BOSTON AND ANOTHER vs. KHEMLAND BROTHERS AND OTHERS [1964]DLSC1883

Date	1964-05-04
Suit No.
Citation No.	[1964]DLSC1883

SARKODEE-ADOO C.J

ACOLATSE JSC

APALOO J.S.C.

BAIDOO FOR THE APPELLANTS.

H. V. A. FRANKLIN FOR THE RESPONDENTS.

[1964]DLSC1883
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													<main id="main" class="content" style="min-height: 60rem" >BOSTON AND ANOTHER <o:p></o:p>vs. <o:p></o:p>KHEMLAND BROTHERS AND OTHERS <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 277<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
4 MAY 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BAIDOO FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., ACOLATSE AND APALOO
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>Apaloo
J.S.C. delivered the judgment of the court. The facts of the case are, in the
main, not in dispute and can be stated briefly. The appellants (who I shall
hereafter call the plaintiffs) are the customary successor and head of the
family respectively, of the late Thomas Edward Kwofie. On 5 May 1934, the
government granted to the late Kwofie, a lease of a plot of land numbered as
101 and said to be situate at Prince of Wales Road, Takoradi, for a term of 99
years. It would seem that the object of the lease was to enable Mr. Kwofie to
erect a building. He covenanted with the government in the said lease to erect
and complete on the said plot a proper and substantial building within a period
of three years from the date of the lease.<o:p></o:p><o:p>&nbsp;</o:p>It appears
that Mr. Kwofie was himself not in funds to erect a building and he therefore
sought and obtained the consent of the government to subdemise the plot to
Madam Madge Evans since deceased. Accordingly, on 29 September 1945, the late
Kwofie by deed, granted to the said Madge Evans, a sub-lease of the
aforementioned plot for a period of eighteen years certain, with an option for
renewal for a further period of ten years. The plaintiffs tendered that
sub-lease in evidence and it was admitted (exhibit Q). The evidence shows that
Madam Madge Evans erected a building on the said plot and had, on a date which
the evidence does not disclose, sublet parts of the building to the first,
second and third respondents. The late Kwofie died on 1 February 1958, and
Madge Evans died in London on 26 June 1959, and left a will in which she
appointed Edward Randolph Wiltshere (then of Sekondi) and Thomas John Lawrance
Evans (the widower) as executors.<o:p></o:p>The
plaintiffs claimed that the sub-lessee committed breaches of covenants which
entitled them to forfeit the lease and to re-enter the demised premises. The
covenants which the plaintiffs claimed were broken are set out in paragraph 3
of the statement of claim and were sub-numbered (1)-(4). The first, second and
third respondents, who are the sub-underlessees in possession, filed a
statement of defence in which they denied any knowledge of the said covenants
of their breach and disputed the plaintiffs’ right to eject them. On their own
application, the executors were joined to the suit as co-defendants. Upon being
joined, they lodged a statement of defence, in which, inter alia, they
contended that no breaches of covenant had been committed by the late Madam
Madge Evans and prayed in the alternative, that if any such breaches had occurred,
they be relieved against forfeiture. The long drawn out battle that was fought
in this case was actually fought between the plaintiffs and the co-defendants.<o:p></o:p><o:p>&nbsp;</o:p>In what
strikes me as a careful and well considered judgment, the learned trial judge
held that the co-defendants had committed a breach of the covenant to pay rent
and on one occasion of the covenant to pay rates. He reviewed the law relating
to the equitable relief against forfeiture and after considering a number of
decided cases, held that he had an inherent jurisdiction to relieve against
forfeiture. Having considered the conduct of the parties and the circumstances
surrounding the breach of these covenants, he felt it right to relieve the
co-defendants against forfeiture and proceeded to make an order to that effect.
Obviously to restore the parties to their original position, the learned judge
ordered the co-defendants to reimburse the first plaintiff such sums as he paid
in respect of rent and rate with interest at the rate of ten per cent. per
annum from the date of such payments. Although it was wholly unnecessary, the
court also declared the sub-lease to be valid and subsisting. In order to prove
a breach of one of the covenants, namely, failure to render accounts of the
rents collected from tenants in the demised premises, the plaintiffs sought to
tender in addition to the executed sub-lease (exhibit Q), a copy of what was
claimed to be the draft from which the sub-lease (exhibit Q) was engrossed.
This was objected to and rejected on the ground that it was not signed by
either of the parties and was accordingly not binding on their successors. The
plaintiffs, feeling aggrieved at the rejection of that document and at the
order granting relief against forfeiture, appealed to this court on six
grounds.<o:p></o:p><o:p>&nbsp;</o:p>When
hearing of this appeal commenced before us on 11 March last, counsel for the
plaintiffs combined and argued together what appears in the notice of appeal as
grounds (iv) and (v). These grounds respectively read as follows:<o:p></o:p>