that the defendant
had indeed denied the title of
his landlord and had accordingly
made his lease liable for
forfeiture. The defendant
appealed to the Court of Appeal
on the merits of the case and
also on the grounds that the new
trial judge had not formally
adopted the proceedings and
therefore his decision was given
without jurisdiction.
HELD :-
It is this court’s holding
therefore that, even though the
plaintiff’s letter of 24th
April 1992 constituted a denial
of the plaintiff’s title to the
property, it only served to
expose them to a liability of
forfeiture. However, the events
thereafter show that the
plaintiff waived his right to
forfeit the lease, with the
result that, when the plaintiff
issued his writ in 1994, the
cause of action no longer
existed. We uphold the
defendants’ appeal and set aside
the judgment of the High court.
STATUTES REFERRED TO IN JUDGMENT
Evidence decree
1975 (NRCD 323).
Conveyancing Decree 1975,
CASES REFERRED TO IN JUDGMENT
Awudome (Tsito)
stool v Peki Stool [2009] SCGLR
681
Adomako Anane v. Nana
Owusu Aghemang (subst. by Nana
Banahene) and 7ors (unreported)
dated 26th Feb 2014,
Civil Appeal No. J4/42/2013.
Antie & Adjuwuah v Ogbo
2005-2006 SCGLR 49
Warner v Sampson 1959 QBD
297
Western Hardwood
Enterprise Ltd and Another v
West African Enterprise Ltd
[1997-98] 1GLR 645
Central Estates
(Belgravia) Ltd v Woolgar [1972]
1 WLR 1048.
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of
England, Lexis Nexis,
Butterworths, 4th Edition, 2006
Vol. 39 paragraph 596 headed
“Extinction of Title
Ghana Law of Landlord and
Tenant by Kludze
Ghana Land Law and
Conveyancing 2nd ed
DELIVERING THE LEADING JUDGMENT
BAFFOE-BONNIE JSC:-
COUNSEL
E. K. AMUA SEKYI ESQ. WITH HIM
CYNTHIA OPARE ESQ. FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JAMES AHENKORAH ESQ. FOR THE
PLAINTIFF/RESPONDENT RESPONDENT
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JUDGMENT
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BAFFOE-BONNIE JSC:-
On 17/1/77 the
defendants/appellants, The
Danawis, hereinafter defendants,
entered into an agreement with
the plaintiff/respondents,
Emmanuel Charles Quist,
hereinafter plaintiff in respect
of a plot of land. They and a
third person Fisal Danawi also
entered into a lease agreement
in respect of an adjoining land
this time with one E.C.
Quist-Therson. They developed
the two plots into commercial
premises from where they
conducted their business.
Sometime later Nii Kwabena
Bonnie, Osu Alata Mantse,
brought an action against them
in respect of the land granted
by Quist Therson claiming that
the land formed part of Osu
Alata stool. The High Court,
coram, Osei Hwere J (as he then
was), declared title in respect
of the other plot of land in the
Osu Alata Mantse making Nii
Kwabena Bonne the new landlord
of the defendants in respect of
the adjoining plot of land.
I wish here to reiterate that
the original lessors in the
original transactions were
Charles Quist (the plaintiff
herein) and QUIST THERSON in
respect of the other plot of
land.
On 21/April/1992, claiming that
the defendants were in arrears
of rent from 1982, the plaintiff
wrote a letter to the defendants
reminding them of the arrears of
rent. But this letter was no
ordinary reminder of non-payment
of rent. The letter carried in
its belly a speculation that the
defendants’ failure to pay rent
was due to an opinion the
defendants had formed that the
plaintiff was no longer their
landlord by virtue of the
judgment of Osei Hwere J (as he
then was), in respect of the
other plot. He then continued
”if that
is correct then you are in
breach of a fundamental
obligation on your part as
lessees, namely, the obligation
to respect and not to dispute,
challenge or throw any doubt on
your landlord’s title to the
property leased or let out to
you. By so doing you have in law
rendered the lease liable to
forfeiture
and my client hereby gives
you formal notice that he has
forfeited the lease…..”
