Chief Saka Owoade V. Texaco Africa Ltd (1973)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C
In suit No. MI/175/67 filed in the Ibadan Magistrates’ court, the plaintiff claimed against the defendants “the sum of one hundred and fifty pounds (150pounds) being two years’ rent for the periods 1966 and 1967 inclusive in respect of a piece of land situate lying and being at Igbo Igbale, Isale-Bode, Ibadan, which the defendants hold from the plaintiff under a deed of lease dated 17th day of May, 1960 made at Ibadan between the plaintiff and the defendants and registered as No, 17 at page 17 in volume 373 of the Lands Registry at Ibadan.”
The testimony of the plaintiff in support of the claim may be summarised as follows. The plaintiff agreed to lease a piece of land at Ibadan for a term of 10 years to the defendants in 1960 for the erection of a petrol station. Pursuant to the said agreement the parties, on 17th May, 1960, executed the deed of lease (Ex.A). The agreed rent for the land was 75pounds per annum and the defendants paid him the sum of 300pounds being four years rent in advance at the execution of the lease. Another sum of 75pounds was paid as rent for the year 1965. The defendants, in accordance with the term of the lease duly erected a petrol station on the land by burying a petrol tank in the land and “making drive ins and some concrete cement floor.” They also installed two petrol pumps.
Sometime in 1965, the defendants removed the two petrol pumps leaving all the other things which they had put on the land.
When the rent for year 1966 was due but was not paid, the plaintiff instructed his solicitor to demand the rent from the defendants. In reply, the plaintiff received from the defendants’ solicitor the letter dated 26th March, 1966 (Ex. ‘B’) the contents of which read-
“Your letter addressed to Texaco Africa Limited demanding payment of 75pounds for rent due under a lease made by Chief Saka Owoade to Texaco Africa Limited registered as 17/17/363 has been handed to us with instructions to reply to it.
We are instructed to inform you that under the terms of clause 4(c) of the lease; Chief Saka Owoade was given three months’ notice of determination of the lease with effect from 31st July, 1965.
The date of the notice was the 17th of April, 1965. It was sent to Chief Saka Owoade by registered post as provided by the property and Conveyancing Law.
Rent has been paid up to the 28th of February, 1966. No further rent is due.”The plaintiff denied receiving any notice of the termination of the lease as stated in the letter (Ex. ‘B’). He admitted, however, that he had not seen any of the Texaco people on the land since they removed some of their properties in 1965.
In their defence, the defendants admitted leasing the land from the plaintiff. They also admitted that all the rents were payable in advance and that they had paid rent up to February, 1966.
With respect to the termination of the lease Austin Eumuoye (2nd D/W) testified further as follows:-“About two years ago, we instructed our solicitors Messrs. Okubadejo and Grant to write to the plaintiff that we would be quiting the premises…..I saw the copy of the letter written by our Solicitors.”
He then identified the copy of the letter (Ex. ‘C’) already tendered by the Solicitors’ Clerk (1st D/W). The letter reads -“Dear Sir,
Texaco Africa Limited, Indenture of Lease dated the 17th day of May, 1960 registered as No. 17 at page 17 in Volume 373 of the Lands Registry at Ibadan.
In accordance with the terms of Clause 4(c) of the above lease, we have been instructed by the above named Company in our capacity as its agents to give you “three months notice of the Company’s intention to determine the lease with effect from the 31st day of July, 1965.
Please acknowledge receipt of this notice.
Yours faithfully,
Adedeji Okubadejo.
Chief Saka Owoade,
57/236 Isale Bode.
IBADAN.”The 2nd D/W further testified that the defendants gave up possession of the land at the same time as they wrote the letter (Ex. ‘C’), and that they were no longer the tenants of the plaintiff.
The solicitors’s Clerk (1st D/W) who despatched the above letter had earlier testified as follows:-
“I know the parties to the suit before this court. I have occasion to mail a letter to the plaintiff in this case. The letter was registered to the plaintiff.
This is the copy of the registered letter sent to the plaintiff. This is a slip of the Post Office showing registration of the letter to the plaintiff.”
Both the copy of the letter and the registration slip were then admitted as Exhibits C and C1.
This witness was not cross-examined by the learned counsel for the plaintiff.
In a reserved judgment, the learned Senior Magistrate after considering the provisions of the deed of lease (Ex. ‘A’) found that the tenancy was a yearly tenancy. He then observed as follows:-
“The point which the court has to decide now is whether this yearly tenancy still subsists between the parties to entertain the relief sought or not and if it has been terminated then to decide when it was, to know what rent is due. First of all, the factor which in my opinion determine the lease is not the presence of the property of the lessee on the land but the giving of notice by either party in the manner provided for in Exhibit “A”.
