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BENIN, J.A.:
I would like to preface this
decision with a few comments on
landlord-tenant relationship in
this country. The problem of
landlord-tenant relations is one
of the most frequently recurring
matters that the law and society
have still not succeeded in
grappling with effectively. That
is the position notwithstanding
various enactment’s’ put in
place, at one time or the other;
some ad hoc only, others die out
like a passing wind. In the face
of all these difficulties and
uncertainties in this area of
law enforcement, one enactment,
namely, the Rent Act, 1963 (Act
220), has stood the test of
time, not withstanding the
different and sometimes
conflicting interpretations
given to its various provisions.
The very fact that this
particular enactment, together
with its regulations, namely,
Rent Regulations, 1964 (L.I.
369), have survived even the
revolutionary rent laws in the
evening of the 1970’s and the
early 1980’s is a sure
indication that their provisions
have come to be accepted and
must be enforced by the courts
in order to bring some sanity
into the sometimes turbulent
regime of landlord-tenant
relationship.
One of the areas in this
landlord-tenant relationship
that very often evokes bitter
conflict is that relating to
rent assessment. It seems to me
it is an area where the
enactment is more honoured in
its breach than observance. And
quite ironically, the tenants
themselves, who the law seeks to
protect, are as guilty as the
landlords when it comes to
complying with the laws and
regulations governing assessment
of recoverable rent. Whatever
the reasons may be, there is no
justification for a court of law
to fall prey to this
non-observance of the rent law
and its regulations. Indeed that
is one of the serious questions
raised in this appeal where the
trial court appeared to have
endorsed the plaintiffs’ claim
for a rent increase without
applying the laid down process
for achieving that. Under relief
2 endorsed on the writ of
summons, the plaintiffs sought
an increase of a hundred per
cent in the rent being paid by
the defendant, their tenant. The
basis for this increase,
according to the evidence of the
first plaintiff, was that the
defendant had failed to pay any
rent since the agreement expired
in 1995. She admitted under
cross- examination that before
she took this action she did not
go to the rent office. However,
the trial judge upheld this
claim. This is what the trial
judge said: “I think a rent of
¢6 million per annum is
reasonable having regard to the
type of house in question and
the location. I therefore order
the defendant to pay rent of ¢6
million per annum with effect
from 1/5/95 to the date he will
give vacant possession or the
date the plaintiffs will recover
possession.”
The defendant appealed against
this conclusion and order on two
grounds, namely:
i) That the honourable trial
Circuit Court Judge gravely
erred when he granted
respondents’ relief of ‘double
rent’ when he has no legal power
to assess rent and nowhere in
the statutes is the issue of
‘double rent’ provided.
ii) Wrongful or improper
exercise of jurisdiction in
assessing recoverable rent of
premises.
Counsel for the appellant
submitted that under the Rent
Act, “assessment of recoverable
rent is vested in the Minister
who may refer, in accordance
with such regulation, to the
appropriate Rent Magistrate to
assess the recoverable rent.”
With all due respect to learned
counsel this submission is not
correct in so far as it sought
to make the Minister the sole
person permitted by law to
authorise rent assessment. The
Minister is given power under
Section 11 of Act 220 to cause
the appropriate Rent Magistrate;
to assess the recoverable rent
for any premises, whether public
or private owned. Another power
invested in the Minister is to
be found in Section 13 of Act
220 whereby he is empowered to
assess recoverable rent for
similar premises in similar
localities, particularly where
such premises have been built
out of public funds, and he is
entitled to do this by executive
instrument. Besides these powers
that the Minister possesses, the
Rent Officers are also empowered
by Section 10 of Act 220 to
assess the recoverable rent in
certain given circumstances. The
court is not empowered by this
Act to assess rent in the first
instance; it could do so if
there is a reference to it by
the Minister, or if it comes to
it on appeal from an assessment
by the rent officer.
Counsel for the respondents
sought to get around this hurdle
when he submitted that what the
trial judge did was not
tantamount to a rent assessment
but only an evaluation of the
evidence in deciding on what the
rent should be. In counsel’s
submission “where there was an
agreement between the parties as
is evidenced by exhibit A which
agreement clearly and
unambiguously stipulated the
rent to be paid by the
appellant, no issue of
assessment arises. An assessment
of rent envisages a situation
where there is a dispute as to
the rent to be paid.” This
argument is basically
misconceived in the sense that
if the rent had been agreed upon
there would have been no need to
claim ‘double rent’; moreover,
the rent fixed by the trial
judge is not what the parties
had agreed upon as contained in
exhibit A. The fact that the
trial judge considered it
necessary to take into account
factors like the nature and
location of the property before
settling on the recoverable rent
clearly confirms that the trial
judge embarked on a rent
assessment. The trial court did
not have the power to do that.