So the letter that set out to
remind the respondent of his
rent arrears went on to
speculate on a reason for the
non-payment of rent and
concluded that based on that
reason the defendant had denied
the landlord’s title and thereby
rendered her lease liable to
forfeiture! The letter that
started with a reminder of
nonpayment of rent ended as a
notice to quit, not for arrears
of rent but on the grounds of
denial of title
In reply the defendant counsel
wrote on the 24th of
April 1992 denying that there
was an arrears of rent for that
length of time saying the
receipts, (which he enclosed)
showed that rent had been paid
up to December 1991 leaving
arrears of rent of only about 4
months. He however concluded
that based on the judgment of
Osei Hwere J
“you will agree with me that
until the appeal is disposed of
it will be unwise for my clients
to pay rent to your client since
the judgment of Osei Hwere J is
to the effect that the land
belongs to the Osu Alata Stool
and not your client.’
Three days later, i.e. on
27/4/92 the counsel again wrote
another letter repeating the
fact of having paid rent up to
1991 and concluded as follows
“Be that as it may, I enclose
herewith cheque in the sum of
¢12,000 cedis being 10 years
ground rent from 1992 to 2002 at
¢1,200 per annum as per the
terms of the leasehold
agreement. Please acknowledge
receipt.”
Ten months after this 2nd
letter plaintiff’s counsel again
wrote a letter on the 02/02/93
emphasising that the defendant
had by his action denied the
landlords title and had made his
lease liable for forfeiture. And
that the cheque that had been
put in to entice him to abandon
his legal right to forfeit the
lease, had been spurned by his
refusal to cash the cheque which
was being duly returned.
There is evidence that Mr. E.D
Kom, counsel for the defendant
at the time, subsequently
pleaded with plaintiff’s counsel
that the first letter ostensibly
denying the plaintiffs title to
the property was his fault and
not that of his client. The
plaintiff refused to be swayed
by Kom’s intervention and he
brought an action at the High
Court claiming as follows:
‘…recovery of possession of or
ejectment from all that the
piece or parcel of land … by
reason of the fact that the said
lease or demise has become
forefeited by the denial or
disclaimer of plaintiff’s title
to the said property’
At the end of pleadings the
following issues were set down
for trial;
1)
Whether the defendant and his
late brother have committed a
breach of their fundamental
obligation as tenants to respect
their landlord’s title in
respect of the property leased
by them from the plaintiff.
2)
Whether the second letter from
the lawyer for the defendant and
his late brother seeking to
recant the contents of the
earlier letter of that lawyer
has any legal significance on
the plaintiff’s right to forfeit
the lease
3)
Whether equity grants relief to
a tenant against forfeiture of
this lease for denying his
landlord’s title
4)
Any other issues raised by the
pleadings
Before judgment could be given
by the trial judge, he passed
on. A new judge Bright Mensah
J, adopted the proceedings and
delivered judgment. He held that
the defendant had indeed denied
the title of his landlord and
had accordingly made his lease
liable for forfeiture.
The defendant appealed to the
Court of Appeal on the merits of
the case and also on the grounds
that the new trial judge had not
formally adopted the proceedings
and therefore his decision was
given without jurisdiction. The
Court Of Appeal upheld the
appeal on jurisdictional grounds
and did not go into the merits
of the case. Relying on the case
of Awudome (Tsito) stool v
Peki Stool [2009] SCGLR 681,
the court held that failure to
formally adopt the proceedings
taken before the earlier judge
who had died, meant the new
judge was not clothed with
jurisdiction to continue with
the suit, let alone deliver a
judgment based upon the already
taken proceedings.
On appeal to this court, this
court unanimously ruled that the
Awudome case had ceased to be
good law since it was departed
from in the case of
Adomako Anane v.
Nana Owusu Aghemang (subst. by
Nana Banahene) and 7ors
(unreported) dated 26th
Feb 2014, Civil Appeal No.
