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GHANA BAR REPORT 1993 -94 VOL 2

Wilson and others v Asante

COURT OF APPEAL

ESSIEM, OFORI-BOATENG, ADJABENG JJA

13 FEBRUARY 1992

Landlord and tenant – Rent magistrate - Jurisdiction  – Premises occupied by owner’s commission store-keepers paying no rent  – Whether occupants tenants – Whether rent magistrate had jurisdiction – Rent Act 1963 (Act 220) s 36.

Landlord and tenant – Rent Officer - Jurisdiction  – Premises occupied by owner’s commission store-keepers paying no rent – Whether occupiers tenants – Whether Rent Officer had jurisdiction - Rent Act 1963 (Act 220) s 36.

The premises in dispute were leased to CFAO (Ghana) Limited for their business. CFAO sublet part thereof to the plaintiff-respondent and 5th defendant-appellant. The 1st to 4th defendants-appellants occupied part of the premises as commission agents to whom CFAO supplied goods for sale on commission; they did not pay rent for their occupation of the premises. When goods became scarce in the country CFAO sold its interest in the property to the respondent and notified the appellants to quit. The 5th defendant-appellant was given a dateline to quit. When the defendants-appellants failed to quit, the respondent applied to the rent officer for ejectment. The rent officer heard the matter and referred it to the rent magistrate. Before the rent magistrate, the defendants-appellants contended that there was no relationship of landlord and tenant between them and the plaintiff-respondent and that neither the rent officer nor the rent magistrate had jurisdiction to deal with the matter. The rent magistrate over-ruled the objection and they appealed to the High Court. The High Court dismissed the appeal and confirmed the rent magistrate's decision. On a further appeal to the Court of Appeal,

Held: (1) Under section 17(1) of Act 220 only a rent magistrate could make an order of ejectment; and such an order could be made only against a tenant. To be a tenant a person must have leased premises from another person in consideration of payment of rent. The evidence was clear that the 1st to 4th defendants-appellants were not paying rent to CFAO. They were commission storekeepers of CFAO, put in possession to sell their goods on commission. That no doubt was a special arrangement between them and CFAO. When this arrangement was brought to an end, the basis of their occupation of those premises was swept away. They could not therefore be described as tenants within the meaning of section 36 of Act 220. They became trespassers over whom neither the rent magistrate nor the rent officer had jurisdiction. Accordingly the appeal of the 1st – 4th appellants would be allowed. Dhalomal v Puplampu [1984-86] 1 GLR 341, Safo v Badu [1977] 2 GLR 63 cited.

(2) The 5th defendant-appellant, however was a tenant who failed to comply with the dateline and had retained possession of the premises. He became a statutory tenant and the rent magistrate had jurisdiction. Massoud v Khalil [1959] GLR 278, Union Trading Co Ltd v Karam [1975] 1 GLR 212 referred to.

Cases referred to:

Dhalomal v Puplampu [1984-86] 1 GLR 341, CA.

Massoud v Khalil [1959] GLR 278, CA.

Safo v Badu [1977] 2 GLR 63.

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

APPEAL from the decision of the High Court.

J O Amui for the appellants.

E B Oduro for the respondent.

ADJABENG JA. This is an appeal against the decision of the High Court, Cape Coast, which confirmed the interlocutory decision of the District Court Grade I, Cape Coast, sitting as the rent magistrate. The ruling of the rent magistrate which the High Court confirmed was that the rent officer, Cape Coast, had jurisdiction to entertain the complaint made to him by the plaintiff-respondent against the defendants-appellants herein and so the rent magistrate, Cape Coast, also had jurisdiction to deal with the matter when it was later referred to him by the rent officer.

The facts giving rise to the dispute are quite simple. The premises known as House No G 101/2, Governor Rowe Road, Kotokuraba, Cape Coast were leased to CFAO (Ghana) Limited for their trading activities. According to their Legal Adviser, one Mr Kofi Akwaah, who gave evidence before the rent magistrate, some of the rooms at these premises were rented to Mr K B Asante and Mr Quartson, the plaintiff-respondent and the 5th defendant-appellant respectively herein, who paid rent for their occupation to CFAO. CFAO also put Messrs R A Wilson, C K Gyamfi and the late Nkrumah into some of the rooms as their commission storekeepers. Elizabeth Hagan was also allowed by CFAO to build a shed, which she attached to the building. These are the 1st to 4th defendants-appellants herein. CFAO supplied them with goods to sell on commission and so they did not pay any rent in respect of their occupation of the premises.

Around the late 1970s when goods were scarce in this country, the company could no longer continue with this arrangement. It was decided by the management of CFAO, therefore that their interest in the property should be disposed of, that is, their unexpired term of the lease which was said to be about 18 years at the time. This term was sold or assigned to the plaintiff-respondent after negotiations. The price paid by him to the CFAO was ¢1 million. It must be observed that before the assignment of their interest in the property, CFAO had sought and obtained the written consent of their landlords. This written consent is exhibit D herein.

