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Courts – Supreme Court – Review – Decision of court per incuriam and containing fundamental errors of law – Whether amounts to exceptional circumstance resulting in miscarriage of justice – Whether court has jurisdiction to review decision.

Landlord and Tenant – Recovery of possession – Declaration under reg 18 of LI 369 – Action for possession filed in High Court without filing declaration under LI 369 reg 18 with rent officer – Whether court had jurisdiction to entertain claim – Whether declaration requisite only where proceeding for possession commenced before rent officer or rent magistrate – When declaration may be filed – Rent Regulations 1964 (LI 369) s 18.

Landlord and Tenant – Recovery of possession – Business premises – Executors of deceased landlord seeking possession of premises forming part of estate – Executors not beneficiaries under will of deceased landlord – Whether qualified to apply for possession as landlord – Rent Act 1963 (Act 220) s 17(1)(h).

Except for some specific monetary bequeaths in his will, the testator merely charged his executors to assist his wife and son in the management of his estate and not to dispose of any portion of the estate under any circumstances whatsoever. Upon obtaining probate the executors instituted an action in the High Court under the Rent Act 1963 (Act 220) against the defendant for the recovery of the disputed house that the executor had leased to him for his hotel business. The ground for seeking recovery was that the executors required the premises for a hotel business that the testator had operated in his lifetime. The High Court granted the order for possession but the applicant appealed unsuccessfully to the Court of Appeal. In a further appeal to the Supreme Court, that court, by a simple majority, upheld the judgment of the Court of Appeal and affirmed the order of possession. The applicant applied for review on the ground that the majority erred in holding that the executors were entitled to possession of the property under Act 220. Secondly, that the majority failed to give effect to the mandatory requirement in regulation 18 of the Rent Regulations 1964 (LI 369) for filing a declaration by a person seeking possession of business premises under section 17(1)(h) of Act 220.

Held, Francois, Wuaku and Amua-Sekyi dissenting: (1) The conditions for review of a decision of the Supreme Court were exceptional circumstances including fundamental and basic errors of law that had occasioned gross miscarriage of justice. This included a decision given per incuriam that occasioned miscarriage of justice or where the decision was not legally right and had actually occasioned miscarriage of justice. The applicant’s case for a review fell within the categories above and he was entitled ex debito justitiae to an order for review of the judgment of the Supreme Court. Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274, Fosuhene v Pomaa [1987-88] 2 GLR 105, Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC, Nasali v Addy [1987-88] 2 GLR 286, Bisi v Kwayie [1987-88] 2 GLR 295, SC, Ababio v Mensah [1989-90] 2 GLR 573 referred to.

Per Francois, Wuaku, Amua-Sekyi JJSC dissenting: The distinction between review and appeal is of paramount importance. If disregarded, an enhanced bench might well assume it possesses limitless power to review the correctness of the law, a function permissible only when a matter is on appeal and not otherwise. Where the same grounds were canvassed as in the appeal the exercise ceases to be a review. It is the appeal process being invoked and substituted for review exercise, twice too often.

(2) A landlord who required possession of business premises under s 17(1)(h) of Act 220 must have established that he reasonably required the premises for his business. The respondents, as executors did not qualify as beneficial owners of the disputed premises and could not seek an order of possession under Act 220.

(3) Regulation 18 of LI 369 required a landlord seeking possession under section 17(1)(g), (h), (i) or (k) to submit to the appropriate rent officer, the declaration specified in Form 14 of the First Schedule that the premises would not be re-let to another tenant within a specified period. The requirement was a condition precedent to the assumption of jurisdiction by any court. The respondents having failed to comply with the provision, neither the court below nor the Supreme Court had jurisdiction to order possession. Alawiye v Agyekum [1984-86] 1 GLR 179, Sfarijilani v Basil [1973] 2 GLR 260, Rawanji Brothers v Patterson Zochonis & Co Ltd [1975] 2 GLR 352, Hamid v Okata [1989-90] 2 GLR 420, CA, Joseph v Farisco Ghana Ltd [1991] 2 GLR 151, CA, Adu v Clegg [1981] GLR 173, Sharpe v Nicholls [1945] 1 KB 382, Davies v Warwick [1943] KB 329, Parker v Rosemberg [1947] 1 All ER 87, Boateng v Dwinfour [1979] GLR 360, Epson Grandstand Association Ltd v Clark [1919] 525, CA referred to.

Per Aikins JSC: In Gbedemah v Ofori [1991] 2 GLR, 345, the Court of Appeal held that the declaration could be filed before the end of the case and that the court could order for the filing before the execution of the judgment. There is no doubt in my mind that the declaration must be filed no later than the date of the judgment for possession. A declaration filed after such judgment makes nonsense of the statutory provision.

Cases referred to:

A/S Norway Cement Export Limited v Addison [1974] 2 GLR 177, CA.

Ababio v Mensah [1989-90] 1 GLR 573, SC.

Adu v Clegg [1981] GLR 173, CA.

Adusei v Marfo 24 February 1964, SC.

Afranie v Quarcoo [1991] 2 GLR 538, SC.

Akorful v Ahomka Sey 29 March 1988, SC.

Alawiye v Agyekum [1984-86] 1 GLR 179, CA.

Armah v Naawu [1975] 2 GLR 201, CA.

Aschkar v Karam [1972] 1 GLR 1, CA.

Atta v Adevor [1976] 2 GLR 343, CA.

Ayiwa v Badu [1963] 1 GLR 86, SC.

Baker v Lewis [1946] 2 All ER 592, [1947] KB 186, [1947] LJR 486, CA.

Blankson-Hemans (Dec’d) Re, Monney v Blankson-Hemans [1978] GLR 330, CA.

Benneh v Republic [1971] 2 GLR 354, CA.

Benneh v Republic [1974] 2 GLR 47, CA (Full Bench).

Bisi v Kwayie [1987-88] 2 GLR 295, SC.

Biss, Re Biss v Biss [1903] 2 Ch 40, 72 LJCh 473, 88 LJ 403, CA.

Boateng v Dwinfour [1979] GLR 360, CA.

Carr (M) v Carr (AK) [1974] 1 WLR 1534, 118 SJ 831, sub nom Carr v Carr [1974] 1 All ER 1193, CA.

CFAO v Zacca [1972] 1 GLR 366, CA.

Cleary v Cleary and Hutton [1974] 1 WLR 73 sub nom Cleary v Cleary [1974] 1 All ER 498, 117 SJ 834, CA.

Davies v Warwick [1943] KB 329, [1943] 1 All ER 309, CA.

Energy Conversion Devices Inc’s Application, Re (1982) The Times, 2 July, [1982] Com LR 219, [1982] FSR 544, HL.

Epson Grand Stand Association Ltd v Clarke (1919) 35 TLR 525, 63 SJ 462, CA.

Farr v Newman (1792) 4 Term Rep 621, 100 ER 1209.

Fosuhene v Pomaa [1987-88] 2 GLR 105, SC.

Gbedemah v Ofori [1991] 1 GLR 345, CA.

Growther, Re Midgley v Growther [1895] 2 Ch 56, 64 LJCh 537.

Hamid v Okata [1989-90] 2 GLR 420, CA.

Hansen v Ankrah [1987-88] 1 GLR 539, SC.

Hume v Somerton (1890) 25 QBD 239, 59 LJQB 420, 62 LT 828.

Jones v Secretary of State for Social Services, Hudson v Same [1992] AC 944, [1992] 2 WLR 210, [1992] 1 All ER 145, HL.

Joseph v Farisco (Gh) Ltd [1991] 2 GLR 151, CA.

Kalenderiam Brothers v Millad Nahum (1956) 1 WALR 18.

Massoud v Khalil [1959] GLR 278.

Mechanical Lloyd Assembly Ltd v Nartey [1987-88] 2 GLR 598, SC.

Minister for Social Security v Amalgamated Engineering Union (Dowling’s Case) [1967] 1 QB 202, [1966] 2 WLR 1301, [1967] 1 All ER 210, CA.

Mosi v Bagyina [1963] 1 GLR 337, SC.

Nasali v Addy [1987-88] 2 GLR 286, SC.

Parker v Rosenberg [1947] 1 All ER 87, [1947] KB 371, [1947] LJR 495, CA.

Pearlman v Keeper & Governors of Harrow School [1979] QB 56, [1978] 3 WLR 736, [1979] 1 All ER 365, CA.

Practice Direction (Reviews in the Supreme Court) [1987-88] GLR 2 GLR 274, SC.

Quagraine v Davies [1961] 1 GLR 291, PC.

Quarcoo v Afranie II [1991] 2 GLR 248, CA.

Queen’s Club Garden Estate Ltd v Bignell [1924] 1 KB 117, 93 LJKB 107, 130 LT 26, DC.

Rawanji Brothers v Patterson Zochonis & Co Ltd [1975] 2 GLR 352.

Republic v High Court, Accra ex parte Togbe Darke XII [1992] 2 GLR 689, [1992-93] GBR 1138, SC.

Republic v National House of Chiefs, ex parte Faibil III [1984-86] 2 GLR 731, CA.

Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130, SC.

Sfarijilani v Basil [1973] 2 GLR 260, CA.

Sharpe v Nicholls [1945] 1 KB 382, [1945] 2 All ER 55, 114 LJKB 409, CA.

Shrispton v Rabbits [1924] 131 LT 478.

Skeats Re, Thain v Gibbs [1936] 2 All ER 298, [1936] Ch 683, 105 LJCh 262.

Smith Re, Arnold v Smith [1896] 1 Ch 171, 65 LJCh 269, 74 LT 14.

Swaniker v Adotei Twi II [1966] GLR 151, SC.

Union Trading Co Ltd v Karam [1975] 1 GLR 212.

Yanney v African Veneer Mahogany Exporters Ltd [1960] GLR 89 CA.

APPLICATION for review of a decision of the Supreme Court.

J K Agyemang (with him Paul Osei Boateng) for the applicant.

Afari Yeboah for the respondents.

FRANCOIS JSC. The review jurisdiction has come to stay and doubts about its legitimacy have now been laid to rest by the constitution of the Fourth Republic. It is accordingly necessary to repeat the parameters for its exercise. However tedious, its schematic place in the judicial process must be frequently analysed and dissected to firmly implant the limits of this jurisdiction.

To start with, a review is only legitimate where exceptional circumstances exist which, if unredressed, would perpetuate miscarriage of justice, but a review is not another avenue for an

appeal. Thus in A/S Norway Cement-Export Ltd v Addison [1974] 2 GLR 177 Apaloo JA restated the limits of this jurisdiction at p 182 as follows:

“The jurisdiction conferred on the full bench is to review and not to entertain an appeal from the ordinary bench. Indeed an appeal from the ordinary bench to the full bench would only, in effect mean an appeal from one panel of judges to another panel of the same court. Accordingly, a considerable body of case law has drawn a distinction between a review and an appeal and stressed that the former should not be taken as intending the latter and should not be dealt with as such. Such cases as Adusei v Marfo 24 February 1964, SC, Swaniker v Adotei Twi II [1966] GLR 151, SC, Aschkar v Karam [1972] 1 GLR 1, CA and Benneh v Republic [1974] 2 GLR 47 (Full Bench) are typical of these. We accept this as a valid distinction and hold that although both may achieve the same result, they are conceptually different.”

In my view the distinction is of paramount importance. If disregarded, an enhanced bench might well assume it possesses limitless power to review the correctness of a decision on the law, a function which is permissible only when a matter is on appeal and not otherwise.

It follows that the repetition of previous arguments and the revisit to past scenarios cannot properly lay a foundation for review. In my view, where the same grounds are canvassed the exercise ceases to be a review; it is the appeal process which is being invoked and substituted for the review exercise, twice too often. This must be decried.

A reference to decided authority shows that a large number of review cases decided by the courts, ended by panel members exercising their vote, not on a recantist view of the law they previously held, but rather on the single and only viable test, namely, the existence of exceptional circumstances, sufficiently demonstrated to compel a redress to prevent the perpetuation of a miscarriage of justice.

Put differently, judges have retained their perception of the law, but have resisted the temptation of letting it blur the important exercise of discerning whether the applicant had passed the review test stated above. Any other rationalisation of the review process would transform it subversively into, and confer upon it an appeal jurisdiction.

The most objectionable aspect of this is the creation by implication of a higher tier of appellate jurisdiction over colleagues that allow pronouncements from an enhanced bench to extol this superior hierarchy. The history of the review jurisdiction shows that the legislature has never contemplated conferring on the review bench that superiority.

A couple of illustrations from other jurisdictions may not be out of place here. In Jones v Secretary of State [1972] 1 All ER 145, a worker sought disablement benefit arising from myocardial infarction suffered from lifting a heavy piece of metal in the course of his work. The issue could be decided by recourse to the authority of Minister for Social Security v Amalgamated Engineering Union (Dowling’s Case) [1967] 1 All ER 210. Opinion was however divided as to the correctness of that decision and the House of Lords was invited to distinguish, reconsider or overrule that decision. The argument was rejected by Lord Reid who said at page 150:

“But even if I thought now that Dowling’s Case was wrongly decided, I would still be of opinion that on grounds of public policy it ought not to be reconsidered.”

It was Lord Reid’s further view, that what was involved was the construction of a statute. He said at page 149:

“In very many cases it cannot be said positively that one construction is right and the other wrong. Construction so often depends on weighing one consideration against another. Much may depend on one’s approach. If more attention is paid to meticulous examination of the language used in the statute the result may be different from that reached by paying more attention to the apparent object of the statute so as to adopt that meaning of the words under consideration which best accord with it.”

Lord Pearson said at p 174 of the report:

“There were two conflicting views and each of them was tenable. That which ultimately became the minority view was taken by three members of the Divisional Court, by one member of the Court of Appeal and by one of my noble and learned friends in this House. The view which became the majority view was taken by two members of the Court of Appeal and by four of my noble and learned friends in this House. On a count of judicial voices one might say the slender majority of six to five is not sufficient to prove conclusively the correctness of the view which prevailed, but the voices in favour afford unimpeachable evidence that it is a tenable view, in the absence of any demonstration that it was arrived at per incuriam or is for some other reason clearly unmaintainable. No such demonstration has been given. That seems to me a sufficient reason for not overruling the decision in Dowling’s case. If a tenable view taken by a majority in the first appeal could be overruled by a majority preferring another tenable view in a second appeal, then the original tenable view could be restored by a majority preferring it in a third appeal. Finality of decision would be utterly lost.”

Lord Simon of Glaisdale gave his blessing when he said at p 196 that the House would “be reluctant to encourage frequent litigants before your Lordship’s House … to endeavour to re-open arguments once concluded against them - particularly since appellate committees do not sit in banc, so that similar arguments might be put forward in successive cases in the hope of finding a favourably constituted committee.”

That is precisely the danger which lack of hindsight or foresight or both has inflicted on us. The informed approach that instructed the house in their treatment of Dowling’s Case must commend itself to us for adoption if our attempt at providing justice is not to be negated.

This is again illustrated in Carr v Carr [1974] 1 All ER 1193 where the construction of the English Divorce Reform Act of 1969 was in issue (a previous interpretation by the Court of Appeal in Cleary v Cleary [1974] 1 All ER 498 appearing suspect) Stephenson LJ could only say with regret:

“But I cannot assume that judges so familiar with divorce reform overlooked s 3(3), so as to enable us to treat their decision as given per incuriam and, again on a unilateral argument, to interpret the subsection differently.”

In my view, the application for review is wholly unmeritorious and I would dismiss it.

