GANESHA SDN. BHD. é RESPONDENT

This is an Appeal by a tenant against the decision of Learned Magistrate ordering him to quit and deliver up vacant possession of a portion of the land known as Holding No.45 Village of Tanjong Kling, Section II, and premises No.C 8592, Tanjong Kling, Melaka and arrears of rental in the sum of $1,000.00 and costs.

I am informed that the outcome of this Appeal would affect a number of cases and the parties have agreed that this would be the test case and as such the decision of this Appeal would also be binding on the other cases. [8]

The Respondent became the registered owner of the land in question measuring about 22 acres 1 rood 0 pole, now subdivided into 200 sub-divided building lots in 1979 when he purchased it from the Estate of Seet Kee Ann. Though the Respondent became the registered owner in September 1979, it was not until "Notice to Quit" dated 23rd February, 1982 (P59 of Appeal Bundle) that Appellant became aware of change of ownership, almost a lapse of six years. The Appellant have been living on the land paying a ground rent of $12.00 per month to the previous landowner. Previous to that, the Respondent's late father had been in occupation till 1963 till his death. Subsequently, the Appellant had built a house on the portion of the said land in 1973 as the owners at that time had given him permission. Copy of the Plan signed by the owner was produced at the trial and submitted as D3. After the house was built, the previous owner did try to raise the rent of $12.00 and then stopped collecting rentals as there was no agreement as to the incease of rentals. [9]

Appellant along with 69 others attempted to negotiate with the Solicitors for the Respondent after receipt of "Notice to Quit" but to their surprise found that the Summons have been taken out against them. The Appellant refused to move because as he put it, "because I lived there and have spent money building the house after permission by the owner". The Appellant was never challenged on this point.

The Learned Magistrate on the balance of probabilities found for the Respondent and the Appellant appeals on two grounds, namely, the Notice to Quit is bad in law and the tenancy is one coupled with equity and cannot be determined on the manner adopted by the Appellant.

It is settled law that it is the duty of the landlord to make a demand for rent on the premises and if he does not do so he cannot rely upon the proposition that rent is in arrears. See CHOP LEAN YAK v NG AH HEE [1953] 19 MLJ P 6. Spenser Wilkinson J, in that case quoted the Court of Appeal in THUNG FUN v LOOI FONG UM [1952] MLJ 122, in the High Court remitted the case back directing that the Court below to make a definite finding of fact on whether there was any agreement as to where the rent should be paid [10] and whether a demand for the rent on the premises had been made. In this instant case, the Learned Magistrate did not make a finding of fact of such nature as required by the law. It appears that no demand for arrears of rentals have been made on the premises and whether there have been express agreement as to where the rent should be paid. According to Woodfall on Landlord and Tenant at para 1-1905, if no place is appointed, "the demand must be made upon the land and at the most notorious place of it".

Appellant's Counsel also attacked that the Respondent's Notice to Quit which he alleged was bad in law. He contended that there was no proof of the determination of the Appellant's tenancy. He cites the case of RETNANSAMY v TEOH NGOO MOOI & ORS [1983] 1 MLJ p 344. The Notice to Quit dated 23rd February 1985 required the Appellant to quit and delivered up vacant possession on the 1st day of April, 1986. The Summons was filed on 21st May 1985 and issued by the Court on 25th September 1985. It is the contention of the Appellant that the condition precedent for institution of eviction proceedings have not been fulfilled, namely, the determination of tena