When CFAO assigned their unexpired interest in the property to the respondent they wrote to the appellants asking them to quit the premises. See exhibits A and B. Exhibit A which was dated 19 December 1988 and addressed to the 1st, 2nd, 3rd and 4th appellants herein reads as follows:

“Dear Sir,

CFAO PREMISES – KOTOKURABA, CAPE COAST

We wish to inform you that we have sold our property at Kotokuraba, a part of which you are occupying to Mr K B Asante. Since we do not have any tenancy agreement with you, you are being given one-month notice with effect from today to quit the premises and give vacant possession to the new owner on 31st January 1989.

Kindly note that if you fail so to vacate on the said date, you will be deemed a trespasser and will be treated as such.”

The 5th appellant herein, Mr Quartson, was also written a similar letter which is exhibit B herein. He was however given up to 1 March 1989 to quit the premises and to give vacant possession to the respondent. This, I believe, is because he was a tenant of CFAO. He was to pay to them the sum of ¢30,660 being rent up to 31 December 1988. He was asked to pay the rent for January and February 1989 to the respondent to whom, as has been said earlier, CFAO had assigned its interest.

When the appellants failed to quit the premises and give vacant possession to the respondent as requested, the respondent on 28 March 1989 made a complaint against them to the Rent Officer, Cape Coast, under the Rent Act 1963 (Act 220), seeking his assistance in having the appellants ejected so that he could renovate the premises. The appellants failed to appear even though they had been notified. The rent officer heard the respondent in their absence and referred the matter to the rent magistrate for him to decide whether the respondent should be granted an order of possession of the premises.

Before the rent magistrate, the appellants challenged the jurisdiction of both the rent officer and the rent magistrate to hear and determine the matter. They contended that since there was no relationship of landlord and tenant between them and the respondent, and also that there had been no tenancy agreement between them and CFAO, neither the rent officer nor the rent magistrate had jurisdiction to deal with the matter. The rent magistrate over-ruled their objection. They appealed to the High Court, Cape Coast. The learned High Court judge on 24 April 1990 dismissed the appeal and confirmed the rent magistrate's decision. Dissatisfied, the appellants appealed to this court with the leave of the court.

In this court, the appellants again urged that both the rent officer and the magistrate lacked jurisdiction to entertain the respondent's complaint against them. Their counsel argued that the appellants were not tenants in the legal sense, as they were not paying rent. Counsel relied on the definition of "tenant" in section 36 of the Rent Act 1963 (Act 220) and invited us therefore to set aside the decision of the High Court, Cape Coast.

Counsel for the respondent was of the contrary view. He submitted that since the appellants derived their right of occupation through the CFAO, they were tenants. On this, counsel drew our attention to the definition of “tenant” in section 36 of Act 220, particularly (a) and (c) of that definition. It was the contention of the respondent's counsel, therefore, that since the relationship that had been created between the appellants and CFAO ended, possession could be recovered from the appellants under section 17(1)(j) of Act 220. That subsection provides for the recovery of possession “where the premises were let to the tenant by reason of his employment in the service of the landlord and such employment has ceased”.

The issue that calls for determination by us, therefore, is whether the rent officer and the rent magistrate had jurisdiction to entertain the complaint made by the plaintiff-respondent. To put it simply, was this matter a matter between a landlord and tenant?

Section 5(1)(b) of the Rent Act 1963 (Act 220) provides that the appropriate rent officer:

“shall investigate, in such manner as he may think fit, complaints by a landlord against a tenant in respect of arrears of rent and complaints by a landlord, tenant or person interested in the premises against any other person in respect of any other matter mentioned in this Act and shall make a determination thereon …”

The rent magistrate also has power under section 6(1)(d) of Act 220 to make an order for the ejectment of any tenant from any premises situated within his area of jurisdiction; and under section 6(2) of the said Act the rent magistrate has power to decide any matter that has been referred to him by the appropriate rent officer.

In the present case the only relief sought is an order for ejectment. A close reading of section 17(1) of Act 220 reveals that only a rent magistrate can make an order of ejectment under this section; and such an order can be made only against a tenant.

Who then is a tenant? Section 36 of Act 220 defines a “tenant” as:

“any person who leases premises from another person in consideration of the payment of rent, and includes ––

(a) any person deriving title under the original tenant;

(b) a sub-tenant;

(c) a person who, before the commencement of this Act has retained possession of premises and who on and after such commencement continues in possession of such premises; and

(d) a person who shall retain possession of any premises by virtue of the provisions of this Act.”

It is clear from the above-quoted definition that to be a tenant a person must have leased premises from another person in consideration of payment of rent.

