Division: HIGH COURT, KUMASI
Date: 24 JULY 1974
Before: MENSA BOISON J
CASES REFERRED TO
(1) Re Sassoon; sub nom. Inland Revenue Commissioners v. Raphael [1935] A.C. 96; 104 L.J.Ch. 24., 152 L.T. 217; 51 T.L.R. 152, H.L.
(2) Associated London Properties, Ltd. v. Sheridan [1946] 1 All E.R. 20; 174 L.T. 103; 62 T.L.R. 80; 90 S.J. 55.
(3) Lancashire and Yorkshire Bank’s Lease, Re; Davis (W.) & Son v. Lancashire and Yorkshire Bank [1914] 1 Ch. 522; 83 L.J.Ch. 577; 110 L.T. 57 1, C.A.
(4) Hankey v. Clavering [1942] 2 K.B. 326; [1942] 2 All E.R. 311; 111 L.J.K.B. 711; 167 L.T. 193, C.A.
NATURE OF PROCEEDINGS
ORIGINATING SUMMONS issued by the plaintiff for determination by the High Court, as to the validity of a notice to terminate a lease given by the defendants. The facts are sufficiently set out in the judgment.
COUNSEL
Brobbey for the plaintiff.
Asiedu for the defendants.
JUDGMENT OF MENSA-BOION J
By a deed dated 14 December 1960, the plaintiff, referred to as the sub-lessor, leased certain premises to the defendants for a term of fifteen years commencing from 1 December 1960; so however that the defendants had the option to determine the lease at the expiration of the first ten years. That was provided by clause 4 (b) as follows:
“(b) If the company [i.e. the defendants] desire to determine the present demise at the expiration of the first ten (10) years of the said term and shall give to the sub-lessor not less than six (6) calendar months written notice of such desire and shall up to the time of such determination pay the rent and perform and observe the covenants on its part hereinbefore contained shall immediately on the expiration of such notice the present demise and everything herein contained shall cease and be void but without prejudice to the remedies of either party against the other . .
By a letter dated 14 May 1970, and exhibited as exhibit B, the defendants signified their desire to determine the lease and notified the plaintiff formally saying that, “we shall exercise our right to determine the present lease from 1 December 1970.”
The plaintiff s contention is that this is not good notice under clause 4 (b) of the deed and instituted this action by originating summons for a decision. The plaintiff s stand is that the proviso imposes a term of ten years certain, after which the option to determine may be exercised; that is to say, the notice of six calendar months or more could only be given to take effect at the earliest six months after 1 December 1970.
The defendants maintained the contrary. Their stand is a notice given six months before 1 December 1970, such that it terminates the lease on 1 December, is good as “determining the demise at the expiration of the first ten years of the term.”
[p.164] of [1974] 2 GLR 162
It is a rule of construction that where legal terms or words of well-known legal import are used by lawyers, especially by conveyancers, they will have their technical legal import: see Odgers’ Construction of Deeds and Statutes (5th ed.) at p. 51. And in Re Sassoon; sub nom. Inland Revenue Commissioners v. Raphael [1935] A.C. 96 at p. 145, H.L., Lord Wright was of the opinion that this rule applies even if by a mistake of the draftsman there is a manifest failure to fulfil the intention of the testator.
In this instant case learned counsel have referred to several authorities as precedents. The principle I gather, however, on the one hand is that where the lease is determinable “on or after” a specified date, then the stipulated period of notice, to be legal, is calculated after the expiration of the period certain. That is, notice cannot be given to determine the lease on the date on which the term expires, as that date in fact constitutes the earliest date when notice can be given.
Thus in Associated London Properties, Ltd. v. Sheridan [1946] 1 All E. R. 20, in a lease commencing from 25 December 1942, for an initial term of two years and thereafter for consecutive periods of two quarters, there was a determinable clause that if on or after 24 June 1945, either party should desire to determine the lease and should give to the other of them two quarters’ previous notice in writing of such desire, then, on the expiration of such notice the lease should cease and be void. It was there held that the two quarters’ notice could not be given to expire on 24 June 1945, but that the earliest date of the notice was to be calculated from 24 June 1945. That was also the effect of Re Lancashire and Yorkshire Bank’s Lease; Davis (W.) & Son v. Lancashire and Yorkshire Bank [1914] 1 Ch. 522, C.A.
I do not, in my view, find that either of these cases assist the plaintiff, since it is clear that by the words of the determining clause, the option was to be exercised “after” the expiration of a period certain, and consequently the notice could at the earliest only be given on the expiration of the term certain named.
Learned counsel for the plaintiff in a postcript, which had been intimated to the court at the hearing, referred to a number of other authorities as reported in the English and Empire Digest (Vol. 31). The substance of counsel’s argument as based on these authorities I think was that, for the notice in the present case to be good, that is, “to determine the lease at the end of the first ten years of the term by the six calendar months’ notice,” such words as “six months’ previous notice” or “immediately preceding” or “before” the expiration of the term named should have been used. Further, learned counsel contends that the words “shall give six months’ notice” as in the present clause 4 (b) means that notice can only properly be given after the expiration of the ten years.
