I. APPEAL

This is an appeal by the appellant-defendant ("the defendant") against the decision of the learned

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magistrate Alor Gajah who on 14 February 2003 ordered the defendant and all those claiming through or under the defendant to deliver vacant possession of the premises i.e. a double-storey shophouse at No. 4570, Jalan Besar Alor Gajah, Pekan Alor Gajah, 78000 Melaka ("the premises") erected in 1963 by the defendant on the land held under Registration No. 2240, Lot No. 141, Section 1, Alor Gajah town, Alor Gajah district, State of Melaka measuring 1600 sq. ft. ("the land") to the plaintiff within one month from the date of the order.

II. FINDING OF FACTS

The defendant is the ground tenant of the land, originally from the previous owner one Khoo Swee Neo at RM15 per month, and then at RM70 per month. The defendant occupied the premises until 1978 when he rented out some rooms.

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Finally in 1980, the defendant rented the whole premises at RM450 per month to one Lim Tai Kee who has been using it as a restaurant since then.

Subsequently, Khoo Swee Neo transferred the land to her daughter Yau Lai Niu who sold it to the plaintiff on 12 November 1996 at RM50,000. The plaintiff became the registered owner on 1 April 1997.

On 10 and 27 October 2001, plaintiff sent solicitors' letters to the defendant terminating the tenancy and demanding vacant possession of the premises with effect from 1 December 2001 but the defendant failed to deliver vacant possession.

III. SUBMISSION FOR DEFENDANT

En. Yau Jiok Hua, learned counsel for the defendant, submitted that on the facts the

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defendant had a tenancy coupled with equity in respect of the land, as a result of which the plaintiffs notice to quit dated 27 October 2001 was not sufficient to terminate the tenancy unless the defendant's equity had been satisfied, relying on Laksamana Realty Sdn Bhd v Yeo Tin Sang [1998] 5 CLJ 347; [1998] 4 MLJ 48; Mok Deng Chee v. Yap See Hoi & Ors. [1981] CLJ 69 (Rep); [1981] CLJ 124; [1981] 2 MLJ 321Yong Tong Hong v. Siew Soon Wah & Ors. [1971] 2 MLJ 105; Tan Swee Hoe Co. Ltd. v. Ali Hussain Bros. [1980] 1 MLJ 89; Inwards v Baker [1965] AER 446.

He contended that a tenancy coupled with equity for part of the land expires only after 30 years, but added that tenancy here is for the whole land, and so the equity is of 99 years duration, on the basis of s.221(3)(a) of the National Land Code 1965, which entitles the defendant to remain thereon until 2062.

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The submission for the defendant was not upheld by the learned magistrate.

IV. CONTENTION FOR PLAINTIFF

En. AB Ng, learned counsel for the plaintiff, contended, inter alia, that the notice to quit given by the plaintiff to the defendant is sufficient to terminate the monthly tenancy, and that, on the authority of C Paul D'Cruz v Chow Tai Yow & Sons Sdn Bhd [1998] 4 CLJ SUPP 389; [1999] 1 MLJ 51, since the defendant was not in occupation of the premises the defendant could not claim a tenancy coupled with equity.

V. DECISION ON APPEAL

1. Issue For Determination

The issue for determination by the learned magistrate and now on appeal before me is whether, on the facts as alluded to

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above, the defendant is entitled to claim a tenancy coupled with equity.

2. Consideration Of Authorities Cited For Defendant

Before giving my definitive answer to the above issue for determination and out of deference to the diligence of learned counsel for the defendant, I think it is appropriate to examine and analyse the authorities cited for the defendant.

In Laksamana Realty, supra, the plaintiff was the registered owner of land on which the defendant was the ground tenant of a building which the defendant owned since 1965, at a monthly rental paid to the previous owner and subsequently to the plaintiff. On 20 July 1994, the plaintiff sent a notice to quit to the

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defendant who continued to remain thereon as a result of which the plaintiff commenced an action against the defendant for vacant possession. The sessio