J4/42/2013. Coram Wood CJ, Ansah
, Anin—Yeboah, Baffoe-Bonnie and
Akamba JJSC..
This court then ruled that
parties should address the court
again on the merits of the
appeal. So essentially, the
appeal before us is from the
decision of Bright Mensah J.
The grounds of appeal are as
follows;
a)
The trial judge failed to
consider the fact that at the
time of the institution of the
action, the plaintiff did not
have any cause of action
b)
The trial judge failed to
adequately consider the legal
position of denial of title of
landlord by tenant
c)
The trial judge failed to
adequately consider that the
plaintiff himself acknowledged
the fact that the then lawyer of
the appellant had communicated
that the letter he had written
was a mistake which he (the
lawyer) solely accepted
responsibility for.
In the case of Antie &
Adjuwuah v Ogbo 2005-2006 SCGLR
49 this court per
Georgina Wood JSC (as she then
was), said as follows;
“The Common Law rule as to
forfeiture by a licensee or
tenant who challenges the title
of his licensor or landlord has
received statutory recognition
under sections 27 and 28 of the
Evidence decree 1975 (NRCD
323). The law is that a
licensee or tenant who denies
the title of his licensor or
landlord, either by claiming
that title to the subject matter
is vested in himself or herself
or someone else forfeits his or
her interest. In view of the
plaintiff’s direct challenge to
the defendant’s lawful claim to
ownership, he has forfeited his
right to remain in the
premises.”
The questions we asked ourselves
were, in the case before us what
was the act of denial and when
did it take place?
The plaintiff insists, and it
was found by the court, that the
defendant denied the landlord’s
title per the letter of 24th
April 1982. This is what the
judge said;
“To begin with I do hold that
from the available evidence, it
is not difficult to find that
the defendant and his late
brother (during his lifetime)
did deny the plaintiff’s title
to the land the subject matter
of this action.
I do not
think that the defendant
discharged that burden of
presumed fact that it was he and
his brother who gave
instructions to Lawyer Kom to
write those letters on their
behalf and I so hold”
So the trial judge found as a
fact that the defendants’ denial
of their landlord’s title was
contained in their letter of 24th
April and not earlier.
But was there a denial of the
landlord’s title?
Counsel for the defendants had
argued before the high court and
repeated before us that the
actions of the defendants
following their first letter to
the plaintiff, that is, the
second letter, and the payment
of 10 years rent advance, and
counsel’s personal apology,
cannot be separated from the
effect of the initial letter. A
denial of title must be
unequivocal or unambiguous in
its tone and form. It cannot be
conclusively construed that the
act of denying title and
recanting same 3 days later,
especially where no action had
been taken by the defendant in
the interim, is being
unequivocal. Further, counsel
who wrote that letter had
accepted personal responsibility
for the mix up even though the
body of the letter was preceded
by the statement that the letter
was being written on the
instructions of the defendants.
These submissions didn’t find
favour with the high court and
do not find favour with us. In
the case of Warner v
Sampson 1959 QBD 297,
the court held that a party was
bound by the pleading of his
counsel. In that case plaintiff
had issued his writ and in the
statement of claim had made some
averments as to his title which
was a derivative one and
specified the breaches. The 2nd
defendant’s statement of defence
signed by defence counsel, made
some admissions but specifically
denied the breaches. Then in
paragraph 3 of the statement he
made a general traverse as
follows;
“Save and
except for the admission herein
contained this defendant denies
each and every allegation in the
statement of claim as if the
same were specifically set out
and traversed seriatim.”
The landlord immediately
delivered a reply alleging that
by that defence the 2nd
defendant had denied his tittle.
The trial court held that the 1st
defendant’s statement of defence
and an amended statement of
defence, both of which were
filed subsequent to the reply
and in which the title of the
plaintiff had been accepted,
were incapable of curing the
denial. Counsel’s further
submission that a general
traverse in a statement of
defence should be construed as
technical and therefore an act
of counsel, was also not
accepted. Even though this
decision was overturned on
appeal, it was on different
grounds and for different
reasons and not that 2nd
defendant had not denied
plaintiffs title by his
pleading.
