Eldred E. E. Williams V. Nwolas Grant Mends & Anor (1943)
LawGlobal Hub Judgment Report – West African Court of Appeal
Appeal from Landlord and Tenant—Unlawful opcupation—Acquiescence-judgment ofRecovery of possession and damages—tenancy by operation ofSupremeCourt.law—estoppel—waiver—Defence (Rent Assessment) Regula-tions, 1941, regulation 12 (1)).
A house situate at 32 Kissy Street, Freetown, was owned by the plaintiff. It consisted of a ground floor and two storeys. In 1940 during the plaintiff’s absence in Nigeria, the 2nd defendant, his sister, leased the let and 2nd floors to the 1st defendant without the knowledge of the plaintiff. The fact came to the knowledge of the plaintiff, then in Nigeria, late in 1940, and he thereupon instructed the 2nd defendant to give the tenant notice to quit, and at the earliest opportunity returned to Freetown.
He arrived in Freetown on the 13th October, 1941, and then became aware of the identity of the 1st defendant. The 2nd defendant then attempted to set up a claim to co-ownership in the property, which the plaintiff attempted to settle amicably out of Court. In the meantime the let defendant, with the plaintiff’s knowledge, continued to pay rent to the 2nd defendant.
An attempt at settlement between plaintiff and 2nd defendant proved abortive. On the 7th January, 1942, the plaintiff’s Solicitor wrote to the 1st defendant alleging unlawful ‘occupation and requiring immediate possession.
No reply being received from the 1st defendant a writ was issued against him claiming recovery of possession of the part of the premises occupied ‘by him, and damages.
At the date on which the suit was instituted, the 1st defendant had applied for the rental value of the premises to be determined under the Defence (Rent Assessment) Regulations, 1941.
The 1st defendant by way of defence set up his lease with the 2nd defendant, and also pleaded that he was protected in possession by reason of the operation of regulation 12 of the Defence (Rent Assessment) Regulations, 1941.
The Chief Justice (the trial Judge) found that the action of damages must fail by reason of the acquiescence of the plaintiff after his return to Freetown, and he held that the plaintiff was precluded from recovery of possession by the provisions of regulation 12 of the Defence (Rent Assessment) Regulations, 1941, for the reason that the rental value of the premises in question was, at the date on which the suit was instituted, in course of being determined under these Regulations.
Although the defence of estoppel was not specially pleaded, it was inherent in the tat defendant’s defence. By the plaintiff’s acquiescence in the receipt of rent by the 2nd defendant from the 1st defendant, a tenancy of the premises in the let defendant had been created from 13th October, 1943, but the plaintiff was not deprived by estoppel of his legal right to possession. He had however waived any claim for damages against the let defendant and was estopped from enforcing such claim.
Further, that in the circumstances disclosed the plaintiff was debarred by the provisions of regulation 12 (1) of the Defence (Rent Assessment) Regulations, 1941, from recovering possession.