WUAKU JSC. On 23 December 1991, the Supreme Court, by a majority of 3-2, dismissed an appeal by the applicant herein in Afranie v Quarcoo [1991] 2 GLR 538. On 6/1/92, he filed a motion on notice for review and at the same time another motion for stay of execution of the judgment pending the hearing of the motion for review. Because of the surrounding circumstances of this case, I intend to go into a great deal of the matters leading to the appeal and also matters alleged in support of the application. Firstly, I refer to the following parts of the affidavit in support of the application:

“2. That on 23 December 1991 the Supreme Court by its majority decision of 3-2 judges dismissed my appeal by holding that the respondents as the executors and trustees of the estate of the late Alexander Albert Mensah had every right to recover from me possession of House No 35, Accra New Town, a business premises, under section 17(1)(h) of the Rent Act 1963 (Act 220); that the court ordered me to vacate and give up the said premises within one month from the date of their judgment for the reason that I had had the benefit and use of the said premises since the date of the decision of the Court of Appeal on 30 November 1990. Costs of ¢200,000 were also awarded against me following the dismissal of my appeal to the Supreme Court

3. That the circumstances of this case are exceptional and that in the interest of justice this is a proper case for a review of the majority decision of the Supreme Court.

9. That I took the view throughout that the executors’ claim for possession was not made in good faith and should be rejected and that there was no satisfactory evidence that Aams Hotel was so fully booked regularly as to require my hotel as an adjunct to it; that I won the case in the High Court but lost in the Court of Appeal. I appealed to the Supreme Court before which my counsel argued, inter alia that since the executors were seeking a statutory remedy, they had to bring their case squarely within the four corners of the clear provisions of the relevant statute. Especially, I contended that the respondents were not entitled to recover possession of the property from me as the will of Mr A A Mensah did not devise the subject property, amongst others, to his widow and named son or the executors for their own use.

16(a). That by the special circumstances of this case, the executors-respondents had not, by the will of the late Mr A A Mensah, been given any beneficial interest in the subject property neither were the deceased’s wife and son beneficiaries of the said property. Indeed apart from a pecuniary legacy of ¢30,000 to one of his children, the deceased never specifically provided for the beneficial enjoyment of his numerous properties. In the result, he died intestate in respect of his numerous assets and until PNDCL 111 was complied with and the subject property specifically given out, neither the executors nor the deceased’s named wife and widow would claim Hotel de France as his property which he required for his own business purposes; that the Honourable three members of the Supreme Court failed to advert their minds to the express provision of s 17(1) (h) of Act 220 and to interpret the provision as required by law, and their failure has occasioned grave miscarriage of justice to my great detriment….

16(e). The Honourable three Justices of the Supreme Court erred in law in drawing the unjustified inference that, in seeking possession, the executors were only trying to discharge the duty cast on them by the testator not to distribute the estate but to preserve it, when by the provisions of the will, he had clearly died intestate in respect of most of his properties including House No 35, Accra New Town Road and that being the case, PNDCL 111 became applicable and the person who had become owner of the subject property would be the one to claim possession under s 17(1)(h) of Act 220 if so desired. It was not open to the executors or the widow and named son of the deceased to claim the property for use in their own business when the property was not for them.

16(g). The Supreme Court in giving the applicant one month from 23 December 1991 to vacate the business premises used as a

hotel and for the reason given committed an error and in the interest of justice the same should be reviewed.

17. That for the above reasons I humbly pray that this Honourable Court gives favourable consideration to this application for review and grant same by reversing or otherwise dealing with the majority decision of the Supreme Court.

18. That I pray that the Full Bench of the Supreme Court comprising seven judges be empanelled to sit on this matter which as I am advised by counsel and I verily believe, raises important questions or error on the part of majority of five judges and resulting in miscarriage of justice.” (Emphasis mine.)

The applicant’s statement of defence and counterclaim are reproduced hereunder and a careful reading of the defence will show that some of the allegations alluded to in the affidavit particularly, paragraphs 9 and 16(a) were never pleaded and were not matters for adjudication before the trial court, nor matters which were known to the applicant until after the hearing of the appeal.

It is obvious that what the applicant is seeking is for the majority judgment only to be reviewed and the same reversed or otherwise dealt with. See paragraphs 2, 3, 16(a), 17 and 18 quoted above. The complaint against the whole panel is what is contained in paragraph 16(g). Among the grounds for asking for the review which is not in the alternative but in addition to other reliefs is ground 16(g) quoted supra.

I cannot fathom how judges are empanelled to sit on a case in the Supreme Court particularly for a review at the request of a particular litigant nor the criteria for listing cases for hearing. In this case the requests in paragraphs 16(g) and 18 appear to have been granted before the matter came before the court. Although the application was filed on 6/1/92 as aforesaid, it was fixed for hearing on 5/5/92 and on that date the applicant asked for adjournment to file the statement of case, and it was adjourned to 23/6/92. Ruling is now being given 10 months after the motion was filed. Who says that justice delayed is always justice denied; not the applicant in this case?

Had this been for review of a judgment or order of a court or judge of the High Court, it ought to have been made only to the judge or judges who gave the judgment or made the order sought to be reviewed. See Order 39 rule 2 of High Court (Civil Procedure) Rules 1954 (LN 140A).

My opinion may be wrong; other judges may have a different view. I am entitled to my opinion, and as a judge in this matter, if I have an opinion to express, I have to express it and the respondents have a right to the benefit of it. My opinion is that since the applicant wants only the judgment of the majority to be reviewed, it meant that the applicant is satisfied with the minority judgment and the minority ought not have anything to say in this review, unless the object is to get the minority and the additional judges, so as to reverse the majority as requested by the applicant. With the two additional judges, a new dimension has been given to the matter and I must go into greater detail than it is necessary.

In 1976, the late Mr Alexander Albert Mensah, a hotelier orally let for 5 years the subject matter of dispute to the applicant to be used as a hotel. The lease having expired and the landlord, the late Mr A A Mensah in or about July 1980 gave the applicant notice to quit. The notice was ignored by the applicant and Mr A A Mensah therefore sued the applicant on 11/8/81 before the Circuit Court, Accra, for ejectment, recovery or possession and mesne profits. On the 22/7/85, the court had completed taking evidence. On the same day Mr Mensah died 2 hours after reaching home. On the adjourned date, further hearing adjourned to enable probate to be obtained. The plaintiffs are executors under Mr Mensah’s will. After they obtained probate, the plaintiffs herein were substituted for the deceased Mr Mensah without objection by the applicant. After the substitution, the hearing was continued, and the action was dismissed. The circuit court held that the tenancy had expired in February 1981.

Paragraph 9 of the circuit court judgment states:

“The question is whether he established that he reasonably required the house. He pleaded that he informed the defendant at time of letting the house that he intended to use it for a hotel. And he wrote in exhibit 1 that he would convert it into a proper business establishment, ie a category A hotel set up. But he and his wife testified that they required it for a school. The question is whether it is required for a hotel or a school. There is therefore a departure from the action (exhibit 1) and the pleading. I therefore do not see how it can be said that he reasonably required it for his own business purposes.”

In the instant case, there is no departure from the notice and the pleading and evidence.

An appeal to the Court of Appeal was dismissed. Subsequent to the dismissal of the appeal by the Court of Appeal, the plaintiffs issued a writ of summons against the appellant, this time in the High Court, Accra. The endorsement in the writ of summons in the High Court is as follows:

“STATEMENT OF CLAIM

The plaintiffs jointly and severally claim against the defendant:

1. Recovery of possession of house No 35, Accra New Town Road, Kokomlemle, Accra, popularly known as the Hotel de France.

2. A perpetual injunction restraining the defendant, whether by himself, his servants, agents, privies whomsoever or otherwise from entering or remaining upon or in any manner whatsoever interfering with the plaintiffs possession or the said premises.

3. Mesne profits for the defendant’s occupation and use of the said premises.

4. Further or other relief as in the circumstances may be just.

PLAINTIFFS’ CAPACITY

The plaintiffs sue as the executors and trustees of the will dated April 1, 1984 of Alexander Albert Mensah (deceased).”

I produce also the statement of the plaintiffs’ claim and the defence and counterclaim:

“STATEMENT OF CLAIM

1. The plaintiffs are the executors and trustees of the will, dated 1 April 1984 of Alexander Albert Mensah, (deceased), proprietor of the AAM’S Hotel, Nsawan Road, Kokomlemle, Accra, probate of which was granted to them by the High Court, Accra on 7 October 1985. The plaintiffs bring this suit in the capacity of executors and trustees of the testator.

2. The defendant is a kente weaver and the proprietor of the Hotel de France, which he operates in premises known as House No 35, Kokomlemle, Accra, on the Accra New Town Road.

3. In February 1976 the said testator entered into an oral tenancy agreement with the defendant under which the defendant took a monthly tenancy of House No 35, Kokomlemle aforesaid at ¢1,300 a month.

4. The defendant was operating his said hotel in the said premises when by a writ issued in the Circuit Court, Accra, the said testator took legal action in Suit No CC 254/1981 entitled Alexander Albert Mensah v Nana Afranie II for the purpose of recovering possession of the said premises on the basis of two notices to quit on the ground that the said testator needed the said premises for his own use as a hotel.

5. By its judgment dated 20 February 1986, the circuit court dismissed the said action on the grounds that the said testator had given too short a notice to quit contrary to the Rent Act 1963 (Act 220) s 17(1)(h) and further, that he had not proved that he reasonably required the said premises for his own use. The plaintiffs appealed against the decision to the Court of Appeal but the court by its judgment dated 29 July 1986 in Civil Appeal No 117/1986 affirmed the judgment of the trial circuit court.

6. Thereafter by a fresh notice to quit contained in a letter dated 30 July 1987 from the solicitor of the present plaintiffs the defendant was given 6 months from 31 July 1987 until 31 January 1988 to quit the said premises which the plaintiffs required for the use of the widow and son of the said testator the devisees thereof as an annex to or otherwise in conjunction with the AAM’s Hotel aforesaid.

7. Although the said 1987 notice to quit was delivered by the plaintiffs’ agent, the son of the said testator, in the morning of 30 July 1987 to the defendant in person at his kente shop near the Commodores Restaurant, Adabraka, nonetheless the defendant has failed and refuses to quit the said premises in compliance with the said notice.

8. By reason of the defendant’s said failure or refusal to quit, the plaintiffs are suffering loss and damage.

9. The plaintiffs therefore jointly and severally claim the reliefs endorsed upon the writ of summons herein.”

“STATEMENT OF DEFENCE

1. The defendant admits paragraphs 1, 2, 3 and 5 of the plaintiff’s statement of claim.

2. The defendant admits paragraph 4 of the statement of claim in so far as plaintiffs state that by letter No AAMS/A/NT03/80 dated 27 July 1980, the plaintiffs’ predecessor to wit, the late Alexander Albert Mensah of Accra, by his counsel wrote to the defendant requesting him to quit the premises herein, but would like to explain that the said quit-notice was, to the defendant’s mind, unreasonable, irregular and unfair for reasons hereunder explained.

3. The defendant avers that since he pays his rents six-monthly in advance, at the beginning of January and July respectively, the said quit-notice was irregular, out of place and unreasonable seeing that the plaintiff would have unjustly had to benefit by two months rent at the expenses of the defendant, had the defendant adhered to the said quit-notice.

4. The defendant admits paragraph 5 of the statement of claim, but states that as the plaintiff did not show any tangible reasons for seeking to eject the defendant, the defendant by his counsel’s advice ignored the quit-notice and wrote back to explain same to him (plaintiff).

5. Defendant avers further that the plaintiff has been in breach of the verbal tenancy agreement, for despite protests from the defendant the plaintiff got his agents and or servants to subsequently occupy two apartments in the premises against the defendant’s will.

6. The defendant avers that one of the apartments comprises a chamber and hall and was consistently and continuously occupied by plaintiff’s agent and or servant, and the other apartment was a room in which the late plaintiff aforementioned stocked his goods, to the exclusive use of the plaintiff, despite defendant’s protests, the latter of which the said late plaintiff kept for four and a half years.

7. The defendant avers that the rent for the two apartments would have fetched the defendant a sum of ¢400 and ¢100 respectively per month, and which sum as a result of late plaintiff’s continued occupation the defendant lost.

8. Defendant admits paragraph 6 of plaintiffs’ statement of claim.

9. Defendant denies the averment made by the plaintiffs in paragraph 7 of their statement of claim, and would like to explain that the defendant on being served with the quit-notice, directed plaintiffs’ agents or messengers to serve it on his counsel, seeing that he was soon about to travel to Kumasi.

10. Defendant denies paragraph 8 of the statement of claim, and reiterates that if there was any delay it should be attributed to the uncompromising attitude of the plaintiffs’ predecessor, eg changing counsel three times giving different excuses in the application for recovery of possession.

11. The defendant affirms that the said late plaintiff knowing that he was going to be in breach of a written agreement prepared to be signed by the parties herein, failed to sign the said agreement, and that he the plaintiff relied on the so-called verbal agreement which the plaintiff did not even carry out or respect.

12. The defendant denies plaintiffs’ claim against him, and states that plaintiffs’ late predecessor aforementioned deserves practically no sympathy.

13. The defendant would add that (a) with the consent and approval of the plaintiff from the start, defendant set up a hotel business, which he has been running successfully up till now, (b) at no time did the defendant intimate to the late plaintiff that he was going to occupy and use the premises herein as living quarters, seeing that the defendant would not normally need a 22 bedroom mansion to occupy especially as he defendant was comfortably putting up in a private apartment at Kanda, Accra, and also has a permanent home in Kumasi, Ashanti, which facts were fully known to the plaintiffs and (c) at no time did the defendant agree to put in the premises temporarily.

14. Defendant states further that as soon as he incurred all these expenses to enhance the value and prestige of the premises, which hitherto had been left dirty, idle, desolate and neglected, and defendant’s business started to take off admirably and successfully, the plaintiff became jealous and sought ways and means fair and foul, to eject him the defendant from the premises.

15. Defendant maintains that with the knowledge, consent and approval of the late plaintiff, the defendant spent as much as ¢38,000 but plaintiff accepted liability for only ¢11,000 leaving a balance of ¢27,000 on repairs maintenance and renovation of the herein premises plaintiff maintaining that if defendant was going to run a hotel business he the defendant would be the immediate and direct beneficiary.

16. The defendant strongly resists plaintiffs’ claim, and states that plaintiffs cannot simply recover possession the way they are going about it:

(i) for reasons aforementioned already;

(ii) without paying the defendant a handsome goodwill for enhancing the value and prestige of the premises;

(iii) without meeting defendant’s counterclaim hereunder described.

(17). The defendant repeats paragraphs 7, 11, 12, 13 and 14 above, and counterclaims the sum of ¢314,000 against the plaintiff, made up as follows:

(a) ¢500 per month for 84 months (1 July 1975 to 30 June 1981 for the two apartments unlawfully occupied by the plaintiff;
(b) Goodwill	¢42, 000
(c) Defendant’s outlay in renovating and repairing the neglected premises herein with the consent of the plaintiff	¢100,000 ¢27, 000
d) Cost of fixtures, fittings (see paragraph 15 above)	¢145,000
Total	¢314,000

18. Defendant furthermore seeks relief through the court to resist and restrain plaintiffs from ejecting him the defendant under the circumstances.

19. Defendant claims as per the counterclaim as well.

20. Save as herein admitted, the defendant denies every allegation of fact as if same has been set out in extenso and denied in seriatim.”

The plaintiffs delivered a reply and defence to the counterclaim. The issues filed by the plaintiffs and agreed upon for trial are:

“1. That it may be ordered that a preliminary legal point be set down for argument as to whether or not the statement of defence discloses a reasonable or any defence to the plaintiffs’ action.

2. That it may be further ordered that subject thereto, that the sole issues remaining for trial is whether or not the plaintiffs reasonably require House No 35 (formerly C415/4) Kokomlemle, Accra for the purposes alleged in paragraph 6 of the statement of claim.”

The defendant also filed as additional issues being the following which were also agreed upon:

“(a) Whether or not in the herein suit there is a triable issue; vide section 23 of the Rent Act 1963 (Act 220).

