COURT OF APPEAL
19 JULY 1971
BEFORE: SIRIBOE JSC., SOWAH AND ARCHER JJ.A.
CASES REFERRED TO
(1) Carroll v. Andrews (1956) 1 W.A.L.R. 176.
(2) Simmons v. Crossley [1922] 2 K.B. 95; 91 L.J.K.B. 643; 127 L.T. 337; 38 T.L.R. 571; 66 S.J. 524; 20 L.G.R. 653.
(3) Precious v. Reedie [1924] 2 K.B. 149; 93 L.J.K.B. 800; 131 L.T. 568; 40 T.L.R. 578; 68 S.J. 706; 22 L.G.R. 613.
(4) Dagger v. Shepherd [1946] 1 K.B. 215; [1946] 1 All E.R.133; 115 L.J.K.B. 113; 175 L.T. 339; 62 T.L.R. 143; 90 S.J. 151, C.A.
(5) Khoury v. Teymani (1940) 6 W.A.C.A. 127.
NATURE OF PROCEEDINGS
APPEAL from a decision of the High Court upholding a decision of a trial magistrate granting the respondents’ claim to possession of premises occupied by the appellants.
COUNSEL
A. Adjetey for the appellants.
Laing for the respondents.
JUDGMENT OF SOWAH J.A.
This is an appeal from the concurrent judgments of the District Magistrate’s Court and the High Court, Accra, both upholding the validity of a notice to quit given by the respondents to the appellants under section 17 (1)(h) of the Rent Act, 1963 (Act 220), and granting the respondents’ claim to possession of a shop occupied by the appellants.
Some time in 1958, upon an oral grant, the appellants took possession of one store in premises No. D 893/3, situate at Selwyn Market Street owned by the respondents at a monthly rent of N¢80.00 per month. About July 1959, the appellants applied to the rent assessment committee for an assessment of the premises and this was duly done. The monthly rent was reduced to N¢45.00 which thereafter became the standard rent of the store.
The appellants appeared to have enjoyed quiet possession until 12 January 1967, when they received the following notice:
“I the undersigned give you one (1) month’s notice from the date hereof on behalf of my client Paterson Zochonis and Co., Ltd. to quit and deliver up possession of the premises at Selwyn Market Street in respect of which you are its tenant.
My client requires to use the premises for its business purposes.”
They immediately caused a reply to be sent by their solicitors disputing the respondents’ right to possession. Notwithstanding this denial, the respondents proceeded on 16 February 1967, to give a further notice of six months in accordance with the Act.
On or about 14 September 1967, the respondents took out a writ in the magistrate’s court claiming possession after reciting some of the facts already herein referred to. Though the appellants, in a court of summary jurisdiction, were not obliged to file a statement of defence unless so ordered or upon agreement with the opposing party, nevertheless they thought it expedient to do so.
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In that defence, the appellants recounted their period of occupation of the store, questioned the bona fides of the respondents and the reasonableness of the request. They further denied the validity of the notice to quit and averred that the said notice was incompetent to terminate the tenancy; they raised the issue of hardship which would ensue from their ejectment. In short, every conceivable defence which would avail a defendant in such circumstance was raised.
Issue was immediately joined by the parties as to whether the respondents were entitled to or ought to be given possession under section 17 (1)(h) of the Rent Act, 1963. The section reads: “Subject to the provisions of subsection (2) of 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 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 …
(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.”
The respondents led evidence, the essence of it being that the appellants occupied one store in the premises hereinbefore described and paid initially, a monthly rent of N¢80.00 until July 1959, when the rent was reduced to N¢45.00; thereafter, the appellants paid the standard rent until the notices were served upon them to vacate the premises. The reason for requiring possession was that their company was in the process of expansion into the industrial field and had built a N¢300,000.00 factory in Tema and were anxious to obtain outlets for their products.
They had therefore given notices in similar vein to all tenants occupying the said premises. It is quite clear from the evidence that the respondents’ representative was uncertain as to the exact date on which the premises were first occupied by the appellants. He was positive that the appellants were tenants from month to month paying N¢45.00 a month.
