Landlord and Tenant-Possession-Notice of intention to recover possession-Plaintiffs erroneously putting expiry date one day later-Defendants not prejudiced by error-Whether Notice invalid-Recovery of Premises Act.

Appeal from the High Court, Lagos.

HELD:

(1)     An annual tenancy expires at the midnight of the day preceding the anniversary of the tenancy. The trial Judge was therefore right in coming to the conclusion that the tenancy between the parties expired on the 31st of May, 1967.

(2)     On the facts of this case, the Supreme Court was satisfied that whilst the plaintiffs should have put the date of the determination of the tenancy at the 31st May, 1967, the defendants had not in any way been prejudiced by the act of the plaintiffs in putting the date one day later, ie. 1st June, 1967, which date was also the anniversary of the date of commencement of their tenancy. Consequently the Notice exhibit D was not invalid for the purposes of the present action and the trial Judge erred in coming to the conclusion that it was invalid.

(3)     The defendants fought this case in the lower court on the basis that the plaintiffs were not entitled to recover possession of the premises. At no stage in the proceedings did they resist the plaintiffs' claim for mesne profits and without doubt the trial Judge was in error in failing to enter judgment for the plaintiffs on this item of their claim.

Appeal allowed-judgment of High Court set aside: judgment entered for plaintiffs.

Case referred to:

Sidebotham v. Holland (1895) 1 Q.B. 378.

Act referred to:

Recovery of Premises Act.

Appeal from the High Court of Lagos.

Impey for the plaintiffs/appellants

Sodipo for the defendants/respondents.

Madarikan, J.S.C. (delivering the judgment of the court):-The present appellants were the plaintiffs in the Lagos High Court where they had instituted an action (Suit No. LD.663/68) against the defendants, now respondents, claiming possession of the warehouse and office premises situate at No. 52 Warehouse Road, Apapa (hereinafter referred to as the premises), and mesne profits at the rate of £83-6s-8d per month from the 1st of June, 1967, until possession is given up.

The salient facts relied upon by the parties and accepted by the learned trial Judge were not in dispute at the trial.

They may be summarised thus:-

(1)     The defendants became the tenants of the plaintiffs in respect of the premises for a term of 3 years commencing from the 1st of June, 1964 "with a mutual option to renew for a further period" at an annual rent of £1,000 payable in advance.

(2)     The terms of the tenancy were set out in letters exchanged between the parties. The letters were admitted in evidence at the trial and marked exhibits A and B.

Exhibit A is a letter dated the 21st of May, 1964, addressed to the defendants by the plaintiffs.

It reads as follows:-

"We confirm the conversation between yourself and Mr Spiering when it was agreed that you would rent our warehouse, situated at 52 Warehouse Road, Apapa on the following terms:-

1.      Rent £1,000 per annum payable in advance before 1st June each year.

2.      Contract period for three years with a mutual option to renew for a further period.

3.      We are to erect side fencing with a gate.

4.      We are to paint the front of the building (fencing the road) and the small inside office.

5.      All other repairs, including the main entrance are for your own account.

6.      Any internal or external alterations must have our prior approval.

An agreement on the above terms will be drawn up by our solicitors and forwarded to you for signature. In the meantime would you kindly acknowledge receipt of this letter."

In reply to exhibit A, the defendants sent exhibit B to the plaintiffs, It reads as follows:-

"Thank you for your letter of the 21st instant, on the above. We enclose herewith our cheque for £1,000 (one thousand pounds) being one year advance rent as from 1st of June, 1964

We confirm accepting the terms and conditions as per your letter of the above date. Furthermore we are not responsible for any rates."

(3)     The plaintiffs purported to determine the contractual tenancy by serving on the defendants a notice (exhibit C) dated the 20th of December, 1966. The notice is in the following terms:-

"We hereby give you notice to quit and deliver up possession of the warehouse and premises with the appurtenances situate at No. 52 Warehouse Road, in the district of Apapa in the Federal Territory of Lagos which you hold of us as tenant thereof on the 1st of June next."

(4)     On the 8th of November, 1968, the plaintiffs also served on the defendants a notice (exhibit D) of intention to recover possession.

The notice reads as follows:-

"We Nigerian Joint Agency Limited do hereby give you notice, that unless peaceable possession of the premises situated at Number 52 Warehouse Road in the district of Apapa, Lagos State which were held of us under a tenancy for a period of three years from the 1st day of June, 1964 which expired on the 1st day of June, 1967, and which premises are now held over and detained from the said Nigerian Joint Agency Limited be given to Nigerian Joint Agency Limited on or before the expiration of seven clear days from the service of this notice we Nigerian Joint Agency Limited shall on Saturday next, the 16th day of November at 9 o'clock of the same day, at the Lagos High Court, apply to the court to issue a warrant directing-an appropriate person to enter and take possession of the said premises, and to eject any person therefrom."

