Division: IN THE HIGH COURT, ACCRA
Date: 27 AUGUST 1964
Before: ARCHER J
JUDGMENT OF ARCHER J
The plaintiffs claim from the defendants recovery of possession of all those ground floor stores situated at the corner of Club Road and Cow Lane, Accra; and also claim double rent under section 18 of the Distress for Rent Act, 1737,1 from 1 September 1963 up to the date of judgment or until possession is delivered by the defendants. The plaintiffs as sub-lessors by a lease dated 5 December 1957 granted the defendants a term of three years commencing from 1 September 1957 at a rent of £G1,020 per annum. The lease contained an option for a further term of three years. The defendants exercised their right of option at the expiration of the first term and took a further term of three years expiring on 31 August 1963.
By a letter dated 27 August 1963 the plaintiffs reminded the defendants of previous notices given to the latter to quit. By a reply of the same date, the defendants informed the plaintiffs, inter alia, that it was difficult for them to quit and that they wished to stay until they had found other accommodation. At that stage, the plaintiffs handed over the matter to their solicitors who threatened action and demanded double rent under the Distress for Rent Act, 1737. The defendants thereupon instructed their solicitors, who by their letter of 17 September 1963, addressed to the plaintiffs’ solicitors, did not deny that the lease had expired but contended that the defendants had become statutory tenants and that double rent was not exigible. It appears also from exhibits 2 and 3 that the plaintiffs were not prepared to accept any rent for
the period subsequent to 31 August 1963 and therefore returned the defendants’ cheque for £G255 which included rent for a period subsequent to the date of expiry of the lease.
After the writ of summons had been issued and pleadings closed, the following issues were approved by the judge who heard the summons for directions: (i) whether or not the defendants are statutory tenants of the plaintiffs, (ii) whether or not the sub-lease has expired, (iii) whether or not the plaintiffs are entitled to double rent and (iv) whether or not the plaintiffs are entitled to their reliefs. When the trial commenced, learned counsel for the plaintiffs submitted that although by paragraph 2 of exhibit A the defendants’ solicitors did not deny that the lease had expired, yet the defendants by paragraph 1 of their statement of defence did not admit that the lease had expired. I felt it my duty to point out to learned counsel for the
defendants that it was improper to “blow hot and cold,” in other words “to approbate and reprobate,” to use a Scottish legal term. Learned counsel rightly sought leave of the court to amend paragraph 2 of the statement of defence. Leave was granted and accordingly the issue of “whether or not the sub-lease had expired” was eliminated at that stage. Since the defendants had alleged that they had become statutory tenants, the onus shifted to them. See Mount v. Childs.2
Learned counsel for the defendants then referred to section 16 (1) (a) of the Rent Control Ordinance, 1952,3 and cited the cases of Remon v. City of London Real Property Co.4 and Cruise v. Terrell.5 I am not particularly enamoured of the gravitational force of these cases as they are limited in scope. I shall explain my attitude later on in the course of my judgment. Learned counsel for the plaintiffs was invited by the court to concede that the defendants had become statutory tenants. However, it appeared that with decided cases in his armoury, he could not concede or accept the court’s invitation. Learned counsel relied on the Supreme Court decision in Chahin & Sons v. Epope Printing Press6 and submitted that the ratio decidendi in that case was that a statutory tenancy could only be created by the payment and
acceptance of rent after the determination of the tenancy. With great respect to learned counsel, I can say with confidence that the decision in that case related to the provisions of section 11 (5) of the Rent Control Ordinance7 which preserves the rights of a sub-tenant notwithstanding any order or judgment against a tenant for the recovery of possession of any premises or ejectment therefrom. The decision also dealt with the question of quantum of damages. Learned counsel himself appeared for the respondent sub-tenants in that appeal but I must say with regret that this proposition of the law cannot be found in that judgment. Learned counsel further cited the case of Dawodu v. Ijale.8 The headnote to that case states:
“Where a sub-tenant, lawfully in possession, holds over after the termination (by expiry or otherwise) of the term created by the head lease, he becomes, by virtue of Regulation 4 of the Nigeria Defence (Increase of Rent) (Restriction) Regulations, 1942, a statutory tenant, notwithstanding that there was never any privity of contract between him and the head lessor.”
