Salleh Abas FJ

(delivering the Judgment of the Court): This is an appeal from the decision of Wan Mohamed J. refusing the appellants' summons-in-chambers to sign final judgment to recover vacant possession of certain demised premises from the respondent.

The respondent was the lessee of the demised premises, i.e. the ground floor and the first floor of the building erected on lot 22, Block 33, Kampung Ayer, Kota Kinabalu. According to the lease agreement which he entered into with the first appellant, Voo Min En, the lease was for a period of sixteen years commencing on January 16, 1965. The lease was duly registered in accordance with section 104 of the Sabah Land Ordinance. On the expiration of the lease on January 16, 1981, only part of the demised premises, namely the first floor was delivered up by the respondent. He retained and still continues to retain the ground floor. When sued for the recovery of this floor the respondent stated in his statement of defence that a new lease for a further term of eight years commencing from January 16, 1981 was created in his favour as a result of an oral agreement on August 30, 1980 between him and Mr. Wong Phu Yin, who was then one of the owners of the demised premises. The first plaintiff and Mr. Wong Phu Yin in their respective affidavits sworn on April 10 and 11, 1981 in support of the summons-in-chambers denied that there was an oral agreement. They claimed that what actually happened was that on August 30, 1980 the respondent made an oral offer to renew the lease of the ground floor at certain rentals, but this offer was not agreed to by the appellants.

Thus the respondent raised an issue as to the existence of an oral agreement renewing the lease. The learned judge accepted this issue as a triable issue and therefore dismissed the appellants' application to sign final judgment. Hence this appeal.

The question which calls for our decision in this appeal is whether the learned judge was correct in holding that the existence of the so-called oral agreement between the parties purporting to renew the lease is a triable issue.

It is not disputed that the lease is in writing and also registered under the appropriate provisions of the Sabah Land Ordinance (Cap 68). It is also not disputed that according to clause 2 (3) of the lease the renewal is exercisable subject to the following three conditions, namely:—

(1) the respondent as the lessee has to give a written request for the renewal at least three months prior to the expiration of the lease;

(2) he is not guilty of any breach or non-observance of any covenant contained in the lease; and

(3) the appellants as lessor do not need the demised premises for their own use.

It is clear that the respondent did not avail himself of the provision of this clause as at no time did he make any written request to renew the lease as required by the clause. The law on the question of the renewal of a lease is settled in that an action or a right to renew a lease is always treated by the law as a privilege which must be exercised strictly within the terms in which the option or the right is given, otherwise the option or the right is lost, West Country Cleaners (Falmouth) Ltd v Saly [1966] 3 All ER 210, 212. Since the respondent gave no written request as required by clause 2 (3) of the lease, there is thus no question of the lease being renewed at all. The alleged oral agreement, even if proved, could not renew the lease, because it is completely outside the purview of this clause. Further, unless and until this clause is amended or modified so as to include an oral agreement as a mode of renewal, the alleged oral agreement remains ineffective and irrelevant.

But the respondent maintained in his affidavit sworn on May 20, 1981 in reply to the appellants' summons-in-chambers that the alleged oral agreement "impliedly supplement clause 2 (3) of the lease agreement". In other words the respondent said that an oral agreement to renew the lease is out