(b) Whether or not by the very filing of summons for directions learned counsel for plaintiff can properly retract, estop or nullify his own prayer to this Honourable Court.”

The plaintiffs’ preliminary issue, ie Issue 1 was not taken. Only two issues were in fact before the court which could be said to have been agreed upon for the trial, that is the plaintiffs Issue 2 and the defendant’s Issue (a).

The action was tried before Lutterodt J. She held that section 23 of Act 220 raised as an issue by the defence applied to the case. By section 23, a landlord is prohibited from serving notice to quit within two years of determination by appropriate rent officer, etc. The learned judge concluded her judgment as follows:

“On this ground, although I find that the subsisting tenancy imposed by the Act has not been terminated (see s 28 of Act 220), I do not see the need of going into the other issue or even deciding the true legal position with regard to the issues raised on reg 18 of the Rent Regulation 1964 (LI 369). Since no evidence was led on the counterclaim, it is accordingly dismissed.”

It must be observed that the applicant was satisfied with the judgment, therefore he did not attempt to appeal wholly or in part against Lutterodt J’s judgment.

The plaintiffs were dissatisfied and appealed to the Court of Appeal against the whole decision.

Their grounds or appeal were:

i. The learned trial judge erred in law by making the finding that the defendant’s tenancy was still subsisting or had not been determined.

ii. The learned trial judge further erred in law by applying to the facts of this case section 23 of the Rent Act 1963 (Act 220) which was in the circumstances of this case irrelevant and in applicable.

iii. The judgment was against the weight of evidence.

No additional ground of appeal was filed in the Court of Appeal. In the appeal court learned counsel for plaintiffs-appellant argued the appeal orally, however learned counsel for the applicant who was then the respondent sought leave to submit written submissions. Learned counsel’s request was granted.

Counsel for the applicant herein conceded in his written submission that section 23 of Act 220 does not apply, and I quote that submission:

“My Lords, I have always held the same views as expressed by my learned friend Afari Yeboah, on the interpretation of s 23. I therefore concede there is merit in the ground of appeal, leaving the rest of the matter to your overriding views which I recognise could well prove both of us wrong.”

The Court of Appeal after carefully considering the relevant law and the evidence allowed the appeal. The court considered the Rent Act 1963 (Act 220), especially sections 17(1)(h), 23 and 28 also the Rent Regulations 1964 (LI 369) section 18 and unanimously allowed the appeal. It was in the Supreme Court that the applicant raised the plaintiffs’ capacity to sue alleging that the plaintiffs are not beneficiaries under the will; he also challenged the validity of the will.

Probate having been granted, and not set aside, I cannot see how its validity can be raised now particularly when the applicant is neither a legatee nor devisee under the will. As said at the beginning of my judgment, the applicant’s appeal to the Supreme Court was dismissed by a 3-2 majority hence the present application for a review. The applicant had repeatedly stated that it is only the majority decision that he wants to be reviewed and reversed.

It is necessary to point out a serious fallacy in the applicant’s statement of case delivered during the hearing of the appeal upon which I commented. It is necessary to do so because the application herein is in respect of the whole of the majority decision. At the court of first instance, the applicant gave notice of amendment of the defence which he filed on 19 April 1988. By the proposed amendment he was seeking leave to delete the whole of the defence and to substitute the proposed amended defence of 9 paragraphs and without a counterclaim. The amendment was never moved and granted. Her Lordship Lutterodt J might have been aware of the position hence the dismissal of the applicant’s counterclaim. Since the amendment was never moved, there was in law no amended defence before the court. See Ayiwa v Badu [1963] 1 GLR 86, Atta v Adevor [1976] 2 GLR 343.

The applicant in his statement of case pursuant to rule 13(1) of the Supreme Court Rules 1970 (CI 13) stated as follows:

“The defence of appellant as amended was to the effect that the reason given by respondents for seeking possession of the property, namely that the widow and son of the testator required the use of the premises as an annex to or otherwise in conjunction with AAMS Hotel was only a ruse to get appellant out of the premises because that reason was ‘peddled and rejected at the previous trial by the circuit court and that the plaintiffs would be put to strict proof thereof.’”

I pointed out that fallacy in my judgment. I further held that no references should be made to the defence which was never properly before the trial court and that such references should be expunged as well as the interpretation being put on the will.

The applicant has correctly quoted what I stated in Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC where the applicant had sought for a specific relief which materially affects the appeal and argued grounds in support, but the appellate court failed or neglected to make a decision on it. In support of the quotation counsel for the applicant made the following submissions:

“The applicant submits that had the two majority Justices addressed themselves to his counsel’s arguments in respect of the respondent’s non-compliance with reg 18 of LI 369, they would have found for the applicant and that their failure to do so occasioned a grave miscarriage of justice.”

Learned counsel never stated any specific relief sought which materially affects the appeal and argued grounds in support which the majority failed or neglected to make a decision on by the two appellate courts. There is an old saying that “what is sauce for the goose is sauce for the gander.” In the minority judgment which the applicant wants to be substituted as the judgment of the court, only Osei-Hwere JSC referred to and considered reg 18 of LI 369. Aikins JSC who was also in the minority never referred to or commented on the said regulation. Amua-Sekyi JSC in the majority dealt fully with reg 18 aforesaid in 40 lines, whereas Osei-Hwere did so only in 18 lines. A unanimous judgment was delivered in the Court of Appeal. In that judgment reg 18 was fully considered before arriving at their unanimous decision in favour of the plaintiffs. The majority have confirmed the judgment of the Court of Appeal without any reservation. In effect it means that the majority has accepted the interpretation put on reg 18 by the Court of Appeal, and in my humble opinion having thus confirmed the judgment of the Court of Appeal there is no need for the three, or other two judges in the majority to consider separately that regulation.

In my opinion the Rent Act 1963 (Act 220) and LI 369 are meant primarily for proceedings which are normally commenced by application before the appropriate rent magistrate or the appropriate rent officer of a particular district or area as defined in section 36 of Act 220. This is borne out by the fact that applications to initiate proceedings are addressed to the rent officer of the area, and not to a judge. Complaints too are similarly addressed to the rent officer. The form or summons under LI 369 is signed by the rent officer or rent magistrate for a particular area.

“Judge” is variously referred to under section 17 of Act 220. If such a judge is meant to receive application, complaints or to sign the summons, columns would have been provided as in LI 369; see for instance forms 1, 4, 6, 7, 33 and 34 to mention a few at random. Where it is either the rent officer or rent magistrate who is to receive or sign, it is provided as follows: “Rent Officer/Rent Magistrate.” If a judge is to be concerned with signing or receiving such forms similar provisions would have been made, eg “Rent Officer/Rent Magistrate/Judge.” Form 14 which deals with regulation 18 of LI 369 is directed to the Rent Officer. It is trite learning that writ of summonses or complaints forms are not issued or signed by judges nor are such matters addressed to the particular judge, who is to hear the case even if he is the only judge at the station.

Proceedings before either the circuit or High courts are commenced by the issue of writ of summons signed by the client himself or counsel. They are addressed to the registrar of the court never to the judge. The same applies to the statement of claim, statement of defence, in short all pleadings. The first action in this case was taken before a circuit court and the instant one taken before the High Court where procedure is governed by High Court (Civil Procedure) Rules 1954 (LN 140A). In my humble opinion regulation 18 of LI 369 does not apply to writs of summons or actions commenced before the circuit court or the High Court.

Gbedemah v Ofori [1991] 1 GLR 345 was an appeal decided by the Court of Appeal, (Coram: Ampiah, Lamptey and Amuah JJA.) It was a case where the plaintiff sued the defendant before the circuit court claiming possession of a dwelling house. Possession was granted to the plaintiff. The defendant appealed and one of his additional grounds of appeal was that the learned trial judge erred in holding that non-compliance with regulation 18 of Rent Regulation 1964 (LI 369) was not fatal to the plaintiff’s case. In dismissing the appeal, the Court of Appeal held:

“compliance with regulation 18 of the Rent Regulations 1964 (LI 369) did not by itself entitle the landlord to possession… In any case, ¼ no substantial miscarriage of justice was occasioned by the plaintiff’s failure to comply with regulation 18 of LI 369…”

I have not come across a single case where the writ of summons was commenced under the High Court (Civil Procedure) Rules, whereof a decision was given that unless rule 18 of LI 369 was complied with judgment cannot be given in favour of the plaintiff. Perhaps the only exception could be the case of Joseph v Farisco (Gh) Ltd [1991] 2 GLR 151 decided by the Court of Appeal on 20/7/89, Coram: Ampiah, Essiem, Amuah JJA.

The case was started in the High Court, Accra. During its pendency, the plaintiff applied by motion in the High Court to appoint a rent officer to assess the rent for the premises. Only the first defendant opposed the application. The application was granted and the matter was referred to the rent officer, Accra. The officer submitted a report dated 2 February 1989. It is not clear, however when the report was received by the High Court. The record of proceedings shows that on 3 February 1989, the matter was adjourned to 4 February 1989, to await the report from the rent officer. The case was again adjourned from 14 February 1989 to 10/3/89, when the hearing was started. It was on 13 June 1989 when the court adjourned for addresses when at 10.50 am, the plaintiff filed Form 14 ie the declaration by the landlord concerning use of premises pursuant to regulation 18 and addressed it to the Rent Officer, Rent Control, Accra.

The question is, why was Form 14 not directed to the trial High Court judge but to the Rent Officer, Accra? It was not directed to the trial High Court judge because under the Rent Act 1963 (Act 220), he is not the rent officer in duty bound to receive such declaration. It would have been equally wrong and of no consequences had the declaration been directed to the Rent Officer, Accra, before whom no application under the Rent Act 1963 had been made and was pending. In the instant case, the rent officer for Accra is involved, he was earlier on in the proceedings, asked to assess the rent which in law the premises should attract. It stands to reason that because of the rent officer’s involvement in the case, it was appropriate that such a declaration should be directed to him. Still on the Farisco case, the High court dismissed the action against the 1st defendant but gave judgment against the 2nd and 3rd defendants. The 2nd defendant appealed but appears to have abandoned the appeal. The 3rd defendant never appealed. The plaintiff appealed against the judgment in favour of the 1st defendant but lost the appeal. Ampiah JA read the unanimous judgment of the Court. These are parts of what he said at page 157 with reference to reg 18 of LI 369:

“It would have been wrong therefore for the trial judge to have dismissed the appellant’s claim for non-compliance with Regulation 18 of LI 369 only. This however would not mean that the judge had made up a case for the respondent resulting in a substantial miscarriage of justice. As stated above, the appellant was required to satisfy the court that he reasonably required the place for his business. Therefore, if there was evidence on record upon which the court could come to his decision, it could not be said that his decision has been vitiated by his ruling on regulation 18 of LI 369.” (Italics applied.)

Further at page 158 His Lordship went on:

“In the instant case the trial judge exercised his discretion by refusing the order for possession. He was not satisfied that the appellant had established that the premises were reasonably required by him for his own business. It is conceded that in coming to that conclusion, the judge had considered also whether or not regulation 18 of LI 369 had been complied with. I have held elsewhere in this judgment that he could not have dismissed the appellant’s claim on that fact since at the material time there was compliance with the regulation. Apart from this, however, there were other matters to be taken into consideration in coming to his conclusion.”

It seems to me that what Ampiah JA was saying is that non-compliance with regulation 18 is not fatal to an action pending before the High Court and that judgment could be given for or against the plaintiff if there is evidence or other matters to support the judgment. It would also seem that the Court of Appeal judgment in the Farisco case is not conclusive that non-compliance with regulation 18 would be fatal to the plaintiff’s claim. That judgment, with respect, in my opinion is not conclusive on the interpretation of regulation 18. It is not authoritative as Mr Agyemang has submitted: “Indeed the court was duty-bound to give effect to the statutory law on the subject even if the applicant had not raised the issue.” Mr Agyemang cited the Farisco case in support of his argument. In any case the judgment of the Court of Appeal does not bind this court.

The quotation from my judgment in the Mechanical Lloyd Assembly Plant case, supra aptly applies to the present case. The applicant has woefully failed to satisfy me that he has fulfilled all the conditions envisaged by the quotation. He failed to cross appeal against Lutterodt J’s judgment. The applicant’s statement of defence before the trial court is quoted supra which speaks for itself.

In the statement of case filed by the applicant on 19 May 1992, he stated in paragraph 2 page 1 as follows:

“The matter that came before this court was one of statutory interpretation. It related to the legal interpretation of a provision in the Rent Act 1963 (Act 220). Specifically section 17(1)(h) thereof and regulation 18 of the Rent Regulations 1964 (LI 369) made under the principal Act. It is our respectful submission that Act 220 is a very important piece of legislation enacted to regulate the relationships between landlords and tenants in this country. Therefore, in interpreting such an Act it is appropriate that when counsel sees that an error has been committed that error should be brought to the attention of the court for the same to be corrected in the interest of justice.”

I wonder whether learned counsel honestly meant what he was saying, that these sections were not legally interpreted. I have already dealt with LI 369 reg 18 in this judgment. Suffice it however to say that of the three courts before which this case has come, it was only the trial judge that did not consider at all reg 18; and it was that court which gave judgment in favour of the applicant. Inferentially learned counsel is asking us to restore that judgment in his client’s favour. I have not read the full judgment in Re Energy Conversion Devices Inc’s Application (1982) The Times, 2 July, cited by my learned brother Osei-Hwere JSC in his judgment and again cited by the applicant. I can only rely on the passage quoted from that judgment, and with respect I would say that it would not apply in any way whatsoever to the judgment read by the majority. And if the quotation applies, it could only apply to the applicant herein and the minority judgment he seeks to be turned in his favour against all the facts of this case.

The majority is not trying to vary the primary meaning of any words to think that that is the justice of the present case. If there is any such variation, it is by the applicant. The innuendo in the quotation is that the majority is varying the meaning of the words of primary or secondary legislation from case to case in order to meet what the majority happened to think is the justice of the present case. Anybody who had read carefully the previous case between these parties would without doubt come to the conclusion that the quotation would apply rather to the applicant. In the previous suit when the applicant had judgment in his favour, he was prepared to have the plaintiffs as having capacity to represent Mr A A Mensah to continue the action commenced by Mr Mensah for recovery of possession. Indeed, he accepted the plaintiffs as his landlord. The plaintiffs were clothed with authority and capacity as executors and personal representatives under Mr Mensah’s will. The will was a valid will. That position or posture was continual and adopted at the trial stage to the Appeal Court.

Now that the table had turned, the plaintiffs are not plaintiffs at all, they have no capacity or authority to sue the applicant. It is now being cried at rooftops in this court that the will is even invalid, when no step whatsoever have been taken to set it aside; and that the plaintiffs cannot bring the action because they are not beneficiaries under the will. I can only go back to what I said in Afranie v Quarcoo [1991] 2 GLR 538 at 550-551, SC on executors and their duties.

The English cases such as Sharpe v Nicholls [1945] KB 382, CA and Parker v Rosenberg [1947] KB 371, which are referred to in this application as authorities which preclude the court under section 17(1)(h) of Act 220 from decreeing recovery of possession, as argued by Mr Agyemang in the statement of case for the applicant, with respect, do not apply; and I repeat what I stated in my judgment. These cases deal with dwelling houses and not business premises. The requirements under section 17(1)(g) of Act 220 are different from the requirements under section 17(1)(h) of Act 220; see Sharpe v Nicholls. It was held in that case that: (1) the order for possession of a Rent Act protected tenancy of two rooms with the joint use of a kitchen and outhouses was not one which the judge had power to make, since it amounted to a sharing of the house, and not the letting of a separate dwelling house within the Rent Restriction Acts; (2) personal representatives were not “landlords” within the meaning of paragraph (h) of Schedule 1 to the Act of 1933 and the plaintiff could not claim possession for her own occupation. Paragraph (h) referred to is similar to Act 220, section 17(1)(g) which deals only with dwelling houses; Sharpe v Nicholls is concerned with a dwelling house and not business premises. Parker v Rosenberg also was concerned with a dwelling house. In that case, it was held by Tucker LJ at p 376 that:

“In Sharpe v Nicholls, it was held by this court that personal representatives having no beneficial interest in the dwelling house in question cannot avail themselves of the provisions of para (h) of Sch 1 to the Act of 1933.” (Emphasis mine.)