That was a case affected by emergency legislation during the war in Nigeria and the decision was based purely on the provisions of the Nigerian legislation. However, in essence its effect is the same as section 11 (5) of the Rent Control Ordinance which I have already held to be inapplicable to this case. Finally the case of Amos Brothers & Co., Ltd. v. British West African Corporation Ltd.99 is also inapplicable for the same reason.
At this juncture, I have to decide whether or not the defendants have become statutory tenants. If my judgment is in the affirmative, then it may not be necessary to consider whether the plaintiffs are entitled to double rent under the Distress for Rent Act, 1737. The provisions of the Rent Control Ordinance apply to all leases or premises except for those stated in section 2 (1) of the Ordinance. “Premises,” as defined in section 3, does not include a dwelling-house or part thereof, bona fide let at a rent which includes a payment in respect of board or attendance. The premises in this dispute do not fall within the categories of exceptions mentioned in section 2 (1); moreover, the rent payable does not include any payment in respect of board or attendance. The Ordinance is therefore applicable and the defendants are entitled to any rights of privileges conferred on them by the provisions of the Ordinance. [His lordship then quoted
section 16 (1) (a) of the Rent Control Ordinance, as set out in the headnote, and continued:] The words of this section are clear and taking the facts adduced in evidence into consideration it seems to me that on 31 August 1963 when the sub-lease expired, notwithstanding the previous notices given by the plaintiffs, the defendants remained in possession after the determination of the lease; and in the words of section 16 (1)
(a), they became statutory tenants holding the premises on the terms provided by section 16 (2) of the Ordinance, that is to say, as tenants holding the premises of the landlord from month to month and bound to observe and entitled to the benefits of all the terms and conditions of the original tenancy, as the case may be, so far as the same are consistent with the provisions of the Ordinance. As I have found that the defendants are statutory tenants, the plaintiffs can only recover possession by establishing one of the grounds laid down in section 11 of the Ordinance.
In his argument, learned counsel for the plaintiff submitted that as the plaintiffs had not received any rent from the defendants for a period subsequent to the date of expiry of the lease, the defendants could not claim to be statutory tenants. To answer this contention, I wish to refer briefly to certain concepts and notions of statutory tenancy in England as it is obvious that the policy of controlling rents and giving tenants security was imported from England. The purpose of the English Rent Acts is to afford security of tenure to the tenants of unfurnished dwelling-houses below a given rateable value, and to fix the maximum rent they can be called upon to pay, and once a house becomes subject to the Acts it is said to be controlled and it immediately acquires a status carrying certain legal consequences that cannot be modified or excluded by the parties. Any tenant who in exercise of his right under the Acts, retains possession of a controlled house is known as a statutory tenant and his tenancy as a statutory tenancy. The expression statutory tenancy was invented or coined by Lord Coleridge in Hunt v. Bliss10 and although the second English Rent Act was passed in 1920 with subsequent amendments for nearly 30 years after, the term was not adopted by the English legislature until 1951 in section 23 of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act, 1951,11 and in section 49 of the Housing Repairs and Rents Act, 1954.12
In Ghana the term was adopted by Parliament when the Rent Control Ordinance was enacted in 1952 but it did not strictly follow the English Acts. The English Acts are restricted to unfurnished dwelling-houses only, whose rateable value does not exceed specified amounts in certain areas. Thus dwelling-houses let furnished, long tenancies exceeding 21 years, tenancies at a low rent or rent free, Crown property, overcrowded or unsanitary houses, public houses, housing association and housing trusts, development corporations, houses provided by local authorities, parsonage houses of the Church of England, and any house comprised in an agricultural holding and occupied by a farmer are all excluded. Tenants of business premises cannot be statutory tenants although they can apply to the court for a further term. A company
cannot be a statutory tenant in England although it is obvious from the provisions of the Ghana Rent Control Ordinance that a company can be a statutory tenant. Indeed the Ghana Ordinance affects all tenancies except those mentioned in section 2 (1).