The learned trial Magistrate then gave judgment for the plaintiff for the amount claimed after considering the service and validity of the notice (Ex. ‘C’) and finding as follows:-
“The plaintiff denied receiving any notice or letter as claimed by the defendant to have been posted.
Is the evidence of the 1st defendants witness that he registered letter to the plaintiff sufficient proof that the said letter was delivered to the plaintiff
The registered slip – Exhibit ‘C1’ is only a certificate of posting and not of delivery. Paragraph 4(c) of Ex. ‘A’ provides for registration which was in fact done but under Section 192(4) of the Property and Conveyancing Law 1959 Cap. 100 it is incumbent on the person proving such posting and delivery to say further that the letter is not returned through the post office undelivered. The 1st defence witness has omitted to state this. This omission is very fatal to the legal proof required of the delivery of the said letter of notice. What the 1st defence witness has been able to prove is posting of the letter not delivery. I refer to Phipson on Evidence 9th Edition p. 111. There is therefore no proof of the delivery of the letter and consequently no notice. It is not impossible that a letter so posted could have been mistakenly or deliberately returned to the Post Office and the absence of this fact in evidence is fatal to the defendants’ case. Assuming that there was in fact notice, the notice ought to have been given to expire with the year of the tenancy, i.e. 28th or 29th February of any year, being a yearly tenancy and not by three months’ notice expiring at any time. I refer to the case of Lewis v. Baker (1906) 2 KB page 599. Had paragraph 4(c) of Exhibit ‘A’ stated that three months’ notice should expire at any time, then the notice if any in this case would have been valid.”
Being dissatisfied with the judgment, the defendants appealed to the Ibadan High Court which allowed the appeal and set aside the judgment of the learned trial Magistrate. In considering the arguments adduced before him, Craig J., who heard the appeal, rightly in our view, observed as follows:-
“the two principal questions which fell for decision in this appeal are:-
(a) was the Magistrate right in holding that the appellant had to prove delivery of the registered letter
(b) is the Notice to Quit Ex. ‘C” given by the appellant, bad in law
With regard to the first question, Clause 4(d) of the Lease Ex. “A” provides as follows:-
‘Any notice requiring to be served hereunder shall be sufficiently served on the tenant if sent by registered post at its office in Lagos and on the landlord if delivered personally or sent by registered post to him at his usual or last known place of abode.’
If these words are taken in their ordinary sense, they mean that it is sufficient service on the landlord if the tenant sends a notice to him at his usual address by registered post. This is exactly what the appellant did and it is unnecessary to call in aid the provisions of the Property and Conveyancing Law to interprete this simple clause.
Furthermore, Section 192(5) of that Law stipulates that the provisions of Section 192 shall apply only if the parties do not express a contrary intention.
In my view, the learned Senior Magistrate erred in holding that the appellant had to prove delivery of the notice to the respondent.”
Craig J., then dealt with the second question as follows :-
“In the present case, not only is there a special stipulation in the Lease about the Notice, I hold that it is not necessary to construe the Lease; it is a tenancy for 10 years certain…Clause 4(c) of the lease states simply that the tenant shall give three calender months’ notice of his intention to quit and the appellant did so. The agreement does not stipulate that the three months shall be given in a particular form or for a particular complete period such as quarter days or that the notice shall expire on a particular day, and since the intention of the parties is clear on the face of the agreement it would be wrong to import another idea into the lease of this nature. In my view it is enough if the tenant as in this case gives a notice which conforms strictly with the terms of the contract. See Dagger v. Shepherd (1946) 2 All ER 133 at p.135.”
A further appeal against this decision of the Ibadan High Court to the Western State Court of Appeal was dismissed by that court.