Rawanji Brothers v Patterson Zochonis & Co Ltd [1975] 2 GLR 352 was a case commenced before the District Court Grade 1 Accra presided over by Mrs Liverpool as a rent magistrate. It was for the recovery of business premises. It came before Abban J and he held in holding 4 that:

“Under the provisions of section 17(1)(h) of the Rent Act 1963 (Act 220), questions of hardship on the tenant and the goodwill which the tenant had built up over the years in the locality where the business premises were situated were of no relevant consideration. What was necessary was that the courts must be satisfied that the landlord reasonably needed the premises for his own business and that the requisite statutory written notice was given to the tenant and that regulation 18 of the Rent Regulations 1964 (LI 369) was complied with.”

It was also held that the necessary declaration should be filed with the rent officer. Union Trading Co Ltd v Karam [1975] 1 GLR 212 was cited. That case was commenced and tried before the High Court presided over by Abban J. In Union Trading Co Ltd, no reference whatsoever was made to regulation 18 of LI 369 as a condition precedent to an action in the High Court.

Sfarijilani v Basil [1973] 2 GLR 260 was a case for recovery of business premises wherein the respondent applied to the District Court, Accra for an order for delivery of possession. The case travelled through the district court, High Court and finally to the Court of Appeal. Incidentally, although the case was started before a magistrate, no reference was made to regulation 18 of LI 369. The Court of Appeal was presided over by Azu Crabbe CJ, Lassey and Archer JJA. Archer JA delivered the unanimous judgment. He said at p 263:

“Under section 17(1)(g), there are two questions for the court, the first being whether the landlord’s desire for possession is reasonable, the second being whether it is reasonable to gratify that desire; and an affirmative answer to the first question does not preclude a negative answer to the second. See Shrimpton v Rabbits (1924) 131 LT 478¼

The words in the proviso to section 17(1)(g) are more specific but they demand the same two processes of reasoning. Whereas under section 17(1)(h) the burden is on the landlord alone to show that he reasonably requires the premises for his own business purposes. Whether or not greater hardships will be caused to the tenant by making a possession order is not a factor which the court must consider.”

The testator was the owner of AAMS Hotel as well as the disputed Hotel de France. By his will, the testator had directed that the hotel business be continued by the plaintiffs. He specifically mentioned Hotel de France. By the evidence, the plaintiffs had shown that they reasonably require the premises for the business of the owner of the premises concerned. In my judgment I showed that a testator in his will could give power under the said will to his personal representatives either expressly or by implication to carry on his business, as by authorising them to postpone the sale of any part of his estate. Under such a power of postponement, the carrying on of the business may by implication be authorised indefinitely. Re Growther [1895] 2 Ch 56 or merely for a reasonable time: Re Smith, Arnold v Smith [1896] 1 Ch 171.

In my view this review application is meant or seeks to reargue the appeal before a differently constituted court. There is only one Supreme Court. A review court is not an appellate court to sit in judgment over the Supreme Court. All the sections of Act 220 and regulation 18 of LI 369 that were considered in the appeal are being repeated and the same arguments advanced in support. Even reference is made to the evidence of PW1, Mr Brown.

In my opinion there can only be a genuine review if the judgment to be reviewed was a unanimous judgment but where there is a split, it will be ultra vires to review that judgment by a reconstituted court consisting of new judges when those who originally heard the case are still at post.

I wonder what direction, judgment, ruling or orders are to be given in this matter if the review is to be granted, as prayed for. Is the majority judgment simply to be reversed and the minority opinion to be substituted, because in my opinion that is the only thing that can be done, and because the minority decision is acceptable to the applicant without any reservation? Or is the court going to follow the High Court (Civil Procedure) Rules whereby the parties will be asked to reargue the appeal wholly on a particular point only before coming to a final decision? See Quagraine v Davies [1961] 1 GLR 291, PC.

The applicant cannot now be allowed to raise new objections which he could have raised but failed against the plaintiffs at the hearing of the first action or in the case before the trial judge. The present application is an attempt by the applicant to have his appeal reargued. He has not shown that the circumstances of his case are exceptional and that in the interest of justice there should be a review. Should the application be allowed, it will be in accord with the respondents’ argument that: “The applicant has only sought by his application to create an avenue to re-argue an appeal that has conclusively been determined and to extend the duration of his occupation of the premises.” I would venture to say that the applicant’s claim is that although his five years lease terminated in February 1981, as it was held by the circuit court, with the death of the lessor, the lease should be converted into a lease in perpetuity.

I have had the privilege of reading the opinions expressed by my learned brothers, Francois and Amua-Sekyi JJSC and I entirely agree with them that the application be dismissed. I have also read that by my sister Bamford-Addo JSC. I regret that I am unable to agree with her. And in my opinion the application is without merit and ought to be dismissed.

AMUA-SEKYI JSC. It was Lord Denning MR who said that the House of Lords is sometimes right and sometimes wrong. In other words, even though the decision is final, there can be no certainty that it is right. The same thing may be said of judgments of the Supreme Court or of the final appellate court of any country. Were the steps in our judicial system as many as the rungs on Jacob’s

prepared to admit and correct it upon review. See Mechanical Lloyd Assembly Plant Limited v Nartey [1987-88] 2 GLR 598, SC, Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130, SC.

Until the very recent injection of a fresh breath of life into the review process by augmenting the panel, the bane of successful applications for review had principally stemmed for the unhealthy practice of sticking to the same panel which heard the appeal to exercise the review jurisdiction. The common gripe resulting from this practice and the pattern of our decisions is that our review jurisdiction has been “nothing more than the confirmation of a previous stand and the mere endorsement of a majority view.” This wind of change in the constitution of a review panel, now enshrined in the impending 1992 Constitution and mandated by the referendum, is bound to augur well for a reversal of this trend and blaze a trail for the meaningful exercise of the review power of this court.

To this end, it is necessary that we slough off the artificial concepts which have bedevilled the development of the review process. I here refer to the capricious concept of “exceptional circumstances” which has failed to yield itself to any precise definition and to the much-vaunted proposition that a “review” is not an “appeal,” as if the latter can strictly be encased when engaged in the former. Indeed in CFAO v Zacca [1972] 1 GLR 366 the court made bold to assimilate a review by the Full Bench under rule 33 of LI 218 to an appeal. There, Sowah JA who read the leading judgment for the majority, stated at page 393:

“¼ The effect of the exercise of these powers [of review] is the same as if it were an appellate court over and above the ordinary bench. When it does grant leave, it hears arguments on law, determines whether the issues of law decided by the ordinary bench were correct, dismisses the application if it thought the ordinary bench was right; reviews the judgment by allowing the application if it considered that the ordinary bench’s appreciation of the law was wrong or that it misapplied the law. De jure, the ordinary bench and the full bench may be two divisions of the same court; de facto, the latter exercises powers of review amounting to such powers as an appellate court would have over a court inferior to it¼.”

Much sympathy was shown to the above pronouncement by the court in Armah v Naawu [1975] 2 GLR 201 which sought to demonstrate that it was not irreconcilable with the seemingly conflicting point made by the court in A/S Norway Cement Export Limited v Addison [1974] 2 GLR 177 that a review is different from an appeal.

In synchronising the two propositions the court in Armah v Naawu settled on the pragmatic statement that although from the standpoint of its conception and procedural incidents a review was different from an appeal, yet in terms of its object and effect a review was the same as an appeal on a question of law. This statement shows that far from an appeal and a review being antagonistic they are, at least in considering a point of law, symbiotic and will entitle a review panel to conduct itself as if in an appeal.

The “exceptional circumstances” requirement, alongside that of the interest of justice, was obviously supplied as a moral base for the exercise of review jurisdiction during the era when the dogma of stare decisis prevented our highest court from even overruling its previous decision. But instead of conceiving one as the correlative of the other the court has gone so far as to postulate the “exceptional circumstances” requirement the sine qua non for the consideration of the interest of justice to order a review. I perceive the fertile environment provided by the constitutional framework as a challenge to rid the review concept of chameleon-hued words which are a peril both to clear thought and incisive statement. For, whilst the constitutional power given to the Supreme Court to depart from its previous decision (and in effect overrule it) is justified “when it appears to it right to do so,” its power to review any decision made or given by it is sanctioned on such grounds and subject to such conditions as may be prescribed by rules of court and, moreso, the review jurisdiction is to be exercised by a panel of not less than seven Justices of the Supreme Court.

It is to be hoped that when the Rules Committee comes to consider the grounds for a review it will recognise that overruling a previous decision and setting aside judgments (either wholly or in part) on a review serve the same ends of justice by not permitting a judgment, erroneous in law, to perpetuate itself in the face of the hierarchical tradition of our courts which commands absolute reverence for judicial utterances of the Supreme Court. Accordingly, the consideration that it must appear to the Supreme Court “right to do so” may be prescribed, to use a homely metaphor, as the “least common denominator” of the grounds for review. Indeed Taylor JSC considered our review power in the same light as our constitutional power to depart from previous decision in his ruling in Mechanical Lloyd Assembly Plant v Nartey [1987-88] 2 GLR 598, SC. Enumerating some of the criteria which could constitute “exceptional circumstances” calling for review he said, inter alia:

“¼ A fourth class of cases must fall within the constitutional mandate granted us in article 116 (3) of the Constitution, 1979 by which we were enjoined to depart from our previous decisions when it appears right so to do. This must be a sort of omnibus criterion covering all other cases not falling within the three classes I have itemised, for in the numerous conditions governing human relationships it is impossible to formulate a priori propositions that will cover all cases without exception.”

Unlike the High Court where the power of review must strictly be exercised by the same judge who pronounced the judgment, the impending 1992 Constitutional provision which calls for an enlarged panel of not less than seven justices of the Supreme Court to exercise its review jurisdiction, without specifying that the original panel that heard the appeal should be included in the expanded panel, could mean that all the original members may not necessarily be retained. I believe that where there is a dissent in the judgment of the court, either by one or two members on a question on review then, to obviate the danger of assuming “entrenched” positions, the panel must as far as practicable be balanced. In this way, and also by a bold attempt to trim the review process of unnecessary constraints, can we hope for it a vibrant future.

Going by the strict formulation, the question is whether there are exceptional circumstances which in the interest of justice call for a review in the application before us. For an answer it will be pertinent to recall for consideration not only the will which purported to give the plaintiffs authority to sue but also section 17(1) (g) of the Rent Act 1963 (Act 220) and the construction given to the section vis-à-vis the said will by the majority decision of this court. In his will the late Albert Alexander Mensah appointed the plaintiffs to be the joint executors and trustees and subject to the direction that they paid all his just debts and funeral and testamentary expenses he went on to make the following provisions:

“(1) I charge my executors to assist my wife Florence Akweley Mensah and my son Augustus Ashirifi Mensah in the management of all items constituting my property real or personal including:

(a) My house No C415/4 known as Hotel de France;

(b) My house No C314/1, popularly called AAMS Hotel;

(d) My House No A998/1, Tetteh Kpeshie Road, Accra;

(e) Pecuniary legacies standing to my credit at;

(i) Ghana Commercial Bank, Tudu Branch,

(ii) Standard Bank, Adabraka Branch,

(iii) Ghana Commercial Bank, Korle-Gonno Branch,

(f) My plot of land near Dome Hotel, Kokomlemle;

(g) My house No D257/1, Ankrah Lane, James Town;

(h) Other business or educational institutions I shall then have established.

(i) The residue or other items such as household furniture, china, plate linen, pictures, banks, ornaments of whatever nature or kind so ever not herein before or otherwise disposed of.

(2). I give and bequeath to my son Isaac Atti Codjoe Mensah the sum of ¢30,000 (thirty thousand cedis) absolutely as compensation for his distinctive services rendered at the AAMS Hotel.

(3). I declare that any other member of the family who should show any interest in or express a desire to serve in any of my establishments should be made to apply formally to be considered for employment and if found honest and competent within 6 (six) months the appointment shall be confirmed on contract terms either party giving the other one month’s notice of resignation or termination of appointment accordingly.

(4). I direct that my wife and trustees shall show concern over the spiritual upliftment of all my children and grand children and provide for those of them at school and the best possible training or profession who show exceptional promise by their conduct and academic successes in fulfilment of my wishes.

(5). I further charge my executors to ensure that under no circumstances should any portion of my estate be disposed of by sale, mortgage, auction, security, careless and incompetent administration or through any other means.

(6). I direct that my executors be rewarded for their services as appropriate.

(7). I charge my executors to design and erect a decent tombstone wherever I may be buried to provide me a peaceful rest and in remembrance of me Albert Alexander Mensah Snr.

(8). In fine, I am happy that I have lived a predominantly successful and satisfactory life in the fear and love of God, Almighty and I am abundantly grateful for His manifold blessings. And I pray for forgiveness wherever I have erred or tempted to go wrong, and, I command all my descendants to trust in and look up to Him at all times - Amen.”

I was minded, in my previous judgment, to stay clear of the controversy on the effectiveness of the above will, as I believed I could arrive at the same result without engaging in it. I am inclined however, to enter the controversy as the majority decision endorses its validity as a testamentary disposition which, in my respectful opinion, cannot be right in law. Looking at the provisions of this unpredictable will, where the testator sought to rule over his estate from the grave with a shillelagh fist, it strikes one with a bang that the effect of those provisions offends several rules of law. In the first place it offends the rule against inalienability. For it is a fundamental principle of law that property must not be rendered inalienable. Thus a devise of land to be retained in perpetuity for use, for instance, as a family burial ground, is void. The question in every case is whether there is some provision preventing the property in question from being disposed of. Paragraph 5 of the will positively sets its teeth against alienation of any portion of the estate.

The pretended private trust created by the will was also offensive of the rule against indefinite duration (or “the rule against perpetual trusts,” as it is sometimes called). For, as explained by Hanbury in his Modern Equity, in the law of “purpose” trusts which are not charitable, it is precisely the length of duration which has frequently to be taken as the touchstone of validity. Paragraphs 3 and 4, which seem remotely to define the class of persons who may benefit from the income of the estate do not prescribe any limit of time within the perpetuity period fixed for its application to the purposes named. But the tragedy of this will is that the testator created no trust; nor did he, after appointing the plaintiffs as executors and trustees of the will, make any disposition of the beneficial interest in any part of his enviable estate apart from the paltry monetary bequest to one of his sons to compensate him for “distinctive” service.

Counsel for the defendant-applicant argued on appeal that the will created intestacy in respect of the estate except the monetary bequest. He was soundly lashed in the majority decision of the court, as it were for less-majeste and for his daring. The chastisement was unfortunate because on the face of it, the will bespeaks, louder than words, an intestacy in respect of the undisposed of beneficial interest in the estate and counsel’s castigation is fully backed by authority and by statute. In Re Skeats, Thain v Gibbs [1936] 2 All ER 298 (a decision accepted as authoritative in the hallowed pages of Halsbury’s Laws of England, for instance at p 394 of its 3rd edition, Vol 16), a testator by his will appointed his wife sole executrix and directed that all his just debts and funeral and testamentary expenses should be paid. He made no disposition of any part of the beneficial interest in any of his property. Upon a summons to determine the destination of the residuary estate it was contended, on behalf of the wife, that the effect in the present case of the Administration of Estates Act 1925, and of the repeal of the Executors Act 1830, was to restore the law as it was before 1830, and that the wife, as executrix, took the whole of the testator’s personal estate. It was held that except to alter the class constituting the next of kin, the law as it stood since 1930 had not been altered and the wife as executrix held the estate upon trust to distribute it in accordance with s 46 of the Administration of Estates Act 1925. Section 46 of the said Act, of course, regulates succession to real and personal estate on intestacy.

