ADDO v. SABRAH [1968] GLR 154

DIVISION: HIGH COURT, ACCRA

DATE: 14 FEBRUARY 1968

BEFORE: CHARLES CRABBE J

NATURE OF PROCEEDINGS

RULING on a preliminary objection, inter alia, that the High Court has no jurisdiction to order recovery of premises under the Rent Act, 1963 (Act 220). The facts are fully set out in the ruling.

COUNSEL

Koi Larbi for the plaintiff.

P. Swaniker for the defendant.

JUDGMENT OF CHARLES CRABBE J.

The plaintiff claims by writ in this case:

“(a) Recovery of possession of a store in house No. D.940/3, Derby Avenue, Accra, occupied by the defendant as tenant of the plaintiff; the defendant having received due notice to quit.

(b) Rent accruing up to date of judgment.”

The statement of claim avers that:

“(1) By an agreement dated 2 June 1965, the plaintiff let a store in house No. D.940/3 at Derby Avenue, Accra, to the defendant for the term of one year at a rent of £G35 or N¢70.00 per month.

[p.156] of [1968] GLR 154

(2) That the tenancy expired on 2 June 1966; and that all attempts by the plaintiff to recover possession of the store have proved unsuccessful.

(3) That the plaintiff requires the said store to be used by him for his own business purposes.

(4) That on 31 January 1967, the plaintiff caused a written notice under section 17 (1) (h) of the Rent Act, 1963, to be served on the defendant of his intention to apply to the court for an order for the recovery of the possession of the store; but the defendant ignored the said notice and has refused to quit or give up possession of the store aforesaid. Wherefore the plaintiff claims as per the writ of summons.”

Having entered appearance the defendant filed his statement of defence and admitted paragraphs (2) and (4) of the statement of claim of the plaintiff but denied every other allegation of fact contained in the plaintiff’s statement of claim. In the case of paragraph (3) of the plaintiff’s statement of claim the defendant avers that he would put the plaintiff to strict proof. He added: “In further answer to paragraph (3) the defendant says that the main purpose for which the plaintiff desires the premises is to let them out to another tenant at a higher rent since the plaintiff has since June 1964 been urging the defendant to pay £G50 0s.0d. or N¢100.00 a month by way of rent.” The issues agreed on are whether or not the plaintiff genuinely requires the store to be used by him for his business purposes, and, or whether or not, the plaintiff is entitled to the relief sought.

Before this court counsel for the defendant raised a preliminary point of law. He contended that neither the writ nor the statement of claim discloses any cause of action. He argued that under paragraph (h) of subsection (1) of section 17 of the Rent Act, 1963 (Act 220), what gives a plaintiff a cause of action is that he reasonably requires the premises for his own business and that a plaintiff is not entitled to possession automatically. He also referred the court to Order 2, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The relevant part of the Rent Act, 1963 (Act 220), relied on by counsel for the defendant is as follows:

“17. (1). . . 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 [p.157]of [1968] GLR 154 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.” Having considered this preliminary point in relation to that part of the Act quoted above I informed counsel as follows:

“I am quite satisfied that the writ discloses a reasonable cause of action, that is, recovery of possession. Paragraph (h) of subsection (1) of section 17 of the Rent Act, 1963, lays down the condition on which the plaintiff has to satisfy the court so that the court would make an order in his favour. The opening words of subsection (1) of section 17 of the Act clearly bear this out.” Counsel for the defendant then raised the question of jurisdiction. He argued that subparagraph (d) of subparagraph (1) of paragraph 49 of the Courts Decree, 1966 (N.L.C.D. 84), precludes the High Court from entertaining the present action; that the jurisdiction of the High Court is specified in paragraph 27 of the said Courts Decree and that if it is intended that the High Court should have jurisdiction in civil matters relating to landlord and tenant under the Rent Act, 1963, it would have been so specified as was done in the case of the Courts Act, 1960 (C.A.9). Counsel for the plaintiff contended that the High Court has concurrent jurisdiction. In his view the power contained in subparagraph (d) of subparagraph (1) of paragraph 49 of the Courts Decree, 1966, does not exclude the High Court, emphasising that paragraph 27 of the said Decree simply explains the powers of the High Court. He further stated that subparagraph (2) of paragraph 49 shows the supremacy of the High Court and that by subparagraph (2) of paragraph 26 of the same Decree it would be seen that the High Court is not limited. Paragraph 27 of the Courts Decree is in the following terms:

“27. Subject to and in accordance with the provisions of this Decree and any other enactment for the time being in

[p.158] of [1968] GLR 154 force, the High Court shall have—

(a) original jurisdiction in all matters;

(b) appellate jurisdiction from any decision of a Circuit Court upon a summary trial in a criminal case;

(c) appellate jurisdiction from any decision of a District Court or of a Juvenile Court;

(d) any other jurisdiction conferred by this Decree or any other enactment for the time being in force.”

