Piyadasa v. Mohamed Osman
PIYADASA alias JINADASAv.
COURT OF APPEALTAMBIAH, J AND B. E. DE SILVA, JCA 536/7 7 (F) – DC MATARA 4207/LJULY 5, 1984
Landlord and tenant – Notice to quit on a specified date coupled with notice that if thetenant wants to stay on he must pay an increased rent – Validity
The landlord gave notice to the defendant determining the tenancy with effect from1 1 1975 but at the same time notifying him that if he wants to stay he must pay anincreased rent from that date.
A notice to quit need not be in a particular form but it must not be ambiguous. It mustdetermine the existing tenancy at a definite date
A notice to the tenant to quit on a specified date but offering him a new tenancy fromthat date if he pays an increased rental is valid Such a notice is not ambiguous and canleave the tenant in no doubt as to what he should do upon receiving it.
Cases referred to:
Sellahewa v. Ranaweera (1956) 59 NLR 66.
Ntsobi v Berlin Mission Society 1924 T.P D 378.
Ahearn v. Bellman 40 LT (N S.) 771.
Gardner v Ingram 1889 61 L T 729, 730.
Buryv Thompson [ 1895] I Q B 696
Union Government v. Foxon 1925 NPD 47, 54.
APPEAL from the District Court. Matara
A. K Premadasa with T B Dilhmuni for appellant.
M $ A. Hassen for respondent.
Cur adv. vult.
September 10, 1984.
This appeal raises the question of the validity of a notice to quit givenby the attorney-at-law of the plaintiff-respondent who is the landlord tothe defendant-appellant who is the plaintiff's tenant. The notice to quitis in the following terms
"I have been instructed by Mohamed Abubakar Mohamed Osman,of Dickwella to inform you as follows :
Sri Lanka Law Reports
He had rented out the boutique room bearing No. 4 situated atWellawatte, Dickwella belonging to his wife, on a monthly rental. Atpresent you pay only Rs. 40 for the said boutique room. As thisamount is not sufficient to the said boutique room, you have to paythe rent for the said boutique room at the rate of Rs. 100 per monthfrom 1st January 1975.
If you are not ready to rent out the said boutique room accordingto the new rental from 1st January 1975, you shall restore theundisputed possession of the said boutique room on 1 st January1975 to the said Mr. Mohamed Osman. In the event of your failureto comply with same, legal action will be taken against you."
It is common ground that the premises are not governed by the RentAct. It is the common law of landlord and tenant that will govern thequestion whether the notice to quit is good or bad.
The learned Magistrate relied on the case of Sellahewa v.Ranaweera (1) and has held that the notice was a valid notice to quit.The notice in this case was given by the landlord's attorney-at-law andwas in the following terms :
"I am instructed by Mr. D. J. Ranaweera of Yatiyana to requestyou to pay a sum of Rs. 40 per month as rent from 1st March1954, in respect of the premises bearing assessment No. 34situated at Ambalantota rented out to you. In failure thereof I amfurther instructed to inform you to vacate the said premises on 1 stMarch 1954."
The rental the tenant was paying was Rs. 20. Two questions arose fordecision :
whether the notice was bad in that it was not an unqualifiednotice ; and
what amount is the plaintiff entitled to recover as arrears ofrent.
As regards the 1 st question, K. D. de Silva, J. said (p.67) :
"I am not prepared to hold that the notice to quit is invalid for thereason that it was to take effect only if the defendant was unwillingto pay the enhanced rent. This notice made it quite clear to the
Piyadasa v. Mohamea Osman (Tambiah. J J
defendant that he was to vacate the premises on March 1, 1954, ifhe was not prepared to comply with the demand for increased rent.The defendant having decided not to pay the enhanced rent is notentitled to complain that the notice is defective. No prejudice wascaused to him because the notice to quit was to take effect only ifhe was unwilling to pay the rent demanded."
Mr. Premadasa submitted that this observation was obiter, that themain matter that arose for decision was whether a landlord canunilaterally increase the rental, and that K. D. de Silva, J. dealt with thequestion of the validity of the notice only incidentally. He alsosubmitted that it was a judgment of a single judge, that no authoritieswere cited and this court should consider the question afresh. Hiscontention was twofold :
a notice to quit to be effective must be clear andunequivocal. A notice that leaves the tenant in doubtwhether he was being told to leave by a certain date ormerely being warned that unless he paid a higher rent thelease would be terminated at sorne future date, is not agood notice. He relied on the case of Ntsobi v. BerlinMission Society (2) for this proposition.
the old tenancy must be first terminated. It will thereafterbe open to the landlord to offer a new tenancy to thetenant on an increased rental. It is the termination of theold tenancy that gives a cause of action to sue the tenantas a trespasser. He cited Ahearn v. Bellman (3) as anexample.
I cannot agree with learned Counsel's submission that the viewexpressed by K. D. de Silva. J. was obiter or that the point was dealtwith incidentally. The question of the validity of the notice to quit didarise for decision in appeal.
Sellahewa's case (supra) was decided on 20.12.1956, and the lawthat was laid down has been acted upon for almost 28 years. If thelandlord’s attorney in this case has merely acted in accordance withwhat has been considered to be law for so many years, it would beunjust to decide against the landlord, unless the law is clearly contraryto what has been laid down in Sellahewa's case. But, it seems to methat the decided cases are in support of the view taken by K. D. deSilva, J.
Sri Lanka Law Reports
[ 1984] 2 Sri L ff.