As a statutory tenant, the
defendant was living in the
premises subject to the payment
of the same rent as agreed upon
under the previous agreement;
until the landlady had reached a
fresh agreement on rent with the
tenant or has had the rent
re-assessed under Section 10 of
the Rent Act. These grounds of
appeal succeed. However, the
plaintiff is entitled to recover
rent at the rate of ¢3 million
per annum from 1/5/95, the date
the agreement expired, to the
16th of May, 1999, the date that
the appellant is said by his
counsel to have vacated the
premises in question.
The next ground of appeal argued
by counsel for the appellant was
that the trial Circuit Court
exceeded its jurisdiction with
respect to the claim and damages
awarded. Counsel referred to the
jurisdiction of a Circuit Court
in liquidated claims which is
limited to ¢10 million and in
respect of landlord-tenant
matters as set out in section 41
of the Courts Act, 1993 (Act
459). By the claim and the award
made by the trial court, the
plaintiffs were to recover about
¢37 million. He submitted that
“the trial Circuit Court
exceeded its jurisdiction under
Act 459 in ordering recovery of
arrears of rent in excess of its
limit of ¢10 million as provided
by law.” On the question of the
huge rents claimed by the writ,
it was counsel’s submission that
“the trial judge ought to have
referred the issue ... to the
High Court by virtue of Section
41(2) of Act 459,”
Alternatively, counsel submitted
that “the trial Circuit Court
could otherwise have determined
the issue ... if the parties had
given their consent. No such
consent was however given.”
In his response, counsel for the
respondents cited a reported
decision of the High Court,
which gives the Circuit Court
jurisdiction. That was the case
of WOOD VS. DADSON (1976) 2
G.L.R. 185. That was a case in
which the rent magistrate
awarded arrears in rent that was
far in excess of its
jurisdiction in liquidated
claims; it awarded more than
¢10,000.00 even though its
jurisdiction was limited to
¢2,000.00. The High Court, in
upholding the award, said at
page 187, per Edusei J. (as he
then was), that “a claim for
arrears of rent is not only a
debt simpliciter; it is a debt
with a difference—a debt arising
out of a relationship between
landlord and tenant and the Act
does not limit jurisdiction of
the district court when it comes
to dealing with civil causes or
matters relating to landlord and
tenant. If it was the intention
of the legislature to limit a
district court in its
jurisdiction as regards civil
causes or matters relating to
landlord and tenant it would
have employed such
words........”That case was on
all fours with the instant one,
notwithstanding the fact that it
involved a District Court. What
is important is the jurisdiction
given to inferior courts and
tribunals in landlord-tenant
matters. So the trial Circuit
Court was bound by it, being a
court below the High Court. That
decision itself is perfect in
the sense that the inferior
courts, which are given such
jurisdiction primarily,
determine what the periodic rent
is, before the cumulative total
is worked out arithmetically.
And on arrears of rent, the
primary jurisdiction is to
handle matters affecting
landlord and tenant, and rent
may come up for consideration,
and that per se should not deny
its jurisdiction. Instances
abound in such jurisdictional
areas. One is matters relating
to maintenance claims under the
Maintenance of Children Decree,
1977 (S.M.C.D.133). Jurisdiction
under that Decree is conferred
on family tribunals established
under it, which tribunals are
part of the inferior courts,
equated with District Courts,
now Community Tribunals. Yet it
cannot be argued that a claim
for maintenance under that
Decree is beyond that tribunal’s
jurisdiction; or can one
complain that the tribunal
exceeded its jurisdiction by
awarding a sum of maintenance
which is in excess of its
ordinary civil jurisdiction. The
same applies to arrears in
contribution to the Social
Security fund. Where special
enactment has been passed that
gives jurisdiction to a
particular court to hear certain
matters, it must be assumed that
it invests that court with all
powers relating to the
subject-matter, unless express
words to the contrary are used,
or it could be inferred from its
plain language that its
jurisdiction is circumscribed.
In such a situation, it could
not be justified to rely on
another enactment that does not
make a direct reference to the
special enactment to say its
jurisdiction is ousted
inferentially under the other
enactment. The other enactment
must specifically or expressly
oust the exercise of
jurisdiction or give
jurisdiction to another court or
tribunal. This ground
accordingly fails and is
dismissed.
Another ground of appeal raised
was that the trial judge was
biased in accepting and relying
on address filed by plaintiffs
before evidence was concluded.
Counsel’s complaint was that the
trial court accepted and relied
on an address that was filed for
the plaintiffs long before the
oral evidence was completed.