It is often said by legal men that it is the rent element that creates the relationship of landlord and tenant. In the case of Dhalomal v Puplampu [1984-86] 1 GLR 341 this court said at page 342 that:

“The onus was therefore on the respondent to satisfy the court that he came by his occupation of the room lawfully as a sub-tenant by proving the payment of rent because it was the rent element that created the relationship of landlord and tenant or distinguished a mere licence from a tenancy.”

See also Safo v Badu  [1977] 2 GLR 63 at p 64. In the light of the foregoing can it be said that the Cape Coast rent magistrate has, on the facts of this case, power to make an order of ejectment against the appellants herein? In other words are the appellants tenants within the meaning of the Rent Act 1963 (Act 220) for such an order to be made against them as claimed by the respondent?

So far as the first four appellants are concerned, the evidence is clear that they were not paying rent to CFAO when put in occupation of the premises by CFAO. They were commission storekeepers of CFAO, put there to sell their goods on commission. This no doubt was a special arrangement between them and CFAO. They could not therefore be described as tenants within the meaning of the rent law. When this arrangement was brought to an end, the basis of their occupation of those premises, it seems to me, was swept away.

No wonder then that when CFAO wrote exhibit A to these appellants requesting them to quit the premises and give vacant possession thereof to the respondent, CFAO added that if they failed to give vacant possession as requested they, the 1st, 2nd, 3rd and 4th appellants would be deemed trespassers and treated as such. This letter should have served as a hint to the respondent that so far as these four appellants were concerned, the proper course to take to have them ejected from the premises did not lie in an action before the rent officer or rent magistrate but in the type of action that can be taken against a trespasser. The respondent failed to take the hint and so he went to the wrong forum.

These four appellants were never tenants as has been said. And since they failed to quit the premises by 31 January 1989 as requested by CFAO, they have become trespassers. The learned High Court judge was, therefore, in my view, wrong in holding that the rent magistrate had jurisdiction to deal with the complaint against these four appellants.

The case against the 5th defendant-appellant however presents a different story. As has been observed, he was a tenant of CFAO to whom he was paying rent. He was given up to 1 March 1989 to give vacant possession to the respondent. Since he failed to comply with the notice given him and has retained possession of a portion of the premises, he has become a statutory tenant. See section 36 of Act 220 and the cases of Massoud v Khalil [1959] GLR 278 at p 280, CA and Union Trading Co Ltd v Karam [1975] 1 GLR 212 at p 213 (holding 3). In the circumstances, the respondent's case against the 5th appellant is, in my view, properly before the rent magistrate and he has jurisdiction to proceed with it.

In conclusion and for the reasons given I am of the firm view that the appeal of the 1st, 2nd, 3rd and 4th appellants ought to succeed. The appeal of the 5th appellant, however, ought to fail.

ESSIEM JA. I agree.

OFORI-BOATENG JA. I also agree.

Appeal by 1st to 4th appellants allowed; appeal by 5th appellant dismissed.

Kizito Beyuo, Legal Practitioner.

Damages - Quantum - Fatal accidents - Loss of dependency – Award to compensate for pecuniary loss to dependants, not as solatium.

Damages – Assessment – Appeals from – Appellate court entitled to substitute its award where basis of award not specified.

The plaintiffs, parents of a 13-year old pupil of a Middle School, Form 2, instituted an action for damages for the negligence of the defendants resulting in the death of the pupil in a motor accident. The 1st defendant was the owner and driver of the vehicle insured at the time by the 2nd defendant. It was found as a fact that the deceased was a brilliant pupil with a bright future. The trial judge gave judgment for the plaintiffs and awarded them a global sum of ¢600,000. The plaintiffs appealed against the award on the grounds that the award was woefully inadequate.

Held: (1) The award of damages was at the discretion of the trial judge. Once the basis of the award had been shown, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it was not clear how he arrived at the bulk figure. Even though he did not accept wholly the claim for funeral expenses, he did not specify how much he accepted. Besides he did not accept wholly the extent of services rendered by the deceased to his parents and grandmother but also omitted to quantify how much each dependant had lost, for which he made the global award. In the circumstances the appellate court would substitute its award.

(2) It had long been settled that damages were not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased. If no pecuniary loss was proved, the defendant was entitled to succeed.

(3) It was not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages were to be calculated with reference to a reasonable expectation of pecuniary benefit. Blake v Midland Rly (1852) 18 QB 93, Mallett v McMonagle [1969] 2 WLR 767 HL, Barnett v Cohen [1921] 2 KB 461, Taff Vale Rly Co v Jenkins [1913] AC 1 cited.

Cases referred to:

Barnet v Cohen [1921] 2 KB 461, 90 LJKB 1307, [1921] All ER Rep 528, 125 LT 733, 37 TLR 629, 19 LGR 623, 13 Digest (Repl) 173.