In the case before us the letter
of 21st was sent not
to counsel, but the parties
personally. So when counsel said
“your letter of such date has
been referred to me with
instructions to reply same,”
counsel could only be said to be
doing the bidding of his client
and the clients are bound by the
contents. We also believe that
the denial was unequivocal. The
decision of the High Court on
this issue is borne out by the
evidence and we refuse to
disturb same.
Defendant has submitted that
granted that their letter
amounted to denial of the
landlord’s title, the plaintiff
waived his rights with the
result that as at the time the
suit was instituted, the cause
of action no longer existed.
Did the plaintiff have a cause
of action at the time of the
institution of the action, as
found by the trial judge?
Flowing from the trial judge’s
finding that the defendants had
denied their landlord’s title
the plaintiff’s counsel has
submitted that’
“….The
offence of denying the
landlord’s title had been
committed and the lease
forfeited simultaneously by
operation of law”
This is not the position of the
law. Even though we have held
that the letter indeed amounted
to a denial, what it meant was
that the defendants made
themselves liable to forfeit
their lease. The lease merely
becomes liable to forfeiture
until the landlord elects to
enforce his right or waives it.
The fact that the tenant has
incurred a forfeiture does not
necessarily mean an end to the
lease. The landlord merely has
the right to terminate the lease
when a forfeiture has been
incurred; but he is not obliged
to exercise the right. If the
landlord wishes to exercise the
right, he must do so by some
positive and unequivocal step to
re-enter.
In
Halsbury’s Laws of England,
Lexis Nexis, Butterworths, 4th
Edition, 2006 Vol. 39 paragraph
596 headed “Extinction of Title”, it was
stated as follows,
‘Forfeiture. An estate in
land may be forfeited for breach
of condition and for denying the
title of the lord under whom the
land is held. An estate created
upon condition can be defeated
by re-entry for breach of the
condition.
Denial of the lord’s title might
under the feudal system be a
cause of forfeiture, and it may
still be a ground of forfeiture
as between landlord and tenant.
In each of the previous cases
the estate remains vested in the
original owner until the right
of entry is exercised, and the
person entitled to the right of
entry has an option whether or
not to exercise it.’
In the
case of Western Hardwood
Enterprise Ltd and Another v
West African Enterprise Ltd
[1997-98] 1GLR 645,
Amuah JSC quoted the learned
author Kludze in his book Ghana
Law of Landlord and Tenant,
saying,
‘ … Although the right of
forfeiture may be automatic,
forfeiture itself is not
automatic and the landlord may
elect not to enforce his right
of forfeiture. Even though as a
general statement it is said
that a breach of a condition
terminates the lease, it is only
true to the extent that the
lease is liable to be forfeited.
Therefore when a right of
forfeiture accrues, whether as a
result of a breach of condition
or a covenant, the effect truly
is that it renders the lease
voidable at the instance of the
landlord, the lease does not,
thereby become automatically
void…’
But what actions were taken by
the plaintiff subsequent to this
denial to invoke this
forfeiture? Since the plaintiff
claims, and the court so found,
that it was defendants letter of
24th April, 1992 that
carried the defendant’s denial
of his landlord’s title, what it
means is that any notice or
action to terminate the tenancy
on account of the denial should
post date the 24th
April 1992. This also means
that plaintiff’s letter of 21st
April which actually speculated
that defendant was denying his
title, could not be notice to
terminate the tenancy for denial
of title. From the evidence on
record the plaintiff did
nothing, absolutely nothing!
The plaintiff’s very first
positive act after the 24th
of April 1992, was to send a
letter 10 months later, Feb 1993
in which said letter he claimed
he had stopped recognising the
defendant as his tenant. Then 14
months later, on 20th
April 1994, he issued his writ.
From the defendants’ side
however, after the apparent
gaffe on the 24th of
April, they wrote a letter
impliedly recanting the alleged
denial of the landlord’s tenancy
on 27/4/92. In that letter they
had enclosed a cheque to cover
rent for the next ten years.
