Pascal Arinze v Abdul F. Fofanah (CIV APP 6 of 2002) [2003] SLCA 31 (14 May 2003)

H aie ee he ‘a Civ. App. 6/2002 zy eo - INTHE COURT OF APPEAL OF SIERRATEONE Gwin | eee © H ee BETWEEN: Formpemrs! SSN \ PASCAL ARINZE SABRE t AND : sh aiite ABDUL FODAY FOFANAH - RESPONDENT

Coram

HON MR JUSTICE A.N.B.STRONGE JA. - HON MRJUSTICE G. GELAGA KING J.A. HON MRSJUSTICE P. BE. MACAULAY J.A. SM. Touray, Esq, for the appellant |.G. Thompson, Esq,, for the respondent |UDGEMENTT DEL ED ON THE 14™ DAY OF MAY, 2003 HON MR JUSTICE G. GELAGA KING, J.A.:: This is an appeal from the judgement of P.O.Hamilton, J, sitting in the High Court, granting possession of premuses situate at 89 Circular Road, Freetown, to the respondent, who was the olaintiff in that court. ‘The plaintiff had claimed possession of the said premises, mesne profits from May 1999, alleging that he had terminated the defendant's tenancy by giving him six months notice to quit. The defendant, the appellant herein, did not quit. He delivered and filed a defence and counterclaim averring that the notice was invalid and ineffective. He counterclaimed the sum of | 9,970,000, with interest, which he alleged he spent, at the request of the painsiff, on structural improvements, alterations and repairs to the premises. Me learned judge dismissed both the claim for mesne profits and the counterclaim. He ordered that each party should bear his own costs. in a hard fought application for a stay of execution by the defendant, the learned uclge granted a stay pending the hearing and determination of thé appeal herein. ile then purported to further order a speedy hearing of the appeal, a matter in which, with respect, he has no jurisdiction and, therefore, is not.competent to so onder, this court having an exclusive jurisdiction vis a vis the High Court in that * hie appellant has appealed to this Court on five grounds, dealing mainly with the notice to quit, complaining that it was insufficient in law and that there was a waiver of it when the respondent accepted rent after the wotice. Furthermore, that the learned judge erred in law in dismissing the counterclaim when no

\& ae ™" j 7 scconcetoit had been delivered and filed. Counsel gg the couche reply &© appellant's arguments, by 2 novel ‘procediffe which we will not tolerate eee a reought and obtained leave, at that late Rage, fo give notice that the ae seion.of the court below be varied. However, three attempts, he failed 2 «comply with the relevant-rule 18.2) ofthis Osis rules and had to abandon. the adventure. 4 aieimatsi Let me say from the outset that this case reveals & goncatenation of irregularities throughout its peregrination in the High Court Incredibly, no steps were taken oo ti eer to fave the procedings set side whol 08 PS ar, oF amended, or otherwise dealt with in such manne ‘and upon such is as the High Court should think fit, as provided for in ‘order 50 rule 1 of the sh cout Rules. shalt now proceed to specify some of the more glaring irregularly seriatim. ve plaintiff commenced action in the High Court by issuing a specially indorsed ve Penn on the 6 day of July 1999. The defendant entered ¢ conditional vppearance on the 19 day of July 1999. “Thereafter, the parties went into a deep ‘ lumber and remained in the resulting state of hibernation until the 224 day of \inuary 2001, a period of over one year and sb ‘months before the plaintiff 8) himself and entered the action for trial. Even the legendary Rip van Winkle could not have afforded to wax into such utter somnolence. coder 64 rule 3 of the English rules of the High Court, which applies, obviously dleprecates such lethargy and stothfulness. Tt stipulates that“in any cause of emer in which there has been no proceeding for one year ea the last troceeding had, the party who desires to proceed shall give one month’g notice seeghe other party of his intention to proceed.” The plaintiff was obliged to give the notice, if only to rouse the defendant from his slumber; he did not. ‘The uc motes Hon cr hand, was at liberty t0 take steps to set aside the swocwedings for irregularity; he did not Ihe High Court Registry must have been anaesthetized by this soporific stmosphere, for it totally ignored the proviso in 0.52 52 of the High Court Rules atmosphere, Ao ep is taken in any action over a period of twelve months, the an ey ahall bring such action to the notice of a judge who may in bis discretion anyon the parties to show cause why the action should not be dismissed for st of prosecution.” The Master did not notify a judge and the Registry want of Pity slumber unperturbed. The litigants, unhappily, were left to cringe sn the experience of justice delayed is justice denied ‘vonically, in the teeth of such indotence and slovenliness, the plaintiff, by notice aon dated 5 February 2001, applicd for and obtained on 13.2.2000 an oor for speedy tral! After the entry for triak and a day before the order for a Fewdy tral, the defendant on the 128 of February 2001, filed and delivered a

