Kershope T.C Macfoy Through his Attorney Terrence E.E Macfoy v. Hamid (CC 618/07 2007 M NO.37)  SLHC 23 (25 April 2007);
SIERRA LEONE No. CC 618/07 2007 M NO.37
IN THE HIGH COURT OF SIERRA LEONE
CIVIL JURISDICTION BETWEEN: -
MR. KERSHOPE T.C MACFOY - PLAINTIFF
THROUGH HIS ATTORNEY TERRENCE E.E. MACFOY 8 ADELAIDE STREET FREETOWN
ABDUL HAMED - DEFENDANT
5 HILLCOT ROAD
SUSAN G. SISAY - For the Plaintiff
BASITA MICHAEL - For the Defendant
JUDGMENT DELIVERED THIS 25th DAY OF APRIL 2007.
The plaintiff's claim against the defendant is for the following:
1. Forfeiture of tenancy for breach of covenant and recovery of possession
2. Mesne profit from the date of the order for forfeiture and recovery of possession to the date of delivery of the premises:
3. Further or in the alternative payment of arrears of rent in the sum of US$21,500.00 or its equivalent in Leones:
5. interest on above
The main question to be determined in this case is whether there was an agreement for a revised rent. According to exhibit C, rent for the first two years was fixed at US$8,000.00 but that for the 3rd 4th and 5th years had to be negotiated and agreed with the increase not to be more than 25% of the previous year's rent .The full text of the said clause as gleaned from clause 1 of the Lease Agreement is as follows:
i) FIRSTLY the rent of US$8.000.00 Per Annum for the first two years of the term hereby granted .
ii) SECONDLY , the rents for the third . fourth and fifth years of the term hereby granted shall be negotiated and agreed upon by the parties hereinbefore the commencement of each year and any increase shall not be more than 25% of the rent ending each year, the sum of US$8,000.00 being the rent for the first year of the term hereby granted having been paid by the tenant to the landlord on or before the execution of these presents (the receipt where of the Land lord hereby acknowledges)
iii) the rent specified herein shall be payable in Leones at the prevailing rate of exchange on_the date each payment is made .
According to the plaintiff he did negotiate an increase in the rent and an agreement was reached between himself and the defendant for the increase in rent at 25 ° of the previous rent which was US$8,000.00 for the first and second year of the lease term. The defendant however claims that this was never done maintaining that the increased rent was done unilaterally and /or arbitrarily. By reason of the foregoing, which clearly came out from both pleadings, it thus becomes necessary and within the purview of this court to determine whether this was in fact the case i.e. whether the rent for the year 2006-2007 and 2007 to 2008 was negotiated and agreed between the parties and whether in fact this agreement was for a 25% increase. He who asserts must prove. The plaintiff clearly maintains that the rent was negotiated and agreed and the agreement was a 25% increase up, of the 2nd year's rent, which was US$8,000. This he was required to prove to this court. The defendant on the other hand, in answer to this, avers that the increased rent was fixed unilateral and arbitrarily. Being an averment and not a mere denial he was required to prove this before this court
For the plaintiff the facts of the case on which the issues as to whether an increased rent was actually agreed between the parties could be gleaned from the testimony of PW1 when he stated in examination in chief as follows:
After the 2nd year, I negotiated rent with the defendant This was around April May 2005 at the leased premises. I went to this premises and also to negotiate the rent that should be paid in the 3rd year. We sat at the veranda and I told him my proposal to increase the rent by 25% based on the fact that the rent had not been increased for the last 2 years. I tried to show him the rationale for an increase. The defendant's reaction was that of acceptance of it. He acted in such a way as to show that he accepted the increase. He said, Mr. Macfoy you owned this house if this is what you have decided it was alright with me ........................................./ came to Sierra Leone in December 2005 and January 2006 I went to the premises to inspect it. Mr. Ahmed said to me that I should not have written him exhibit A. He said he has given me his word, his word was his word and there was no need for it to be in writing. He never objected to the increase in rent In 2006 when I visited him to inspect the premises i was with Miss Nora O Thomas The defendant's testimony on this issue is that:
"I do recall May 2005 Mr. Kershope Macfoy called me on the phone and told me that the rent for the year 2006-2007 will be increased by 25% of which I had just paid the rent for 2005-2006. I did receive a letter dated 24"' December 2005 exhibit A. I do not agree with the reason for the increase as stated in that letter. I never discussed an increase as stated in that letter. I had never discussed an increase as stated in that letter. On the 12th of May 2006, I called the agent Mr. Terrence Macfoy PW3 to collect the rent for 2006 -2007. Mr. Terrence Macfoy came to my house and I took out US$8,000.and I handed it over to Mr Terrence Macfoy. He counted the money and he said according to his father's instructions
the rent has now been increased to US$10,000. I received a letter dated 17th May exhibitF."