There is also evidence that the
defendants’ counsel had met the
plaintiff’s counsel and had
personally apologized and taken
responsibility for the mix-up.
The plaintiff had accepted the
cheque which defendant had sent
to him through his counsel. He
had kept the cheque for ten
months but, unknown to the
defendants, he said he had not
cashed it because he had not
intended to forfeit his right to
terminate the agreement.
The plaintiff finally issued his
writ on 20th of April
1994 just 4 days short of 2
years to the day when the
alleged denial took place.
In his statement of claim filed
on 20th April 1994,
he had claimed in paragraphs 5
and 6 as follows’
5.“By the
written statement made through
their lawyer that the Osu Alata
Stool is the owner of the
property leased to them by the
plaintiff the defendant and his
late brother did disclaim, deny
or otherwise repudiate their
landlord’s title and
automatically and instantly
forfeited their lease and became
liable to be ejected from the
said property.
6. The
plaintiff says that he has since
then not waived the forfeiture
as he had refused to accept
overtures by the defendant and
his late brother to appease him
by tendering a cheque purporting
to pay rent of 12,000 cedis from
1992 to the year 2002 in respect
of their occupation of the
property.”
The paragraph 6 was put in
ostensibly to preempt any claim
by the defendants that plaintiff
had waived his right to forfeit
the lease. But the facts on the
ground show clearly that by his
action and inaction he had
indeed waived any right that he
might have had.
First, there is nothing on
record to show as his reaction
to the letter of 24th
April 1992 which carried this so
called denial of his title. Then
he accepted a cheque for the
payment of 10 years rent in
advance. He kept this cheque for
9 months!
Per section 26 of the
Conveyancing Decree 1975,
the holding on to the cheque for
that length of time is enough to
impute acceptance to his
conduct. Thus the plaintiff is
estopped from claiming that he
did not accept the cheque.
Section 26 reads;
“Except
otherwise provided by law,
including a rule of equity, when
a party has by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest”
The plaintiff had collected the
cheque for future rent and kept
same for 9 months. Keeping the
instrument for such a length of
time is sufficient to cause a
presumption on the part of the
defendants that the cheque has
been duly accepted.
Finally, the plaintiff did not
take any action until almost 2
years after the offending letter
had been written.
These actions and inaction on
the part of the plaintiff
constituted a complete waiver of
his right to forfeit the
defendant’s agreement.
Writing on the subject of waiver
in their book Ghana Land
Law and Conveyancing 2nd
ed page 73, the learned
authors said,
“The right to forfeit a lease
when it has terminated at common
law is vested in the lessor
alone. A lessor may decide to
waive this right if he chooses.
A waiver may be express or
implied. A waiver will be
implied where the lessor is
aware of an act or omission of
the lessee entitling the lessor
to forfeit the lease, but he
nonetheless does some
unequivocal act which shows that
he recognizes the continued
existence of the lease: for
example, where the lessor with
full knowledge of the breach
demands or sues for rent.
Acceptance of money as rent is
treated in law as conclusive
evidence of waiver against a
lessor and a lessor who accepts
money as rent will not be
allowed to deny that he has
waived the right of forfeiture”.
Also see the English case of
Central Estates (Belgravia)
Ltd v Woolgar [1972] 1 WLR 1048.
It is this court’s holding
therefore that, even though the
plaintiff’s letter of 24th
April 1992 constituted a denial
of the plaintiff’s title to the
property, it only served to
expose them to a liability of
forfeiture. However, the events
thereafter show that the
plaintiff waived his right to
forfeit the lease, with the
result that, when the plaintiff
issued his writ in 1994, the
cause of action no longer
existed.
We uphold the defendants’ appeal
and set aside the judgment of
the High court.
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) G. T. WOOD
(MRS)
CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M.
DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
E. K. AMUA SEKYI ESQ. WITH HIM
CYNTHIA OPARE ESQ. FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JAMES AHENKORAH ESQ. FOR THE
PLAINTIFF/RESPONDENT RESPONDENT
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