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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Abidogun v Frolan Heath Care Ltd & Anor  EWCA Civ 1821 (22 October 2001)
Cite as:  EWCA Civ 1821,  L & TR 16
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
(HIS HONOUR JUDGE COOKE)
Royal Courts of Justice
Monday 22nd October 2001
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
|DR KEHINDE AKINTOLA ABIDOGUN|
|- v -|
|(1) FROLAN HEATH CARE LIMITED|
|(2) DR OLANREWAJU OLAITAN LABINJO|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HG
Telephone No: 020 7421 4040 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
MR SMITZ (instructed by SHAIK & CO) appeared on behalf of the Respondent
Crown Copyright ©
"i) It is denied that the Respondent is a tenant of the said property whether as set forth in paragraph 1 of the Originating Application or at all. No admission is made as to whether or not there was ever executed a valid or enforceable tenancy agreement or lease and/or in the alternative if, which is not admitted, such a document was in fact executed or such an agreement was in fact made, it is denied that the same is valid or enforceable.
Ii) It is denied that the applicant is the freehold owner of the property or entitled to possession whether as set forth in paragraph 2 of the Originating Applications and/or at all. It is averred that the First Respondent, Frolan Health Care Limited, is the true freehold owner for the matters set forth in the Particulars of Claim filed in case number NE774799 in the Newcastle upon Tyne County Court."
"Ashworth J found four reasons why the Act [that is the Law of Property Act 1925 section 146(1)] did not apply to the case of a disclaimer: (a) forfeiture does not arise under any stipulation or proviso in a lease, it is a forfeiture which arises by operation of law; (b) it would be quite impossible for a landlord to comply with the notice requirements in section 146(1); (c) relief had never been granted before in a similar case; (d) it would be strange if a tenant could deny the relationship of landlord and tenant and at the same time seek relief on the footing that the lease still existed.
He concluded that he was not prepared to be a 'pioneer' and be the first judge to grant relief in a disclaimer case. With great diffidence and considerable trepidation, had I been required to decide the point, I would have been prepared to hold that section 146 did apply and that the tenant is entitled to seek relief under the statute. I can express my reasons shortly. (a) As a matter of construction, I do not consider that the Act of 1925 is inapt to apply to a case such as the present. Indeed, I take the view that, prima facie, the words of the Act of 1925 do apply. Whenever there has been a breach of covenant, for example a repairing covenant, which has not been remedied within the time specified in the notice, the landlord is treating the tenant's breach as repudiatory and, by serving proceedings claiming forfeiture of the lease, is accepting that repudiation. In principle there appears to me to be no difference between a claim for forfeiture because the implied condition referred to above has been broken or because of the breach of any other condition. That section by its terms, is not confined to breaches of express conditions. (b) The Act of 1925 contemplates that some breaches may be incapable of remedy. I cannot see that it would be impossible for a landlord to comply with the notice conditions in the Act. It may frequently be difficult for a landlord to put a figure on the amount of compensation he requires. (c) Whilst I am troubled that better minds than mine have either overlooked the provisions for relief, or have decided that relief could not be sought for reasons which are not apparent, the fact that relief has never before been granted in such a case as this does not persuade me to conclude that, since 1925, relief has not been available to a tenant. (d) Section 146 provides a statutory code which, when it applies, is apt to cover 'wilful' breaches of covenant, unlike the position under the court's general equitable jurisdiction: See Billson v Residential Apartments Limited  AC 494, 510-512. A tenant who repudiated the tenancy relationship by disclaimer and then sought relief would be in no different position from a tenant who repudiated the relationship by breach of the other conditions. No doubt relief would only be granted provided that the landlord's position had not been irrevocably damaged by the disclaimer; in appropriate cases it might be proper to grant an injunction to restrain any further such conduct or impose a penalty.
Despite the persuasive decision of Ashworth J, I would have reached a different conclusion and held, as a pure matter of statutory construction, that a notice under subsection (1) was a prerequisite to Clark's right of re-entry and subject thereto, that relief was available to Dupre under section 146(2) of the Act. It is most unlikely in this case that the court would not have been willing to grant relief on terms. Because of the absence of argument I cannot say what those terms should be."