After this excusable digression, I can only observe that it is not totally safe to rely on English decisions when dealing with the Ghana Rent Control Ordinance. However there are two salient features of the English Rent Acts which can assist in interpreting the provisions of the Ghana Ordinance. The first is that, as Harman J. (as he then was) stated in Tideway Investment & Property Holdings v. Wellwood,13 the statutory tenant enjoys a status of irremovability and in the words of Jenkins L.J. in American Economic Laundry v. Little,14 the tenant is irremovable in the sense that the tenant is entitled “to remain in possession . . . notwithstanding the determination of his contractual interest until such time as he either voluntarily gives up possession, or the court on cause shown, makes an order against him to deliver up possession.” The second feature is that the landlord can determine the statutory tenancy only by obtaining
and executing an order from the court, except where the tenant voluntarily and in fact gives up or abandons possession or where there is a new arrangement between the parties which amounts to a surrender by operation of law. See Collins v. Claughton.15
Therefore it appears that a tenant of any lease governed by the Rent Control Ordinance becomes a statutory tenant as soon as the term of his tenancy expires and he chooses to remain in possession. He can only be ejected by and under a court order obtainable on one of the grounds mentioned in section 11 of the Ordinance. Indeed the Ordinance is an unfettered licence to a tenant (privileged by the provisions of the Ordinance) to ignore notices to quit or to terminate and the tenant automatically becomes a statutory tenant against the wishes of the landlord whose consent, approval or sanction is not necessary so far as the Ordinance is concerned. I cannot read any provision in the Ordinance to the effect that the landlord must
accept rent after the termination of the tenancy.
And in this respect I wish to emphasise that the notion of a statutory tenancy is not based on any legal doctrine of estoppel by conduct. It is stated at pp. 1208-1209 of Woodfall, on The Law of Landlord and Tenant (26th ed.), Vol 1 as follows:
“[A] tenant who holds over, by virtue of his statutory right, after the expiration of a notice to quit becomes a statutory tenant. Acceptance of rent from him—a circumstance which would normally be taken as an implied assent by the landlord to a renewal of the tenancy—does not raise any inference of a renewed contractual tenancy, because the landlord has no choice but to accept it . . . The payment and acceptance of rent after the termination of the lease does not in such a case prove the creation of a fresh agreement, though it is of course open to the tenant to show other circumstances indicating the landlord’s agreement to a renewed contractual tenancy. The essence of a statutory tenancy is that it is holding over against the will of the landlord, in reliance upon the statutory right to retain possession.”
In the present case the contractual tenancy is at an end and the statutory tenant has no right under the expired lease or contract—his only right to be there is that given to him by the Rent Control Ordinance. The defendants held over after the lease expired and presented their cheque for payment of rent not only for the last two months of the lease but also for a period commencing with the statutory tenancy. The mere refusal by the landlord to accept payment of rent does not in any way nullify or vitiate the statutory tenancy.
As I have found that the defendants are statutory tenants, what rent is payable? [His lordship then read section 16 (2) of the Rent Control Ordinance, as set out in the headnote, and continued:] The defendants are therefore obliged to pay the rent agreed to under the original tenancy which means the tenancy under which the tenants were holding immediately before they became statutory tenants: See Oxley v. Regional Properties Ltd.16
I have tried in vain to find any English authority which makes a statutory tenant liable for the payment of double rent. The only case I can find (which is of no assistance) is Flannagan v. Shaw17 in which it was held, under the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915,18 which was subsequently repealed by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920,19 that a statutory tenant was liable for double rent under the Distress for Rent Act, 1737. It seems however that under the Act of 1920 double rent is not payable by a statutory tenant. The terms of section 15 of the Act of 1920 are similar to those in section 16 (2) of the Ghana Ordinance.
For the purposes of this judgment it is not necessary for me to state whether double rent would be payable under the Act of 1737 assuming that the defendants were not statutory tenants. I am therefore making no pronouncement whether or not the Act of 1737 applies in Ghana. Accordingly the plaintiffs’ action is dismissed and judgment is hereby entered in favour of the defendants. Costs of 40 guineas to the defendants.
DECISION
Action dismissed.
T. G. K.
