Pascal Arinze v Abdul Foday Fofana (6 of 2002) [2003] SLCA 20 (14 May 2003)

¥ Civ. App. 6/2002 am aos ae INTHE COURT OF APPEAL OF SIERRASLEONE | RM | ny sami 2: j eo i. BETWEEN: epee ee ; \ PASCAL ARINZE ©) APPELLANT. 7 4 \ ara i AND a Sy % Ege sane ABDUL FODAY FOFANAH, - RESPONDENT. + CORAM: od HON MR JUSTICE A.N.B.STRONGE J.A. we HON MR JUSTICE G. GELAGA KING J.A. HON MRSJUSTICE P. FE. MACAULAY J.A. S.M. Touray, Esq,, for the appellant 1G. Thompson, Esq,, for the respondent |UDGEMENT DEL ON THE 14™ DAY OF MAY, 2003 'ION 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 premises situate at 89 Circular Road, Freetown, to the respondent, who was the plaintiff 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 averting 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 plainsff, on structural improvements, alterations and repairs to the premises, ‘Mie learned judge dismissed both the claim for mesne profits and the sounterclaim. 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 iclge granted a stay pending the hearing and determination of the appeal herein. le 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 ‘order, this court having an exclusive jurisdiction vis a vis the High Court in that"! regard

‘he 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 thers vas a waiver of it when the respondeat accepted rent after the notice. Furthermore, that the learned judge erred in law in dismissing the counterclaim when no

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delence to it had been delivered and filed. Counsel Agathe x (aur t ‘ ply to appellant's arguments, by @ novel procediiggrwhich We willinot tolexs fe setae, sought and obtained leave, at that late Blage: 0 AE notice that the ‘hunion of the court below be varied. However, ier three ‘attempts, he failed é 1 eiRply with the relevant rule 18 (2)of this Cou rales and had to abandon the adventure. _ let me say from the outset that this case reveals a ation of irregularities throughout its peregrination in the High Court. ly, no steps were taken hy any of the parties, either to have the proceedings set aside wholly or in part as irregular, or amended, or otherwise dealt with in ‘such manner and upon such ce emeas the High Court should think fit, as provided for in order 50 rule 1 of the sh Court Rules | shall now proceed to specify some of the more panos irregularities, seriatim. ‘ he plaintiff commenced action in the High Court} issuing a specially indorsed writ herein on the 6! day of July 1999. The defendant entered a conditional "pearance on the 198 day of July 1999. Thereafter, the parties went S00 4 deep Peer remained in the resulting state of hibernation until the 22! day of \inwary 2001, a period of over one year and six months before the plaintiff vanced himself and entered the action for trial. Even the legendary Rip van Winkle could not have afforded to wax into such utter somnolence. Order 64 rule 3 of the English rules of the High Court, which applies, obviously leprecates such lethargy and slothfulness. Tt stipulates that~“ig ony ‘cause or inatter in which there has been no proceeding for one year omy the last proceeding had, the party who desires to proceed shall give one month's notice re the 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 ‘iendtant, on the other hand, was at liberty to take steps to set aside the svoceedings for irregularity; he did not. rhe High Court Registry must have been anaesthetized by this soporifc mosphere, for it totally ignored the proviso in 0.52r.2 of the High Court Rules seer hen no step is taken in any action over a period of twelve months, the ‘aster shall bring such action to the notice of a judge who may in his discretion sey om the parties to show cause why the action should not be dismissed for want of prosecution.” The Master did not notify a judge ‘and the Registry ve itinued its slumber unperturbed. The litigants, unhappily, were left to cringe z inn the experience of “justice delayed is justice denied.’ Ironically, in the teeth of such indolence and slovenliness, the plaintiff, by notice cy unotion daied 5% Fetcuary 2001, applied for and obtained on 13.2200) an vrdler for speedy trial! After the entry for trial and a day before the order for a Speedy trial, the defendant on the 12! of February 2001, filed and delivered a