That the trial Judge ignored
this anomaly when his attention
was drawn to it. Counsel
therefore submitted that “this
action by the trial Judge
constituted bias against the
defendant....” Really I fail to
understand the purpose of this
ground, except that one can read
through it an attempt to
embarrass the trial Judge. This
is because, as explained by
counsel for the plaintiffs, the
filing took place on August 25,
1998, and not on May 25, 1998.
Indeed the court copies bear the
date 25 August, 1998. So that if
his copy bears a different date,
then Counsel ought to have
accepted the explanation that it
could only be a mistake, and I
believe a genuine one too. That
it could have been the result of
a mistake is borne out by the
contents of that address, in
which reference is made to the
evidence of the defendant’s own
witness, named Quarshie and
described in the proceedings as
DW4. The said Quarshie was the
third witness who testified for
the defendant after the 25th of
May, 1998, the date counsel
claims the address was filed.
There is no allegation that
plaintiffs’ counsel knew in
advance who the witnesses for
the defendant were going to be.
And even if it is said that
counsel for the plaintiffs had
foreknowledge of the witnesses
for the defendant, how would he
have known the order in which
they were going to give their
evidence as to enable counsel
describe Quarshie as the fourth
witness in his submission? And
how on earth would he have known
what exactly the said witness
was going to say as would enable
him rely on his testimony in his
written address even before he
had taken the witness stand?
Much as counsel is allowed a lot
of room to conduct a case for a
client, it must be borne in mind
that the dignity and credibility
of the legal profession is also
on the line, so baseless
accusations should not find
their way into our work. I
believe it is sufficiently clear
that counsel for the defendant
never read the address of his
opposite party before he made
those wild charges, which I am
more than convinced were only
aimed at embarrassing the trial
judge. This ground of appeal is
as callous as it is
unprofessional; it's simply
without any basis or merit and
is accordingly rejected.
Next counsel for the appellant
referred to the defendant’s
counter-claim wherein he had
claimed for the cost of
constructing a fence wall, which
was damaged by excess rains. At
the time that the wall
collapsed, this action was
already pending before the court
below. The defendant began to
reconstruct it and notified the
plaintiffs accordingly. He also
pleaded it and made same the
subject of his counter-claim.
The plaintiffs’ response was
that the defendant did not have
their consent to construct that
broken wall.
I consider it necessary to quote
in extenso what the trial Judge
said on this issue. He said:
“the evidence shows that when
the fence wall collapsed and the
defendant evinced an intention
to reconstruct it on his own the
plaintiffs specifically wrote to
request him not to construct the
collapsed wall. The plaintiffs
stated in the said letter which
was tendered as Exhibit 3 that
the collapsed fence wall was
constructed by the Labone
Secondary School and that the
school had invited personnel of
the Field Engineers Regiment of
the Ghana Armed Forces to
inspect the collapsed fence and
advise them on what to do. The
plaintiffs therefore advised the
defendant to desist from
constructing the fence wall and
to vacate the property. Inspite
of this advice the defendant
engaged workers and
reconstructed the collapsed
fence wall. It is clear that the
defendant undertook to
reconstruct the fence wall
without the authority of the
plaintiffs and landladies and in
complete disregard to the clear
request by them to him not to
reconstruct the collapsed fence
wall. If the defendant chose to
undertake the reconstruction
when he had been asked not to do
so then he cannot be heard to
say that the plaintiffs as
landladies should refund
expenses incurred on the fence
wall. It is my finding that the
defendant is not entitled to any
refund in respect of any
expenses he incurred in
reconstructing the fence wall."
It is significant to note that
the 1st plaintiff said under
cross-examination that they (the
plaintiffs) would have
constructed the wall if the
defendant had not done so. This
was a very important piece of
evidence the relevance of which
entirely escaped the trial
Judge. The plaintiffs recognised
the need to re-build this wall,
except that they did not want
the defendant to do it for them,
because they had sued him for
recovery of possession. But the
defendant remained a statutory
tenant who was entitled to the
full protection of the law and
to enjoy the premises to the
full, including all its existing
fixtures, which by paragraph 3c
of exhibit A he was enjoined 'to
keep in good and tenantable
repair', fair wear and tear
excepted. No doubt a fence wall
is a fixture being permanent in
character. But could the
defendant reconstruct without
the consent of the landlady?
Wear and tear, when applied to
demised premises, do not include
total destruction by a
catastrophe which was never
contemplated by either party. So
this wall whose collapse
occurred through an act of God
does not come within paragraph
3c of Exhibit A.
Counsel for the plaintiffs
relied on paragraph 3f of
Exhibit A which is one of the
tenant's covenants which
prohibits him from making 'any
alterations or additions to the
property without the written
consent of the landladies.'
