THE appellant Oodit who was sued for arrears of the rent of 100 acres of land, let to him for

the cultivation of rice, ended up with the Federal Supreme Court dismissing the appeal with costs to the respondent.
Mr. S. D. S. Hardyal with A.Q. Fung-Kee-Fung for the appellant.
Mr. J. O. F. Haynes, Q.C., with L. F. S. Burnham, Q.C. and Mr.H. D. Hoyte for the respondent.
The F. S. C. was constituted by Sir Eric Halliman, Chief Justice, Justice A. M. Lewis and Justice J. F. Marnan.

Justice Marnan who delivered the judgment said: By his defence he admitted that rent was payable at the rate of $7.50 per acre, but alleged that the area let was 25 acres only, in respect of which he had made full payment.
The only contested issue of fact which was raised by the pleadings was as to the area of the land let, but at the close of the evidence it was argued for the defendant-appellant that the plaintiff was precluded from recovering any rent by the operation of s. 27 of the Rice Farmers (Security of Tenure) Ordinance,1956, which had come into operation during the defendant’s tenure of the land in question.

The learned trial judge found the issue fact in favour of the plaintiff-respondent, held that the point of law was not open to the defendant because he had not raised it by his defence, and gave judgment for the rent claimed with costs.
At the hearing of the appeal it was not sought to challenge the trial judge’s finding of fact, but the appellant’s counsel based his submission on two main contentions.
The first was that the supply to the tenant by the landlord of a statement in writing of the rate of rent claimed by the latter to be due was a condition precedent to the recovery of such rent.

The second was that the respondent’s failure to supply such a statement within the time limited by the Ordinance constituted an illegality of which the Court should take notice and upon which the defendant could rely despite the provisions of O. 17. R. 15.
Section 27 (1) of the Rice Farmers (Security of Tenure) Ordinance, 1956, reads as follows:
“The landlord of any holding to which this ordinance applies shall within 30 days from the date on which this Ordinance comes into operation supply the tenant with a statement in writing of the basic rent together with the additions thereto under section 23 of this Ordinance claimed by the landlord as the rent payable in respect of the holding. Thereafter, the landlord shall not later than the 30th day of April, in each calendar year, supply the tenant with such a statement in respect of the rent so claimed for the next ensuing year of tenancy.”

After touching on other aspects of his judgment, Justice Marnan added: The learned trial judge did not deal with the meaning of section 27 because he decided the condition precedent point upon the ground that O, 17. R. 15, precluded the defendant from raising it. Order 17. r,15, which corresponds to O. 19, r. 15, of the English Rules of the Supreme Court, reads as follows:
“The defendant or plaintiff, as the case may be , must raise by his pleading all matters which show the action or counterclaim not to be maintainable, or that the transaction is either void or voidable in point of law and that such grounds of defence or reply, as the Case may be as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleading, as, for instance, fraud, limitation by statute, prescription, release, payment, performance ,facts showing illegality , either by statute or common law, or any provision of the statute of Frauds, which has been incorporated in the law of the Colony.”

Mr. Hardyal contended that an illegality had appeared from then plaintiff’s own evidence that it was therefore open to him to rely on it. He contended, moreover, that the court was bound to take notice of the illegality and, having noticed it, to refuse to enforce a contract so tainted.
There was, however, nothing illegal about the contract of tenancy upon which the plaintiff was suing. Her failure to comply in due time with the requirement o s. 27 (1) was not necessary even an offence under subsection (2), and in no way tainted the contract as such.
It may be that if the rent claimed in the action had been in excess of the maximum permitted rent the action itself might not be maintainable though the contract on which it was founded remained legal, because then It would be sought by the action to controvert the Ordinance.

But the rent claimed is agreed to be correct. Even assuming that the supply of a statement before the rent fell due was a condition precedent to the recovery of rent that condition was in fact performed. I can see no attempt to circumvent the Ordinance or anything illegal in suing for the agreed rent, when all that can be said against the plaintiff is that she had performed the supposed condition precedent out of time.
The principles applicable to cases such as the present are reviewed in the judgment of Devlin J.
After taking all the issues into account Justice Marnan dismissed the appeal with costs to the Respondent.
Chief Justice Hallinan and Justice Lewis concurred.