premchand nanthu v the land officer 1960 ea 941

[1960] E.A.C.A. PREMCHAND NATHU v, LAND Or'FICER941a director of the A A·lub. We weree not bound to.fendant had toBemployee of the. He produced ack Cat Club sinceication for a club~al agreement and) it had any illegal Cred unenforceableiply for the liquorIt having failed tost its licence to the.t had not applied., to the Licensing D; no evidence thatillegally, and theitained in cl. 4 (e),stand by and seeegality or render itEcences with a viewbetween Septemberoccupation (by theSeptember 15 toie respondent afterI think that it was Flery of the keys ofion of the contract,to effect before thedue. The appellant1 this and I am notthat, as alleged in Gespondent betweenietting the premisesant or agent of thein time to save theat ground also fails.HAppeal dismissed.rei & Patel, KampalaIPREMCHAND NATHU & CO. LIMITED I'. THE LANDOFFICER[COURT OF ApPEAL AT DAR-ES-SALAAM(Sir Alastair Forbes, Y.-P., Gould andB Crawshaw, JJ.A.), October 24 and December 10, 1961.]CIVIL ApPEAL No. 67 OF 1960.(Appeal from H.M. High Court of Tanganyika-Murphy, J.). Landlord and tenant=Crown land-Right of occupancy subject to buildingC conditions-Extension of time for compliance with conditions-Buildings noterected within extended time=Revocation of right of occupancy-Whetherextension of time waives right of forfeiture-Land Ordinance (Cap. 113),s. 10, s. 11 (T.)-Land (Law of Property and Conveyancing y Ordinance(Cap. 114), s. 2 (T.)-Conveyancing Act, 1881, s. 14, s. 18 (7)-CrownLands Ordinance (Cap. 155), s. 83 (K.)-Law of Property Act, 1925, s. 99D (7), s. 146 (6)-Settled Land Act, 1925, s. 42 (i), (iii)-Settied Estates Act,1877, s. 46-Crown Lands Act, 1829, s. 27-Coal Act, 1938, s. 13-CrownLands ACT, 1927, s. 208-Foreign Jurisdiction Act, 1890.By a certificate of occupancy signed by and in favour of the appellants theyagreed, as occupiers, to erect a building on a plot in Moshi township of a valueE of Shs. 60,000/-, to submit plans of the building within six months from thecommencement of the term of occupancy, so as to satisfy the township authorityand ensure compliance with the building conditions, to commence buildingwithin three months after notification of approval of the plans and to completethe buildings within twenty-four months from the commencement of the term.The term was ninety-nine years from April 4, 1952. Plans for shops and officesF were submitted for approval in principle only on March 5, 1953. and thesewere approved on September 24, 1953. Revised plans for shops, flats anda godown were submitted on February 20, 1954, and these were approved inprinciple on March 4, 1954. On March 11, 1954, the time for submission ofdetailed plans was extended to April 1954, 30, when the respondent alsoG informed the appellants that if these plans were not submitted the right ofoccupancy would be revoked. The appellants complied, but by this time theterm within which the buildings had to be completed had expired. By September,1955, only the godown had been built, and on November 21, 1955, therespondent extended until January 31, 1956, the time for completing the shopsand flats which had not then been started. The appellants then submitted11 altered plans, which were approved on February 15, 1956. They had alreadyasked in January, 1956, for six more months, in which to complete the buildings,but the respondent in rejecting this application offered the appellants an extensionuntil February 29, 1956, for starting building operations, with an assurancethat if by then building was proceeding satisfactorily, a further short extensionfor completion would be granted, but if no building had by then been started,I he would recommend cancellation of the right of occupancy. The appellantsreplied, claiming that the godown had cost Shs. 60,000/-, and asking againfor a six months' extension. On May 4, 1957, by which time no building, otherthan the godown, had been commenced, the right of occupancy was revoked.The High Court held, in proceedings brought by the respondent, that the rightof occupancy had been lawfully revoked, and ordered the appellants to deliverpossession to the respondent. On appeal the principal arguments for theappellants were that the failure to erect buildings was a single and not a continuingbreach, which had been waived by the extensions of time granted, and! \I II', II

942 EASTER AFRICA LAW REPORTS [1960] E.A.that the trial judge had erred in holding that s. 14 (I) of the Conveyancing AAct, 1881, was not applicable in Tanganyika to termination of rights ofoccupancy for breach of a covenant or condition.Held: (i) the extensions of time did not amount to a waiver of the right offorfeiture, but as mere agreements not to exercise the option to forfeit providedcertain conditions were fulfilled; in law there is nothing which will imply Bwaiver of a forfeiture from the fact that the landlord merely stands by aftera breach of covenant; a positive act is required.(ii) the general rule is that statutes do not bind the Crown unless it isreferred to directly or by necessary implication; in the Conveyancing Act,1881, the Crown is not named directly, and since there was no reason to assumethat the purpose of the Act would be frustrated unless the Crown were so Cbound, the Crown could not be held to be bound by the Act.Appeal dismissed.Cases referred to:(I) Diwan Singh v. The Commissioner of Lands, [1958] E.A. 367 (C.A.).(2) Matthews v. Smallwood, [1910]1 Ch. 777.(3) Doe D. Rankin v . Brindley, 4 B. & Ad. 84; 110 E.R. 387.D(4) Ex parte Newitt . In re Garrud (1880), 16 Ch. D. 522.(5) Marsden v. Satnbell (1880),43 L.T. 120.(6) Charles Rickards LId. v. Oppenhaim, [1950]1 K.B. 616.(7) Bashir v. Commissioner of Lands, [1960] A.C. 44; [1960] I All E.R. 117.(8) Commissionerfor Lands v. Sheik Mohamed Bashir, [1958] E.A. 45 (C.A.). E(9) Province of Bombay v. Municipal Corporation of Bombay, [1947] A.C. 58.(10) West v. Blak eway (1841),2 Man. & G. 729: 133 E.R. 940.(II) Central London Property Trust Ltd. v. High Trees House Ltd., [1947]K.B. 130; [1956] I All E.R. 256.(12) Lyle-Miller v. A. Lewis & Co. (Westminster) Ltd., [1956]1 All E.R. 247.(13) Perry v. Davis (1858),3 C.B.N.S. 769; 140 E.R. 945.FA. Reid for the appellants.W. R. Wickham (Crown Counsel, Tanganyika) for the respondent.December 10. The following judgments were read by direction of the court:GOULD, J.A.: This is an appeal from a decree of the High Court ofTanganyika at Arusha dated June 8, 1960, whereby it was held that a right Gof occupancy in respect of a plot in Moshi township had been lawfully revokedfor good cause and the appellant company was ordered to deliver possessionthereof to the respondent within fourteen days.The certificate of occupancy in favour of the appellant was expressed to befor a term of ninety-nine years from April 4, 1952, subject to payment of IIannual rental, and to various other provisions, of which I will set out thoserelevant to the issues between the parties:"2. The occupier undertakes:(i) To erect buildings on the said land of a value of not less thanShillings Sixty thousand (Shs. 60,000/-).(ii) Within a period of six months from the date of commencementof the said right of occupancy to submit to the township authority,Moshi, (hereinafter called 'the said authority') such plans of theproposed buildings (including block plans showing the positionof the buildings) drawing elevations and specifications thereof aswill satisfy the said authority and as will ensure compliance withthe building covenant contained in sub-para. (i) supra. Suchplans and specifications shall be submitted in triplicate.1

