Cecil Evans Ribeiro V. Jamil Chahin & Anor (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Lease—Claim for declaration that lease is valid and for possession—Re-entry by lessors—Relief against forfeiture for non-payment of rent—Common Law Procedure Act, 1852, sections 210 to 212.
Practice and Procedure—Suit against one out of several lessors.

Facts

The respondents as plaintiffs sued the defendant (now appellant) alleging that he and his brother and sisters executed a lease with the plaintiffs with these conditions: that the plaintiffs should pay a certain amount, and that the lessors should give vacant possession by a certain date; and alleging also that the plaintiffs were ready to pay that amount but that the defendant refused to give possession whilst his co-lessors were willing to give it; and the plaintiff claimed
(1) a declaration that the lease was valid, (2) specific performance, and
(3) possession.

Claims (1) and (3) were granted. The Judge also granted relief against forfeiture for non-payment of rent though not claimed, as the lessors had re-entered. Such evidence as there was on the averment that the other co-lessors were willing to grant possession was to the contrary of the averment.

The defendant appealed and raised for the first time the point that his co-lessors were not parties to the suit and therefore the judgment was ineffective; and he also suggested that the Common Law Procedure Act, under which the Judge had granted relief against forfeiture, did not apply.

Held

(1) The plaintiffs were entitled to sue the defendant alone and take the risk of the judgment not binding the other co-lessors; there was no objection to binding the rights of the parties before the Court, whose judgment rightly abstained from decreeing specific performance.

(2) Relief against forfeiture for’non-payment of rent though the lessors had re-entered was rightly granted under sections 210 to 212 of the Common Law Procedure Act, 1852.

Per Foster-Sutton, P., and Coussey, J.A. Even if non-payment were a failure of a condition precedent, relief could be granted where compensation was possible; and the case for relief here was stronger as the defendant by giving notices of demand and finally of re-entry under the terms of the lease thereby adopted it.

Appeal dismissed but the judgment below varied.