Counsel's submission was that
the defendant acted in breach of
this covenant by constructing
the fence wall in the teeth of
all the opposition from the
plaintiffs. I think by
'additions' is meant structural
additions. But as said in RE
LEVESON-GOWER'S SETTLED ESTATE
(1905) 2 Ch. 95, per Swinfen
Eady, J. at page 98 "the
erection of a new building in
place of an old building is not
an addition to or alteration in
that old building." Thus by
erecting a new fence wall in
place of the old one which had
collapsed the defendant could
not be said to be in breach of
this covenant. If anything at
all the defendant's assertion
that the fence wall was
absolutely necessary to a
complete enjoyment of this
property was never disputed. The
house shares common boundary
with the Labone Secondary School
at the point where the wall
collapsed, and no one can deny
the necessity in closing such a
wall to the students. Besides a
fence wall is a kind of
protection for the safety of at
least property in the premises,
and also to secure the privacy
of the occupants therein. For
that reason the law excepts such
construction, without being in
breach of the covenant. In other
words, alterations or additions,
which are reasonably necessary
for the enjoyment of the
premises, or absolutely or
reasonably essential for the
purpose for which the premises
were taken, do not amount to a
breach of the covenant against
alterations and additions. I
think it was the failure to
consider this exception, which
applies that, led the trial
court to hold that the
plaintiffs were not responsible
for the cost of re-construction.
So long as the plaintiffs
admitted they were responsible
for it, the fact that the
defendant did the actual
construction against their wish
would not enable them to escape
responsibility for paying for
the cost of repairs. This is
because the evidence was clear
that the plaintiffs were not
prepared to do it because they
did not want the defendant to
continue to stay in the house.
It could thus pass for inducing
the tenant to quit which the
Rent Act frowns upon, see s.27
thereof. Time was of the essence
if the defendant was to have his
property in the house protected
and to secure his privacy, so he
was justified in erecting the
fence wall following the
plaintiffs' refusal in doing so
when requested by the defendant
as per his letter of July 6,
1995—Exhibit 2. The plaintiffs
did not reconstruct the wall,
and unreasonably withheld
consent in the circumstances.
The trial Judge, therefore,
erred in refusing the claim by
the defendant for a refund of
the sum spent on this by him,
which cost was put at ¢5
million. This ground of appeal
is accordingly upheld.
The two remaining grounds,
namely failure to visit the
locus in quo and adverse
comments alleged to have been
made by the trial Judge against
the defendant, to my mind, do
not have any impact on this
case. A trial court is not bound
to visit the locus in quo.
Though desirable in certain
cases, yet failure to visit the
locus is not fatal to a court's
decision if there is sufficient
evidence to support its
findings. A court must be very
certain a visit to the locus in
quo will help it determine
matters in controversy between
the parties, otherwise such a
visit could even amount to an
abuse of its discretion, as
happened in the case of DARFOUR
JNR. V. BOATENG (1976) 2 G.L.R.
191 CA.
I consider the remarks passed on
the personal character of the
defendant by the trial Judge as
rather unfortunate and
undesirable. But to the credit
of the Judge all his decisions
were based on the facts in
evidence and what he perceived
the law to be. But I think we,
as Judges, should be wary of
passing adverse comments on a
party's character unless it's in
issue or unless evidence has
been led and the Judge is
relying on it to destroy his
credit. But reckless and
unnecessary remarks must be
avoided. So in conclusion, the
appeal is allowed to the extent
that the trial court erred in
assessing the recoverable rent
when it did not have the power
to do that. However, the
plaintiffs are entitled to
recover rent at the rate of ¢3
million per annum from the
expiry of the agreement to the
date the defendant vacated the
premises, as earlier stated. The
appeal is also allowed to the
extent that the defendant was
entitled to be reimbursed the
cost of ¢5 million spent on
re-constructing the fence wall.
In order to bring this dispute
to an end in the present
proceedings, the sum of ¢5
million spent on rebuilding the
fence wall should be deducted
from the total rent the
plaintiffs have been adjudged to
be entitled to recover and the
difference is ordered to be paid
by the defendant to the
plaintiffs. The appeal is
dismissed on all the other
grounds.
A. A. BENIN, J.A,
TWUMASI, JA:
I had the opportunity of reading
beforehand the learned and
analytical judgment of my
brother Benin and I agree with
the conclusions he arrived at on
each ground of appeal and have
nothing more useful to add.
I would allow the appeal.
P. K. TWUMASI
JUSTICE OF APPEAL
ARYEETEY, JA:
I agree
B. T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL
Kofi Aidoo Representing
Defendant/Appellant
Amponsah-Dadzie for
Defendant/Appellant
C. Hayibor (with him Ms.) for
Plaintiff/Respondents. |