[1960) E.A.C.A. PREMCHAND NATHU v. LAND OFFICER (GOULD, J.A.) 943the Conveyancing Aation of rights ofliver of the right ofl to forfeit provided5 which will imply B-ely stands by afterCrown unless it isConveyancing Act,no reason to assumethe Crown were so Cct.E.A. 367 (CA.).R.3 7. D1616.1960]1 All E.R. 117.958] E.A. 45 (C.A.).nbay, [1947] A.C. 58.:.R.940.f House Ltd., [1947]956]1 All E.R. 247.t5.oondent.irectionof the court:f the High Court ofvas held that a rightoeen lawfully revokedto deliver possession. was expressed to beibject to payment of1 ] will set out thoseue of not less than: of commencementtownship authority,) such plans of thelowing the positionifications thereof asrre compliance with·a. (i) supra. Suchn triplicate.EFGHI. IjIA (iii) To commence building operations within a period of three monthsfrom the date of notification in writing by the said authority ofapproval of the plans and specifications, such buildings to conformto a building line decided upon and notified by the said authority.Bc(iv) To complete the buildings according to the said plans andspecifications so that the said buildings are ready for use andoccupation within a period of twenty-four months from the dateof commencement of the said right of occupancy."5. Only one main building together with the usual and necessaryoutbuildings shall be erected on the said land and the said main buildingshall be used solely for commercial and residential purposes."6. Failure to comply with any of the terms or conditions hereincontained or implied will be deemed to constitute good cause for revocationof the said right of occupancy."The certificate of occupancy was signed by both parties. The history of thesubsequent events is summarised in the judgment of the learned trial judgeD from which it will be convenient to quote extensively:EFGHI"On March 5, 1953, the first plans were submitted by the defendants tothe township authority. The principal feature of these plans consisted ofshops and offices at the front of the site. The plans were approved inprinciple on September 24, 1953. The reason for the delay was that thetown planning officer requested that a decision on the plans be deferredpending consideration of a project for making a new road junction whichmight affect the boundaries of the plot."The plans submitted in March, 1953, were for approval in principleonly and it was still necessary for the defendants to submit detailed plansand specifications such as would satisfy the township authority in accordancewith para. 2 (ii) of the certificate of occupancy. On February 24, 1954.the plaintiff wrote to the defendants pointing out that this had not beendone and requiring it to be done by March 30. In the meantime, however,on February 20, 1954, the defendants submitted to the township authorityrevised plans, which again were for approval in principle only. These plansincluded shops and flats at the front of the site and a godown at the rear.They were approved in principle on March 4, 1954. On March II, 1954,the plaintiff again wrote to the defendants extending the time for the submissionof detailed plans to April 30, 1954, and saying that if this was notdone the right of occupancy would be revoked. The defendants compliedwith the requirements of this letter by submitting detailed plans for thegod own on April II, 1954, and detailed plans for the whole plot on April29, 1954. These two sets of plans were approved on May 3 and May 20,1954, respectively."It is to be noted that by this time the period in which the defendantswere supposed to have completed the buildings had expired, this periodbeing twenty-four months from the commencement of the right ofoccupancy. It was perhaps unwise of the defendants to agree to thisparticular condition, which they might through no fault of their own beunable to fulfil, and it would have been fairer if the time limit (though notnecessarily of the same length) had been made to run from the date ofapproval of the plans. (This was in fact done in para. 2 (iii) of thecertificate of occupancy which specified the period in which the defendantshad to commence building operations, but not in para. 2 (iv) which specifiedthe period for completion.) However, this is not really material becauseon January 26, 1955, the land officer wrote to the defendants extending the

944 EASTERN AFRICA LAW REPORTS [1960J E.A.time for completion to July 31, 1955, and indicating that the right ofoccupancy would be revoked if the building was not completed by thatdate. This represented an extension of nearly sixteen months beyond theoriginal date for completion, which was fairly generous in view of thefact that the delay for which the township authority was responsible inapproving the first plans was only 6t months."By September, 1955, the godown at the back of the site had beencompleted and the defendants had received permission from the townshipauthority to occupy it. But the building of the shops and flats had notbeen commenced and on November 21, 1955, the plaintiff granted afurther extension of time to January 31, 1956, for completion of thisbuilding. The defendants then submitted altered plans, which were subsequentlyapproved by the township authority on February 15, 1956. Thedefendants also asked the plaintiff, through their architects, for an extensionof six months in which to erect the building. The plaintiff in a letterdated January, 1956, replied that this was not approved and laid downother conditions as follows:'This is the second time your clients have submitted fresh plans a shortwhile before the date of expiry of a notice served on them. However,as it appears that plans have already been submitted to the townshipauthority, Moshi, I am prepared to grant your clients an extension upto February 29 next in which time they must have their plans approved,and commence building operations. I will call for a further report duringthe first week of March next, and unless building operations are by thenunder way, I shall recommend to the Governor that the right ofoccupancy be revoked. If the report reveals that building is proceedingsatisfactorily, then your clients will be granted a further short extensionof time in which to complete the erection of the building.'"It is to be noted that in this letter no definite time limit is fixed for theerection of the building, but there is an implication that it is to be completedwithin less than six months, since the application for an extensionof six months is refused. The defendants replied in a letter dated February 8,1956, of which the following are the first three paragraphs:'We ... regret to inform you that you seem to be under impressionthat we have built nothing on the plot No. 57 in question we have tobring to your kind notice that we have built a store, 60' x 40' and whosewe are holding an occupancy certificate and which has cost Shs. 60,000/-approximately. Thus we have already spent more than the sum to bespent for building covenant in front. However we have submitted ourplan for shops for approval to township authority and regret to informyou that we have not got it back approved. This would at least requirea week and there after a four weeks' time would be at least required forinviting tenders from building contractors.'Moreover, it does not appear economical to us to build shops atmoment on above plot because there are many empty shops in thevicinity. So it is not worthwhile spending money at moment.'Summarily, we have to say that your extension of the period up toFebruary 29 should be further extended to at least six months so as tofacilitate us to arrive at final decision.'"In tbe first of these paragraphs tbere is tbe suggestion, made for thefirst time, that the defendants have fulfilled the condition of the right ofoccupancy by erecting the godown. This is one of their defences to theABcDEFGHJ

946 EASTERN AFRICA LAW REPORTS [1960] E.A.1955 (nearly sixteen months), were granted. In fact there was at least onesubsequent extension. ] am satisfied there is no merit in this ground of appeal. AIn its fourth ground the appellant relied upon waiver:"4. The learned judge erred in failing to direct himself that failure toerect a building within the stipulated period was a single and complete,and not a continuing, breach and should have held that any right offorfeiture that may have accrued was waived by subsequent conduct onthe part of the respondent in receiving rents and otherwise treating thetenancy as continuing."Under this head, the argument of the advocate for the respondent was saidby him to be"based on the various extensions of time granted after the expiration ofthe building period and more particularly on the respondent having permittedor forced the appellant to put up a god own in the belief that therewould be no forfeiture."I will set out the correspondence which bears upon this question.On February 24, 1954, the respondent wrote:"I have the honour to refer to my letter o. 33150j20jAAK of March 16,1953, and to draw your attention to the fact that you have failed tocomply with the notice dated ovember 6, 1952, as amended by myabove-quoted letter, in that although plans were submitted for approvalin principle during September last, detailed drawings, as will satisfy thetownship authority, have not yet been submitted for approval."I should be obliged if you would please let me know at your earlyconvenience what action you are taking to ensure that satisfactory planswill be submitted to the township authority, and 1 must warn you thatunless plans are submitted by March 30 next I shall be obliged to submitthe facts to Government with a recommendation that the right ofoccupancy be revoked."BcDEFI'IBy the time this letter was written it was obvious that the building conditioncould not be complied with within the time limited, which expired on April 4,1954. B~' giving the appellant until March 30, 1954, to submit the detailed Gdrawings, the respondent impliedly undertook, in my opinion, to extend thetime limit by a period reasonably sufficient to allow of the completion of thebuildings, provided the drawings were submitted as requested. Prior to thisletter, however, on February 20, 1954, the appellant had submitted revised plansfor approval in principle-including the godown at the rear of the plot-andthey were so approved on March 4, 1954. On March II, 1954, the respondent Bwrote:"I have the honour to refer to the letter No. JHj317 dated March 2, 1954,addressed to me by Messrs. T. D. Gedrych and Peer Abben, with copyto you, and to inform you that the date by which you are required toremedy the breach of condition 2 (ii) of the above right of occupancy, asmentioned in the final paragraph of the notice dated November 6, 1952. Iis hereby extended to April 30, 1954. Please understand that this extensionis final, and unless satisfactory plans have been submitted to and approvedby the township authority, Moshi, on or before that date the right ofoccupancy will be revoked."The reference there is probably to detailed plans and drawings, but in theevent detailed plans were all submitted by April 29, 1954, and were approvedon May 3, and May 20, 1954. The township authority issued a building permit