Blake v Midland Rly (1852) 18 Q B 93, 21 LJQB 233, 18 LTOS 330, 16 Jur 562, 17 Digest (Reissue) 216.

Mallett v McMonagle [1969] 2 WLR 767, [1970] AC 166, [1969] 2 All ER 178, 113 Sol Jo 207, [1969] 1 Lloyd’s Rep 127, [1969] NI at 105, HL.

Taff Vale Rly Co v Jenkins [1913] AC 1, 82 LJKB 49, 107 LT 564, 29 TLR 19, 57 SJ 27.

APPEAL against the award of damages in the High Court.

Cab-Addae for the appellants.

AMPIAH JA. The plaintiffs in this action were the parents of Master Tawiah Anaman who was killed in a motor accident. The plaintiffs, as administrator and administratrix respectively of the estate of the deceased, took action against the defendants for damages for negligence resulting in the death of their son.

The 1st defendant was the owner-driver of vehicle No GN 3588 which was involved in the accident, and which had been insured at the time by the 2nd defendant.

At the end of the trial, the learned trial judge gave judgment for the plaintiffs and awarded them a total of six hundred thousand cedis with costs of sixty thousand cedis against the defendants.

The defendants did not appeal against the judgment. The plaintiffs however have appealed against the judgment on the damages awarded.

Counsel for the plaintiffs contended that “having regard to the overwhelming evidence as to the loss suffered by the appellants, as a result of the death of Master Tawiah Anaman, and the excellent performance of the deceased at school, the damages of ¢600,000 awarded the appellants were woefully inadequate”.

The plaintiffs (hereinafter referred to as ‘the appellants’) did not claim any special damages. They however claimed for (i) loss of service to them and the grandmother, (ii) loss of prospective income and (iii) burial and funeral expenses.

The learned trial judge found that the deceased rendered some services to his parents and also acted as a house help to his aged grandmother. He however did not accept wholly the amount for services rendered; he did not state how much of the services he accepted and how much he would award the parents and the grandmother for the loss of such services. The learned trial judge also accepted that some funeral expenses were incurred but not to the extent claimed.

As stated earlier the damages claimed by the plaintiffs were general although specific amounts were mentioned in both the statement of claim and the evidence, for certain items. The learned trial judge awarded a bulk sum of ¢600,000 as damages. This, appellants regard as woefully inadequate.

The award of damages is at the discretion of the trial judge. Once a basis has been shown as to how the damages have been arrived at, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it is not clear how he arrived at the bulk figure.

Section 16(1) of the Civil Liability Act 1963 (Act 176) provides:

“Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

Section 18 of the Act provides that:

“The damages under section 16 of the Act shall be -

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought...”

Sub-section 5 of section 18 of the Act provides further that:

“(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful act.”

The burial and funeral expenses claimed were ¢30,000. Even though the judge did not accept wholly the amount, he did not say how much of this he accepted. I would award the plaintiffs ¢29,000 for burial and funeral expenses.

The late Tawiah Anaman was a 13-year old Form 2 pupil of the AME Zion Middle School, Aboom, Cape Coast. The evidence shows that he was a brilliant pupil with a bright future. The judge found that he rendered services to his parents and grandmother who were all dependants. The judge did not however accept wholly the extent of the said service; he did not quantify how much each of the dependants had lost by the death of the deceased, though in the end he awarded a lump sum.

It has, however, for long been settled that damages are not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased as a consequence of his death. See Blake v Midland Rly [1852] 18 Q B 93; Mallett v McMonagle [1969] 2 WLR 767, HL. If no pecuniary loss is proved, therefore, the defendant is entitled to succeed - Barnet v Cohen [1921] 2 KB 461; but it is not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages are to be calculated in reference to a reasonable expectation of pecuniary benefit. So, in Taff Vale Rly Co v Jenkins [1913)] AC 1 where the deceased was an intelligent girl of 16 who had almost completed her apprenticeship as a dress maker, a jury's verdict in favour of the respondent was sustained notwithstanding that she had not as yet earned anything and had so far conferred upon them no actual pecuniary benefit. Contrast, Barnett v Cohen (supra), where the claim failed because the deceased was just 4 years old.

In the instant case actual pecuniary benefit was proved. Thus, given a life purchase of 12 years and taking an average loss of ¢1,500 a month, I would award the father ¢216,000. Taking an average loss of ¢4,000 a month to the mother, I would award her ¢576,000.

The grandmother died in 1985. The 2nd plaintiff spent on her in lieu of the deceased's services, for only 2 years. I would award the estate ¢9,600.

In conclusion, I would allow the appeal and vary the damages awarded by substituting ¢830,600 total damages.

ADJABENG JA. I agree.

LUTTERODT JA. I also agree.

Appeal allowed.

Justin Amenuvor, Legal practitioner.