" F 3 ye IS 3 i / q 5 ; > “/ defence and counterglaim, that is sale. oneijear and seven mon nthe | / issuing of the specially indorsed writ: The tim@’set in the rules for delivery, ofa / defence is “within teh:days from the time limited for appearance”. (See O- 8 1.6 «of our rules). This pleading was not dated, contrary to 0.19 r.11 of the applicable Vinghish Rules, that “€vety pleading shali be delivered between the parties and

p shall be marked onthe face wi ste-on-which-it-is-delivered.". My emphasis F

i the plaintiff did not ake any step to set aside the defence and counterclaim for irvegularity, 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. O.16 r. 3 of High Court rules makes it mandatory on the plaintiff to deliver and file a reply, if any, to the counterclaim within ten days of the delivery to him of the counterclaim. I must emphasize that a defence delivered aller the proper time cannot be disregarded. Where a defence is delivered out of me the court will have regard to its contents and deal with the case in:such a manner that justice can be done: Gibins v. Strong, 26 Ch. D. 66,C.A.

Furthermore, 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. 23 r. 1, 2 & 3 of the English Kules, 1957 Annual Practice, at page 415, under the rubric, “Defence to Counterclaim". Obviously this order is vital in relation to the ground of appeal dealing 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 29" April of each year to the 28% April 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 Lel.2 million per year, In 1999 the respondent increased the rent to Le2 million per annum... The next question I have to adjudicate upon is the determination of a yearly tenancy. How is a tenancy from year to year determinable? angth of no! is the landlord dlligd to give to his spat forthe noice be sala effective Z ‘Taw2.1t has: been well established for over five hundred years, going back to the vighteenth century, that at common law where a yearly tenancy is created by express agreement, as in this ease, half a year’s notice to quit must be given, The notice; be valid, must expire and terminate the tenancy at the anniversary date of its commencement or on the preceding day. Vide the cases of Parker d. Walker

uy ae E Bi { (Ba Ps / ae { ix Constable (1709) 3 Wils, 25 and Right d. Flower vsDarby (17860E TR. saat «instant case, for the notice to quit to be valid, the ix montGehtist expaeios i ‘ive 280" or 29% April of the anniversary year. i} Is. “C", the notice to quit fromthe respondents solieitor-to-théigypellant difed-—~ é S14 December 1998 states:, “This notice takes effect from the 14@@dBy of Jaitfa 199 therefore you must hand over vacant possession of the saidipremises Qp/or ‘lore the 30! day of June 1999.” It follows from the authoritiestt@which It ‘erred that the notice is patently invalid, ineffective and bad inlaw, and I 50 hold 3 2 ‘he learned judge fell far short of his duty to make a straightforward ‘and unequivocal pronouncement on the validity or otherwise of th@fibtice to Guat. "vis is what he said at p. 93 of the record: “The notice given by thieflefendant is a stx month’s notice to be determined on or before 30" June 1999 ind the evidence 01 P.W.1 as to the tenancy is from April to April. This notice therfore has some Problems in it as to its validity in the determination of this yearly tenancy.” \\ sata strange and equivocal finding! The simple truth and fact is that, problems «uo problems, the notice was bad in law. The judge, with should have Inu the courage to say so and not quibble, or dilly dally, or ate over it. Quite clearly, in not pronouncing that the notice fell far ae the'law equines, the learned judge erred in law. The ground of appealon this point nuist therefore, succeed and I s0 hold. = Hollows that since the notice was invalid, as I have found, theleared judge \® wrong in law to grant possession of 89 Circular Road, Fréétown, to the repondent particularly when he himself said that the a “has some Problems.” It must be borne in mind always that the onus is on thie landlord to lead and lead evidence of the date on which the tenancy began.¥A fortiori, the ‘onus is also on the landlord, the respondent herein, to establish that the notice to quit was a valid notice. 2 uit lid notice ‘ {his onus and duty is highlighted by Morton, LJ, in Lemon v, Lardeur [1946] 2 AILI-R, 329 a case of a periodic four-weekly tenancy but, whore the principle of law Thave enunciated is the same. He said: it “It was suggested in argument that it was for the defendant to establish that the notice did not expire at the proper date, but I do not agree with that suygestion. The plaintiff has pleaded that the defendant was her ‘enant; she has pleaded the tenancy was determined by a notice and it is {or her to establish that the notice was a valid notice.” < | wholeheartedly endorse the legal principles enunciated in that dictum. Jn-nts statement of claim, the plaintiff hevein failed to state the daté the tenancy commenced, nor did he state when the notice was served, nor'did he lead evidence to prove the validity of the notice, as he was obliged to do. It was the

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