::;"." ." ::~ ...:.... -.':'.:;, ...::'.:.:;,::: ~:~''':n::;·~'3[1960] E,A,was at least one Aground of appeal.I that failure to: and complete,at any right of Blent conduct onvise treating the:spondent was saidthe expiration ofIdent having perebelief that thereiesnon.A.AK of March 16,ou have failed to; amended by myutted for approvalas will satisfy theapproval.

948 EASTERN AFRICA LAW REPORTS [1960] E.A."4. Please understand that in default of a satisfactory reply within thespecified time, I shall be obliged to recommend to the Governor that theright of occupancy be revoked without any further notice to you."The reply on behalf of the appellants was dated September 8, 1955:"We have been asked by our clients to reply to your letter 33J50j44jATof the 23rd ultimo, and to inform you that we are in the process of makingcertain alterations to the plans as originally approved, these will takeabout four weeks to complete and after this we have to call for tenders,therefore, some two months must elapse before work can be started."It is therefore requested that an extension of time for the completionof these premises be granted, bearing in mind that a building, such as theone proposed, will take about nine months to complete from the date ofstarting."Your sympathetic consideration will be appreciated."ABcThis letter is a request for a substantial extension of time to complete the shopsand flats. The reply by the respondent was dated November 21, 1955:"I have the honour to refer to your letter No. JNj3l7 of September 8,1955, and to inform you that, without prejudice to such rights as havealready accrued Governor, I am prepared to give your clients, PremchandNathu & Co. Ltd., time to complete the buildings on the above plot accordingto approved plans and specifications by January 31, 1956."2. Please inform your clients that, if the buildings are not completedwithin the specified time, 1 shall refer the matter to the Governor with arecommendation that he should revoke the right of occupancy without anyfurther notice to them."There was apparently a further request, on January 3, J955, for a six months'extension, which has not been made an exhibit, but which is referred to in thefollowing letter from the respondent dated "January, 1956": F"I have the honour to refer to your letter No. 317 of January 3, 1956,in which you requested an extension of six months on behalf of your clientsin which to erect the building on the above plot, and to inform you thatyour application has not been approved. Your clients have been givenvarious extensions of time and it now appears that they have submittedfresh building plans for approval after receiving the notice dated November21, 1955, requiring them to complete the erection of the building on thisplot. This is the second time your clients have submitted fresh plans ashort while before the date of expiry of a notice served on them. However,as it appears that plans have already been submitted to the townshipauthority, Moshi, I am prepared to grant your clients an extension up toFebruary 29 next in which time they must have their plans approved, andcommence building operations. I will call for a further report during thefirst week of March next, and unless building operations are by then underway, I shall recommend to the Governor that the right of occupancy berevoked. If the report reveals that building is proceeding satisfactorily,then your clients will be granted a further short extension of time in whichto complete the erection of the building."2. Please make it quite clear to your clients that under no circumstanceswill any further extension be granted unless their plans are approved, andbuilding operations commenced by February 29 next."DEGHIL·1IThere is here another implied promise that, provided the appellant showedthat it definitely was commencing operations by the first week in March, furthertime would be allowed. On February 15, 1956, revised plans were approved

[1960] E.A.CA. PREMCHAND NATHU v. LAND OFFICER (GOULD, l.A.)949,Iy within the Arnor that theyou."1955:331S0/44/ATess of makinglese will takeII for tenders,,e started.Bhe completionig, such as theim the date of C Clmplete the shopser 21, 1955:If September 8, Drights as havents, Premchandove plot accord-56.e not completed E::;ovemor with a.ncy without anyI.IA by the township authority but on February 8, 1956, the appellant wrote theletter the material contents of which are set out in the passage above quotedfrom the judgment of the learned judge. There is a definite change of positionin that letter, and the six months' extension then requested was not for thepurpose of erecting the building but to enable the appellant to decide whetherit was worthwhile to spend the money. The respondent's last letter, datedB May 31, 1956, reads:DE"Further to my letter No. 33l50/AJD of February 17, 1956, and withreference to your letter dated February 8, 1956, ] am informed by theexecutive officer, township authority, Moshi, that the building plans of themain building to be erected by you on this plot were approved onFebruary 15, last but that building operations have not as yet commenced.Having regard to this and to the contents of my previous letters on the subjectof this plot, you will appreciate that your failure to erect the mainbuilding constitutes a breach of the terms and conditions of the right ofoccupancy and this renders your right of occupancy liable to revocation.However, and without prejudice to such rights as have accrued to theGovernor, I am prepared to postpone further action for thirty days fromthe date of this letter to enable you to inform me of the reasons why theconstruction of the main building has not been put in hand and of whataction you propose taking to remedy the present breach of your contractualobligations."2. Please understand that unless 1 receive a satisfactory reply to thisletter by June 30 next, 1 shall be obliged to consider taking further actionwith the view to a recommendation being made to the Governor that theright of occupancy be revoked.""10. It shall not be lawful for the Governor to revoke a right ofoccupancy granted as aforesaid save for good cause. Good cause shallincludefora six months'~ referred to in the FJanuary 3, 1956,llf of your clientsinform you thathave been giveny have submitted G, dated November; building on thisled fresh plans a1 them. However,to the townshipn extension up to Hans approved, andreport during theare by then undert of occupancy beding satisfactorily,In of time in which I