Before 1830, where a testator merely appointed executors and failed to make an express disposition of any part of the beneficial interest in the estate, the executors so appointed became by law entitled to the whole of such personal estate; and courts of equity followed the law as to hold such executors to be entitled to retain such undisposed of property, unless it appeared to have been the intention of the testator to exclude them from the beneficial interest therein, in which case they were held to be trustees for the person or persons who would be entitled to such estate under the Statute of Distributions if the testator had died intestate. The Executors Act 1830 enacted that when any person died after the passing of the Act having by his will appointed any executors, such executors should be deemed by courts of equity to be trustees for those who would have been entitled to the estate under the Statute of Distributions in respect of any residue not expressly disposed of, unless it appeared by the will or any codicil thereto, that the executors were intended to take such residue beneficially.

Although the Executors Act 1830 was repealed by the Administration of Estates Act 1925 (as indeed it was repealed by our own Administration of Estates Act 1961 (Act 63)) the definition given by both Acts to the word “intestate” will, as pointed out in the decision in Re Skeats covers not only the obvious case of a man who makes no will but will include “a person who leaves a will but dies intestate as to some beneficial interest in his real or personal estate,” meaning that the person has left a will but he did not make an effective disposition of the beneficial interest in the whole of his property. In this contingency our Intestate Succession Law 1983 (PNDCL 111) applies.

Section 2 of PNDCL 111 answers any vestigial controversy thus:

“2(1) A person shall be deemed to have died intestate under this if at the time of his death he had not made a will disposing of his estate.

(2) Any person who dies leaving a will disposing of part of his estate shall be deemed to have died intestate under this Law in respect of that part of his estate which is not disposed of in the will and accordingly the provisions of this Law shall apply to such part of his estate”.

“To dispose”, in the ordinary meaning means “to get rid of by giving.” Accordingly, as the will of the testator disposed of only ¢30,000 of his estate he is deemed to have died intestate in respect of his remaining estate, however lofty his concern that it should for ever remain in his family. To condone that concern will be illegal and subvert the whole regimen of PNDCL 111, particularly its section 2. It is in this light that the argument advanced by counsel for the defendant, far from being convoluted, commands considerable merit. For, at best, the plaintiffs, qua executors and trustees purportedly appointed under the will, only hold the estate upon trust to distribute it to those entitled under PNDCL 111 and not to carry out the said charge and directions under the will.

An appraisal of the beneficial interest by any court charged with exercising jurisdiction under section 17(1)(h) of the Rent Act 1963 is of paramount importance because it is only when a plaintiff can bring himself within the provisions of that section that the court will be clothed with jurisdiction to make the required order for possession. The effect of section 17(1)(h) is to limit the jurisdiction of the court. “If the court of trial or the Court of Appeal,” to repeat the words of Goddard LJ “[f]inds that the case is one in which it is debarred from granting an order for possession it is the duty of the court to refuse it .... because there is no jurisdiction to grant it.” See Davies v Warwick [1943] KB 329 at 336. If a court therefore erroneously construes the words of section 17(1)(h) so as to bring the plaintiffs within its ambit then it would have acted outside or in excess of its jurisdiction. The misconstruction of the words of a statute upon which the decision of a case depended was such an error of law, which would thereby deprive the court of jurisdiction to go on and decide the matter. Such a decision by a lower court, even though declared final by a statute, could be quashed by certiorari. See, for instance, Farr v Newman (1792) 4 Term Rep 621. A fortiori, a decision of this court which endorses the misconstruction of the words of section 17(1)(h) of Act 220 must yield to a review.

To the question whether the plaintiffs were landlords who required the premises for their own business purposes the majority decision of this court answered in the affirmative and proposed several reasons for saying so. It relied on the definition of landlord provided in Act 220 and also on the alleged derivative title under section 1(1), 2(1) and 61 of Act 63; it refused to follow the English decisions which laid down that an executor or personal representative who had no beneficial interest could not claim possession of dwelling house under the Rent Restrictions Act either because these cases applied to dwelling houses and not business premises or that section 61 of the Provisional National Defence Council (Supplementary and Consequential Provisions) Law 1982 (PNDCL 42) left our courts free not to follow laws from foreign sources; and, finally, it was said that the defendant had admitted by his pleadings that the plaintiffs were entitled to the possession sought.

The Rent Act indeed defines a landlord as being a person who leases premises to another in consideration of the payment of rent; the definition includes any person deriving title under the original landlord. But can it be said that an executor or an administrator who derives his title from the court by the grant of probate or letters also derives his title from the original landlord under the definition in the Rent Act. If it were so the executor or administrator would have had power to make a lease or other disposition before the grant. The provision in section 1(1) of the Administration of Estates Act 1961 that the movable and immovable property of a deceased person should devolve on his personal representatives with effect from his death does not also mean they acquire any beneficial title in the property. The deceased’s property is vested in his executors or administrators only “on trust” and “for the purposes of administration.” In answering the question what the nature of the property is which an executor has in the assets of the testator Ashburst J said “he has it only under a trust to apply if for payment of the testator’s debts and such other purposes as he ought to fulfil in the course of his office as executor”; Farr v Newman (1792) 4 Term Rep 621. Being vested in him in auter droit, it will not merge in any estate or interest vested in him, in his own right; nor can it (except to the extent of any beneficial interest he has in it) be taken in execution of a judgment obtained against the personal representative in his own right. Although a personal representative has wide powers of disposition over property vested in him as such, these powers are exercisable for the purposes of administration and accordingly must be exercised inter vivos and he cannot by his will dispose of any property vested in him as such.

The duties, powers and obligations of executors and administrators are governed either by the common law or by statute. The power to distrain for rent, for instance, of which so much capital has been made, is the product of express enactment in section 71 of Act 63. It cannot, therefore, be employed as analogy empowering the executors and supposed trustees, who have no beneficial interest, to jump in and sue for possession under section 17(1)(h) of Act 220. The sheer interpretation of the section denied them the remedy for recovery of possession. The attempt to distinguish the English authorities because they related to recovery of possession of the premises to be used as a dwelling house and not “for his own business purposes” ends, in my opinion, in a mere difference between tweedledum and tweedledee.

The canon of interpretation of the words of a statute will not permit that the ambit of a word employed in different parts of the same section of a statute cannot remain the same. The word “landlord” appears in both section 17(1)(g) and (h) of Act 220. The English authorities like Sharpe v Nicholls and the many other authorities following it (like Baker v Lewis [1946] 2 All ER 592 which explained Sharpe v Nicholls) have excluded personal representatives who are not beneficially entitled to the premises as landlords under the provisions of s 3(1) and Schedule 1 paragraph (h) of the Rent and Mortgage Restrictions (Amendment) Act 1933. That section is not dissimilar to our s 17(1)(g) of Act 220. We have not dared to pronounce these English decisions to be wrongly decided. If they are right and their interpretation of “landlord” can well apply to s 17(1)(h) then there can be no legal justification nor is there any rhyme nor reason for saying that their interpretation of “landlord” cannot apply also to s 17(1)(h) where the same landlord requires the premises for a different purpose. Looking at the will, which the court is bound to consider because it was tendered to support their case, it is plain that the plaintiffs in no way brought themselves under the scope of section 17(1)(h) of Act 220 and this court, by its majority decision, had no jurisdiction to place the plaintiffs under its scope. It was quite irrelevant that through the careless handling by the defendant’s counsel of the pleadings the defendant was allegedly made to admit the plaintiffs’ claim for possession. The naked truth is that as the defendant had become a statutory tenant he had done nothing (and nothing could be canvassed for the plaintiffs) to forfeit his “status of irremovability” inherent in statutory tenancy.

For the foregoing reasons I have formed the view that the majority decision of the court cannot be allowed to stand mainly on the ground of excess of jurisdiction and it ought to be reviewed.

AIKINS JSC. The applicant is seeking a review of the decision of this court given by a majority of 3 to 2 (Coram: Francois, Wuaku and Amua-Sekyi JJSC, Osei-Hwere and Aikins JJSC dissenting) in favour of the respondent. He urges that the majority judgment of this court constituted a fundamental and basic error of law, and that it was given per incuriam of the relevant statutory provisions consequently it is a proper case for the exercise of the review jurisdiction of this court.

Counsel for the applicant, Mr J K Agyemang argues that the error related to the interpretation of section 17(1)(h) of the Rent Act, 1963 (Act 220) and regulation 18 of the Rent Regulations 1964 (LI 369) made under the principal Act. The burden of his plaint is that the decision of this court was erroneous in law as “it failed to advert to and give due effect to the clear and unambiguous provisions of section 17(1)(h) of Act 220 and regulation 18 of LI 369 and that the error has occasioned a miscarriage of justice.

The Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274 stipulates that the only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review. Exactly what constitute exceptional circumstances are not spelt out, but various decisions of this court contain diverse opinions of what may be regarded as constituting exceptional circumstances. For example:

a. the circumstances should be of such a nature as to convince this court that the judgment should be reversed in the interest of justice, and should indicate clearly that there had been a miscarriage of justice; see Bisi v Kwayie [1987-88] 2 GLR 295, SC;

b. the jurisdiction is exercisable in exceptional circumstances where the demands of justice make the exercise extremely necessary to avoid irremediable harm to an applicant; see Nasali v Addy [1987-88] 2 GLR 286, SC;

c. where a fundamental and basic error might have inadvertently been committed by the court resulting in a grave miscarriage of justice; see Mechanical Lloyd Assembly Ltd v Nartey [1987-88] 2 GLR 598, SC;

d. decisions given per incuriam for failure to consider a statute or a case law or fundamental principle of practice and procedure relevant to the decision and which would have resulted in a different decision; see Mechanical Lloyd Assembly Ltd v Nartey , supra; Ababio v Mensah [1989-90] 1 GLR 573, SC;

e. when the appellant had sought for a specific relief which materially affected the appeal and had argued grounds in support, but the appellate court failed or neglected to make a decision on it; - Mechanical Lloyd Assembly Ltd v Nartey, supra.

If, therefore, the applicant is able to show convincingly that the decision of this court failed to advert to and give due effect to the provisions of section 17(1)(h) of Act 220 and regulation 18 of LI 369, and that the error has occasioned a miscarriage of justice, then he must succeed in his contention that this is a proper case for the exercise of the review jurisdiction of this court. He urges rather forcefully that he sought a specific relief under regulation 18 of LI 369 which materially affected the appeal, and despite the arguments canvassed in support of the relief, this court failed or neglected to make a decision on it. I think there is some merit in this argument.

Regulation 18 of LI 369 stipulated that a landlord who seeks to recover possession of premises under section 17(1)(h) of Act 220 must file a declaration with the appropriate rent officer, as in Form 14 of the First Schedule to LI 369. No time limit has been fixed in the regulation, but one can reasonably presume that the declaration has to be lodged before an order for recovery can be made. In Gbedemah v Ofori [1991] 1 GLR 151, the Court of Appeal held that provided such a declaration was filed before the end of the case, there would be due compliance with the provisions of LI 369 and that the court itself could make an order for the filing of such a declaration before the execution of the judgment. There is no doubt in my mind that a landlord who seeks to recover possession of business premises must satisfy the mandatory provisions of the regulation, and that the declaration must be filed not later than the date judgment is given in his action for recovery of possession. A declaration filed after such judgment makes nonsense of the statutory provision.

Even though the regulation stipulates that the declaration as in Form 14 should be filed with the appropriate rent officer, it cannot be right in law to say that the regulation is restricted to proceedings commenced before rent officers. With the enactment of Act 220 and LI 369 the exercise of jurisdiction of a High Court in landlord and tenant matters is regulated by the provisions of Act 220 and LI 369 to the extent that a landlord who seeks to recover possession of business premises must comply with the requirements of these statutes. LI 369 was enacted pursuant to section 35 of Act 220 to regulate the proceedings of the courts in landlord and tenant matters under Act 220. I agree with counsel for the applicant that since the jurisdiction under section 17(1)(h) - landlord and tenant matters - is exercisable by the “rent magistrate or any other judge of a court of competent jurisdiction”, the provisions of regulation 18 are applicable in proceedings started before a judge of the High Court. In the circumstances, the declaration should be lodged with the trial judge. In this declaration, the landlord is required to declare, among other things, the purposes for which he requires the premises, and this is to ensure the genuineness of his claim. In fact his bona fides in this respect comes into question.

The next point raised by the applicant covers the correct interpretation of section 17(1)(h) of Act 220. He submitted that the majority decision failed or neglected to give effect to the express provisions of the section, and that this has occasioned a grave miscarriage of justice. The legal point that called for determination was whether the respondents fulfilled the statutory conditions required of a landlord who reasonably requires the premises for his own purposes as contained in section 17(1)(h) of the Rent Act 1963 (Act 220). Here the burden of proof rests squarely on the respondent landlord - see Epson Grandstand Association Ltd v Clarke (1919) 35 TLR 525, CA, Sfarijilani v Basil [1973] 2 GLR 260, CA. It would seem from the wording of the section that the condition precedent is not simply that the landlord requires it, and also that he requires it for his own business purposes, but that he reasonably requires it, and also that he requires it for his own business purposes.

I have already expressed my views on the mandatory requirements of section 17(1)(h) in my opinion in the judgment of this court delivered on 23 December 1991 in Afranie v Quarcoo [1991] 2 GLR 538, and I do not intend to repeat what I said. However, I would like to say that in my view the will of the late A A Mensah is fundamental to the action initiated by the respondents, and the applicant was entitled in law to contest the validity of their claims upon the provisions of the said will. I think the applicant had every right to comment on the will, and this should not be the sole prerogative of the family of the testator. The facts of the case show clearly that the respondents sued on the basis of the probate granted to them as executors under the will, and sought possession of the subject premises “for the use of the widow and son of the testator as an annex or otherwise in conjunction with AAM’S Hotel” and not as it were “for the business purposes of the deceased.”

I think it is a wrong proposition of the law to say that because an executor is held in law to step in the shoes of the testator in the management of the testator’s estate as directed by him, and has the power to distrain for rent, etc, and participate in the running of the estate on commercial basis, he is also entitled to recover possession of the testator’s business under section 17(1)(h) of Act 220. The executor must be shown to own the testator’s business before he can succeed.

In the instant case the executors did not own the testator’s hotel business for which they sought to recover possession. They were entitled as trustees to sue in their own name for recovery of possession under certain sections of the Act, but they could not ask for recovery for their own benefit; they could only become constructive trustees for the widow and named son of the testator - see Re Biss [1903] 2 Ch 40. But even here since the said widow and son are not beneficiaries they are precluded from recovering possession under section 17(1)(h) of Act 220.

In Parker v Rosenberg [1947] 1 KB 371 where trustees had applied for recovery of possession under similar circumstances, the court held that:

“the trustees, being alone entitled to bring proceedings in ejectment to recover possession of the property, were the only proper plaintiffs to bring proceedings for recovery of possession ¼ but were precluded from recovering possession as they could not avail themselves of the provisions of paragraph (h) of Sch 1 to the Act as they had no beneficial interest in the dwelling house.”

In my view the rationes decidendi of the English cases on the issue, namely, Parker v Rosenberg (supra) and Sharpe v Nicholls [1945] 1 KB 382 are apt, apposite and very relevant to the construction of section 17(1)(h) of Act 220. The cases very well illustrate the construction of the provisions of section 17(1)(h) as well as give true legal meanings to the provisions of that section. I think the distinction drawn between a landlord seeking possession as a residence for himself under the Rent and Mortgage Interest Restriction (Amendment) Act 1933, section 3 Sch 1 para (h) and that of a landlord seeking possession of commercial premises to be used by him for his own business purpose is without justification.