He was extensively cross-examined and, amongst the answers he gave, was the following: “The agreement was only an oral one. I am not aware whether or not the defendants have defaulted in payment. The defendants pay their rents monthly, I think. I do not know whether there has been a variation in the payment of rent. I do not know that the rents have been varied and the defendants asked to pay half-yearly instead of quarterly. The rents were paid to the accounts department; no I cannot say how they were paid.”
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Under cross-examination, he maintained that they had only four shops in Accra and these were inadequate for their purposes and therefore, the respondents had given notice to all the tenants occupying shops in the premises. The company wanted the premises for its own business.
The appellants admitted that the agreement for the lease was oral and that the rent originally fixed was by the month. The manager representing the appellants stated:
“I used to pay my rent monthly. I was then asked to pay quarterly. Later on still I asked to pay it half yearly and I do that now. I have sent my cheque for the rent for this half year but it was sent back to me, saying that it could not be accepted as I had been served with a notice to quit.”
He gave evidence of the hardship his company would suffer if an order was made against it. He said: “I have not left the premises as a result of the notice served on me. I did try to find alternative accommodation elsewhere but I found it very difficult to get one. I have been occupying this place for about ten years. I have a lot of customers. I have no other store. I have no other source of income.”
On the evidence led, the learned magistrate held that the appellants’ tenancy was monthly; that the premises were reasonably required by the respondents and though, in my view, she was not obliged by law to consider the balance of hardship, she did find as a fact that the balance of hardship tilted against the respondents if she should refuse possession.
The appellants appealed against this decision to the High Court but the learned magistrate’s decision was upheld. It is from these decisions that an appeal has been brought to this court.
The first ground of appeal is that the two lower courts were wrong in holding that the tenancy was monthly immediately before the institution of the action; in effect, the lease of the premises had not been terminated in accordance with law.
Counsel pressed upon us the evidence under cross-examination by the representative of the respondent company referred to (supra), in not denying that there was at some time or the other, a request to the appellants to pay their rents quarterly and later half-yearly and argued that in the absence of denial, the learned magistrate was obliged in law to accept his clients’ version. Further, when the learned magistrate stated: “it is alleged the plaintiffs asked them to pay the rent quarterly and still later half-yearly in advance,” she was making a finding on this issue.
It seems to me that at that stage, the learned magistrate was reviewing the evidence before her as a prelude to making a finding and the passage referred to cannot by any stretch be said to be a finding.
To return to matters more important, there was the admission by the appellants that the original agreement was on a monthly basis; with this admission, there is not much point in referring to the certificate of
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the rent assessment committee (exhibit 1) which showed that the original rent fixed for the tenancy was on a monthly basis and the standard rent of the premises was also assessed on that basis. The argument that the rent assessment committee was only to fix rent on monthly basis is not borne out by an examination of the Rent Control Ordinance, 1952 (No. 2 of 1952).
In any case, it was an offence during the currency of the Rent Control Ordinance, 1952, for a landlord to demand more than a month’s rent in advance from a monthly tenant. The relevant section reads: “12. (5) Any person who as a condition of the grant, renewal or continuance of a tenancy demands in
the case of a monthly or shorter tenancy, the payment in advance of more than a month’s rent, or in the case of any other tenancy not exceeding in length six months, the payment in advance of more than the rent for the period of such tenancy or in the case of a tenancy exceeding six months the payment in advance of more than six months’ rent shall be guilty of an offence and upon summary conviction shall be liable to a fine not exceeding one hundred pounds.”
This section is reproduced in section 25 (5) of the Rent Act, 1963 (Act 220). Unless, therefore, there was an agreement to vary the original lease, the demand for a quarterly rent in advance in the first instance and later, half-yearly lease would be unlawful.