950 EASTERN AFRICA LAW REPORTS [1960] E.A.Although this section negatives waiver by acceptance of rent it is silent as to Awaiver of forfeiture by other unequivocal acts, with the consequent implicationthat the ordinary principles of law as to such acts are applicable. So far aswaiver of forfeiture is concerned it was not disputed that the right of occupancywas to be regarded as a lease. The law to be applied is that provided by s. 2of the Land (Law of Property and Conveyancing) Ordinance (Cap. 114 of theTanganyika Revised Laws) which is as follows: B"2. (I) Subject to the provisions of this Ordinance, the law relatingto real and personal property, mortgagor and mortgagee, landlord andtenant, and trusts and trustees in force in England on the first day ofJanuary, 1922, shall apply to real and personal property, mortgages,leases and tenancies, and trusts and trustees in the Territory in likemanner as it applies to real and personal property, mortgages, leasesand tenancies, and trusts and trustees in England, and the Englishlaw and practice of conveyancing in force in England on the day aforesaidshall be in force in the Territory."(2) Such English law and practice shall be in force so far only as thecircumstances of the Territory and its inhabitants, and the limits of HerMajesty's jurisdiction permit."(3) When such English law or practice is inconsistent with any provisioncontained in any Ordinance or other legislative act or Indian Act for thetime being in force in the Territory, such last mentioned provision shallprevail."Counsel for the appellant relied strongly upon the case of Diwan Singh v .The Commissioner of Lands (I), [1958] E.A. 367 (C.A.) in which a number ofthe English authorities on waiver were referred to. It will be of advantage toset out again the passage from Matthews v. Smallwood (2), [1910] 1 Ch. 777 at786 which was quoted by the learned president of this court in Diwan Singh's (I)case, at p. 371 :"Waiver of a right of re-entry can only occur where the lessor, withknowledge of the facts upon which his right to re-enter arises, does someunequivocal act recognising the continued existence of the lease. It is notenough that he should do the act which recognises, or appears to recognise,the continued existence of the lease, unless, at the time when the act is Gdone, he has knowledge of the facts under which, or from which, his rightof entry arose. Therefore we get the principle that, though an act ofwaiver operates with regard to all known breaches. it does not operate withregard to breaches which were unknown to the lessor at the time when theact took place. It is also, I think, reasonably clear upon the cases thatwhether the act, coupled with the knowledge, constitutes a waiver is a Hquestion which the law decides, and therefore it is not open to a lessor whohas knowledge of the breach to say 'I will treat the tenancy as existing,and I will receive the rent, or I will take advantage of my power as landlordto distrain; but 1 tell you that all [ shall do will be without prejudiceto my right to re-enter, which I intend to reserve'. This is a position whichhe is not entitled to take up. If, knowing of the breach, he does distrain,or does receive the rent, then by law he waives the breach, and nothingwhich he can say by way of protest against the law will avail him anything."cDEF, J·1 \The judgment of the learned president then continued:"It seems that a waiver of a lessor's right to re-enter may arise fromthe doing by the lessor, with knowledge of the facts upon which his rightto re-enter arises, of some unequivocal act recognising the continuedexistence of the lease, notwithstanding that the lessor's actual intention may

tTS[1960] E.A.CA. PREMCHAND NATHU 1'. LAND OFFICER (GOULD, J.A.) 951if rent it is silent as to Aconsequent implication~ applicable. So far ast the right of occupancyis that provided by s. 2mance (Cap. \ 14 of theBnee, the law relatingtgagee, landlord and1 on the first day ofproperty. mortgages,.he Territory in likety, mortgages, leasesid and the EnglishI~n the day aforesaidrce so far only as theand the limits of Herent with any provisionor Indian Act for thetioned provision shallcase of Diwan Singh v...) in which a number ofwill be of advantage to1(2). [\910] 1 Ch. 777 at:ourt in Diwan Singh's (1)cDEFwhere the lessor, with.nter arises, does someof the lease, It is notir appears to recognise,, time when the act is Gr from which, his righthat, though an act oft doe not operate with)r at the time when the.ir upon the cases thatnstitutes a waiver is a Hot open to a lessor whohe tenancy as existing,e of my power as land-III be without prejudiceThis is a position whichreach, he does distrain,le breach. and nothing-ill avail him anything,"-d:c-enter may arise fromts upon which his rightognising the continued-r's actual intention mayA not be to effectuate a waiver. Once the unequivocal act is done, withknowledge, the law presumes an intention to waive the forfeiture: Matthewsv. Smallwood; Davenport v. R. (1877), 3 App, Cas. 115, 131, 132;Bellon v. Barnett (1897), 13 T.L.R, 3iO."In that case the unequivocal act from which intention to waive a forfeiturewas presumed was the approval of building plans by the agent for the lessorB with full knowledge that the building condition had not been complied withand that the period allowed for building had long since expired. I do not findany parallel to those circumstances in the present case. I have already indicatedmy opinion that the respondent's letter of February 24, 1954, properly construed,contained an implied undertaking to make a reasonable extension of the timeC allowed for building; the same applies to the letter of March II, 1954. Theletter of January 26, 1955, written when the respondent was advised that thebuilding had not been erected, contained a definite extension until July 31, 1955.which no doubt the respondent considered reasonable in the circumstances.The respondent's letter of Augu t 23, 1955, evoked an application for a furtherextension, which was granted, though not for the period requested, onD November 21, 1955. There was another request for an extension on January 3,1956, and a further implied promise to grant time provided certain conditionswere fulfilled.All this amounts to no more, in my opinion, than a series of implied orexpress agreements to extend the time limit for the building condition-somevoluntarily offered by the respondent and some entered into at the expressE request of the appellant. It would be a hard rule, and particularly hard uponbuilding lessees, if agreements of that nature necessarily involved waiver of aright of forfeiture. Landlords would be driven to insistence upon their strictlegal rights. Such agreements, if made with due formality may amount toactual variations of the terms of a lease; otherwise, in my opinion, if actedupon, they would bind the landlord at least by quasi-estoppel. It may be thatP a right of forfeiture arose in the present case when the extension granted up toJuly 31, 1955, expired without completion of the buildings, though theappellant, had the question then arisen, might have argued that the extensionspecified was not the reasonable extension that he had been impliedly promised.But even if there was a breach of the building condition at that date, I do notthink that the subsequent extensions amounted to waiver of the right ofG forfeiture, but as mere agreements not to exercise the option to forfeit, providedcertain conditions were fulfilled. The right was in fact suspended. I thinkthat the giving of time to remedy a breach which would give rise to a forfeiture,is not an act (such as distraining for rent) dependent upon the continuedexistence of the lease but an agreement with relation to the right of forfeiturewhich has arisen.H The case of Doe D. Rankin v. Brindley (3), 4 8. & Ad. 84 (110 E.R. 387)is in point. A lease contained a proviso for re-entry in case of non-repairwithin three months after notice. The landlord gave the notice but before theexpiry of the three months he brought an action for ejectment on other grounds.That action was withdrawn upon the making of a court order by consent, thatthe lessee should do the repairs by a certain date later than the expiry of theI three month period. The judgments of the three members of the court wereas follows:"PARKE, J. I think there ought to be no rule. As to the first point, thenotice to repair was given on January 6, 1832; and the right of re-entry,in default of repair, would have accrued in three months from that time.Before the expiration of the three months, an ejectment was brought:and the lessor of the plaintiff being unable to support that action, put anend to it by consenting to the order of court made at the March Assizes,

