Mistry v Mohamed (Civil Appeal No. 78 of 1955) [1950] EACA 192 (1 January 1950)

H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), BRIGGS and BACON, Justices of Appeal

KIKABHAI N. MISTRY, Appellant (Original Defendant)

ν.

ABDULLA MOHAMED, Respondent (Original Plaintiff)

Civil Appeal No. 78 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Windham, J.)

Landlord and Tenant—Notice to quit giving alternative date to quit—Proceedings instituted prematurely.

The facts are set out in the judgment of the Supreme Court which is set out infra.

The notice to quit had been drawn in such a way that two alternative dates were given on which the appellant might quit.

Held (6-6-56).—While the notice might have been against the tenant an effective notice to quit for the later of the two dates, it could not be so for the earlier date and, as the proceedings were commenced prior to the later date, they were premature and should have been dismissed.

Appeal allowed. $\Box$

No cases.

S. G. Gautama for appellant.

Coleman for respondent.

JUDGMENT (prepared by Briggs, J. A.).—We are agreed that this appeal must be allowed. The words of the notice to quit are clear and in themselves wholly unambiguous. They require the appellant to quit "on the 31st day of August, 1952, or on" a date which the facts show to have been 30th September, 1952. In other words two alternative dates were given on which the appellant might quit. This may, as against the tenant, have been an effective notice to quit for the later of the two dates, but it cannot have been effective against him for the earlier date. Consequently the suit was premature and should have been dismissed.

The error arose through an incorrect adaptation of the standard form, No. 203 at p. 674, Vol. 8 of the Encyclopaedia of Forms and Precedents (2nd ed.). By substituting the words "one month", instead of "15 days" for "one half-year" in the form, the landlord's solicitors drew the notice in such a way that two alternative dates could apply. This would not have been so if the form had been. correctly adapted.

The learned Judge was not, in our opinion, entitled to find that the parties intended and understood that the earlier of the alternative dates was to apply. To do so went beyond construing the document in favour of validity, and was at variance with the plain and unambiguous terms of the document. The learned Judge's view was apparently not based on any oral evidence, but any such evidence would in our opinion have been inadmissible as subtracting from or contradicting the document.

The appellant must have his costs in all three Courts. Counsel have agreed that we shall assess them, and we do so at a total sum for the three sets of proceedings of Sh. 2,000 plus the actual amount of the disbursements in all the Courts, which Counsel say will not be in dispute.

JUDGMENT OF THE SUPREME COURT OF KENYA IN CIVIL APPEAL No. 6 of 1953

Kikabhai N. Mistry v. Abdulla Mohamed

WINDHAM, J. (11-7-55).—This is an appeal by a tenant of premises leased to him by the respondent against an eviction order made on the ground that he was in arrears with his payment of rent. The action was filed on 25th September, 1952.

The first ground of appeal is that the notice to quit which the respondent served upon the appellant was invalid. The tenancy was admittedly a monthly one. the months coinciding with the calendar months. The notice to quit was served on the appellant on 13th August, 1952. It was in the following terms:-

"We hereby give you notice to quit and deliver up possession of the premises on Plot No. 21, Section VI, Kitale, which you now occupy as a tenant on the 31st day of August, 1952, or at the end of the month of your tenancy which will expire next after the end of the month in which this notice is served upon you."

Now since this notice was served on the appellant more than 15 days before the end of August, it would, but for the words in it which follow the words "31st" day of August, 1952", have undoubtedly been a valid notice to the appellant to quit on 31st August, on which day the current month of his monthly tenancy expired. But it is contended for the appellant that those words which follow make the notice bad for ambiguity, since they would seem to give him the option of staying on until the end of September, no matter upon what date in August the notice might have been served on him. In short, it is contended that the appellant. upon receiving the notice when he did, on 13th August, could not be sure whether he was to quit at the end of August or at the end of September; and that assuming that he was being given the option of staying on until the end of September, then the action for his eviction was premature because it was lodged before the end of September.

I confess that I have had some difficulty in deciding whether this point is a good one. It is clear, I think, that what the notice is intended to mean is that, should it be served upon the appellant too late in August to give him the necessary 15 clear days' notice before the end of August (i.e. should it be served after 16th August), then, and then only, it would operate to require the appellant to quit at the end of September and not at the end of August. This meaning would have been made abundantly clear if, between the words "31st day of August, 1952, or" and the words "at the end of the month." there had been inserted the words "in the event of this notice being served on you on or after the 17th August, then". But the question is whether, without such words, the intended meaning of the notice would be clear to a "tenant presumably conversant with all the facts and circumstances". For the Court will lean against holding a notice to be bad for mere want of form if its meaning would be readily understood by the tenant to whom it is addressed.

With some hesitation I hold that this meaning would be clear to the tenant in the present case. I am fortified in this conclusion by the fact that notices in substantially the same form *mutatis mutandis*, in respect of yearly tenancies, have been held good in the Courts of England. In Sidebotham v. Holland, (1895) 1 Q. B. D. 378, the validity of the notice to quit was in dispute, which was served on 17th November, 1893, and which required the yearly tenant to quit "on 19th May next" the tenancy being an annual one which ran from 19th May. The notice was held to be valid; but Simth, L. J., at p. 389, observed that its validity would have been even more free from doubt if the landlord had added the words which

are very ordinarily inserted in a notice to quit, "or at the expiration of the year of your tenancy which shall expire next after the end of one half-year from the service of this notice". The ambiguity in that notice is the same as that in the one that we are now considering. For if it had been served on any date from 20th November, 1893, onwards it would (it could be argued) have left the tenant in doubt whether he was being required to quit on 19th May, 1894, or on 19th May, 1895. And yet such a notice was held to be good, and is in fact the regular form of notice to quit in yearly tenancies to be found in Vol. 8 of the Encyclopedia of Forms and Precedents, 2nd ed., p.

674. For these reasons I hold the notice to quit in the present case to be a valid one, and that, having been served on the appellant before 17th August, it operated to require him to quit on 31st August.

The remaining ground of appeal is that the learned magistrate, in making the eviction order, failed to consider whether it was reasonable to do so, as required by section 16 (2) of the Increase of Rent (Restriction) Ordinance, 1949. Now it is true that the learned magistrate nowhere in his judgment expressly states that he has borne in mind the requirements of section $16(2)$ or that he considers it reasonable to make the eviction order. But to my mind it appears perfectly clear from his judgment, read as a whole, that he did consider it reasonable. In particular he makes a finding, supported by the evidence, that the appellant was 13 months in arrears with his rent when the action was lodged, and that "plaintiff was entitled to regard him a 'bad' tenant". It is only reasonable to assume that in ordering the appellant's eviction on these grounds the learned trial magistrate considered that it was reasonable to do so.

For these reasons this appeal must be dismissed with costs.