Awobiyi & Sons V Igbalaiye Brothers (1965)
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BRETT, J.S.C.
This is an appeal from the decision of De Lestang C.J. Lagos, upholding the judgment of the Magistrates’ Court by which the respondents, as landlords, were granted an order for possession of premises at 19 Oke Arm Street, Lagos. The proceedings were brought under the Recovery of Premises Act, and the appellant submits first that the respondents failed to prove that the statutory notice to quit by which they purported to terminate the tenancy was duly served on him, and secondly that the notice was in any case bad. The respondent sought to prove service of the notice by the evidence of Abudu Lasisi Awokoya, a law clerk in the chambers of counsel for the respondent. He gave evidence on the 21st September, 1961, and said among other things-”I know the defendants. On the 30th September, 1960, I served him with 2 copy of this notice-put in and marked Exhibit C. I served the 1st defendant personally … I served the 1st defendant in his house … I cannot remember the locality of the defendant’s house in Lagos … I did not know the defendant before and nobody acted as a pointer. We do not use Dispatch Book for service of notices.” The hearing was then adjourned until the 12th October, 1961, when the appellant (who was the 1st defendant) gave evidence, in which he said “I was not served with any statutory notice. I have never in my life saw (sic) the man that is the plaintiff’s witness who said he served me with statutory notice.
I never saw Exhibit C before the writ of summons was served on me.” His co-defendant, who is not a party to this appeal, also denied that he had been served with the statutory notice. The magistrate delivered judgment on the 7th November, 1961, and in allowing the plaintiff’s claim he omitted all reference to the conflict of evidence on the question of service, and made no express finding that service had been proved.
The issue was raised on the appeal to the High Court, and the learned Chief Justice dealt with it in the following terms:-
“It seems to me that although it is desirable that the Magistrate trying a case for possession under the Recovery of Premises Act should state clearly in his judgment whether the required notices were served or not the failure to do so will not necessarily be fatal to the decision. When there is evidence as to service of notices it must, I think, be presumed from the fact that an order for possession was made, that the learned Magistrate was satisfied that service was properly effected. There was some evidence of service in the present case but it is contended that the only reasonable inference to be drawn from that evidence is that the notices were not served.
“The evidence was in my view that of a witness whose evidence on paper at least does not carry much conviction. It is uncorroborated and denied by the appellants. Reading the evidence in the cold light of the transcript I would not myself have found service proved, but I have not seen the witness and I have not heard him give his evidence and he may have impressed the learned Magistrate who had those advantages. Moreover, it is impossible to say that it would be un-reasonable for a Court to act on that evidence, unsatisfactory as it looked in the transcript. This ground of appeal accordingly fails.”
We agree with the Chief Justice as to the impression created by reading the transcript, but we are, with respect, unable to share his view that the magistrate’s decision ought not to be disturbed. Section 19(d) of the Recovery of Premises Act makes it necessary for the plaintiff to prove “the expiration or other determination of the tenancy with the time and manner thereof’, and where there is a conflict of evidence, we do not think that to say it is desirable that the magistrate should state clearly whether the required notices were served or not is putting it strongly enough. The presumption which the Chief Justice felt justified in making is further weakened by the lapse of time between the 21st September, when Awokoya gave evidence, the 12th October, when the appellant gave evidence, and the 7th November, when judgment was delivered. During these intervals the magistrate must have had to direct his mind to numerous other cases, and in such circumstances he must be regarded as having lost much of the advantage which he might otherwise be supposed to have derived from seeing and hearing the witnesses, so that an appeal court is in almost as good a position as he is to form an opinion of their reliability. This ground of appeal is well-founded, and if it stood alone the question would be whether we should dismiss the plaintiff’s claim or send the case back for retrial so that an express fording might be made by someone who had heard the evidence.
However, if the second ground of appeal succeeds the only course will be to dismiss the claim, and we now turn to that ground. The tenancy is agreed to have been a yearly one, commencing on some date in January in each year. The notice to quit which is said to have been served on the 30th September, 1960, called on the appellant to quit and deliver up possession on the 31st March, 1961. This raises the question whether a landlord may terminate a yearly tenancy by giving half a year’s notice if such notice is to take effect on any date other than that on which a current term of the tenancy would in any event expire. The Chief Justice held as follows:-
“At common law to be valid a notice to quit had to expire at the end of the current period of the tenancy but it is not so in our law. Sections 8 and 9 of the Recovery of Premises Act deal with this question. Section 8 prescribes the length of notice to be given to determine periodic tenancies and prescribes that in the case of a yearly tenancy the period of notice is six months and Section 9 which deals with the notice itself provides:-
‘Notices referred to in section 8 may be given at any time prior to the date of termination of the current terms of tenancies, but they shall not be effective if the time between the giving of the notice and the time when the tenancy is to be determined is less than the respective periods set out in section 8.’
As I understand this section a notice to quit is valid if (a) it is given at any time before the end of the current term and (b) its date of expiry is not shorter than the period prescribed by section 8 for the tenancy m question. The notice to quit in the present case complies with the section and is accordingly valid in my opinion.”
The long title of the Recovery of Premises Act is “An Act to make pro-vision for the recovery of possession of premises”, and its primary purpose is to deal with questions of procedure and to provide for the exercise of jurisdiction by magistrates’ courts. The Chief Justice’s interpretation of it would mean not only that it had altered the substantive rights conferred by the common law, but that it had altered them to the advantage of the landlord alone, and left the tenant’s right to terminate unchanged. Such a radical and one-sided alteration of the existing law can only be effected by express words, and we do not consider that section 9 of the Act effects it. The Chief Justice attached importance to the fact that the section provides that notices may be given at any time prior to the date of termination of the current terms of tenancies, but in our view that means no more than that where, for example, half a year’s notice is required it is not necessary to serve notice exactly half a year before the date when the tenancy is due to expire. This view is reinforced by the wording of the statutory form of notice in Forms B and C in the Schedule to the Act, which calls on the tenant to quit and deliver up possession “on the of next (or at the expiration of your tenancy which shall expire next after the end of … months from the service of this notice)”.
The use of the form of words in brackets is of long standing in England: see Addis v. Burrows [1948] I.K.B. 444, 452; and it is stated in Hill and Redman’s Law of Landlord and Tenant, 11th edition at p. 463 that “It is usual, after first mentioning the date which is believed to be the anniversary of the commencement of the tenancy, to add these general words in the alternative, so that an error as to the specific day may not invalidate the notice”. The form clearly pre-supposes that the rule of common law remains unchanged.
On these grounds the appeal is allowed, the order for possession against the appellant is set aside and the respondent’s claim is dismissed. The appellant is awarded costs in the courts below and in this Court which we assess at a total sum of 60 guineas.
Other Citation: (1965) LCN/1260(SC)