952 EASTER AFRICA LAW REPORTS [1960] E.A.1832. It was the same as if the parties after January 6, and before theexpiration of the three months, had made an agreement between themselves,that the time for repairing should be extended to June 24: it was merelya consent to postpone the time of completing the repair for the benefitof the defendant; and on his failing to comply with the terms, the lessorof the plaintiff might justly insist on his right of entry, and bring a newejectment after the expiration of the enlarged time. The receipt of rent wasonly an admission that the defendant was tenant until March 25, andcould not operate as a waiver of the forfeiture. As to the objectionfounded on the Statute II G. 4, and I W. 4, c. 70, s. 36, it seems to me thatthat could not be taken at Ni i Prius; and if it could, the answer is, that thelandlord's right to re-enter. which is said not to have been enforced inproper time, was postponed by agreement of the parties."TAU TON, J. I am of the same opinion. The order of Nisi Prius didnot supersede the notice, but only enlarged the time and suspended theright of re-entry.ABc.."PATTESON, J. The notice to repair may be connected with the agreementat Nisi Prius in the first ejectment. The other point is mere matter of Dirregularity. "The situation there was described as a postponement of the right to re-enterby agreement of the parties, the only point of distinction being that it was anagreement made before the right had arisen. 1 do not think that it is of anyconsequence that in the present case agreements may have been made both Ebefore and after the accrual of the right. 1 think it would be carrying theeffect of the authorities on the subject of waiver too far. to hold that the lawwill presume an intention in the landlord to waive, once and for all, a rightof forfeiture, when the only basis for such a presumption is an agreement whichitself connotes a contrary intention. It is true that the decision in Doe D.Rankin v. Brindley (3), was questioned by JAMES, L.J .• in Ex parte Newill FIn re Garrud (4) (1880), 16 Ch. D. 522 at p. 531; but I think that even in thatcase the possibility of an effective agreement for an extension of time forcompletion of a building was not ruled out-as when JAMES, L.J., said, in thecourse of the argument, at p. 528:"If the day for completion had passed, and then, with the knowledge Gand acquiescence of the landowner, the builder finished the houses, couldthe landowner seize the materials? 0 new day being appointed forcompletion, how does the default continue ?"It was part of the submission of the advocate for the appellant that therewas waiver because the respondent had permitted the appellant to erect a Hgodown upon the land in the belief that there would be no forfeiture. InMatthews v. Smallwood (2). PARKER, J., said, at p. 786:"The right to re-enter is a legal right which, apart from release orabandonment or waiver. will exist, and can be exercised, at any timewithin the period fixed by the Statutes of Limitation; and if a defendantin an action of ejectment based upon that right of re-entry alleges a release Ior abandonment or waiver, logically speaking the onus ought to lie on himto show the release or the abandonment or the waiver."This, however, must be read in the light of the deci ion in Marsden v. Sambell(5) (1880), 43 L.T. 120, in which it wa held that the election to forfeit mustbe made before the party against whom it is claimed is allowed to alter hisposition on the faith of the continuance of the lease. The advocate for theappellant relied on Marsden v. Sambel/ (5), but I am unable to agree that there •

..s[1960] E.A.CA. PREMCHAND NATHU v, LAND OFFICER (GOULD, J.A.) 9536, and before the Aetween themselves,24: it was merely.air for the benefitIe terms, the lessor" and bring a newreceipt of rent was Biil March 25, and; to the objectionit seems to me that: answer is, that the: been enforced ines.Cr of isi Prius didand suspended the\\ ith the agreementis mere matter of DA are any circumstances which bring the present case within the principle therelaid down. It is one thing to stand by while a lessee expends money upona property which you have allowed or caused him to think will not be forfeited:it is quite another to inform him that there will be no forfeiture provided heremedies a breach of covenant by a certain date. That was the present case.For these reasons, in my judgment there was no waiver of a right of forfeitureB in the present case, but rather a waiver of strict compliance with the requirementsof a condition with regard to time. It is more akin to the position whichfrequently arises in commercial contracts, in relation to which DENNING, J .L.,said in Charles Rickards LId. v. Oppenltaim (6), (1950) I K.B. 616 at p. 623:CD"If the defendant, as he did, led the plaintiffs to believe that he wouldnot insist upon the stipulation as to time, and that, if they carried out thework, he would accept it, and they did it, he could not afterwards set upthe stipulation as to the time against them. Whether it be called waiver orforbearance on his part, or an agreed variation or substituted performance,does not matter. It is a kind of estoppel. By his conduct he evinced anintention to affect their legal relations. He made, in effect, a promise notto insist on his strict legal rights. That promise was intended to be actedon, and was in fact acted on. He cannot afterwards go back on it."the right to re-enterbeing that it was anlink that it is of anyave been made both E Eould be carrying theto hold that the law! and for all, a rights an agreement whichdecision in Doe D.in Ex parte Newit t F Flink that even in thatxtension of time for,1ES, L.J., said, in theith the knowledge GI the houses, coulding appointed forappellant that thereappellant to erect a Hoe no forfeiture. Int from release or-ised, at any timernd if a defendantry alleges a releasevught to lie on himMarsden v. Sambell.tion to forfeit mustallowed to alter hishe advocate for the'e to agree that thereIGHIThe respondent in the present case led the appellant to believe that he wouldnot insist upon the stipulation as to time, but only within limits which hespecified. In law there is nothing which will imply waiver of a forfeiture fromthe fact that a landlord merely stands by after a breach of covenant; a positiveact is required. I know of no authority which indicates that he may not, withoutwaiving the forfeiture, state that he would stand by and not exercise his optionto forfeit provided the lessee did certain things by a certain time. jf that promiseis acted upon, and the landlord, in the words of DEI ·ING. L.J., "cannot afterwardsgo back on it", I think that the tenant must be equally bound by hisexpress or implied acceptance of the promise.In my opinion the submission based on waiver fails. Ground 5 of thememorandum of appeal reads:"5. The learned judge erred in holding that s. 14 (I) of the ConveyancingAct, 1881, was not applicable in Tanganyika to termination of rights ofoccupancy for breach of a covenant or condition:'The learned trial judge rejected this ground on the basis that, in his opinion,s. 14 (I) of the Conveyancing Act, 1881, does not apply to the termination ofa right of occupancy for breach of a covenant or condition as not beingconsistent with the special provisions of the Tanganyika Land Ordinance.I prefer to express no opinion upon this question but to approach this groundof appeal from the point of view of the submission by counsel for therespondent that the Conveyancing Act, 1881, does not bind the Crown andthat therefore no notice under s. 14 (I) thereof was necessary.Thi is a point upon which there appears to be singularly little direct authority.The case of Bashir \. Commissioner oj Lands (7), (1960) A.C. 44, on appealfrom a judgment of this court in Commissioner for Lands v. Sheik MohamedBashir (8). (1958) E.A. 45 (C.A.), wa relied upon. It will first be convenientto quote, rather extensively, from the judgment of the learned president of thiscourt. He said, at p. 57:"Having found that s. 83 of the Crown Lands Ordinance does not applyto the breach of the building condition in the respondent's grant, it is notnecessary to decide the question of whether or not, in giving relief againstforfeiture for breach of lessee's covenants under s. 83, a court should beguided by the principles of English law set out in s. 14 of the Conveyancing~./'.:

954 EASTER AFRICA LAW REPORTS [1960] E.A.Act, 1881. However, as the question has been fully argued and may arisein future if a court is asked to relieve against forfeiture for breach of alessee's covenant, e.g. a covenant contained in a Crown Lease executedbefore 1919, perhaps I should state my opinion on it."The relevant portion of s. 83, to which the learned president refers, reads:"In exercising the power of granting relief against forfeiture underthis section the court shall be guided by the principles of English law andthe doctrines of equity."The judgment continues, at p. 58:"Hitherto it has been assumed (and it was so held in Hassanali Dedhar'scase) that the principles of English law by which the court was to be guidedin granting relief were the principles set out in s. 14 (2) of the ConveyancingAct, 188 I, that is to say that the court might grant or refuse relief. as thecourt having regard to the proceedings and conduct of the parties underthe foregoing provisions of s. 14 and to all the other circumstances thoughtfit, and might grant relief on terms as set out in the sub-section. But ithas now been contended for the appellant that, as the ConveyancingAct, 1881, does not bind the Crown in England, those principles are inapplicablehere. The result of this would be that the court could not relieveagain t forfeiture for breach of a lessee's covenant except in cases whererelief could be granted apart from the Conveyancing Act, 1881, i.e. relieffor non-payment of rent, failure to insure, and rare cases of accident orsurprise. The question is how are the words 'the principles of English law'to be construed. In this context they are far from plain. I am unable tobelieve that it was me intention of the legislature in J915 to continue toempower the court in the main enacting part of the section to give reliefon such terms as might appear just and then, by an additional paragraphin this form, so to restrict the court's powers as to prevent it doing justice.All the above-mentioned cases in which relief could be granted apart fromthe Conveyancing Act, 1881, (except perhaps failure to insure) could berelieved against under the 'doctrines of equity' without invoking any ofthe 'principles of English law', so that the interpretation contended forwould give no meaning, or next to no meaning to the words 'the principlesof English law'. And, as the doctrines of equity would apply in any event,without the 19J 5 addition to the section, that addition, if construed asthe Crown contends, would have been unnecessary. Moreover, such arestriction as is suggested would be repugnant to the main enacting partof the section the object of which clearly is to permit relief upon suchterms as may appear just. I have no doubt that the intention was to directthat the Supreme Court in granting relief against forfeiture for breach oflessee's covenants in Crown leases should be guided by the principles ofEnglish law as between subject and subject and the doctrines of equity,and that if the legislature had intended to exclude the operation of s. 14 (2)of the Conveyancing Act, 1881 (which was the main provision of Englishlaw governing relief against forfeiture for breach of covenants in leases,though not, it is true, in Crown leases) they would have said so in plainterms. To give effect to the Crown's contention would, in my view, be tooffend against various canons of construction of statutes, It would be todefeat the manifest object of the legislature, to render certain words inthe section nugatory, and to permit the 1915 addition, which though notin form a proviso, is somewhat similar to a proviso, to control the mainenacting part of the section. I would, therefore, reject this contention."ABcDEFGHIAs the learned president said, this finding did not constitute an essentialpart of his judgment but as the Privy Council reversed the decision of this