The legal position is that the party who alleges a variation in a contract assumes the burden of proving it. There was no evidence before the learned magistrate of an agreement to vary the monthly tenancy to that of half-yearly; the request for payment in advance, if made, might only be one of convenience and in any case unlawful; it did not change the character or the nature of the original agreement to let on a monthly basis. Merely to state that they were called upon to pay rents fixed on monthly basis by quarterly or half-yearly advances would not alter the original character of the tenancy. The plain fact of this case is that the rent at all material times has been expressed to be payable by the month. It is upon the rent element, in the absence of agreement, that the determination of the issue of the nature of the tenancy depends; if the rent is stated in monthly terms, then it is a monthly tenancy. “It is essential to the presumption of a yearly tenancy on the termination of a letting for a term of years that the rent should be expressed as an annual sum,” see Carroll v. Andrews (1956) 1 W.A.L.R. 176 at p. 179.
The appellants put in a letter dated 6 July 1967 (exhibit 2) which showed an attempted payment of rent after notice has been served upon them, which upon their own showing, was rejected by the respondents. The letter was addressed to the accountant of the respondent-company. This exhibit cannot carry the case any further. If indeed they were paying their rent in advance, they could have produced the receipts or, at least, issue a notice to produce the books of the respondents. The respondents have themselves said that these rents were paid to their accounts section. It would be some evidence that they were asked to pay rent in advance
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but I have grave doubts whether it could be conclusive that the nature of the agreement was varied.
I think the reasoning of the learned magistrate on this aspect of the matter could not be assailed, she held: “In my opinion it is not the mode of payment that should determine the nature of a tenancy. It is rather the basis of computation of rent payable. If the agreement either written or oral has as its term that the premises is let at such and such a rent per month or when the rent is paid on the basis of such an amount the presumption in law is that the rental is on a monthly basis. A multiplication of the monthly sum and payment of the resultant figure without more, in my view, does not change the nature of the original tenancy. In any case I do not see how payment of the stipulated rent either quarterly or half-yearly could change the character of the letting to a yearly tenancy.”
Accordingly, the first ground fails.
Learned counsel raised a subsidiary ground which, in my view, was not open to him since it was not a ground of his appeal, namely, even if the tenancy was a monthly tenancy, the notice of 12 January 1967, was bad in law as it did not terminate the tenancy at the end of a periodic month from the commencement of the tenancy, and cited a few English cases in support of the submission. I may here observe that it was after a considerable amount of judicial conflict on this subject that the English authorities settled for this principle, perhaps for the sake of uniformity, that a notice must terminate at the last day of a periodic month.
It is necessary to refer to a few decisions illustrating this conflict: Simmons v. Crossley [1922] 2 K.B. 95 at p. 107, per Swift J.: “A week’s notice has always been held reasonable and sufficient, and the question I have now to decide is whether or not it must determine upon the gale day of the tenancy. I hold that the notice, if it is sufficient in other respects, may be given for any day of the week.” Barely two years after, there was the decision in Precious v. Reedie [1924] 2 K.B. 149. I will only refer to the headnote which states that: “In order that a monthly tenancy may be determined by notice to quit, the notice, in the absence of special agreement, must be a month’s notice expiring at the end of a periodic month from the commencement of the tenancy.” The next case was Dagger v. Shepherd [1946] 1 K.B. 215, on the question whether a notice to quit containing the expression or phrase “on or before” a fixed date is valid.
It is clear from the cases cited above that the rules concerning the termination of weekly or monthly tenancies by notice are not of ancient vintage. It is an attempt by the English courts to evolve a uniform, perhaps a more commonsense approach to questions of termination of tenancies. In this respect, the English courts have by analogy assimilated the rules governing annual or yearly tenancies into weekly and later monthly tenancies. They were developments suitable to the English experience and circumstances and may not necessarily be the ideal.
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I think, however, our Interpretation Act, 1960 (C.A. 4), affords guidelines for our own development in this connection; section 23 (2) reads:
“If the period indicated in the enactment begins on any date other than the first day of any of the twelve months of the calendar it is to be reckoned from the date on which it is to begin to the date in the next month numerically corresponding, less one, or, if there is no corresponding date, to the last day of that month.