The plaintiff/appellant has now appealed to this court. The main contention of Mr. Agbaje who appeared for the appellant is that the deed of lease (Exhibit ‘A’) does not create a tenancy for a term of ten years certain but one from year to year up to ten years and referred us to the definition of “term of years” in Section 2 of the Property and Conveyancing Law (Cap. 100 of the Laws of Western Nigeria) in support. He also referred us to the decision in Scholl Manufacturing Co. Ltd. v. Clifton (Slimline) Ltd. (1966) 3 All ER 16 at p.17. It was further submitted that each of the tenancy commences at the beginning of the term and is determinable at the years’ end by notice and as the three months’ notice (Ex. ‘C’) was not given on a date to make it expire at the end of the year of the tenancy (i.e. 28th or 29th February, 1966), the notice is invalid. Mr. Agbaje further submitted that even if the lease is for a term of 10 years certain, the notice would still be invalid since the notice did not expire on the anniversary of the term. Other points urged upon by Mr. Agbaje are-
(a) that in the case of a tenancy from year to year,unless there is a special stipulation as to time, notice of termination of the tenancy must be for a period of six months to expire at the end of every year of the tenancy;
(b) that while clause 4(c) of the Lease (Ex. ‘A’ stipulates the length of the notice, there is none as to the time of the determination of the lease; and that the notice given in Ex. ‘C’ which expired on 31st November, 1965 was ineffective. In support, we were referred to Soames v. Nicolson (1902) 1 KB 157 at p. 158; Mayo v. Joyce (1920) 1 KB 824 at p.827; Dickson v. Bradford and District Railway Servants’ Coal Supply Society (1904) 1 KB 444; and Lewis v. Baker (1906) 2 KB 599 at p.603. On the question as to the service of the notice, Mr. Agbaje submitted that the provisions of clause 4(c) and (d) of the Deed of Lease (Ex. ‘A’) did not raise an irrebuttable presumption of delivery and that the onus is always on the sender to prove delivery unless the sender admits receipt. It was further contended that being a notice served under the law, it must be read subject to the provisions of Section 192(4) of the Property and Conveyancing Law; and that in the absence of any intention in clause 4 (c) and (d) that Section 192(4) would not apply, the onus is on the defendants/respondents to prove delivery where this is denied by the plaintiff/appellant. For this proposition, we were referred to R v. London Quarter Sessions (1956)1 All ER 670 at 675 and In re 88 Berkley Road (1971) 1 All ER 254 at p.258.
Mr. Akinjide’s reply on behalf of the defendants/respondents may be summarised as follows. Once an agreement made by the parties to it is reduced into writing what the court has to construe, in the absence of any ambiguity, is the wording of that agreement. What was created by the Deed of Lease in the case in hand is a term of ten years and the fact that rent was paid yearly could not convert it into a yearly tenancy. According to Section 2 of the Property and Conveyancing Law (Cap. 100), ” a term of years absolute” includes a term of years which is either certain or liable to determination by notice. Three months notice was duly given in accordance with clause 4(c) of the Agreement which did not stipulate when such notice should be given. All the cases cited by learned counsel for the plaintiff/appellant dealt either with a tenancy of an indeterminable period or a yearly tenancy; they are not in part material and could not be cited in support of the proposition put forward on behalf of the plaintiff/appellant. Moreover, since clause 4(c) provides for the method of the giving and service of notice which is contrary to that in Section 192(4) of Cap. 100, that section should not apply. Under clause 4(c) once the written notice is sent by registered post to the plaintiff/appellant, it must be deemed to have been duly served on him particularly as the witness who testified as to the registration of the letter was not questioned on this point by the learned counsel for the plaintiff/appellant. Finally, Mr. Akinjide contended that what the court had to construe is Section 4(c) of the Deed of Lease and not Section 192 of Cap. 100 because a contrary intention had been clearly shown by the insertion of a notice clause in the agreement.
From the grounds of appeal filed and the arguments which emerged therefrom, it seems to us that the questions which call for the determination are these:
(a) Is the agreement between the parties one in respect of a tenancy for a term of years or one from year to year
(b) If it is one for a term of years, can it be determined by notice
(c) If it can be so determined, what should be the form of such notice, and is there any provisions for its determination by such notice in the Deed of Lease (Ex. ‘A’)
(d) Was the Agreement in fact so determined
(e) Can the notice of termination of the agreement be made to expire at any time or must it expire at the anniversary of the yearly term And
(f) Is the notice given by the defendants/respondents under the agreement valid or invalid
In answering the first question, it will be necessary to refer to the agreement (Ex. ‘A’) which reads in part-
To have and to hold the same unto the tenant for the term of TEN (10) years from the first day of March, 1960 (renewable and determinable as hereinafter mentioned)”
The determination referred to above is in clause 4(c) of the Agreement and it reads –
“That the tenant may determine the present demise by giving to the landlord three (3) calender months’ notice in writing of its intention so to do and any such notice shall be sufficiently given if handed personally to the landlord or sent by registered post to his last known address or place of abode.”