[1960) E.A.and may ariser breach of aease executedefers, reads:rfeiture underglish law andanali Dedliar'ss to be guidedConveyancinge relief. as theparties underance thoughtection. But itConveyancing:iples are inapuldnot relievein cases where1881. i.e. reliefof acciden t or)f English law'am unable toto continue toI to give relief.nal paragraph: doing ju tice.led apart fromsure) could bevoking any ofcontended for'the principlesy in any event,f construed as'eover, such aenacting partief upon such1 was to directfor breach ofe principles ofnes of equity,ion of s. 14 (2)ion of Englishants in leases,lid so in plainny view, be tot would be to·tain word inch though notitrol the mainontention."ute an essentialdecision of thisABcDEFGHICA. PREMCHAND NATHU v. LAND OFFICER (GOULD, l.A.) 955A court in other respects, it became an essential part of the judgment of theirlordships, who said «1960) A.C. 44, 62):B"For the reasons given in the judgment of SIR KENNETH O"CON:-IOR, P.,(at p. 152 and p. 153 of the record) their lordship cannot accept theargument that the second paragraph of s. 83 does not import a reference tos. 14 of the Act of 1881 because that Act did not bind the Crown inEngland."This does not can titute a finding that s. 14 of the Conveyancing i\'::i, 1881,did not bind the Crown, but only that, by reason of the wording of s. 83 ofthe Crown Lands Ordinance (Cap. 155 of the Laws of Kenya)C "the principles upon which the English courts exercised their power ofgranting relief as between subject and subject under the relevant Englishstatute law"(p. 61) were to be applied, although the Crown was a party. Nevertheless thewords in the passage of the judgment of the learned president above set out,D ..though not, it is true, in Crown leases", with reference to s. 14 (2) of theConveyancing Act, 1881. were apparently accepted by their lordships, as theyindicated no dissent from them. Had their lordships been of the opinion thats. 14 of the Conveyancing Act, 1881, did bind the Crown they would no doubthave said so, and there would then have been no necessity for them to considerthe argument dealt with by the learned president, or to adopt his reasons forE not accepting it. [think, therefore, that their lordships may justifiably be takenas being of the opinion that, in England, the Crown was not bound.FGThe general rule concerning the applicability of statutes to the Crown is souniversally accepted that it is unnecessary to quote authority for it. The Crownis not bound unless it is referred to directly or by necessary implication. It isa rule particularly applicable if the prerogative or (as here) the Crown's rightsor property are involved. In the Conveyancing Act, 1881, the Crown is notnamed directly; so far as s. 14 is concerned the only factor which could possiblygive rise to a "necessary implication" is the presence of s. 14 (4), which reads:"(4) This section applies although the proviso or stipulation under whichthe right of re-entry or forfeiture accrues is inserted in the lease in pursuanceof the directions of any act of parliament."Section 146 (6) of the Law of Property Act, 1925, is in identical terms, and inthe notes to that sub-section in HALSBURY'SSTATUTESOF ENGLAND (2nd Edn.),Vol. 20, p. 747 are references to s. 99 (7) of the same Act and s. 42 (I) (iii) ofthe Settled Land Act, 1925. Each of those sub-sections contains a requirementH that every lease contemplated by the respective sections shall contain a conditionof re-entry on non-payment of rent. In the year 1881 similar provisions werecontained in s. 18 (7) of the Conveyancing Act, 1881, and s. 46 of the SettledEstates Act, 1877. In the fifth edition of CHITTY'S STATUTES,a note to s. 14 (4)of the Conveyancing Act, 1881, refers to a number of private Acts and alsoto s. 27 of the Crown Lands Act, 1829, which requires leases under the ActI to contain a proviso or condition for re-entry on non-payment of rent or nonobervance or non-performance of covenants (see HALSBURY'S Lvws OFENGLAND (1st Edn.) Vol. 7, p. 163). The note in CHITTY'S STATUTESadds:"but quaere. whether the Crown is bound by this fourth sub-section notbeing expressly named."WOODFALL ON LANDLORD AND TENA T (25th Edn.) in note (c) on p. 1006,calls attention to s. 13 ·of the Coal Act. 1938, as another example, but. with

956EASTERN AFRICA LAW REPORTS[1960J E.A.specific reference to the Crown Lands Act, 1927, which repealed and replaced A(inter alia) s. 27 of the Crown Lands Act, 1829, the text book states:"The Crown not being named in the Law of Property Act, 1925, s. 146of that Act (see infra, chap. 18, s. 6 (b», which provides for relief againstforfeiture for breach of covenant, would seem not to apply to any leaseunder the Crown Lands Act."B(See note (g) p. 103 and note (c) p. 1006.) 1 am, with all respect to the learnededitors of the text book, rather at a loss to understand the statement that theCrown is not named in the Law of Property Act, 1925, as it is clearly namedand its position defined in s. 208. It is possible that the note has been handeddown from earlier editions in which the reference was to the ConveyancingAct, 1881. At the same time 1 think that the note indicates an opinion that Cthe existence of s. 146 (6) of the Law of Property Act, 1925, does not of itselfcreate a necessary implication that the Crown is bound by the section. Thatopinion may justifia bly be applied to s. 14 (4) of the Conveyancing Act. 1881.The decision of the Privy Council in Province of Bombay v. MunicipalCorporation of Bombay (9), [1947] A.C. 58 can be referred to with advantage.One aspect of the judgment is most concisely expressed in the headnote, at Dp. 59, as follows:"To hold that the Crown is bound 'by necessary implication' if it canbe shown that the legislation cannot operate with reasonable efficiencyunless the Crown is bound, is to whittle down the general principle and isunsupported by authority. "In the judgment (at p. 63) the following passages relate to an argument ba edon statutes said to be passed "for the public good":"Every statute must be supposed to be 'for the public good,' at leastin intention. and even when, as in the present case, it is apparent that oneobject of the legislature is to promote the welfare and convenience of alarge body of the King'S subjects by giving extensive powers to a localauthority, it cannot be said, consistently with the decided cases, that theCrown is necessarily bound by the enactment."EF"Their lordships prefer to say that the apparent purpose of the statuteis one element, and may be an important element, to be considered whenan intention to bind the Crown is alleged. If it can be affirmed that. at thetime when the statute was passed and received the royal sanction, it wasapparent from its terms that its beneficent purpose must be wholly frustratedunless the Crown were bound, then it may be inferred that the Crown hasagreed to be bound. Their lordships will add that when the court is askedto draw this inference, it must always be remembered that, if it be theintention of the legislature that the Crown shall be bound, nothing iseasier than to sa) so in plain words."I think that both of these passages are applicable to the present case. Thereis no question of the legislation being unable to operate with reasonableefficiency unless the Crown is bound, or of its purpose being wholly, or evenin part, frustrated. The only argument which could be relied upon in supportof a submission that the Crown hould be bound by s. 14 of the ConveyancingAct, 1881, is that such Crown leases as were governed by s. 27 of the CrownLands Act, 1829. would contain a proviso or stipulation of the nature referredto in s. 14 (4) of the Conveyancing Act. This in my view is not sufficient. Tn everycase in which the que tion whether the Crown is bound by a particular enactmentis considered. there must be scope for the operation of the enactment againstGHI