The Judicial Committee of the Privy Council in Ditcher v. Denison (1857) 11 Moo. P.C. 324 at p.337 said that:

“It is also a good general rule in jurisprudence that one who reads a legal document, whether public or private, should not be prompt to ascribe, should not, without necessity or some sound reason, impute to its language tautology or superfluity, and should be rather at the outset inclined to suppose each word intended to have some effect, or be of some use.” In Re Florence Land & Public Works Co.; Ex parte Moor (1878) 10 Ch.D. 530 at p. 544, C.A. James L.J. said, “It is a cardinal rule of construction that all documents are to be construed ut res valeat magis quam pereat.” This principle is summed up by Bowen L.J. in Curtis v. Stovin (1889) 22 Q.B.D. 513 at p. 517, C.A. where he said that: “The words of [a statute] ought to be construed ut res magis valeat quam pereat.” The words “subject to and in accordance with the provisions of this Decree” which appear in paragraph 27 of the Courts Decree, 1966, are very important for our purposes in the instant case and must be considered in the light of the authorities I have cited above. For, in my view, in their purpose and purport lies the answer to the question posed by counsel for the defendant. The expression “subject to” is used in legislation to serve as a warning. It is used to indicate a modification and thereby point out that the particular provision in which it is used is not complete by itself. It is used to avoid an apparent conflict between different provisions of the same enactment or between different enactments or between different parts of the same enactment. To resolve a conflict that would otherwise be apparent, it was, in my view, desirable that a warning should be given. It is therefore clear to me that paragraph 27 of the Courts Decree is incomplete as it stands, for the whole of that paragraph cannot be read and construed without looking at other provisions of the Decree with which it might be in conflict. Not only that. It has to be read in conjunction with “any other enactment for the time being in force.” [p.159] of [1968] GLR 154

The effect of this is that if there is any enactment which confers specific jurisdiction on any court or authority or body, the High Court is precluded from dealing with that matter save perhaps on an appeal. This may sound dangerous or even strange. But that is the legal position as I see it. Its full meaning can be seen when it is realised that our Interpretation Act, 1960 (C.A. 4), defines enactment as “an Act or statutory instrument or any provision of an Act or statutory instrument. “I need not hasten to add that, perhaps, unknown to the authorities a regulation may take away from the jurisdiction of the High Court a matter within its jurisdiction. For the purposes of the instant case, paragraphs 27 and 49 of the Courts Decree, 1966, must be read and construed together. That I have done and have come to the conclusion that this court has no jurisdiction to entertain this action, it being a matter within the exclusive jurisdiction of the district courts. There is one other point which I think I should draw attention to. In subsection (1) of section 17 of the Rent Act, 1963, are the words “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.” When properly read this section for present purposes can be rendered in the following terms: “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 … any … judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force. . .”

To my mind what this amounts to is this, that a judge, not being a rent magistrate, has no jurisdiction under the Rent Act, 1963, to make an order for the recovery of possession of a premises or an order for the ejectment of a tenant from a premises under the Rent Act, 1963. Some other enactment is intended to confer that jurisdiction on any such judge and in the absence of the provisions of any other enactment for the time being in force a judge who is not a rent magistrate cannot act under the Rent Act, 1963. In exercising his jurisdiction under “any other enactment” he would be required to act in accordance with the provisions of that enactment considering the circumstances specified in paragraphs (a) to (k) of subsection (1) of section 17 of the Rent Act, 1963. I am not called upon to decide the issue on that aspect of the interpretation of the said subsection (1). But I feel that once the question of jurisdiction has been raised attention ought to be drawn to this aspect of that provision for in my view it bears out the conclusion to which I have come in this case. In my view this is a case [p.160] of [1968] GLR 154 which should go on appeal so that we have the pronouncement of the Court of Appeal.

I award costs of N¢50.00 to the defendant.

DECISION

Preliminary objection to jurisdiction upheld

S. K. T.