While the above testimony by the defendant do constitute a denial of the facts as put by the plaintiff the same never constituted evidence that did prove the averment that the rent increase was unilateral and or arbitrary.
The rent increase by 25% for the 3rd year from US$ 8,000 to US$10,000 was never unilateral or arbitrary, This is so because 2 things stand out from DW1 's testimony. They are as follows:
Firstly, from the above the defendant confirmed discussions (he received a telephone call) where he was informed that there will be an increase in rent the ensuing year by 25%.
The opinion this court is able to form of this is that noting that all negotiations are bound to start by proposals .Even if it was just a mere proposal and not a conclusive negotiation as the plaintiff would want this court to believe, the defendant was bound to react Reaction comes in one of two ways either in opposing the proposal outright or recommending something not as high as the 25% increase. The defendant is noted for the marked silence in opposing the proposal. According to the plaintiff his reaction was acceptance and this court believes that this was so. In the absence of a reaction opposing the increase or proposing something different, the defendant cannot say the increase was unilateral.
Secondly, from the above testimony of the defendant he did confirm that he received the letter of 24th December 2005 exhibit A. Because the first discussion on the proposed increase in rent by 25% was oral, the plaintiff quite prudently confirmed the negotiations and agreement in writing by letter of 24th December 2005 and worse still this letter made reference to the conversation during which the increase in rent by 25% was settled. Here again, the defendant failed, refused or neglected to react. He did not oppose or
recommend something different. He cannot in such circumstances successfully claim that the increase was unilateral or arbitrary. On the other hand , the plaintiff has maintained that there was a negotiation and an agreement reached as to the increase in rent by 25% and this is supported by cogent evidence.
First we turn to the testimony of the plaintiff who as stated above in his examination in chief stated as follows:
After the 2nd year, I negotiated rent with the defendant This was around April May 2005 at the leased premises. I went to this premises and also to negotiate the rent that should be paid in the 3rd year. We sat at the veranda and I told him my proposal to increase the rent by 25% based on the fact that the rent had not been increased for the last 2 years. I tried to show him the rationale for an increase. The defendant's reaction was that of acceptance of it He acted in such a way as to show that he accepted the increase. He said, Mr. Macfoy you owned this house if this is what you have decided it was alright with me ........................................./ came to Sierra Leone in December
2005 and January 2006 I went to the premises to inspect it. Mr. Ahmed said to me that I should not have written him exhibit A. He said he has given me his word, his word was his word and there was no need for it to be in writing. He never objected to the increase in rent In 2006 when I visited him to inspect the premises i was with Miss Nora O Thomas"
The plaintiff was saying that after discussions with the defendant, the defendant acted in a manner which led him to believe they had an agreement and this was further buttressed by the defendant who on a later date during an inspection of the Leased premises in the presence of Nora Thomas PW2 told him that there was no need for him to have written exhibit A as they had an agreement prior to this.
Exhibit A is a letter confirming an agreement for an increase in rent by 25%. As stated earlier, the defendant did receive it but never challenged it. The said discussions were this
increase was first mooted were held almost a year to the date the increase was actually due. All through out this period, the defendant never refuted or challenged it, until the new increased rent was actually due and this was after a demand had been made of the new rent by the plaintiff's solicitor through exhibit F. Prior to this, when the inspection was being conducted in January 2006, the defendant had an opportunity to challenge or refute it, but he did not do so, rather he was supposedly not happy with the plaintiff for his writing of exhibit A, when he has given him his word (the fact of his having given him his word shows the agreement was concretized) and his word was his word and there was no need for it to be in writing. This was confirmed by PW2 Miss NORA O. Thomas, who under cross examination, confirmed that she was with the parties the whole time and heard their discussions which included the increased rent and testified that the defendant in fact told the plaintiff that there was no need for exhibit A, as he the defendant, had given his word and his word was his word. She concluded that on leaving the premises, the defendant assured the plaintiff that he would pay the revised rent.