"Although no particular form need be followed, there must beplain unambiguous words claiming to determine the existingtenancy at a certain time." (per Lord Coleridge, C. J. in Gardner v.Ingram (4))
In Ahearn's case (supra) the notice to quit by the landlord was in thefollowing terms
"I hereby give you notice to quit and deliver up possession of theshop, premises, and storeroom situate at and bearing No. 20Moss-Street, Liverpool, and now held by you as tenant from me, onor before the 1 st day of May next, 1 978. And I hereby further giveyou notice that should you retain possession of the premises afterthe date before- mentioned, the annual rental of the premises nowheld by you from me will be € 160, payable quarterly in advance."
The Court of Appeal by a majority judgment held that the notice to quitwas a good notice, and was not affected by the fact that it wasaccompanied by a further notice offering a new tenancy. Cotton. L. J.observed (p. 773) :
"It is said that th.e notice must be clear and explicit. This is
trueBut in the case before us we have a clear and certain
notice to quit, determining the existing tenancy at a definite date.On the same piece of paper as this notice, in a further paragraph,there is a separate and distinct notice, not to modify the existingtenancy, but distinctly offering a new one, saying, in effect, "if youlike to enter into a new treaty with me, you may retain possession oncertain terms", and stating those terms. If this offer had been on aseparate piece of paper, it clearly would not have vitiated the noticeto quit; nor does it here, for it is distinct and separate from thenotice, and, though written on the same paper, does not affectit… . There is no case in the books deciding that a notice clearand unambiguous in itself would be void because in another part ofthe document which contains it is found a further notice offering anew tenancy."
The principle of this case has been applied to a case where thetenant gives notice to quit coupled with an offer to stay on, if the rentis reduced. Thus in Bury v. Thompson (5) the lessee under a lease for21 years, determinable by 6 months' notice at the end of the first 7 or14 years, wrote to the lessor and stated .
Piyadasa v. Mohamed Osman (Tambiah, JI
"I see that my first 7 years will be determined on December 25,1894 . . . . I understand that the rent is £50, too high, and l shallnot to be able to stay unless some reduction is made."
The Court of Appeal held that it was a good notice to determine thelease, as it clearly conveyed to the lessor an intimation that it was notthe lessees's desire to stay on beyond the 7 years upon the terms ofthe existing lease, unless a reduction is made.
The position in South Africa is no different.
In Ntsobi's case (supra) the lessor's evidence as regards the termsof the notice to quit was as follows :
"On 27th August, 1921, the defendant paid his rent for the year1920-1921. I then informed him that in future he had to pay £3 perannum plus £ 1 for every 1 6 head of cattle, and if he was notdisposed to do so he was to quit the farm."
It was-held that the notice was too obscure to operate as a notice toterminate the lease. Stratford, J. said (pp. 380, 381) :
"The notice to be effective must be clear and unequivocal …. itis certainly not clear whether he intended definitely to give notice toquit in any event, or meant that the lease should determine unless ahigher rent was paid …. The tenant was left in doubt as- towhether he was being told to quit the farm unconditionally or merelybeing warned or threatened. My view, therefore, is that thelanguage used in the notice was so obscure that the tenant was notobliged to act upon it and treat it as a notice to quit"
and Tindall, J. said (p.381):
"If the notice in the above form can be construed as a notice toquit with an offer to grant a new tenancy at an increased rental, onwhat date did the landlord mean that the tenant should quit andfrom what date was the increased rental, to commence ? Thenotice in my opinion did not make these points clear to the lessee,and, therefore, cannot be said to be clear and certain in its terms."
Wille in his 'Landlord and Tenant in South Africa" (4th Edn. p.43)after citing Ntsobi's case, continues-
"But a notice by the landlord to quit, coupled with notice that if thetenant stays on the rent will be increased, is, apparently, a goodnotice"
and cites Union Govt. v. Foxon (6).
Sri Lanka Law Reports
 2 Sri L R.
The following principles can be discerned from the cases I havecited
A notice to quit, to be valid, though it need not be in anyparticular form, must clearly determine the existing tenancyat a definite date.
A notice to quit must not be ambiguous and must enablethe tenant to whom it is given to act upon it. He must not beleft in a state of doubt as to what he should do when hereceived it.
A notice to quit can be validly coupled with an offer of a newtenancy. If a definite notice to quit is given, it is notinvalidated by the addition of words requiring an increase ofrent, if the tenant stays on.
Let me apply these principles to the notice to quit in the presentcase. The notice is not ambiguous. The tenant was clearly told that asfrom 01.01.1975, if he wants to stay on, he must pay the increasedrental of Rs. 100 ; otherwise, he will have to deliver possession of thepremises to the landlord on 01.01.1975. The notice goes on to saythat legal action will be taken against him if he fails to comply. In short,the tenant was told "as from 01.01.1975, pay Rs. 100 or quit anadeliver possession on 01.01.1975." The notice was a definitedetermination of the old tenancy coupled with an offer of a newtenancy.
It is immaterial whether the termination of the tenancy comes first,followed by the offer of a new tenancy or it is the other way around.What difference does it make whether the tenant is told "pay thehigher rental and stay on, or go, or, go or stay on and pay the higherrental"? A notice to quit need not be in any particular form.
I affirm the judgment of the learned trial Judge and dismiss theappeal with costs.
E. DE SILVA, J.- I agree.
Appeal dismissed with costs.
PIYADASA alias JINADASA v. MOHAMED OSMAN