Moreover, the interpretation put on section 17(1)(h) of Act 220 that what has to be proved is not that the executor requires the premises for his own business purposes, but that the premises are reasonably required for the business of the deceased sounds rather absurd and preposterous. I am not persuaded by that argument. Perhaps the section may have to be amended to accommodate the reasoning. In this context, the comment of Lord Diplock in the case of Re Energy Conversion Devices Inc’s (1982) The Times, 2 July cited by my brother Osei-Hwere JSC in his judgment in Afranie v Quarcoo supra, that:

“no tribunal and no Court of law has a discretion to vary the meaning of the words of primary or secondary legislation from case to case in order to meet what the tribunal or the court happened to think was the justice of the particular case”,

suits my reasoning to the letter and bolsters it up. This, as Lord Diplock concluded, was very tempting, but “to do so was the negation of the rule of law.”

I concede that in cases like Fosuhene v Pomaa [1987-88] 2 GLR 105, SC, Nasali v Addy, supra and Akorful v Ahomka Sey 29 March 1988, SC, this court made it clear that the submissions calculated to reopen a case for the purposes of merely re-arguing an appeal already dealt with will not be entertained unless attention of the court is drawn to exceptional circumstances which gave rise to a miscarriage of justice. In the Mechanical Lloyd case, supra, it was made clear that where a fundamental and basic error might have inadvertently been committed by the court resulting in a grave miscarriage of justice the review jurisdiction of the court can be exercised. I would wish to add that an erroneous interpretation of the provisions of a statute which is of exceptional character and which results in a miscarriage of justice, should be a ground for review of a judgment of this court. Secondly, if a glaring and unambiguous provision of a statute is ignored or misinterpreted to suit what is considered the justice of the situation, this can also be a ground for the exercise of the review power if this has occasioned miscarriage of justice. In other words, if the error of law is exceptional in character and results in miscarriage of justice, it will be unconscionable for anyone to seek to block a move to vacate a judgment of this court.

In my view it is essential that this court accommodates a re-examination of the judges’ previous thinking of the provisions of the statute with a view to correcting a fundamental mistake that has occurred. If this is not done the exercise of review power would end in futility and would only serve to rubber stamp or confirm a previous stance of the court which may result in miscarriage of justice.

It is also a necessary requirement under section 17(1)(h) of Act for a landlord to establish that he reasonably requires the premises for the purposes of the said business. It is a statutory obligation which restrains a court of competent jurisdiction from granting an order for recovery of possession of business premises in favour of a landlord who has not satisfied this requirement. However, the issue whether or not “the premises are reasonably required by the landlord” is a question of fact for the trial judge, and it is his finding, if any, that the appellate court has to turn to. In the instant case no finding of fact on this issue was made because the suit was dismissed by the trial High Court judge for the simple reason that the action was premature by virtue of section 23 of Act 220. The Court of Appeal set aside the judgment based upon section 23 of the Act and assumed the duty to consider whether the plaintiffs were entitled to evict the defendant; and having satisfied itself, allowed the appeal. It was in this court that counsel for the applicant raised for the first time the statutory requirement under section 17(1)(h) of Act 220 which goes to the jurisdiction of the Court of Appeal to grant possession of the disputed premises to the respondents. That court could only grant possession to the plaintiffs if they alleged and proved facts which would satisfy the requirements of section 17(1)(h).

It was incumbent upon this court to examine the facts and make a finding whether there was enough evidence to satisfy the second limb of the requirement of section 17(1)(h), namely, that plaintiffs reasonably required the premises for the purposes of the said business. Even though the plaintiffs-respondents claimed that there was acute congestion at the AAMS Hotel, the evidence led in this case to the effect that AAMS Hotel was so booked or congested as to reasonably require the executors to recover possession of the subject premises was so nebulous and unsatisfactory that they cannot attract a positive finding in their favour.

The last ground which incidentally is the original ground (g) relates to the time given the appellant to vacate the premises, that is within one month from the date of the judgment. This to my mind is not a ground that should be a legal foundation or basis for the exercise of the review power of this court. It is accordingly dismissed.

Finally, the applicant filed an application for stay of execution. This application was never argued neither was it withdrawn. I take it that the applicant does not intend to pursue this course and I think the best panacea for it is to get it dismissed and removed from the records. It is hereby dismissed.

Except these two dismissals, the application succeeds, and I give judgment for the applicant.

BAMFORD-ADDO JSC. This is an application for an order revising the majority judgment of the Supreme Court delivered in Afranie v Quarcoo [1991] 2 GLR 538. The main grounds for asking for a review are:

“1. That the learned three Justices of the Supreme Court who delivered the majority judgment erred in law in coming to the conclusion that because an executor was in law held to stand in the testator’s shoes and had wide powers to, inter alia, manage and control the testator’s assets, the respondents as executors were entitled to recover possession of the subject property under section

17(1)(h) of Act 220 ie the Rent Act, 1963.

2. That the learned three Justices of the Supreme Court who delivered the majority judgment failed to appreciate and give effect to regulation 18 of the Rent Regulations 1964 (LI 369) which, properly construed, is a mandatory statutory requirement to be complied with by a landlord, who sought to recover possession of business premises under section 17(1)(h) of Act 220 before judgment.

3. That the notice of one month given by the Supreme Court to the applicant to vacate the business premises used as a hotel was too short and therefore they erred in the interest of justice.

4. That the circumstances of this case are exceptional and that in the interest of justice this is a proper case for a review of the majority decision of the Supreme Court.”

I propose to take ground 4 first namely, the justification for asking for a review as this seems to me to be a preliminary issue. The Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274, SC, gives the only ground for a review, namely:

“circumstances are exceptional and that in the interest of justice there should be a review.”

A number of cases, Fosuhene v Pomaa [1987-88] 2 GLR 105, SC and Nasali v Addy [1987-88] 2 GLR 286, SC, Bisi v Kwayie [1978-88] 2 GLR 295, SC, Mechanical Lloyd Assembly Plant Ltd v Nartey [1978-88] 2 GLR 598, SC and Ababio v Mensah [1989-90] 1 GLR 573, SC, have all stated this same condition for a review ie “exceptional circumstances” including “fundamental and basic errors of law” that have occasioned a gross miscarriage of justice. In the case of Ababio v Mensah supra, Taylor JSC said:

“¼that we have jurisdiction to review our previous decisions is the definitive circumstance under which this power is excercisable ¼ and I venture to give some further indications:

a. all cases of void orders come under the Mosi v Bagyina principle and applicants affected by such orders are entitled ex debito justitiae to have the orders set aside. Lapse of time does not affect the right and indeed the court itself is entitled suo motu to set aside such orders when it has the opportunity to do so;

b. all decisions of the Supreme Court given per incuriam by inadvertently overlooking a statute or binding decided case which would have indicated a contrary decision in the circumstances where the ratio decidendi does not support the decision, and where there is no material which can legally be used as a ratio to support the said decision, are candidates for the exercise of the review power if they have occasioned a miscarriage of justice and

c. any Supreme Court decision having exceptional circumstances which demonstrably indicates (as in the instant case) that the said decision is not legally right and has actually occasioned a miscarriage of justice, is liable to be reviewed on the Fosuhene principle.”

The applicant’s grounds for asking for a review falls within categories (b) and (c) of the cases referred to above by Taylor JSC in Ababio v Mensah, and I am persuaded that there are in this case exceptional circumstances warranting a review and the applicant is entitled ex debito justiciae to have this matter reviewed. This court in the Mechanical Lloyd Assembly Plant Ltd v Nartey supra said in holding 1 of the headnote:

“The review jurisdiction of the Supreme Court was a special jurisdiction to be exercised at the discretion of the court in exceptional circumstances where a fundamental and basic error might have inadvertently been committed by the court resulting in a grave miscarriage of justice.”

In my opinion the application for a review is justified in terms of the principles enunciated above. With regard to ground 1, the question is whether on the relevant authorities on the point, the respondents, executors, who are not beneficial owners of the subject property, house No 35 Accra New Town Road, Kokomlemle known as “Hotel de France” are entitled to recover possession of this business premises under s 17(1)(h) of Act 220. Section 17(1)(h) of the Rent Act 1963 (Act 220) provides:

“17(1) Subject to the provisions of subsection (2) and section 25 and of section 28, no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, or any order Judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstance: —

(h) where the lease has expired and the premises are reasonably required by the landlord to be used by him for his own business purposes, such premises being constructed to be used as such, if the landlord has given not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises;” (Emphasis is mine.)

The words emphasised have special meanings which have been put on them in decided cases, and are pertinent to this review. The objects of the Rent Act 1963 (Act 220) are to prevent landlords from increasing rents arbitrarily and to give security of tenure to tenants, by preventing landlords from evicting them without an order of court, and forbidding the courts to make an order of possession except in certain circumstances listed in s 17 of Act 220. To obtain an order of possession under s 17(1)(h) of Act 220 the landlord must satisfy certain statutory requirements namely,

a) the plaintiff must be a “landlord” who is the beneficial owner of the premises to be recovered,

b) the lease on the premises must have expired,

c) the premises must be reasonably required by the landlord himself to be used by him for his own business purposes,

d) such premises must have been constructed to be used as such,

e) the landlord must give not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery or the ejectment,

f) the landlord must file a declaration under Rule 18 of LI 369.

These are mandatory statutory requirement which must be complied with before a rent magistrate or judge can exercise jurisdiction to make an order of possession or ejectment under s 17(1)(h).

The applicant in his statement of the case contends that an order for possession should not have been made by the Court of Appeal because the essential requirements under Act 220 s 17(1)(h), that a “landlord” who requires the possession of business premises must inter alia establish that “he reasonably requires the premises to be used by him for his own business purposes” had not been met.

In other words the landlord must not only be a “landlord” within the meaning of the Rent Act, but must own the subject property, which is required for his own business purposes and must also own the said business. The applicant further contends that the executors-respondents are not the beneficial owners of subject property and do not fall within the definition of “landlord” in s 36 of Act 220. See Woodfall on Landlord and Tenant 26th ed which states clearly at p 1202 in the context of the analogous provisions of the English Rent Acts that:

“Trustees or personal Representatives cannot claim possession under this paragraph for the benefit of their beneficiary, nor for one of their own number unless that person is proved to be the person beneficially interested in the house.”

In this present case, the respondents who are not beneficial owners of the subject premises cannot obtain an order of possession. In the case of Sharpe v Nicholls [1945] 1 KB 382, a claim was made for possession by personal representatives on the ground that one of them required possession of a dwelling house for her occupation. Under the English Rent and Mortgage Interest Restriction (Amendment) Act 1933, s 3, Sch 1, paragraph (h) it was held “that personal representatives were not “Landlords” within the meaning of paragraph (h) of Sch 1 of the Act of 1933 and could not claim possession under that paragraph on behalf of one of their number who required possession for her own occupation.” Morton LJ held:

“¼the plaintiffs having failed to bring themselves within para (h), there was no jurisdiction, either in the county court or in the Court of Appeal, to make an order for possession, and that the appeal must be allowed, and judgment entered for the defendant.”

That case specifically decided that unless a plaintiff shows that he is a landlord, beneficially entitled to the premises, the courts have no jurisdiction to grant the order of possession. Davies v Warwick [1943] KB 329 at 336 was cited in the Sharpe v Nicholls case where Goddard LJ said:

“The cases cited show that the effect of section 3 of the Act of 1933, which restricts the power of the court to grant orders for possession, is not to afford a statutory defence to a party, but to limit the jurisdiction of the court. If the court of trial or the Court of Appeal finds that the case is one in which it is debarred from granting an order of possession, it is the duty of the court to refuse it, even though the statute is not raised by the defendant, because there is no jurisdiction to grant it, but that, in my opinion, is all that the cases quoted establish.”

Sharpe v Nicholls was also applied in the case of Parker v Rosenberg [1947] 1 All ER 87, CA. In that case, the deceased demised to two trustees a freehold dwelling house on trust for sale and conversion with power to postpone same, and in the meantime to permit one Miss Marsh the sister of the testator, during her lifetime, to have the use and enjoyment of the house or receive the net rents and profits thereof. The trustees and Miss Marsh claimed possession from the defendant on the ground that the latter required the house as residence for herself. It was held: “The trustees, being personal representatives having no beneficial interest in the house could not avail themselves of Sch 1(h) of the Act of 1933.” The Rent and Mortgage Interest Restriction (Amendment) Act 1933 s 3 Sch 1 provides:

“A Court shall for the purpose of s 3 of this Act, have power to make or give an order or judgment for the recovery of possession of any dwelling-house to which the principal Acts apply … if (h) the dwelling house is reasonably required by the landlord … for occupation as a residence for (i) himself or (ii) any son or daughter of over 18 years of age or (iii) his father or mother.” (Emphasis mine.)

The words in italics are similar in spirit and essence to the words used both in s 17(1)(g) and (h) of Act 220.

Section 17(1)(g) provides:

“Where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself, a member of his family or any person in his whole-time employment such premises being constructed to be used as a dwelling house.” (Emphasis mine.)

Section 17(1)(h) also provides:

“Where the lease has expired and the premises are reasonably required by the landlord to be used by him for his own business purposes …” (Emphasis supplied.)

In all three provisions it is clear that the law provides that a landlord must show that he requires the premises for his own use, either as a dwelling house or as business premises. So that the interpretation given to the English 1933 Act s 3 Sch 1(h) by the case of Sharpe v Nicholls is referable and must be applied mutatis mutandis to s 17(1)(h), since the requirement that the premises should be used by the landlord himself and no other person is fundamentally the same in both cases. The similarity in the two cases lies in this requirement of personal use of the property by the landlord, not in the nature of the subject premises required to be possessed. Viewed in this light Sharpe v Nicholls seems to be on all fours with the present case and applicable to it. “Landlord” in Act 220 s 36 is defined thus: “landlord” means any person who leases premises to another person in consideration of the payment of rent and includes any person deriving title under the original landlord.” Section 12(1)(f) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 similarly defined landlord thus:

“…the expression “landlord” includes any person from time to time deriving title under the original landlord … (Emphasis supplied.)

“Landlord” under both the English Act and our Rent Act is similarly defined and includes a successor to the interest of the original landlord eg a purchaser. As stated by Anin JA in the case of Boateng v Dwinfour [1979] GLR 360 at 364-365, CA:

“Under the Rent Act 1963 (Act 220) the term “landlord” includes not only the original lessor but also a derivative landlord, that is any person deriving title under the original landlord.”

A landlord would also include a devisee of premises under a will of the landlord, in both cases the purchaser and devisee would acquire beneficial interest in the property, but as discussed above an executor-trustee has no beneficial interest in the property of the testator which is only vested in him in trust for the beneficial owner. The Administration of Estates Act 1961 (Act 63) as amended by the Administration of Estates (Amendment) Law 1985 (PNDCL 113) provides that the property of a deceased person shall devolve on his personal representatives with effect from the date of his death with power after grant of probate to administer the deceased’s property in trust for the beneficiary. Such a personal representative is not a landlord within the meaning of Act 220 and cannot sue for possession of premises under s 17(1)(h) of Act 220. The plaintiffs-respondents were therefore not entitled to maintain the action for recovery of possession. Since they were not landlords they were not also owners of the AAM’S Hotel business for which they sought Hotel de France as an annex; and neither the trial judge nor the Court of Appeal had jurisdiction to grant the order of possession. See the case of Sfarjilani v Basil [1973] 2 GLR 260 where it was held:

“…that since the respondent was not a Ghanaian his business concerns in the country were caught by the provisions of Act 334. He could only carry on the business of wholesale or retail trade if he had a valid permit under Act 334; he was however unable to prove that he had one or was confident of obtaining one. Consequently he could not reasonably require the premises for “his own business purpose.” (The emphasis is mine.)