"(1) A right of re-entry or forfeiture under any proviso or stipulation in a lease for a breach of any covenant or condition in the lease shall not be enforceable, by action or otherwise, unless and until the lessor serves on the lessee a notice-
(a) specifying the particular breach complained of; and(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and(c) in any case, requiring the lessee to make compensation in money for the breach; and the lessee fails, in a reasonable time thereafter, to remedy the breach, if it is capable of remedying, and to make reasonable compensation in money, to the satisfaction of the lessor, for the breach.
(2) Where a lessor is proceeding, by action by otherwise, to enforce such a right of re-entry or forfeiture, the lessee may, in the lessor's action, if any, or in any action brought by himself, apply to the court for relief; and the court may grant or refuse relief, as the court, having regard to the proceedings and conduct of the parties under the foregoing provisions of the section, and to all the other circumstances, thinks fit; and in case of relief may grant it on such terms, if any as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, as the court, in the circumstances of each case, thinks fit."
"1. Denial of title.
The rule is that a tenant who denies landlord's title is automatically made liable to forfeit his lease, a rule derived from the feudal principle that repudiation of the lord destroys the tenure. The doctrine has now been detached from its feudal foundation and justified on a new basis. It is an implied condition of the lease that the tenant not do anything to prejudice the title of the landlord."
"The tenant's denial of title is therefore akin to repudiation of a contract. The denial must be clear and unambiguous in demonstrating that attention by the tenant no longer to be bound by the relationship of landlord and tenant. Thus a denial of title as to part only of the property comprised in the lease will not usually suffice. The tendency to treat the doctrine in this comparatively narrow way is a modern one. At one time it was even held to apply by the with tenant inadvertently denied the landlord's title in a pleading in an action."
"However a mere pleader's general denial which sets out no adverse title has since been held to be innocuous. In any event the tenant may sometimes save themselves if leave is given to amend his pleading before the claim. The amendment will not assist the tenant in the more common case where the landlord has already forfeited the lease by commencing proceedings for possession. In the case of a tenancy for years an oral denial of title will not produce forfeiture, it will however do so in a case of a yearly or periodic tenancy. This is because the tenant by denying that he has a tenancy is taken to waive any notice to quit. The landlord can claim possession at once.
It may be doubted whether forfeiture by denial of title should be regarded as any longer taking effect by operation of law at all. If it is in reality based on an implied term in the lease that the tenant will do nothing to prejudice the title of the landlord, it may be better to treat such cases in the same way as the breach of any other implied covenant. The Law Commission has recommended that the implied condition that the tenant shall not deny the landlord's entitlement should be abolished."
"Both the right and the condition have therefore to be found in the lease. There is no pointer in subsections (1) and (2) as to whether it suffices if it is implied into, rather than being expressed, in the lease, but that latter term is enlarged by section 146(5)(a), section 154 and section 205(1) (xxiii) of the Law of Property Act 1925 to include oral tenancies. Given the informal manner in which Parliament must have known that oral tenancies habitually come into being, I find it difficult to suppose that Parliament intended to make relief available for that minuscule or negligible proportion of tenants which might orally but expressly agree with their landlords that a right of re-entry or forfeiture and the condition against disputing the landlord's title, but yet that yet Parliament intended deny relief to a vast majority of those who made oral tenancies in which the right or condition could only be said to be "in" the "lease" by implication of law. That consideration suggests that implication should suffice, both as to the right and condition. But as against it Mr Morgan, for the department, submits that there are the terms of section 146(6) and (7). Subsection (6) provides that the section applies although the proviso on stipulation under the right of re-entry or forfeiture approves accrues is inserted in the lease in pursuance of the directions of any Act of Parliament."
"For the purposes of this section a lease limited to continue as long only as the lessee abstains from committing a breach of covenant shall be and take effect as a lease to continue for any longer term for which it could subsist but determinable by a proviso for re-entry on such a breach.