Clause 2(g) and 3(b) of the Agreement also refer to certain actions which should be taken by the tenant and the landlord respectively at or after “the expiration or sooner determination of the said term.” In our view, this is clearly a tenancy for a term of ten years certain, the provisions for payment of rent in advance or for its earlier determination notwithstanding. As has been rightly pointed out in Halsburys Laws of England, 3rd Edition, Vol.23 paragraph 1202 at page 544, payment of rent before such rent is due –
“is a payment, not of rent, but of a sum in gross. It is an advance to the landlord, with an agreement that on the day when the rent becomes due such advance shall be treated as a fulfillment of the obligation to payment.”
between a tenancy from year to year and one for a definite term of years as in the present case.
In Soames v. Nicholson (1902) 1 KB 157 the parties entered into a tenancy agreement which provided that the tenancy should commence on May 1st, 1895 and that the yearly rent should be paid quarterly on May 1st, August 1st, November and February 1st, subject to three months’ notice on either side at any time to terminate the agreement. The lessor on January 24th, 1901 gave the tenant three months’ notice to quit on April 25th, 1901. The county court held that the notice was bad on the ground that it did not expire on one of the quarter days mentioned.
On appeal it was held that the notice was good, Lord Alverstone, CJ., observing at p.158 as follows :-
” No doubt the general rule is that in the case of a yearly tenancy, where nothing is said about the time at which it is to be determined, it can only be put to an end to by notice expiring at the date corresponding to that of its commencement. But,if the parties choose to do so, they may stipulate that they shall be at liberty to put an end to the tenancy by a notice expiring at any time. The question is whether they have done so here. I think they have.”
On the other hand, in Dickson v. Bradford and District Railway Servants’ Coal Supply Society (1904) 1 KB 444, by a tenancy agreement, premises were let “at an inclusive rental of 25pounds per annum from October 1, the tenant to pay rates and taxes in addition; three months’ notice on either side to terminate this agreement.”
It was held that the agreement created a yearly tenancy determinable by three months’ notice “at the end of any year.”
Again, in Lewis v. Baker (1906) 2 KB 599, the agreement contained a provision that it should be lawful for either party “to determined the tenancy hereby created by giving to the other of them three calender months’ notice expiring with any year of the tenancy. In that case, Sir Gorell Bames, President, observed at p.603 as follows:-
“I think there would have been more force in the plaintiffs’ contention if the clause with regard to the termination of the tenancy had said that it should be lawful for either party to determine it by giving to the other a three months’ notice at any time.”
Finally, in Simons v. Associated Furnishers Ltd. (1931) 1 Ch. 379, the plaintiff demised certain buildings to the defendant for a term of seventeen and half years from 1st March, 1925, at a yearly rent. The lease contained a proviso that if the defendant should desire to determine the lease at the expiration of the first five or ten years of the lease, and should to the lessor six calender months’ notice in writing of such desire, and should, up to the time of such determination, perform and observe the covenants on their part, then immediately on the expiration of such five or ten years, as the case might be, the demise and everything therein contained should cease and be void. On 17th August, 1929 the defendants served the plaintiff with six months’ notice in writing to determine the tenancy on 28th February, 1930 (i.e the anniversary of the tenancy). It was held that the notice was valid and that the lease had been effectively determined.
All the authorities to which we have referred seem to support our view that, in the absence of any provision in clause 4(c) of the Agreement indicating that the notice could be given “at any time”, the notice, in order to be valid, must expire at the anniversary of the tenancy on 28th or 29th February. The notice given by respondents in Exhibit ‘C’ takes effect on 31st July 1965, and would therefore expire on 31st October, 1965. As that date is not the anniversary of the tenancy, the notice is bad and is of no effect. The learned Justices of Appeal are, therefore, in error in holding that the notice is adequate and therefore valid.
As the notice is invalid, it follows that the lease still subsisted at the time the said notice was given and the appellant is therefore entitled to the amount claimed as rent.
This appeal succeeds and it is allowed. The judgment of the Ibadan High Court in Suit No. I/47A/68 of 14th April, 1969, and that of the Western State Court of Appeal in CAW/106/69 delivered on 25th June, 1970, including all the orders as to costs, are accordingly set aside. The judgment of the learned trial Magistrate in suit No. MI/175/67, in which he gave judgment for the plaintiff on 15th December, 1967 including his order as to costs, is hereby confirmed. Costs in favour of the plaintiff are assessed in the High Court at 70 naira, in the Western State Court of Appeal at 108 naira, and in this court at 125 naira.
SC.135/1972