A wholesome principle of interpretation is to construe the language used in the particular document and although precedents are a useful guide, it seems to me in the field of interpretation it may be said that there are no precedents strictly so-called as each document is to be construed specifically. Our task therefore may not be lightened, as urged by counsel, by what words ought to have been used but were not.
[p.165] of [1974] 2 GLR 162
In my view in the construction posed by clause 4 (b), the words “shall desire to determine the present demise at the expiration of the first ten years,” cannot mean “on or after” the expiration of the first ten years, or “on the expiration of the first ten years.” There is hardly any difficulty with the words “after the expiration”; and having regard to the conjunctive sense of the words “on or after” in the lease in the Sheridan case (supra) I am prepared to hold that a lease by which a term may be determined “on the expiration of the first ten years” provides for a period of “ten years certain” before the option could be exercised.
On the other hand I think the preposition “at” as used in clause 4 (b) of exhibit B indicates an exact point of time. In the Concise Oxford Dictionary (4th ed.), the primary meaning of “at” is given as expressing “exact, appropriate or vague position.” So in clause 4 (b) the expression “if the company desire to determine the present demise at the expiration of the first ten years of the said term” in my view gives the option to terminate at a position—being the end of the first ten years. I do not think it requires any qualification of such words as “previous notice” or “immediately preceding” or “before” the expiration of the ten years to conclude that the position at which the term may be determined is at the end of the first ten years exactly if the required notice is given.
I come to the same conclusion also when I appeal to authority. That is the case of Hankey v. Clavering [1942] 2 K.B. 326, C.A. relied upon by counsel for the defendants. There the premises were demised for a term of 21 years from 25 December 1934. It provided for the option of termination as follows as stated at p. 327:
“If the lessee shall desire to determine the present demise at the expiration of the first three years and either party at the expiration of the first seven or fourteen years of the said term and shall give to the other party six calendar months’ notice of such his desire . . . then immediately at the expiration of such three, seven or fourteen years, as the case may be, the present demise and everything herein contained shall cease and be void.”
Pausing here a while, it will be noticed that in the instant clause 4 (b), the words “shall immediately on the expiration of such notice . . . “ replace “shall . . . then immediately at the expiration of such three, seven or fourteen years. In my view the specific mention of the number of years in the phrase “then immediately at the expiration of such three, seven or fourteen years” instead of “such notice,” is merely for emphasis and certainty, and does not enlarge or qualify the meaning of either party “at the expiration of the first seven or fourteen years of the said term “ determining the lease by the said notice. It seems to me the terms of determining in clause 4 (b) are identical to those in the Hankey case (supra). Now it was held in the Hankey case that the notice to terminate the lease on 21 December 1941, instead of 25 December 1941, was bad notice as falling short of the first seven years by four days.
Learned counsel for the plaintiff in his postcript has sought to distinguish Hankey’s case as being limited to the decision whether a bad notice
[p.166] of [1974] 2 GLR 162
to quit could be cured by acceptance. I am unable to accept the contention, because the court there dealt with the effect of such notices. At pp. 329-330 of his judgment, Lord Greene M. R. stated as follows:
“That takes me back to the real point, namely, whether or not the notice was good, in the sense that it had the effect of terminating the lease on December 25, 1941. Notices of this kind are documents of a technical nature, technical because they are not consensual documents, but, if they are in proper form, they have of their own force without any assent by the recipient the effect of bringing the demise to an end . . . By the clear wording of this notice the plaintiff purported to bring the lease to an end on December 21, 1941. In so doing he was attempting to do something which he had no power to do, and, however much the recipient might guess, or however certain he might be, that it was a mere slip, that would not cure the defect because the document was never capable on its face of producing the necessary legal consequence.”
With that statement of the law I am certain that the court there was very much conscious of the fact whether notice to determine the demise on 25 December 1941 was notice within the term, that is “at the expiration of the first seven or fourteen years.” For if what the expression meant was that the earliest time the six months’ notice could have been given was on expiration of the first seven years, the court would not have held the proper notice was one to terminate the lease on 25 December 1941, but six months after 25 December 1941.
I am satisfied on the above reasoning that the defendants’ notice, exhibit B, was in conformity with clause 4 (b) of the deed, and that the term of the first ten years was duly terminated at the date of the expiration of the ten years. Before I conclude I should express my gratitude for the immense assistance I have derived from the learned arguments of counsel in this matter.
I am obliged to dismiss the plaintiff ‘s action and rule for the defendants. There will be costs of 085.00 against the plaintiff.
DECISION
Action dismissed.
S.Y.B.-B.