In the same way the respondents not being owners of AAM’S Hotel business could not reasonably establish that they required Hotel de France for their own business purposes; nor in this case can they claim to be acting for the widow and son, who are not beneficial owners either of Hotel de France or AAMS Hotel, by the terms of Mensah’s will.

This brings me to the question whether the court can consider the will of Mensah which had been put in evidence by the respondents. I think the court is entitled to look at the will, not necessarily to decide on the effect of it but rather to find out who was the beneficial owner of the subject property if any. The law is that section 17(1)(h) is not a defence to an action but a jurisdictional issue for the court, so that whether non-compliance with the statutory requirement is pleaded or not by the tenant, he is entitled to raise that issue at any time whether at the hearing or on appeal. Non-compliance with a statutory requirement would prevent the court form granting an order of possession since it must be shown not only that it is reasonable to make the order but also that all the statutory requirements have been complied with. On this point see Woodfall on Landlord and Tenant 26th edition Vol 1 p 1181 where it is stated thus:

“The bar imposed by the Acts upon the making of an order is a matter of which cognisance will be taken by the court though no notice of it has been given as a defence, and even though the point is not raised by the parties at all. Moreover a point of this nature under the Rent Acts may be taken in the Court of Appeal though not raised in the County Court, though it may affect costs; furthermore it is the duty of the court where the Acts apply to see that the conditions of the Acts are satisfied, even though the Acts are not pleaded by the tenant…but a tenant does not, simply by admitting the landlords right to possession, found a general jurisdiction in the court to make an order without regard to the grounds specified in the Acts.”

Since in this case the plaintiffs-respondents failed to satisfy the court as to the statutory requirements provided under s 17(1)(h) they were not entitled to an order of possession either from the trial court or any another court; see Adu v Clegg [1981] GLR 173 at 177-178 per Abban J:

“It is quite obvious that the notices did not comply with statutory requirements. The plaintiff breached one of the essential pre-requisites of s 17(1)(h) of the Rent Act 1963 (Act 220) which a landlord seeking possession of his business premises from his tenant ought to fulfil before he can institute proceedings for ejectment or possession of the said premises. We are therefore of the view that the learned trial judge should not have extended his order for possession to cover the two stores on the ground floor.”

The next ground is ground 2 which is that the majority judgment failed to appreciate and give effect to regulation 18 of the Rent Regulations 1964 (LI 369) which properly construed is a mandatory requirement to be complied with by a landlord who sought to recover possession of business premises under s 17(1)(h) of Act 220. Regulation 18 provides:

“Where a landlord requires his premises for the purposes of section 17(1)(g)(h)(i) or (k) he shall furnish to the appropriate Rent Officer a declaration as in Form 14 of the First Schedule hereto.” (Emphasis mine.)

The notice contains a declaration that the premises are required for the specific purpose for which the premises are sought to be put upon recovery, and that it will not be re-let to another tenant within a specified period. This requirement is also a condition precedent to the assumption of jurisdiction of the court just as the other requirements in s 17 of Act 220. The reason is that the Interpretation Act 1960 (CA 4) s 21 requires the two enactments to be read together. In the case of Alawiye v Agyekum [1984-86] 1 GLR 179 it was held by the Court of Appeal that:

“Before a court could order recovery of possession of business premises in favour of a landlord it must in accordance with the provision of the Rent Act, 1963 (Act 220) s 17(1)(h) be satisfied by the landlord, that he reasonably needed the premises for his own business and that the requisite statutory notice of at least six months was given to the tenant, and furthermore, that the landlord had in compliance with the Rent Regulations, 1964 (LI 369) given an undertaking that he would not re-let to another tenant within a certain specified period. M’s affidavit did not disclose any of these matters. Since he failed to comply with these provisions M was not entitled to an order of possession.”

Sfarijilani v Basil [1973] 2 GLR 260 at 263 and Rawanji Brothers v Patterson Zochonis & Co Ltd (Consolidated) [1975] 2 GLR 352 were cited with approval. Also in Hamid v Okata, [1989-90] 2 GLR 420, CA, the plaintiff-landlord brought a complaint before the rent officer against the defendants-tenants, claiming, inter alia, recovery of possession of business premises on the grounds that he required the premises for his own business. The rent officer after investigations submitted a report of his findings and recommended to the rent magistrate that the landlord was entitled to his claim. Upon submission of a report to the rent magistrate, he dismissed the landlord’s claim and refused to eject the tenants from the premises. Aggrieved by the decision the landlord appealed to the High Court, Accra, which reversed the decision of the rent magistrate and ordered the tenants to give up possession by 31 May 1988. On appeal by the tenants from the decision of the High Court, it was held:

“¼Regulation 18 of LI 369 required a landlord to complete and sign Form 14 of the First Schedule and serve it on the rent officer who in turn would verify it and make recommendations thereon to the Rent Magistrate. The declaration made in Form 14 required the landlord to give an undertaking that “The premises will not be re-let.” That undertaking presupposed that the applicant-landlord would require vacant possession of his premises. It was therefore clear that the subject matter of Form 14 was one of ejectment from and recovery of possession of premises by a landlord. And therefore that provision clothed the rent officer with jurisdiction to entertain cases of ejectment and recovery of possession.”

See also Joseph v Farisco (Ghana) Ltd [1991] 2 GLR 151, CA where it was held that in an action brought under s 17(1)(h) the plaintiff is required mandatorily to comply with regulation 18 of LI 369 and that since no time limit was fixed for the delivery of the declaration, that it is reasonable to presume that it should be filed any time before an order for recovery could be made. Section 18 of LI 369 was not complied with by the respondents. These two cases established that any landlord who brings an action under s 17(1)(h) of Act 220 for ejection is mandatorily bound under s 18 of LI 369 to file the declaration any time before judgment before an order for recovery can be made and that if he fails to do this he would not be entitled to the order of ejectment, as the magistrate or judge would not be clothed with jurisdiction to the order. See also Adu v Clegg [1981] GLR 173.

In conclusion it is my opinion that since the respondents failed to comply with s 18 of LI 369, they breached one of the essential requirements or pre-requisites which would have entitled them to the order of possession and neither the High Court nor the Court of Appeal had jurisdiction to grant the order of possession.

The last ground is that the one month notice given by the Supreme Court to the applicant to vacate and give up possession of the subject property was too short a time having regard to the fact that the premises was being used as a hotel. I would dismiss this ground for review.

In the result, the applicant is entitled to a review of the judgment of this court dated 23 December 1991 in Afranie v Quarcoo [1991] 2 GLR 538. I will therefore reverse the order of this court in that judgment.

HAYFRON-BENJAMIN JSC. I was determined to make a riposte about an unfortunate remark made by one of our learned and respected brothers in the conference connected with the preparation of our opinions which contained an oblique reference to the membership on this panel of my learned and respected sister Bamford-Addo JSC and myself and the stand which we have taken on the issues involved in the application. However, my better judgment impelled me to let matters lie in the interest of harmony, camaraderie and the best interest of this court. I have consulted with my learned and respected sister and she agrees with me that this was the best course to take in the matter.

His Lordship the Chief Justice is by law, and indeed by a judgment of this court - the only person with the power to constitute all panels of our courts. If randomly he selects us to adjudicate an appeal and applications, we may in certain instances find ourselves as “strange bedfellows.” A strange bedfollow may be like Shakespeare’s “toad” - “ugly and venomous yet wears a precious jewel in its head.” It is this “precious jewel” which we wear in our heads in which the citizens of this country have invested in the certain hope that we will express their prospects and aspirations without fear or favour, goodwill or ill-will. We need therefore to tolerate each other’s views and operate as a team for therein lies the strength of this court and the approbation we must earn from our countrymen.

In Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598 my learned and respected brother Francois JSC wrote:

“With history then as a guide, I make two observations. Firstly, the panel that hears an appeal in the Court of Appeal is not automatically the panel that disposes of a review application. Secondly, a panel which should exercise the jurisdiction to review, must be appointed by the Chief Justice in the exercise of his administrative functions. Both statutory intelligence and logic would seem to propound the folly of making an adjudicating panel comprising persons with entrenched views to pronounce, confirm and reiterate their division.”

Then also in the same case my learned and respected brother Amua-Sekyi JSC wrote at p 649:

“¼as I have tried to show, and the majority by inviting arguments on the merits of the review would seem to accept, the defendants were entitled to have the judgment of this court reviewed, the question to be asked is: is the review to be heard by the same panel of judges or should the court be re-constituted?… If justice is to be seen to have been done this review ought to be taken by a differently constituted court. The moral of the mote and the beam teaches us that example is better than precept.”

These and other dicta in the Mechanical Lloyd case incline me to the view that there is wisdom in adding two or more members to a panel which has delivered the original judgment to enable fresh thinking to be brought upon the issues at stake and more particularly when the original adjudicating panel comprises “persons with entrenched views.” Fortunately, the 1992 Constitution of the Fourth Republic has resolved this problem by providing in article 133 thereof that the review jurisdiction of this court shall be exercised by a panel of not less than seven judges.

Learned counsel for the respondents argues that the applicant has failed to comply with the requirements of the Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274 and concludes “the respondents invite this court to dismiss this application accordingly.”

In the Republic v High Court Accra ex parte Togbe Darke XII [1992] 2 GLR 689, SC, I had occasion to discuss the nature and quality of these practice directions. I then concluded that practice directions were only for the instruction and direction of the courts and lawyers, and the citizen was only bound by clear statutory pronouncements made by the Rules of Court Committee. I have since re-visited the view that I took and I am even now more assured that I was on strong ground. In Osborn’s Concise Law Dictionary, 7th edition, the learned editors define practice directions as:

“Statements by the judiciary, usually noted in the law reports, intended to guide the courts and the legal profession on matters of practice and procedure.”

Again in the case of Hume v Somerton (1890) 25 QBD 239 at page 243, the English Queen’s Bench considering the legal force of practice directions said:

“The practice masters, acting, we presume under Order LXI r 2 have at some period between 1880 and 1888 issued a direction

that “writs of summons before the Judicature Acts came into force may be renewed without an order.” This direction, however, has no statutory authority. It cannot in our judgment be treated as a direction of the court under the Judicature Act 1873 s 22 and even if it could, it cannot control the Rules of Court of 1883, which have parliamentary authority and are expressly made applicable to pending proceedings.”

The practice direction under discussion was issued upon the authority of a judicial circular. In Republic v National House of Chiefs ex parte Faibil III [1984-86] 2 GLR 731, the Court of Appeal considered the legal force in a circular which was issued by the National House of Chiefs which contained certain recommendations affecting the status of the appellant, Wiredu JA, in a judgment in which Francois JSC concurred said:

“However laudable the rationale behind the issuance of that circular is that rationale per se is no justification for elevating it to the status of enforceable law.”

Thus while I still hold that these practice directions have no statutory force, I will maintain that they remain guides to the courts and the legal profession on matters of practice and procedure. Their usefulness will lie in a benevolent approach by the courts to any breaches of these directions, the better to expedite the business of the courts.

In this application, learned counsel for the respondents is wrong when he contends that as there has been non-compliance with the practice direction the application should be dismissed. In my view the applicant fully complied with the directions. In his affidavit in support of his application for review there were stated therein no fewer than sixteen grounds for the application. Again in his supplementary affidavit there were additional five grounds stated therein. Indeed learned counsel for the applicant did as was required by the practice direction. It says:

“(a) Applications for review of Supreme Court judgments shall be made within fourteen days of the delivery of the judgment and by way of motion in writing and specifying the grounds of review.” (Emphasis mine.)

I understand this requirement in this court to mean that the grounds must be noted on the motion paper; see First Schedule to the Supreme Court Rules (CI 13) Forms 2 and 3. If in the instant application these grounds have been embodied in an affidavit, I think they provide sufficient amplification of the grounds to enable the respondent to reply to the motion.

Then again it was not necessary nor even warranted by the practice direction that the parties should file their statements of case. The only rule of this court which is specifically mentioned is rule 23(1) of CI 13 which reads:

“The Court may, after considering the statement of the case of each of the parties to the appeal and any other papers or arguments filed by the parties decide to determine the appeal and give judgment in Court on a fixed date without further argument or may appoint a date on which the parties shall appear before the Court for the hearing of further argument.

(2) Where the Court decides to hear oral arguments the appellant shall, unless the Court otherwise directs, first argue his case and the respondent shall, unless the Court otherwise directs, be entitled to reply.

(3) The Court may in hearing any civil appeal make any order necessary for determining the real issue or question in controversy between the parties.”

This rule is of course to be applied mutatis mutandis to applications for review. The matter which has generated such disquiet is that:

“(d) the only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review.”

My learned and respected sister Bamford-Addo JSC, has in an excellent disquisition forming her opinion discussed most of the cases on the issue of exceptional circumstances and it will therefore be unnecessary for me to discuss them here again. However, under this head those of my learned and respected brothers who have “entrenched views” on the matter in hand have declined to review their decision. Quite apart from the authorities cited to us, I note that in Stroud’s Judicial dictionary, 4th edition at p 2583-2585, the learned editors have under the title “special circumstances” given no fewer than twenty-one instances of special circumstance. Of course, the word “exceptional” is synonymous with the word “special.” It seems to me therefore that what constitutes exceptional circumstances must at all times be considered according to each individual presentation. For my part and for the purpose of this opinion, I will adopt the criteria laid down by Taylor JSC in the Mechanical Lloyd case when he stated:

“I will hasten with diffidence to suggest some criteria which could in appropriate cases be indicative of exceptional circumstances calling for review. Sowah CJ in Penkro v Kumnipah, supra said: “it is essential that a party seeking to overturn a judgment demonstrates that he or she does so only upon footing of matters discovered since judgment was entered.” I would qualify this by saying that the said matter must be relevant and exceptional and be capable of tending to show that if they had been timeously discovered their effect would have altered the decision. Another circumstance is the one falling within the principle (ie where a judgment or an order is void) so ably enunciated by that pillar of legality, Akufo-Addo CJ in Mosi v Bagyina [1963] 1 GLR 337, SC. A third circumstance comes within the class of cases which can legitimately be said to be decisions given per incuriam for failure to consider a statute or case law or fundamental principle of practice and procedure relevant to the decision and which would have resulted in a different decision.”

In the present application the summary of the applicant’s grounds for review clearly indicates that the applicant considers that the majority decision of this court neither took cognisance of our laws nor of the decisions of our courts, which however, low are of greater binding and persuasive force than English laws and decisions. The applicant considers that in so doing the majority decision was given per incuriam. This plea, in my view, satisfied Taylor JSC’s third ground for entertaining an application for review by this court.

An examination of the majority decision demonstrates quite clearly that apart from my learned and respected brother Amua-Sekyi JSC the judgments were wholly based on English laws and decisions. In my view where there are laws governing, and decisions of our courts on a particular matter within our municipality, a court ought not to apply any foreign law of interpretation or decision except where such laws and decisions are in pari materia with our own. In the present application, it is clear that the opinions of the majority failed to address the provisions of the Administration of Estates Act 1961 (Act 63), the Administration of Estates (Amendment) Law 1985 (PNDCL 113), the Rent Act 1963 (Act 220), the Rent Regulations 1964 (LI 369) and the Intestate Succession Law 1985 (PNDCL 111). The decision of the majority of the judges in the original judgment must therefore be reviewed.

In so reviewing, I am not unaware that I am not sitting on appeal over the decisions of my learned and respected brothers. I however, find myself, like my learned and respected sister Bamford-Addo JSC in the invidious position of observing the problems from a fresh outlook. I have already commented on the quality of the opinion of my learned and respected sister and I agree with the views expressed by her. I think her opinion together with the able opinions of my learned and respected brothers Osei-Hwere and Aikins JJSC more than adequately resolve the matters in controversy which are the subject of this review application.

