Emmanuel A. Awe Vs Tham Saidi (1969) LLJR-SC

Emmanuel A. Awe Vs Tham Saidi (1969)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

This case originated from the Magistrate’s Court of Lagos. The action was instituted under the Recovery of Premises Act, and in it the plaintiff/respondent claimed possession of a shop at 53 Docemo Street, Lagos, on the grounds that the defendant was in arrears of rent and also that the plaintiff needed the premises for his personal use. The second ground was abandoned during the trial. The learned magistrate, after hearing evidence on both sides, in a considered judgment, was satisfied that the necessary statutory notices between a landlord and a tenant in respect of an action for recovery of premises were duly served as prescribed by law and he granted an order for possession. The defendant’s counterclaim was struck out. In the appeal to the High Court which followed, Taylor C.J., upheld the judgment of the learned magistrate and dismissed the appeal on all the four grounds argued before him.

The defendant was dissatisfied with the dismissal of the appeal and has appealed to this Court. The only ground of appeal which was pursued in this Court relates to the date of expiration of a statutory notice to quit. The tenancy was a yearly tenancy and the appellant who had been a ten-ant on the premises for 10 years started his tenancy on 1st May in each year and ending on the 30th April the following year. It is common ground that the yearly tenancy can be determined by 6 months notice. The plaintiff/respondent served a notice on the defendant/appellant on 27th May, 1963 terminating his tenancy, thus raising the question whether it is a valid notice to take effect on any date other than on the date on which a current term of the tenancy would expire. The learned Chief Justice up-holding the judgment of the learned magistrate held that it was a good notice. After considering Sections 8 & 9 of the Recovery of Premises Act, the learned Chief Justice said:-

“Now what Mr. Oyero (for the appellant) really wants me to do in respect is either to import the practice in England or to read into Section 9 what it does not contain to the effect that such notices referred to in Section 8 shall not be given at any time but at such a time that the notice to quit expires at the end of the period of tenancy. From a perusal of two of the cases to which my attention was drawn by Mr. Oyero, it is clear that the position in the United Kingdom was at one time uncertain.”

The learned Chief Justice having referred to the case of Lemon v. Lardeur [1946] K. B. 613, to which we shall refer later in this judgment, about the uncertainty he referred to said:-

“Fortunately here in Nigeria we have Section 9 in plain and unambiguous words providing that:-

“(1) that the notice may be given at any time prior to the termination of the current term. (I have underlined the words at any time);

(2) that the only requirement of the law is that such notice given at any time aforesaid shall be effective in the case of a weekly tenancy if the period in between the giving of the notice and the determination of the tenancy is not less than one week, and in the case of a monthly tenancy, one month and so on as provided in Section 8″.

For these reasons this ground of appeal must also fail and is dismissed.”

With respect, we do not agree with the views of the learned Chief Justice, that the law in Nigeria is any different from the law in the United Kingdom; and if the law in the United Kingdom was uncertain at one time, we know from authorities that it is now certain and has been for some years. We refer to the same case quoted by the learned Chief Justice, Lemon v. Lardeur (supra) and the judgment of Morton L. J., to which he referred. We are obliged to quote in full what Morton L. J., said at pp. 615 & 616 of the report:-

“There has been a conflict of judicial authority on the question whether, in the case of every periodic tenancy, the notice to quit must expire at the end of a current period. It is plainly established by authority that that is so in the case of a yearly or a quarterly tenancy, but there has been a certain conflict as regards monthly and weekly tenancies. In Simmons v. Crossley [1922] 2 K. B. 95 a Divisional Court held that in the case of a monthly tenancy it was not necessary for a notice to quit to expire at the end of a current period of the tenancy. It is to be observed that the case of Doe & Finlayson v. Bayley (1831) 5 C. & P 6? was not cited to the Court. In Queen’s Club Gardens Estates Ltd., v. Bignell [1924] 1 K. B. 117, where the tenancy was a weekly one, a Divisional Court declined to follow Simmons v. Crossley, and Lush, J., said: ‘I think that the true view is that in any periodic tenancy, whether it be yearly, quarterly, monthly, or weekly, the notice to quit must expire at the end of the current period’. For my part, I am satisfied that the decision in Queen’s Club Gardens Estates Ltd., v. Bignell was correct. I entirely agree with the reasoning of Lush J. and with the view expressed by Bailhache J. in Precious v. Reedie [1924] 2 K. B. 149. In my view, the case of Simmons v. Crossley can no longer be regarded as good law. I may add that after the decision in the case of Simmons v. Crossley there was decided a case of Savory v. Bayley (1922) 38 T. L. R. 619. The tenancy in the case of Savory v. Bayley, as in the present case, was a four-weekly one. Bailhache J., although Simmons v. Crossley was cited to him, did not follow it and came to the conclusion that the notice to quit in that case was invalid, because the notice to quit was not such as would bring the tenancy to an end at the end of a four-week period”.

We only have to add that Somervell and Asquith, L. J. J., agreed with the views just expressed. Now, Section 9 of the Recovery of Premises Act to which the learned Chief Justice referred provides that:-

“9. Notices referred to in Section 8 may be given at any time prior to the date of termination of the current term of tenancies, but they should not be effective if the time between the giving of the notice and the time when the tenancy is to be terminated is less than the respective periods set out in Section 8”.

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 is six months. The interpretation of Section 9, to our mind, is that the notice to quit may be given at any time earlier than the date which will fit it in for a week, in case of weekly tenancy, a month, in case of monthly tenancy, or six months in case of yearly tenancy, but if given on a date which will make it less than the necessary period of a week, a month or six months as the case may be, the notice is ineffective. For instance, a notice due to be given on 1st March for a yearly tenancy which expires six months after that date, may be given at any time earlier than 1st March. This in our view, is the right interpretation to be put on the words at any time in Section 9 of the Act.

This Court has on a previous occasion given its reasons for the interpretation of the words “at any time” in Section 9 at the Act in the case Awobiyi and anor. v. Igbalaiye Brothers (1965) N. M. L. R. 306 at p. 309 and for clarity we quote now that relevant portion of our judgment which reads:-

“The long title of the Recovery of Premises Act is ‘An Act to make provision for the recovery of possession of premises’, and its primary purpose is to deal with question 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 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 …. day 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] 1 K. B. 444 at 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 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 presupposes that the rule of common law remains unchanged”.

In the event this appeal will be allowed, as in our view, for the reasons we have indicated, the notice was invalid.

The judgment of the learned magistrate, Lagos, dated 4th March, 1965, in Suit No. 1079/64 is hereby set aside and a judgment dismissing the plaintiff’s claim is hereby entered and this will be the judgment of the Court.

Costs of this appeal are assessed at 53 guineas. The defendant is entitled to the costs in both the Magistrate’s Court and the High Court which are assessed at 10 guineas and 50 guineas respectively.

Other Citation: (1969) LCN/1624(SC)