For example: a month beginning on 15th January ends on 14th February; a month beginning on 31st January ends on 28th February (or 29th February in a leap year).”
I am aware that the interpretation herein refers to enactments and not to individual agreements but I know of no authority in Ghana in support of the proposition stated in Precious v. Reedie (supra). Of course, if it is relevant to our circumstance, we ought to adopt it, but we have no weekly tenancies in Ghana; the bulk of tenancies concerns monthly tenancies and the majority of such tenants are of the employee class who are liable to be transferred from their stations at fairly short notice. I think these should be able to give notice of their intention to terminate their tenancies at any time during the month provided they give notice calculated on the basis of section 23 (2) of the Interpretation Act. There must be, however, reciprocity or mutuality on this matter, namely, the landlords must also be entitled to give notice on similar basis. Of course, if the tenant is a statutory tenant, then a month’s notice must be given in terms of the Interpretation Act.
I have addressed myself on this matter out of respect for counsel but I still consider that this is a ground not open to counsel. It was also not a ground of appeal before the High Court nor made an issue before the learned trial magistrate. In this connection, I will refer to Khoury v. Teymani (1940) 6 W.A.C.A. 127 at pp. 132-133:
“The trial having proceeded on the basis indicated it would be most unjust to allow the appellant to raise by his tardy supplementary grounds of appeal in this Court a completely new point of fact which was not raised in the Court below and which, if it had been raised there, could have been, and would have been, investigated by the Court below.”
This subsidiary argument therefore fails.
It will, at this stage, be more convenient to deal with the third ground of appeal, namely, that the learned High Court judge misdirected himself on the issue of the reasonableness of the plaintiffs’ demand for possession.
The issue whether or not “the premises are reasonably required by the landlords to be used by them for their own personal business purposes” is a question of fact. It is therefore not the decision of the High Court which was sitting as an appellate court that one has to turn to, but to the
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finding, if any, made by the court of first instance, namely, the magistrate’s court.
The learned magistrate reviewed the evidence before her and accepted the case of the respondents that they were in need of the premises for the expansion of their business in which they have invested the large sum of N¢300,000.00. Her finding of fact was clearcut when she concluded that the premises were reasonably required for the purpose of the respondents’ business. Her reasoning has not been in any way faulted by argument before this court; there has been on the other hand, some confusion in argument on this issue. Reasonableness in the context of section 17 (1) (h) is in relation to the landlord’s requirement.
It was argued further that the court should have gone further to consider whether it was reasonable to grant possession. The short answer is that there is no such provision in the subsection. When, therefore, the learned magistrate arrived at the conclusion that the respondents had complied with the provisions of section 17 (1) (h), she had no further discretion in the matter but to grant the relief sought.
The paragraph is being confused with the paragraph before it, viz. 17 (1) (g) in which the magistrate had to examine, first the reasonableness of the landlord’s desire, secondly whether it is reasonable to make the order.
It is in the second limb of section 17 (1) (g) that the balance of hardship and the problems of alternative accommodation had to be considered. The application before the magistrate was not under subsection (1) (g) and I need not go further into this matter. This ground also fails.
Finally, it is said that regulation 18 of the Rent Regulations, 1964 (L.I. 369), enjoined the respondents to notify the rent officer of their intention to apply for possession and that such notification was a condition precedent to an application to court. I have examined the regulation and cannot spell out of it the condition alleged. Again, this was not a ground of appeal and no issue was joined on it in the court of first instance. I do not wish to speculate whether or not such notification was given. The appellants could have made an issue of it in the magistrate’s court but failed to do so. It is too late in the day to do so now.
Accordingly, all the grounds of appeal fail. In the result, the appeal is dismissed.
JUDGMENT OF SIRIBOE J.S.C.
I agree.
JUDGMENT OF ARCHER J.A.
I also agree.
DECISION
Appeal dismissed.
K.T.
