John Chidiak V. David Coker (1954)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Lease—Agreement for lease—Covenant to repair—Lease executed after fire. Crown Lands Ordinance (Cap. 45), section 7 (d) (iii)—Governor’s consent to sub-lease obtained afterfire.

Facts

The above section 7 (b) (iii) provides that:—
“Except as otherwise prescribed or provided in the lease, there shall in every lease under this Ordinance be implied by virtue of this Ordinance:—
” (a)…
“(b) covenants by the lessee . . .

” (iii) not to assign, sublet or otherwise part with the possession of the land comprised in such lease or any part thereof, without the previous consent of the Governor in writing.”
(Note: The Governor’s power is delegated).

The plaintiff (now respondent) had a lease of Crown Land on which he had put up buildings. He gave the defendant a sub-lease for a term, and when that expired the parties agreed on a further term, and the defendantstayed on. The defendant executed a fresh sub-lease which had a recital that the Governor’s prior consent had been obtained (but stated no date of such written consent) a habendum as from the expiry of the previous term, and a covenant to repair.

A fire destroyed the buildings whilst in the occupation of the defendant after his executing the sub-lease but before the date of the Resident’s approval on the Governor’s behalf. The plaintiff sued on the covenant to repair and obtained judgment, and the defendant appealed.

A habendum is prospective in operation and, equity apart, the lessee in occupation is not liable on the covenant to repair until the lease is executed by the lessor.

In equity if the agreement for a lease was such as could be specifically enforced, the tenant who had entered thereunder would be bound by the covenant.

The trial Judge was of opinion that after the Governor’s consent is received and the sub-lease is executed, a valid legal estate is created; that from the Resident’s subsequent endorsement and the recital that the Governor’s prior consent had been obtained it could be presumed that such written consent had been obtained before the plaintiff executed the sub-lease, which the Judge inferred the plaintiff did was about the same time as the defendant.

In fact the sub-lease was dated as of the date of the Resident’s approval; apart from this approval, there was no evidence of the Governor’s consent; and the plaintiff’s‘own evidence indicated that he executed the sub-lease at the date of approval—which was later than the fire.

Held

(1) On the evidence, the plaintiff executed the sub-lease after the fire; therefore the covenant to repair was not binding in law on the defendant at the time of the fire.

(2) By section 7 (b) (iii) of the Crown Lands Ordinance the prior consent of the Governor in writing was a condition precedent to a valid sub-lease, but on the evidence this consent was not received until after the fire; it followed that at the time of the agreement to sub-let there was an absolute absence of the estate which the plaintiff purported to sub-demise and neither party could have sued for specific performance; therefore the defendant never had the consideration for which he covenanted to repair, and equity could not be invoked in plaintiff’s favour.

Appeal allowed.