The Department points to section 146(7) as the instance of Parliament requiring the leases within it to be treated as if a proviso for re-entry on its breach was to be found "in" the lease even though such a proviso had not been expressed. Together, says the Department, subsections (6) and (7) provide the only cases, in which matter not in leases be treated as if it were present; expressio unis est exclusio alterirs. As to this, in 1925, there would have been very much in mind, for example, provisions such as those in paragraph 10(1) of the 15th schedule to the Law of Property Act 1922 by which covenants by lessees and related powers of entry deemed to contain in the leases there described. It is to be noted that section 146(6) deals in terms only with the insertion into the lease of re-entry of the right (of forfeiture) and not of the related covenant or condition when the tenant's part. It would have been quite idle for Parliament to have provided in such cases statutorily implied rights for the treatment of the right as if "in" the lease if the related condition were not also to be treated as "in" it by implication.
So far from excluding all implication, section 146(6) thus suggest at least in statutory cases with which it is dealing implication of the conditions as the right is contemplated as sufficing to make the matter fall under subsection (1) and (2) of section 146. Once thus one arrives at the conclusion that section 146(6) cannot be an indication of the inadequacy of implied material in all cases and if, indeed its provision suggest some implication necessary outside the implication which it expressly mentions, then so far from being an exclusion of cases the statutory expression of the one form of implication suggests the need for other forms of implication as well. Subsections (6) and (7) are reduced, in my judgment, to being only for the avoidance of any doubt in special cases to which they particularly relate and do not have the effect of excluding rights and conditions implied in other cases from the range of what had been treated as being "in" the leases considered.
If then the condition not expressed in that to be found in leases only by way of implication of statute law are not in terms excluded by any other parts of section 146, I find it difficult to resist the conclusion that all conditions properly to be implied into a lease are "in the lease" for the purposes of section 146(1), and if implication suffices to the introduction of conditions, it is impossible as it seems to me, to exclude it in relation to the introduction of the corresponding rights of re-entry or forfeiture which, under section 146(1), also have to be "in" the lease."
"Since the lease on which Dr Abidogun relies is a nullity, the contents including reference to repairs cited in the Notice to Lessee of Breach of Covenant to Repair is null and void."
"Counsel for Dupre sought to persuade me that the doctrine of disclaimer by denial of title by record was an unfortunate hangover from medieval feudal relationships and that either the doctrine did not now still exist or had never existed. In the light of the ratio of Warner's case such a contention is unarguable.
In any event, it seems to me there is no reason in principle why the doctrine should not exist. A tenant who repudiates the relationship of landlord and tenant should be in no different position from a party to a contract who repudiates or renounces it. It seems to me that the doctrine of disclaimer is analogous to the concept of repudiation of a contract.
Counsel for the landlord in Warner's case used the phrase 'repudiation, renunciation or denial.' Hill and Redman's Law of Landlord and Tenant, 18th ed (1991), vol 1, para 2181, says:
'There is implied into every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. The principle may be traced back to the reign of Henry II and appears to be founded on the oath of fealty given by a tenant of real property to his lord under the medieval system of tenure."
"Mr Nichols submits on the basis of a long line of authority, some of it of remote antiquity that there is thereby a forfeiture."
"Further the defendant has breached the implied/condition in the lease the tenant implied, see Warner v Sampson  1 QB 297 at 309-317 per Lord Denning..."
"In broad terms a right of forfeiture, in broad terms may be defined as right of forfeiture, defined as a right to determine a lease by a landlord if (a) when exercised it operates to bring the lease to an end earlier than it would naturally terminate and (b) it is exercisable in the event by some default by the tenant."
"The landlord delivered her reply on 29th July 1955, paragraph 3 which was as follows:
'The plaintiff hereby exercises her said right to forfeit the said term, claimant thereby entitled to re-enter on the said premises'
Nothing was done at that time to complete the re-entry and Mr Scarman agreed the paragraph in reply without the issue of writ insufficient for the purpose."