There are however a few matters in the application and reply on which I feel I should deliver my opinion. Before I do so it is necessary to bear in mind certain matters connected with this application. First Mr Albert Alexander Mensah died on the 22 July 1985. Second, probate was granted to the present respondents on the 7 October 1985. Third, the present respondents having been substituted for the testator, Mr Albert Alexander Mensah, lost the action to recover possession of the premises used by the applicant as Hotel de France by a judgment of the Court of Appeal on 29 July 1987. The respondents did not appeal against this decision. Fourth, the present action was commenced on 9 February 1988. It must be noted that on the day of the death of Mr Albert Alexander Mensah, ie 22 July 1985, the four statutes and the regulations mentioned above were in force and were applicable to the case in hand.

“The bottom line of the applicant’s case, as filed in the prosecution of the original appeal, without doubt, was the criticism of the authority of executors to seek a recovery of possession of the premises.”

“It definitely sounds farcical how the decision of the Supreme Court on the singular question of the capacity of executors so scrupulously examined with legal care could be said to be a basic or fundamental error and has moreover resulted in a gross miscarriage of justice.”

Learned counsel finds support in the dictum of Francois JSC in this case (Afranie v Quarcoo [1991] 2 GLR 538 at 542) that:

“The appellant’s reasoning sometimes is very difficult to follow … He asserts that while the respondents ‘were the proper plaintiffs to bring proceedings for recovery of possession of the subject property, they were, however, precluded form recovering possession for the reason that they could not avail themselves of the provisions of s 17(1)(h) of the Rent Act of 1963 (Act 220) since they had no beneficial interest in the property.’”

Learned counsel therefore contends that the respondents had capacity as executors of the estate of Mr Albert Alexander Mensah. Learned counsel cannot be correct. The difficulty which Francois JSC expressed in his dictum referred to above is resolved by the provisions of section 99 of the Administration of Estates Act 1961 (Act 63) which grants powers of management to personal representatives for the purposes of administration “or during the minority of any beneficiary or the subsistence of any life interest, or until the period of distribution arrives.”

In my respectful opinion section 99 of the Administration of Estates Act empowers executors as “landlords” during the period of administration to recover possession of premises, for example, for non-payment of rent or for nuisance - that is to say with respect to the Rent Act (Act 220) a claim for recovery of possession under section 17(1)(a) (b) (c) (d) and (e). Where however it is essential to establish beneficial ownership in the property, executors cannot be “landlords” for the purposes of recovering possession of such premises.

Two cases, Sharpe v Nicholls [1945] 1 KB 382 and Parker v Rosenberg [1947] 1 All ER 87, CA were cited to Their Lordships as applicable to the present case. They were however rejected as not being applicable. I have not had the benefit of reading the case of Parker v Rosenberg. But having read Sharpe v Nicholls I agree with my learned and respected sister Bamford-Addo JSC that Sharpe v Nicholls was on all fours with the appellant’s case which came before them.

With the greatest respect to the opinion of the majority of Their Lordships I do not see any difference or distinction in quality between the requirements of section 17(1)(g) and section 17(1)(h) of the Rent Act 1963. Both involve the personal element and therefore the existence of a beneficial interest in the property. Thus section 17(1)(g) provides:

“Where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself …” (Emphasis mine.)

“Where the lease has expired and the premises are reasonably required to be used by him for his own business purposes ¼“

In my respectful opinion if an executor cannot be a landlord because he has no beneficial interest in the premises then whether such premises are to be used as a dwelling house or business premises he has no capacity to sue for recovery of possession for any of these purposes. This is then the quality of the decision in Sharpe v Nicholls which inclines me to the view that Their Lordships were not right in declaring that that decision was inapplicable to the appeal in hand.

There are dicta in Sharpe v Nicholls which, when considered carefully, would confirm that the case was apposite to the resolution of the issues. At page 385 of the report McKinnon, LJ observed:

“We do not know whether the husband died intestate, or whether the personal representatives are administrators of a will which appoints no executors. We do not know what was the size of the estate or whether by virtue of the provision of the Administration of Estates Act 1925, s 46 giving the first 1000 to the widow, the whole estate practically vests in the plaintiff widow. If it were not so, we do not know whether the administrators before the hearing had made a vesting order vesting this little house in the widow.”

It was said that it was not necessary for the determination of the case that we should look at the will and probate of Mr Albert Alexander Mensah. But in the light of this dictum how else could we ascertain the capacity in which they were suing - whether the property had been vested in them as beneficiaries or as has been argued, as trustees for any persons.

“There was no evidence at the trial as to the beneficial ownership of this particular cottage. The plaintiffs’ whole case, as I have shown from their pleadings, is based upon the allegation that they were the owners as personal representatives. I cannot find any admission at the trial in any shape or form that the widow had any beneficial interest in the house. I do not know in the lease who was entitled to the house. For all I know Mr, Sharpe may have made a will leaving it to a nephew or to any other person. In those circumstances, one must consider whether it can be said that the “dwelling house” is reasonably required by the landlord for occupation as a “residence for himself or herself” when the plaintiffs are legal personal representatives suing in that capacity and one of them wants to live in the house. In my opinion, such a case is not within the terms of paragraph (h) of Sch 1 at all. Strange results would follow if that were not so. For instance, you might have four legal personal representative none of whom was related to the testator at all, and one of them might require the house as a residence for himself or herself, having no beneficial interest whatsoever to the property.”

In the instant application none of the executors is related to the testator and they have no beneficial interest in the estate. The question might be asked which of them requires the premises for his own business? And if they do not require it for their own business then how as executors who are under law to administer and distribute the estate can they carry on the business of the testator?

The respondents say they are also trustees of the properties listed in paragraph 1 of the will and probate. Reading that paragraph critically I have no hesitation in declaring that they are not trustees of those properties mentioned in that paragraph. The “executors are charged to assist my wife Florence and my son Augustus Ashirifi Mensah in the management¼” The word “charge” in the paragraph induces some of my learned and respected brothers to assume that a trust was thereby created. But a trustee must be directly appointed by the will to specific property for the benefit of certain beneficiaries. It cannot be said that such a subjunctive expression as “to assist my wife Florence and my son Augustus Ashirifi Mensah” has created a trust of which the respondents are trustees. If anything the management of the properties is directly given to the wife and son. Nor is the gift complete. There are no beneficiaries. In respect of the properties mentioned in paragraph 1 therefore, Albert Alexander Mensah has died intestate. Section 108 of the Administration of Estates Act 1961 (Act 63) defines intestate as including “a person who leaves a will but dies intestate as to some beneficial interest in his movable or immovable property.” There can be no doubt from the tenor of his will that all the properties mentioned in paragraph 1 thereof were the testator’s self-acquired properties. But according to law he has died intestate with respect to those properties and the executors can only be statutory trustees to distribute the property in terms of the Intestate Succession Law 1985 (PNDCL 111). It seems strange that so small a slip or omission in the will could cause such a dramatic change in the fortunes of Albert Alexander Mensah’s family and dependants. But that is the law. In my opinion therefore the respondents were not trustees with respect to the properties mentioned in paragraph 1 of the will and probate. Having held that the late Albert Alexander Mensah died intestate the issues of the creation of a lease in perpetuity does not arise. It will however suffice to say that the expression “a lease in perpetuity” does not exist in the English law which we have received. A lease may be perpetually renewable. But then it is nonetheless a determinable interest and the tenant may put an end to it.

However, in this case the respondents are in possession because by the subterfuge of carrying on this litigation, the respondents have been enabled to hang on to the properties to the detriment of the interests of the beneficiaries. In Re Blankson-Hemans (Dec’d) Monney v Blankson-Hemans [1978] GLR 330 CA at page 341, Kingsley-Nyinah JA observed with respect to the duties of personal representatives - and this would in my view include executors - as follows:

“For far too long now, persons who apply for, and are granted, letters of administration in this country, have laboured under the misguided belief that the success of their application at once confers upon them absolute and unrestrained licence to do as they please with the estate they have sworn faithfully to administer. Contrary to their solemn oaths, these persons have been known to indulge in acts clearly prejudicial, and of no benefit, whatsoever, to the estate they are expected rather to husband with care and responsibility. This disturbing affairs exists because, I think, applicants for letters have not had the punitive sanctions attendant upon their mismanagement strictly enforced against them.”

The respondents as executors obtained probate on 7 October 1985 when the Administration of Estates (Amendment) Law 1985 (PNDCL 113) had come into force. Section 9 thereof, which replaced section 104 of the principal Act, states:

“Subject to the provisions of this Act or any other enactment a personal representative shall distribute the estate of the deceased person within one year after he has been granted probate or letters of administration”

They should have distributed the property on or before 6 October 1986. The respondents have rather unlawfully hung on to the estate for six years.

Learned counsel for the applicant in his statement of case stated that: “Indeed, two of the learned three judges failed to make any decision on the issue of regulation 18 despite the arguments canvassed by counsel for the applicant in support of that ground of appeal while the third¼even though conceding the argument that the declaration under regulation 18 was to be filed before judgment, held that the said proceedings commenced before rent officers.”

The passage complained of by learned counsel in the opinion of my learned and respected brother Amua-Sekyi JSC is in answer to learned counsel’s submission in respect of regulation 18 of LI 369. In Quarcoo v Afranie ,supra, at 552 His Lordship states that learned counsel “submits that even if the views expressed in those cases are right, the declaration ought to be filed before judgment and, in the instant case, none had been filed up to the time the Court of Appeal made the order for recovery of possession. I think there is much force in counsel’s submission, but I believe the true position is that the requirement to file a declaration with the appropriate rent officer applies only to proceedings commenced before rent officers.”

With the greatest deference to my learned and respected brother, while I agree with him that there was “much force in counsel’s submission,” I do not think that he was right in saying that such a statutory declaration as is required to be filed under regulation 18 of LI 369 applied only to proceedings before the rent officer. Regulation 18 reads thus:

“Where a landlord requires his premises for the purposes of section 17(1)(g), (h), (i) or (k), he shall furnish to the appropriate Rent Officer a declaration as in Form 14 of the First schedule hereto.”

In my respectful opinion, the reference in regulation 18 of LI 369 is a requirement for the purpose of section 17(1) of the Rent Act 1963 (Act 220). The section states:

“17(1) No order against a tenant for the recovery of the possession of, or the ejectment from any premises shall be made or given by the appropriate Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force except in any of the following circumstances…” (Emphasis mine)

Clearly if the legislature intended that regulation 18 of LI 369 should apply to proceedings before the rent officer it would have referred to section 5 of Act 220. The Rent Officer has “functions” to perform under section 5 and he has no jurisdiction to adjudicate on any matter referred to in paragraph 17(1) of the Act. The reference in regulation 18 of LI 369 is therefore a reference to an action for recovery of possession of premises purported to be instituted before a rent magistrate or any other judge of competent jurisdiction. It must be said in passing that the Rent Act, Act 220 also applies to actions for recovery of possession of premises in respect of section 17(1) commenced in the High Court. By section 14(1) of the Courts Act 1971 (Act 372), the High Court has jurisdiction in all matters. The policy reason behind the requirement to file the declaration with the rent officer is that the rent officer is charged with the administration of the Rent Act 1963 (Act 220) and to ensure compliance with its provisions and the orders of courts made thereon.

The issue, which remains, is when the declaration shall be filed. I am of the opinion that the declaration shall be filed with the rent officer either before or at the time of the commencement of the action for recovery of possession. The reason is clear to me. If something is required for the purpose of some other thing then that thing must be in existence before or at the time the other thing happens or commences. Thus when a landlord for the purposes of section 17(1)(h) requires his premises the declaration must be in existence before or at the time the action is commenced. In the instant application, the respondents failed to file the required statutory declaration and they were not entitled to succeed in their action.

My learned and respected sister has in her able opinion stated the prerequisites for a successful prosecution by a landlord for the recovery of possession under section 17(1)(h) of the Rent Act, Act 220. I would only add that it requires at least seven months notice - one month to determine the statutory tenancy and not less than six months notice of intention to recover possession. The notice to determine the statutory tenancy must comply with the requirements of the law. Kalenderiam Brothers v Millad Nahum (1956) 1 WALR 18 holding (ii) states in part:

“A notice to quit must be plain and unequivocal in its terms, it must be given to expire on and with the last day of some “period” of the tenancy.”

The English case of Queen’s Club Garden Estate Ltd v Bignell [1924] 1 KB 177 illustrates what a periodic tenancy is. In that case Their Lordships in discussing periodic tenancies concluded:

“Although it may seem a little technical, one cannot depart form the well-known principle that a notice to quit must conform to those conditions, where the tenancy is a weekly or a monthly tenancy, is that it should expire at the end of a week or a month from the date of the commencement of the tenancy.”

So also must the notice of the landlord’s intention to recover possession comply with the law. It therefore appears that there must be two distinct and proper notices given to the tenant and a further notice to the rent officer of the landlord’s intention to apply for an order of possession or ejectment before action may be commenced. There is authority for the proposition that while the notices must be distinct, they may be conveniently stated on the same sheet or letter provided the two notices are clearly stated. Thus in Massoud v Khalil [1959] GLR 278 where the Court of Appeal was required to consider the application of section 11 (i)(e) of the Rent Control Ordinance (No 2 of 1952), a section which is in pari materia with sections 17(1) (g) and (h) of the Rent Act (Act 220) which replaced the former it was held at p 279:

“that a notice of intention to apply to the Court for an Order for recovery of possession is not vitiated by its having been included in a notice to terminate a tenancy, provided it is given in sufficient time for the tenant, after he has became a statutory tenant, to have six months notice of intention to apply.” (Emphasis mine.)

As I have stated earlier, I am not unmindful that this is an application for a review and not a hearing as an appeal. But the glaring misapplication of the laws of our municipality enjoins us that the majority view shall not stand. It has been said that by the jurisdiction conferred on this court, while this court may ordinarily follow its previous decision it may depart from it where it feels that it is right so to do.

I think we misunderstand the intendment of this provision. In former cases this court refused to review its errors of law. Now the court itself has assumed an inherent jurisdiction to review its decisions. The wisdom in the adoption of this inherent jurisdiction is that the Supreme Court cannot make a mistake in its espousal of the law. Such a mistake cannot be corrected as under the “slip rule.” It is fundamental and can only be corrected on review.

A review therefore means that the court is invited to take a second look at its pronouncements on the law and correct itself where necessary. It is therefore for something and not for nothing that the framers of our Fourth Republican Constitution, have placed it in the Constitution, 1992. On the other hand, the right to depart from our previous decision is to enable the court to reflect the socio-political and economic changes in our society.

“After all, the law must adapt itself to changing social conditions. There is some question whether doing this will amount to judicial legislation. …We have constitutional authority to refuse to be bound by a precedent which injures the innocent, benefits the guilty and puts a premium on blatant breach of fiduciary duty. To do otherwise, would be an exhibition of judicial inertia wholly indefensible in our day and age.”

The distinction between the jurisdiction to review and the right to depart from our previous judgment is necessary. In the former, we correct mistakes, misstatements and misapplications of the law while in the latter we reflect the socio-political changes in our society. The matters raised in this application are matters of great public importance. This court cannot be insensitive to the policy directions of the state for encouraging commerce, promoting both national and international entrepreneurial activity, attracting foreign investments and advancing the economic well-being of the citizens of this country. The law of landlord and tenant is the bedrock on which these national aspirations can be founded. The Rent Act is designed for the protection of the tenant - whether for dwelling purposes or for business purposes. This court is therefore under a duty to protect unsuspecting tenants against the machinations of rapacious landlords by settling the law on this all important subject.

In this case, I also agree that the majority judgment shall be reviewed. The propositions of law made in the majority opinions cannot be allowed to stand as authority binding on all other courts within our municipality.

Accordingly, I will review the orders made consequent upon the judgment delivered on the 23 December 1991, in Afranie v Quarcoo supra and reverse the same. There will therefore be judgment in favour of the applicant, the appellant in the case.

SUPREME COURT

“STATEMENT OF CLAIM

PLAINTIFFS’ CAPACITY

“STATEMENT OF CLAIM