5 (So? NES ics // defence and counterglaim, that is to’say, oneiyear and seven months.after the Pd issuing of the specially indorsed writ: The time set in the rales for delivery of 4 defence is “within teh days from the time limited for appearance”. (See 0.18 r.6 oj our rules). This pleading was not dated, contrary to 0.19 1.11 of the applicable os English Rules, that “every pleading shall be delivered between the parties and shall_ be marked onthe face with-the-date-on-which-it-is—delivered."—Mye emphasis = } (rhe plaintiff did not take any step to set aside the defence and counterclaim for irregularity, nor amazingly, did he seek to obtain judgement in default of defence during the nineteen months that no defence was delivered. Even more incredibly, the plaintiff did not deliver and file a Reply and Defence to the Counterclaim. 0.16 r. 3 of High Court rules makes it mandatory on the plaintiff 7 tc deliver and file a reply, if any, to the counterclaim within ten days of the livery to him of the counterclaim. I must emphasize that a defence delivered after the proper time cannot be disregarded. Where a defence is delivered out of time the court will have regard to its contents and deal with the case in-such a »anner that justice can be done: Gibins v. Strong, 26 Ch. D. 66, C.A. urthermore, unless plaintiff delivers a reply, ie. a defence to a counterclaim, statements of fact at the expiration of ten days or such time as may be allowed for reply are deemed to be admitted. Vide notes to O. 23r. 1, 2 & 3 of the English ! Rules, 1957 Annual Practice, at page 415, under the rubric, “Defence to Counterclaim”. Obviously this order is vital in relation to the ground of appeal dvaling with the dismissal of the defendant's counterclaim. Now that I have dealt with some of the more substantial irregularities, I shall now devote my attention to the grounds of appeal and the submissions made for and against those grounds. The first question arising is what type of tenancy exists between the parties? The evidence in the court below shows clearly that it was a yearly tenancy and there has been no dispute about that. The appellant testified that the tenancy commenced in April 1994 and the precise date of commencement, from exhibit “C”, was from the 29h April of each year to the 28" \pril of the following year. At the request of the respondent, at the start of the tenancy rent was paid for two years in advance up to 1998 at Le1.2 million per ear. In 1999 the respondent increased the rent to Le2 million per annum. he next question I have to adjudicate upon is the determination of a yearly tenancy. How is a tenancy from year to year determinable? V1 of notic is the landlord obliged to give to his tenant for the notice inbred efocave inlaw2,It has been well established for over five hundred years, going back to * the cighteenth century, that at common law where a yearly tenancy is created by express agreement, as in this case, half a year’s notice to quit must be given. The m notice, to be valid, must expire and terminate the tenancy at the anniversary date of ils commencement or on the preceding day. Vide the cases of Parker d. Walker

oy a oe a ‘onstable (1709) 3 Wils. 25 and Right d. Flower-v.Darby (1786)sPT:R. 159in"/ \w instant case, for the notice to quit to be valid, the Six monthgamust expire Of = tiie 28% of 29t April of the anniversary year. a 6 Fs. “C", the notice to quit from-the-respondent’s-solicitor-to-the-appellant dated ——— + 21 December 1998 states:,""This notice takes effect from the 14/day of Jantar 1999 therefore you must hand over vacant possession of the said'premises on or bolore the 30 day of fune 1999.” It follows from the authorities #@:which Tihave : referred that the notice is patently invalid, ineffective and bad inlaw, and Iso hold ia * The learned judge fell far short of his duty to make a straightforward ‘and unequivocal pronouncement on the validity or otherwise of thé’notice to quit. ‘his is what he said at p. 98 of the record: “The notice given by thé Hlefendantis a six nionth’s notice to be determined on or before 30" June 1999 and the evidence © PW. as to the tenancy is from April to April. This notice theréfore has some pp oblems in it as to its validity in the determination of this yearly tenancy.” vata strange and equivocal finding! The simple truth and fact is that, problems » problems, the notice was bad in law. The judge, with respect, should have Jui thw courage to say so and not quibble, or dilly dally, or preVaticate over it. Quite clearly, in not pronouncing that the notice fell far shor obit the'law requires, the learned judge erred in law. The ground of appeal-on this point must, therefore, succeed and I'so hold. a x 11 jollows that since the notice was invalid, as I have found, thé'learned judge \s os wrong in law to grant possession of 89 Circular Road, Fréétown, to the respondent particularly when he himself said that the sole “has some problems.” It must be borne in mind always that the onus is on éhe landlord to plead and lead evidence of the date on which the tenancy began. fortiori, the ‘onuts is also on the landlord, the respondent herein, to establish that the notice to quit was a valid notice. . Iris orus and duty is highlighted by Morton, LJ, in Lemon v. Lardeur [1946] 2 Ail 1.8. 329 a case of a periodic four-weekly tenancy but, where the principle of lu [have enunciated is the same. He said: an z 1 was suggested in argument that it was for the defendant to establish hhat the notice did not expire at the proper date, but I do not agree with hat suggestion. The plaintiff has pleaded that the defendant was her \onant; she has pleaded the tenancy was determined by a notice and it is for her to establish that the notice was a valid notice.” . | y hulcheartedly endorse the legal principles enunciated in that dictum. |v his statement of claim, the plaintiff herein failed to state the date the tenancy Gwmeaced, nor did he state when the notice was served, nor’did he lead ev slonee to prove the validity of the notice, as he was obliged to do. It was the

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