This court notes exhibit B in which the defendant recalls a visit of the premises in early 2006 by the plaintiff together with a lady but in which he opposes the increased rent saying that the same was never negotiated between them. Under cross examination, the plaintiff did say that this was the 1st time he was seeing the letter of 18th May 2006, exhibit B and under re-examination the plaintiff did clarify that rent was due on the 1st of May 2006. The conclusion this court is bound to make of this is that it is not the least suprising that the plaintiff was saying that this is the first time he was seeing same in that that letter was only written after the rent had become legally due and had been demanded based on the oral agreement which was later confirmed by exhibit A and after exhibit F which was the letter from the plaintiff's solicitor demanding the revised rent. It represents the first challenge of the increase in rent by 25% but only after the rent has been due and agreed. It came only when the plaintiff's agent refused rent of US$8,000 which was being offered to him on the 12th of May 2006 i.e after the rent has been due despite the agreement which the plaintiff had been led to believe had been confirmed or concluded.
It is clear from exhibit B that there was a lady when the plaintiff visited the premises early in 2006. From the evidence before this court, it is clear that this lady was PW2 Nora
O Thomas who PW1 also said was present during the visit. PW 2 as stated earlier confirmed that the parties had a prior agreement on the increase in rent . Her evidence however was never challenged under cross examination. The full text of the cross examination for somebody who was present according to the plaintiff and the defendant when the inspection was conducted in early 2006 was simply this;
"I was with the plaintiff and defendant all along on the day in question. We went to the Kitchen as I recall"
The evidence of this witness therefore on the increase in rent is unchallenged and stands unimpeached thereby giving weight to the evidence of PW1 that the rent was negotiated and as to the way and manner in which such negotiation was conducted and an agreement reached as to the 25% increase in the rent . The defendant too under cross examination stated;
"Indeed I had a telephone call from the plaintiff and he told me he was increasing the rent by 25%. He came with a lady friend and discussed rent with me......../ did not write and deny him because we had a discussion. I wouldn 't be surprised to learn that the lady in question told this court that we had discussions as to increase in the rent payable. From 2005 to date I have not paid rent To date I still live in the house 5 Hillcot Road. I do not refute the fact that rent should be increased after 2 years.
I should note that by this testimony of the defendant under corossexamination the defendant is saying that he was not surprised with the evidence of PW2 knowing or unknowingly endorsing the evidence of PW2. He is also saying that he never wrote to deny the increase because they had a discussion on the rent. This to my mind confirmed the discussions in which he said his word was his word thereby confirming the increase in rent by 25% The evidence of PW3 also confirms the increase in rent.
Even without the testimony of the PW2 which has been so crucial in this case this court holds that in view of the first negotiations / discussions as confirmed by the defendant which met with his marked distinct silence in opposing or recommending what should be the increased rent and the said confirmation by exhibit A which again met with another marked distinct silence by the defendants failure refusal or neglect to challenge or refute the increase before the rent actually become due on the 1st of May 2006 when he was required to react if he disapproves the defendant is estopped from denying the increased rent. This court takes support for this pronouncement from HALSBURY'S LAWS OF ENGLAND 3rd EDITION AT PAGE 169 under the rubric "Estoppel by matter in Pais" at paragraph 338 where it is stated:
"Where one has either by words .......................or has so conducted himself that another would as a reasonable man understand, that a certain representation of fact was intended to be acted on and that other has acted on the representation and thereby altered his position to his prejudice an estoppel arises against the party who made the representation and he is not allowed to aver that the fact is otherwise than he represented it to be"
In this particular case the marked or distinct silence of the defendant even if in the absence of PW2 Evidence where he had almost a year to challenge or refute the increased rent before it became due was conduct enough to estop him from saying that rent fixing was unilateral or arbitrary;
In MACLAINE VS GATTY (1921) AG HL 376 AT 386 Lord Birkenhead L C stated the principle thus:
"Where A has by his words or conduct justified B in a believing that a certain state of affairs exists and B has acted upon, the belief to his prejudice A is not permitted to
affirm against B that a different state of facts existed at the same time."
Thus the defendant must be estopped by reason of his marked silence against his interest to challenge or refute the rent led the plaintiff to believe that there was indeed an increase in rent for the ensuing year.
In another context even in the absence of PW2's evidence the defendant himself has proffered the reason for his marked distinct silence by stating under cross examination thus:
"I did not write and deny him because we had a discussion"
What more do I need to confirm that there was an agreement reached for 25% in the rent for the 3rd year of the lease .This perhaps is the final nail to the coffin that indeed rent was increased by 25%
I should hold that against this background and on the balance of probabilities the plaintiff has proved that there was a form of negotiation and that there was an agreement between himself and the defendant for an increase in rent by 25%.