saled andk states:(1960) E.A.replacedvet, 1925, s. 146'or relief againstoly to any lease1 argument basedABiect to the learnedBstatement that thet is clearly named. has been handedthe Conveyancingan opinion thatdoes not of itselfC Cthe section. Thatancing Act, 1881.bay v. Municipal~ with advantage.the headnote, at D D-ation' if it can1able efficiencynrinciple and isgood: at leastrarent that onenvenience of avers to a localcases, that theEFAEFC.A.PREMCHAND ATHU I'. LAND OFFlCER (GOULD. J.A.) 957the Crown-otherwise the question would not arise. There is clearly roomfor the operation of s. 14 (4) apart from the Crown Lands Act, 1829, eventhough the operation of s. 14 (4) in relation to the other enactments mentionedin HALSBURY'S STATUTES and CHITTY'S STATUTES (detailed above) may belimited by the operation of s. 14 (8) which provides that the section shall notaffect the law relating to re-entry or forfeiture or relief in case of non-paymentof rent. In my judgment, therefore, the Crown is not bound by s. 14 of theConveyancing Act, 1881.It is next necessary to ascertain the effect of this in relation to the law ofTanganyika. 1 have already set out s. 2 of the Land (Law of Property andConveyancing) Ordinance which applies to the territory the general Englishlaw relating to conveyancing in force on January I, 1922. It is common groundthat, by virtue of that Ordinance, s. 14 of the Conveyancing Act, 1881, is inforce in Tanganyika between subject and subject. It is argued for the respondentthat the same Ordinance also imports the law that s. 14 aforesaid is not bindingon the Crown in England, and therefore does not bind the Crown in Tanganyika.Against this submission counsel for the appellant advanced two arguments.First he submitted that the position of the Crown in a trusteeship territorywas different from its position in a colony. Counsel did not enlarge upon thisto show why such a difference, if it exists, should extend to deprive the Crownof its prerogative or make it any less the fount of legislation. No authoritywas quoted and 1 think that 1 need none for rejecting the submission as onewithout merit. Under art. 4 of the Trusteeship Agreement (Vol. V of the Lawsof Tanganyika, 1947, at p. 2) the administering authority is responsible for thepeace, order and good government (inter alia) of the territory, and by art. 5has full powers of legislation, administration and jurisdiction. The administeringauthority is "His Majesty"-art. 2. The jurisdiction, legislative and administrativeauthority has been exercised by various Orders-in-Council and RoyalInstructions as in the case of a colony. In my view where the Crown is actuallyexercising under the Foreign Jurisdiction Act, 1890, full legislative authority ina territory, its traditional position with regard to that legislation is not alteredby the fact that it has assumed responsibility for that legislation by agreementwith an international organisation.of the statuten idered whenied that. at themerion, it waslolly frustrated.he Crown hascourt i askedt, if it be therd, nothing isent case. Therewith rea onablewholly, or evenupon in supportie Conveyancing~7 of the Crown! nature referredfficien t. In everyicular enactmentactment againstGHICounsel's second argument was based upon the decision in Basliir v. COli/-missioner of Lands (7), which indicated that the Crown in Kenya was boundby s. 14 (2) of the Conveyancing Act, 1881. I have already quoted the relevantGpassages from the judgment of their lordships of the Privy Council and of thelearned president of this court. They indicate clearly that the question dependedentirely upon the interpretation of s. 83 of the Crown Lands Ordinance(Cap. 155 of the Laws of Kenya, 1948) in the context of an Ordinance dealingspecifically with Crown leases. It was held that the intention of s. 83 was toH import the English law as between subject and subject, into the law of Kenyarelating to Crown leases. There is no parallel in the pre ent case. The Land(Law of Property and Conveyancing) Ordinance of Tanganyika does not dealwith Crown leases but, on the contrary, is in perfectly general terms. Thereare no inferences to be drawn from s. 2 thereof, such as were drawn froms. 83 of the Kenya Crown Lands Ordinance. Section 2 imports a body oflaw which includes the law that the Crown is not bound by s. 14 of theIConveyancing Act, 1881; it follows that in my judgment the respondent wasnot bound to give the notice required by s. 14 (I) of that Act. 1 bave not foundit necessary to consider whether the Land (Law of Property and Conveyancing)Ordinance, itself binds the Crown in Tanganyika; the resolution of thatquestion is not essential, in view of the opinions on the law that 1 haveexpressed.For the reasons I have given the appeal cannot in my opinion succeed.1 note however that in a letter dated March 27, 1958, from the Department

958 EASTERN AFRICA LAW REPORTS[1960] E..A..of Lands and Surveys, it was stated to be the intention of the Government, after Are-allocation of the plot, to account to the appellant for the value of thebuildings. The effect of this decision may not, therefore, be so burdensomeupon the appellant as it might seem at first sight.J would dismiss the appeal with costs.SIR ALASTAIR FORBES, V.-P.: I am in agreement with the judgment Bwhich has just been read, but wish to add a few words in regard to ground 4of the memorandum of appeal, as I have found it far from easy to reach aconclusion upon that ground.Paragraph 2 of the certificate of occupancy, which is set out in the judgmentof GOULD, J.A., contains three building conditions related to time, that is tosay sub-para. (ii), which requires the submission of plans and specifications to Cthe township authority within six months from the date of commencement ofthe right of occupancy; sub-para. (iii), which requires that building operationsbe commenced within three months from the date of notification by thetownship authority of approval of the plans and specifications; and subpara.(iv), which requires the buildings to be completed within a period oftwenty-four months from the date of the commencement of the right of Doccupancy.As regards sub-para. (ii), the six months limitation for the submission ofplans was apparently never insisted upon, and can only be regarded as havingbeen waived. Fresh plans and specifications were submitted by the appellantsfrom time to time for approval, and no objection was taken by the respondentto the approval of such plans and specifications by the township authority. EThe last of such plans and specifications were approved by the townshipauthority on February 15, 1956.As regards sub-para. (iii), 1 can see nothing in the correspondence orconduct of the parties which amounts to a waiver of the condition that buildingoperations must be commenced within three months after approval of theplans and specifications by the township authority; and I have no doubt that Fthe condition relates to the main building to be erected, that is the shops andflats. As I have mentioned, the last plans and specifications were approved bythe township authority on February 15, 1956, and the approval was notified tothe appellant's agents on the same date. In fact, building operations on theshops and flats were not commenced within the three month period, or at allapparently, and it seems to me that there was therefore a clear breach of this Gcondition which would have justified revocation of the certificate of occupancy.The certificate of occupancy was not, however, revoked on the ground ofbreach of this condition, but expressly on the ground of breach of condition2 (iv), and accordingly I think that the respondent, for the purposes of thiscase, is restricted to reliance on the alleged breach of condition 2 (iv). If therehas been a waiver of that condition, then I think the appeal ought to succeed. H.SO far as the law is concerned I do not think there is any doubt, and thedifficulty arises from the application of the law to the facts of this case. Thelaw is concisely stated in the passage from the judgment of the learned presidentof this court in Diwan Singh v . The Commissioner of Lands (1), which is setout in the judgment of GOULD, J.A., and which I repeat here:"It seems that a waiver of a lessor's right to re-enter may arise from thedoing by the lessor, with knowledge of the facts upon which his right tore-enter arises, of some unequivocal act recognising the continued existenceof the lease, notwithstanding that the lessor's actual intention may not beto effectuate a waiver. Once the unequivocal act is done, with knowledge,the law presumes an intention to waive the forfeiture: Matthews v.Smallwood; Davenport v. R. (1877) 3 App. Cas. 115, 131,132; Bevan v.Barnett (1897), 13 T.L.R. 310."II •I.

