G. B. Moukarzel V. A. Hannah (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for possession—Lease—Option for renewal—Time within which and
manner in which option may be exercised—Statute of Frauds, section 4.
Where a lease contains an option for renewal, it is not necessary for it to be exercised by writing. The lessor may, by his conduct and by the actions of the lessee as a result thereof, be compelled to renew the lease as though the option had been formally exercised.
As no time was fixed within wIlich the option was to be exercised, the right to exercise it continued so long as the relationship of landlord and tenant existed between the parties, even though the term of the lease conferring the option had expired.
Cases referred to:
- Clayton v. Attorney-General (1834), 47 E.R. 766.
- Moss v. Barton (1866), 55 E.R. 870. L.R. 1 Eq. 474. 13 L.T. 623. 30 J.P. 243.
Appeal from the Supreme Court of the Gold Coast.
A safu-Adjaye for Appellant (plaintiff below).
Benjamin for Respondent (defendant below).
The following judgment was delivered:
Harragin, C.J. This is a claim for recovery of possession of premises on Plot No. 105 Old Town Section ” E “, occupied by the respondent.
The history of the case is as follows: On the 7th of February, 1935, one Nana Kojo Apaw leased the premises to the respondent for a term of six years with an option of renewal for a further term of seven years at the same rent. About eighteen months later, Nana Kojc Apaw entered into an Agreement dated the 14th August, 1936, whereby the respondent was requested to build a new staircase and to debit the cost thereof to the said Nana Kojo Apaw.
Clause 4 of the new Agreement reads as follows:—
“That the sum of sixty-two pounds three Rhiiiings (i62 3s. Od.) already advanced to the Landlord shall be regarded as yearly rents paid for May 1941 to May 1942, and May 1942 to May 1943.”
It should be noted that the old lease for six years would have expired in 1941 so that clearly by the new Agreement the parties were contemplating that the respondent would be in occupation for a longer period than that originally prescribed from which it can only be inferred that he was exercising his option of renewal. It has been argued for the appellant that an option requires to be exercised in writing by virtue of section 4 of the Statute of Frauds. We can find no substance in this suggestion. It is perfectly clear from the authorities quoted by the learned Judge in his judgment (Clayton v. Attorney-General (1)), that a lessor by his treatment of his tenant may lead him to believe that he will renew the term of his lease, and if on the faith of this belief the tenant expends his money or in any other way becomes the loser, the lessor will be compelled to give him such renewal, from which it is clear that a document in writing is not necessary in order to bind the lessor, and we are not of the opinion that section 4 of the Statute of Frauds has any bearing on the point at issue. Furthermore (Moss v. Barton (2) ), as no time has been stated in which the option is to be
exercised, the right to do so will continue so long as the relationship of landlord and tenant exists even though the original term may have expired. The original lessor, Nana Kojo Apaw, assigned his interest in the property to the appellant in December, 1945, and it can be said that the appellant stands in his shoes.
We are of the opinion that by the Agreement dated 14th August, 1936, the respondent impliedly exercised his option of renewal, but that even if this be not the case, as he is in the position of a tenant holding over he is entitled to a formal notice to quit which he has never received, and lastly as the relationship of landlord and tenant still exists, vide Moss v. Barton (2), he can even now exercise his option of renewal.
The appeal is dismissed with costs assessed at i14 16s. Od.
Appeal dismissed.