In a reserved judgment, the learned trial Judge found as follows:-

(1)     that upon a proper construction of exhibits A and B, the parties created a tenancy for a fixed period of three years with an option to renew; and

(2)     that the defendants were not granted an option to renew.

The learned judge then proceeded to consider the validity of exhibit D which is in the form of a statutory notice as prescribed in the Schedule to the Recovery of Premises Act. After expressing the view that the tenancy had expired on the 31st of May, 1967, the learned judge observed as follows:-

"If the tenancy expired on the 31st of May, the tenant should vacate the premises on that day so as to make it possible for a new tenant to enter the premises the following day if need be. If Mr Impey's arguments is correct it means that the tenant whose terms expired on a particular date may vacate the premises at 12.01 a.m. of the following day."

and also stated that:-

"In my view, the 31st of May, 1967 means precisely what it says, de die in diem. The notice of intention, exhibit D, served on the defendant is invalid because it wrongly describes the date of termination of the tenancy as provided by the Recovery of Premises Act."

In conclusion, the learned trial Judge dismissed the plaintiffs' claim solely on the ground that the notice of intention to recover possession (exhibit D) is invalid for the reasons already stated: but before doing so, he felt obliged to pass strictures on the Recovery of Premises Act by saying:-

"It is surprising that although several judges of the High Court have described this piece of legislation variously as "hybrid", "antiquated", "out of date", etc., nothing has been done by the Legislature to repeal it. I do not intend to add further to the superlatives that have been expressed on this Act."

Against this judgment, the plaintiffs have appealed to this Court. At the hearing of the appeal, Mr Impey for them submitted that the lower court rightly found that the tenancy was for a fixed period of three years and that it commenced on the 1st of June, 1964; but he contended that the learned judge was in error in coming to the conclusion that the tenancy expired on the 31st of May, 1967, and not on the 1st of June, 1967, as stated by the plaintiffs in the notice-exhibit D.

In reply, Mr Sodipo for the respondents argued that an annual tenancy does not expire on the anniversary of the day on which the tenancy commenced but that it expires on the preceding day. He submitted that in the instant case the learned judge was right in coming to the conclusion that the tenancy expired on the 31st of May, 1967; and it was his final submission that failure on the part of the plaintiffs to mention this date in the statutory notice of intention to recover possession (exhibit D) was fatal to their case.

The first point which falls for a decision in this appeal is whether the learned judge was right in concluding as he did that the expiry date of the tenancy was the 31st of May, 1967, and not the 1st of June, 1967.

It is common knowledge that an annual tenancy expires at the midnight of the day preceding the anniversary of the tenancy. Using this as the basis for calculation, the learned judge was quite right in coming the conclusion that the tenancy between the parties expired on the 31st of May, 1967.

That however is not the end of the matter for it was argued before us that as the plaintiffs had put the expiry date of the tenancy one day later, the notice (exhibit D) is invalid and could not be used for the purposes of an action to recover possession of the premises in dispute. We are not able to accede to this argument.

In Sidebotham v. Holland [1895] 1 Q.B. 378 (C.A.) the landlord agreed in writing to let a house to the tenant at a yearly tenancy commencing on the 19th of May, 1890. On the 17th of November, 1893, the landlord gave the tenant a notice to quit on the 19th of May, 1894, and subsequently brought an action to recover possession of the premises. One of the points contested in the case was the validity of the notice to quit. The Court of Appeal unanimously held that a notice to quit on the 18th of May, 1894, would have been good, but a majority of the court also held that the notice to quit on the 19th of May, 1894, was also good that being the anniversary of the commencement of the term. In short the majority of the Court of Appeal in Sidebotham's case (supra) took the view that the notice as it was had put the end of the tenancy on the anniversary of the commencement of the term, i.e. one day later than the expiry date should have been, and that such a notice could not be held otherwise than good for the purposes of the action before the court. We propose to take the same view of the notice exhibit D in the present proceedings. On the facts of the case in hand we are satisfied that whilst the plaintiffs should have put the date of determination of the tenancy at the 31st May, 1967, the defendants have not in any way been prejudiced by the act of the plaintiff's inputting the date one day later, i.e. 1st of June, 1967 which date is also the anniversary of the date of commencement of their tenancy. Consequently we have come to the conclusion that the notice exhibit D is not invalid for the purposes of the present action and that the learned trial Judge erred in coming to the conclusion that it was invalid.

Another point raised in this appeal is that the learned judge failed to adjudicate upon the plaintiffs' claim for mesne profits in respect of which, according to the argument of learned Counsel for the appellants, the validity or invalidity of exhibit D is irrelevant. Learned Counsel for the respondents, right in our view, conceded that judgment for mesne profits ought to have been entered for the plaintiffs. The defendants fought this case in the lower court on the basis that the plaintiffs were not entitled to recover possession of the premises. At no stage in the proceedings did they resist the plaintiffs' claim for mesne profits and we are in no doubt that the learned trial Judge was in error in failing to enter judgment for the plaintiffs on this item of their claim.