[1960) E.A.emment, after Avalue of the) burdensomethe judgmentj to ground 4.sy to reach aBthe judgmentme, that is toecifications to Cmencement ofing operationscation by thens ; and sub-;1 a period ofthe right of Dsubmission ofded as havingthe appellantshe respondenthip authority. Ethe township.spondence or:1 that buildingiproval of theno doubt that Fthe shops ande approved byvas notified torations on the:riod, or at allbreach of this Gof occupancy..he ground ofn of conditionirposes of this2 (iv), If thereght to succeed. Hioubt, and thethis case. Theirned president), which is set'ise from thehis right toled existencemay not beI knowledge,Matthews v.2; Bevan v.II.L\II'\CA. PREMCHAND NATH v. LAND OFFICER (GOULD, J.A.) 959A It is also, I think. settled law that there cannot be a waiver, otherwise than byan instrument of the same nature as that by which the contract was created.before a breach has occurred IWOODFALL ON LANDLORD A '0 TENANT (25thEdn.), p. 591; West v. Blak eway (10) (1841), 2 Man. & G. 729, 752; 133 E.R.940,949); though a promise may be macie which is legally binding on a lessorif it is intended to be acted upon and is actually acted upon (Central LondonB Property Trust Ltd. v. High Trees House Ltd. (11). [1947] K.B. 130; Lyle-Millerv. A. Lewis & Co. (Westminster) Ltd. (12), [1956] I All E.R. 247), Further,I think it is settled law that merely standing by and seeing the lessee committinga breach of covenant does not operate as a waiver on the part of the lessor(WOODFALL ON LANDLORD AND TENANT (25th Edn.). p. 592; Perry v. Dovis(13) (1858), 3 CB,N.S. 769; 140 E.R. 945).cWere it not for the express statutory provision, contained in s. 11 of theLand Ordinance, that acceptance of rent shall not be held to operate as a waiverby the Governor of any forfeiture accruing by reason of the breach of anycovenant or condition in any certificate of occupancy granted under theOrdinance, I would have no doubt that, on the authority or Matthews v.Smallwood (2), the continued acceptance of rent after the right of re-entryD arose must, in the circumstances of this case, have constituted a waiver ofthe breach of condition 2 (iv), and that it was immaterial that the respondentintended to reserve his right of re-entry. Since, however, by virtue of s. II ofthe Land Ordinance the acceptance of rent does not have this effect. thequestion is, has the respondent done any other unequivocal act recognising thecontinued existence of the right of occupancy.E The respondent's letter of February 24, 1954, was written before a breachof condition 2 (iv) had in fact occurred and cannot, in my opinion, operateas a waiver of the prospective breach; though the implied promise in thatletter not to enforce forfeiture if the buildings were completed within areasonable time may, on the basis of the decision in Central London ProperlyTrust Ltd. v . High Trees House Ltd. (II), have been legally enforceable.FOn April 4, 1954, the appellant was in breach of condition 2 (iv). OnJanuary 26, 1955, August 23, 1955 and November 21, 1955, letters (the fulltext of which are set out in the judgment of GOULD, J.A.) were written by therespondent promising, in effect, not to enforce forfeiture of the right ofoccupancy if the buildings were completed within further specified periods.Was the sending of any of such letters an unequivocal act recognising theG continued existence of the right of occupancy? In my opinion it was not.Each of those letters appears to me to be no more than a promise (which maywell have been legally enforceable) to stand by and not take action to enforceforfeiture for a limited time. Since the continued acceptance of rent does notoperate as a waiver of the breach, I cannot see that the mere promise to standH by and not enforce the forfeiture for a limited time is such an unequivocal actof recognition of the continued existence of the right of occupancy as wouldamount to a waiver of the breach. The position seems somewhat similar toone in which, in a territory where the ordinary rule as to waiver by receipt ofrent applies, a lessor after breach refused rent, but undertook to stand by fora limited period to enable the breach to be remedied. I know of no authorityI covering such a situation, but it seems to me that in such ca e the lessor's actwould not amount to waiver of the breach.I accordingly agree that there has not, in this case, been a waiver of the rightof forfeiture which accrued on April 4, 1954.The appeal is dismissed with costs.CRAWSHAW, J.A.: I have had the advantage of reading the judgmentof the learned justice of appeal, with which 1 entirely concur.

960 EASTERN AFRICA LAW REPORTS [1960] E.A.I associate myself with his view that the extensions of time granted by the Arespondent did not constitute waiver, and were no more than agreements towithhold the exercise of the right of forfeiture on conditions. The right wasnot lost by the respondent allowing the appellant to build the godown. Thegodown was a building ancillary to the main building to be erected, and wasincluded in the approved plans. It was merely that, of the buildings to beerected by the appellant, the appellant decided to construct the godown first. BAt the time the godown was constructed there was no question of forfeitureprovided the buildings as a whole were put up within the time allowed, ofwhich the appellant was well aware.Appeal dismissed.,.Advocates: Reid & Edmonds, Moshi (for the appellant); The Attorney- CGeneral, Tanganyika (for the respondent).RIANO eio LENALAIMER AND ANOTHER v. R.[COURT OF ApPEAL AT NAIROBI (Sir Alastair Forbes, V.-P., Gould andCrawshaw, JJ.A.), November 29 and December 19, 1960.] ECRIMINAL ApPEAL No. 164 OF 1960.(Appeal from H.M. Supreme Court of Kenya-Goudie, J.)Criminal law-Trial-Evidence-Trap question to witness=Question makingassumption contrary to fact-Whether question proper. FCriminal law-Appeal-Grounds of appeal-Grounds lacking particularity-General ground alleging conviction against weight of evidence-Whetherappellant entitled to argue any point under general ground-Eastern AfricanCourt of Appeal Rules, 1954, r. 34 (2).At the trial of the appellants on a charge of murder the judge asked a witness Gfor the defence a question which involved an assumption contrary to fact.The witness was entrapped and his evidence was later rejected by the judge.On appeal against conviction, Crown counsel complained that the grounds ofappeaJ lacked particularity.Held: (i) it is not permissible to mislead a witness by putting questions Hwhich involve assumptions contrary to fact.(ii) it is not a sufficient ground of appeal to allege that a conviction wasbad in Jaw, or that a conviction was against the weight of the evidence, andwhere an appellant is represented by counsel he will not be allowed to argueany point under a general ground of appeaLAppeal of first appellant dismissed. Appeal of second appellant allowed. ICases referred to:(I) Aladesuru v. R., [1956] A.C. 49.(2) Faze/abbas Sulemanji and Another v. R. (1955), 22 E.A.C.A. 395.(3) R. v. Ramzan Ahmed Jamal (1955),22 E.A.C.A. 504.M. J. E. Morgan for the appellants.J. P. Webber (Deputy Public Prosecutor, Kenya) for the respondent.D