This does not however mean that because rent was increased by the 25% the 25% increase should follow for the ensuing years . My support for this conclusion stems from the fact that Exhbit C clearly provides the rents for the third . fourth and fifth years of the term hereby granted shall be negotiated and agreed upon by the parties hereinbefore the commencement of each year and any increase shall not be more than 25% of the rent ending each year. The effect of this, is that, while rent for the 1st May 2006 to 30th April 2007 was US$10,000.00 a further increase for the ensuing year or years would have to be negotiated and agreed and this at least from the facts presented was never done( the letter of 18th April 2007 exhibit E is destitute of any legal effect in so far as increase in the rent is concerned) such that rent for the 4th year must remain at US$ 10,000.00 instead of US$12,500,00 as stated or US$ 11,500 as claimed by the plaintiff.
By the same token I note that the 4th year is nearing completion and that the rent for the 5th year has not been negotiated.
With regard to the claim for forfeiture for non payment of rent this court notes that the defendant did refuse to pay the rent due on the dates due and that this was followed by a formal demand by exhibit F and that exhibit C does provide that the lease may be forfeited after 21 days whether formally demanded or not and that this normally entitles the plaintiff to re-enter and claim forfeiture . It was also well within the plaintiff's right to refuse rent which was below that agreed as that according to HALSBURY'S LAWS OF ENGLAND SECOND EDITION VOLUME 20 PAGE 254 AT 287 would have constituted a waiver of forfeiture .The defendant cannot be entitled to relief from forfeiture as counterclaimed as he had failed before the trial to pay the lessor or into court the arrears of rent due and costs which are the expenses to which the lessor had been put See HOWARD VS FANSHAWE 18952CH 581 AND BELGRAVIA INSURANCE CO LTD VS MEAH 1964 1QB 436. It is however the case that as held in JABER VS RADAR 1950-56 ALRSL P97 the court has a discretion in deciding whether relief against forfeiture should be granted in the particular case, and in doing so the court must consider the conduct of the tenant: relief will be refused if he impugned the landlord's title in a way which amounts to a disclaimer or renunciation of the relationship between them, or if he continues in breach of he covenant. It is clear from this case that the defendant did not impugned the lessors title but there was a continued breach.While I do hold that the defendant's behavior against this background has left much to be desired. I would however noting the decision in the case of ZION CHURCH TRUST BOARD VS CHARAF 1967/68 ALRSL P248 where it was held that relief against for forfeiture for non payment of rent will be granted if the tenant pays all arrears ,together with costs and interest grant relief against forfeiture on terms
In Cheshires Modern Real Property 8th edition at page 416 (1958) the learned luminary states that it may be right to exercise a discretion and grant relief against forfeiture thus:
"The object of a right of entry is to give the landlord security for his rent, and it has long been settled that equity, which has always been prepared to interfere where the enforcement of a legal right will prejudice hardship, will relieve the tenant against forfeiture if he pays up all the arrears and costs, even though such payment does not take place until after the date for forfeiture has passed. As soon as the rent together with costs expenses and interest,has been paid up to date, the landlord, having obtained all that right of re-entry was intended to secure him, should not be allowed to take advantage of the forfeiture"
I note the argument by the plaintiff's solicitor that the defendant acted in breach of those payment terms of the Lease Agreement causing the plaintiff to suffer loss, and that the for the past two years the plaintiff has been deprived of income from the premises and the attendant factors associated with such deprivation in view of which he is entitled to damages..
All things considered this court therefore gives judgment in favour of the plaintiff and orders as follows:
1. Relief against forfeiture of the lease on terms that the defendant pays:
a) Arrears of rent in the sum of US$20,000.00 or its equivalent in Leones for the 2006-2007 and 2007- 2008 serials at US$10,000. or it equivalent in leones p.a per serial
b) Interest on the above at the rate of 13% per annum for 2006-2007 serial from the time due to the date of this judgment and at the rate of 15% for the 2007-2008 serial from the time due to the date of this judgment.
c) Costs assessed at Le5, 000,000.00.
All to be paid on or against the 30th of April 2008.
2. Rent for the 5th Year in the absence of negotiations is hereby fixed by this court at US$ 12,000,00 per annum to be paid not later than 21days from the date it becomes due i.e. 1st of May 2008
3. Mesne profit from the date of the order for forfeiture and recovery of possession to the date of delivery of the premises is refused
4. Damages is assessed at Le 500,000.00
Hon Mr. Justice D. B Edwards J