Judgment was entered for the plaintiff in this case for the sum claimed being arrears of rent. The learned magistrate went further and ordered the defendant to vacate the premises on or about 30 April 1972 even though counsel for the defendant drew his attention to the fact that the rent had been paid. The registrar of the court also directed the court's attention to this fact stating that the whole amount (i.e. ¢44.00) claimed on the writ had been paid into court. The learned magistrate paid no heed to this and recorded that:
"However it is the court's considered opinion that a substantial breach of the tenancy agreement was committed by the defendant and both exhibits A and B support that finding, quite apart from the fact that the amount claimed has been deposited in court."
[p.204]
The defendant being aggrieved and dissatisfied with the judgment of the learned magistrate appealed to this court. The defendant set out four grounds; all of them, except the last ground, centred around the second ground which reads as follows:
"The magistrate erred in law in that he failed to consider the provision of section 212 of the Common Law Procedure Act, 1852, and thereby refused to grant the defendant relief against forfeiture."
Section 212 of the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76), is one of the sections of that Act preserved by the Courts Act, 1971 (Act 372).
The receipt given to the defendant shows that the whole amount claimed including costs was paid on 3 March 1972 a day before the learned magistrate delivered his judgment and made the order for ejectment. The receipt was not shown to the learned magistrate but was tendered in this court and marked exhibit I.
As stated in the headnote of the case of Howard v. Fanshawe [1895-1899] All E.R. Rep. 855:
"The proviso for re-entry on demised premises on non-payment of rent is regarded in equity as merely a security for the rent, and, therefore, a tenant is entitled to be relieved against forfeiture on payment of the rent and any expenses to which the landlord has been put. This right to relief exists whether the landlord has obtained possession of the premises by peaceable re-entry or in an action for ejectment. Under the Common Law Procedure Act. 1852, a tenant who has been relieved shall hold the demised premises 'according to the lease thereof made, without any new lease’.”
The learned magistrate erred in law in making the order for ejectment when the lessee had paid all rent in ar
