Wira Wan Yahya bin Pawan Teh:

This is an appeal by a tenant against the decision of the 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 RM1,000 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.

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 the "Notice to Quit" dated 23 February 1985 (P59 of Appeal Bundle) that the appellant became aware of the change of ownership, almost a lapse of six years. The appellant has been living on the land paying a ground rent of RM12 per month to the previous landowner. Previous to that, the appellant's late father had been in occupation from 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 RM12 and then stopped collecting rentals as there was no agreement as to the increase of rentals.

The appellant along with 69 others attempted to negotiate with the solicitors for the respondent after receipt of the "Notice to Quit" but to their surprise found that the summons had 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 in 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 [1952] Spenser Wilkinson J, in that case quoted the Court of Appeal inThung Fun V. Looi Fong Um [1952] in the High Court, remitted the case back directing the Court below to make a definite finding of fact on whether there was any agreement as to where the rent should be paid 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 has been express agreement as to where the rent should be paid. According to Woodfall onLandlord 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".

The appellant's Counsel also attacked 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 23 February 1985 required the appellant to quit and deliver up vacant possession on 1 April 1986. The summons was filed on 21 May 1985 and issued by the Court on 25 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 the tenancy according to law.

The appellan