DIEP vs. KABA [1973] 2 GLR 190

CASES REFERRED TO

(1) Asante v. Gold Coast Drivers’ Union (1957) 3 W.A.L.R. 5.

(2) Attipoe v. Amegashie (1939) 5 W.A.C.A. 171.

NATURE OF PROCEEDINGS

APPLICATION for leave to enforce a judgment in respect of which an appeal was pending. The facts are sufficiently set out in the ruling.

COUNSEL

Darkoh for the applicant.

C.F. Hayfron-Benjamin for the respondent.

JUDGMENT OF KORANTENG-ADDOW J.

The respondent in this matter is a tenant of the applicant occupying rooms in the house of the applicant on plot number OTB. 430, Kumasi. He accumulated his rents for many months (five years to be precise). As a result of that the applicant brought an action against him claiming the following reliefs:

(a) Balance of arrears of rent for the said tenancy amounting to £G618 for the period January 1960 to December 1964 (inclusive).

(b) Mesne profits from the date on which his writ is taken out until judgment.

(c) Ejectment for non-payment of the said rent.

Judgment was given against the respondent and an order of ejectment was made against him. He has appealed. As a result of the filing of the appeal this present application was brought by the applicant (the successful plaintiff) praying the court to be allowed to enforce the judgment in spite of the appeal. I do not myself find any good cause for delaying or postponing the enforcement of this judgment and will exercise my discretion in the matter in favour of the applicant. As far as I can see the grounds of appeal filed do not disclose any arguable case and the appeal would seem to me to have been lodged with the sole aim of delaying matters.

[p.192] of [1973] 2 GLR 190

The main contention of the respondent is that this matter being a matter of landlord and tenant the High Court had no jurisdiction to hear it, the only courts having jurisdiction under the Rent Act, 1963 (Act 220), being a court of the rent magistrate and a circuit court. This contention is obviously misconceived. In my view the High Court has had jurisdiction in land matters ever since it was created in 1876. It had concurrent jurisdiction with the native courts in land matters. But since matters of landlord and tenant were a special kind of land matter and the native court did not have jurisdiction to entertain them, it was the High Court alone that was competent to try them. See this matter discussed by Adumua-Bossman J. (as he then was) in Asante v. Gold Coast Drivers’ Union (1957) 3 W.A.L.R. 5.

Since the magistrates’ courts were given jurisdiction in matters appertaining to rent and recovery of possession of premises in the early forties the High Court has had concurrent jurisdiction in matters of landlord and tenant with the magistrates’ courts. The jurisdiction of the rent magistrate being in fact a delegation of part of the jurisdiction of the High Court. For the district commissioners from whose courts the present magistrates’ courts evolved were by section 34 of the Supreme Court Ordinance, 1876 (No. 4 of 1876), Gold Coast Ordinance (1887 ed.), constituted commissioners of the Supreme Court. Section 34 of the Ordinance read: “For more facilitating the administration of justice, the Commissioners shall respectively be ex officio Commissioners of the Supreme Court.” By section 36 of the Ordinance they were empowered to constitute courts and in those courts they were to “be deemed to have and may exercise the powers of a judge of a Supreme Court.” Section 48 of the Ordinance laid it down that:

“No jurisdiction conferred upon any Commissioner shall in any way restrict or affect the jurisdiction of the Supreme Court, but the Supreme Court shall have in all causes and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of the several Commissioners.”

Although set up by legislation all the inferior courts in the hierarchy of the courts are in a similar way courts created to ease the congestion in the High Court.

The Rent (Control) Ordinance, 1947 (No. 30 of 1947), and the Rent (Control) Ordinance, 1952 (No. 2 of 1952), which repealed, amended, and consolidated the various laws on rent control did not oust the jurisdiction of the High Court. Nor has the present Rent Act, 1963 (Act 220), done that. Section 17 (1) of the Rent Act also speaks of 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,” etc. “Any other Judge” in that section, in my view, is either the judge of a circuit court or the judge of the High Court. In fact there are cases of landlord and tenant which fall outside the purview of the jurisdiction of the rent magistrate. Section 17 of Act 220

[p.193] of [1973] 2 GLR 190

deals only with cases in which tenants can be ejected for a limited set of reasons. But there are other reasons for which a tenant may be ejected. He may for example be ejected for the breach of other covenants in his lease contituting the agreement between himself and his landlord. He may be ejected for having broken a covenant to keep the premises in good and tenantable repair or for having broken any other such like covenant. Such cases fall outside the jurisdiction of a rent magistrate and can only be dealt with either by a circuit court or the High Court depending on the value of the premises. All this goes to show that the High Court has jurisdiction to deal with cases of landlord and tenant called also rent cases.

Looked at from another angle also, it may be noted from the reliefs claimed in the original suit that they were principally for the arrears of rent and mesne profits. These reliefs are claims for debt. The first being liquidated and the other still accruing until the date of judgment. And these reliefs have been held not to be land matters if questions of title were not involved. In Attipoe v. Amegashie (1939) 5 W.A.C.A. 171 at p. 174 the West African Court of Appeal held that rent and mesne profits are debts and that “the fact that the money claimed had been rent of land was a mere accident. For the purposes of this action” the court continued, “it might as well have been money due to the plaintiffs from any other source.”

In this instant case as the quantum of the debt was over and above the jurisdiction of the magistrates’ court the High Court was the only court with competent jurisdiction to entertain the suit. The jurisdiction of the magistrates’ courts in personal suits was at the time the suit was brought in 1965 limited to £G150: see section 52 (1) of the Courts Act, 1960 (C.A. 9). The fact that in addition to the first two reliefs there is the relief for ejectment did not in any way alter the legal position, because, as I have held, the High Court enjoys concurrent jurisdiction with the court of a rent magistrate in these matters.

The judgment of this court is being attacked only on the ground of jurisdiction. As I am of the view that this court had jurisdiction to entertain the suit I feel inclined to exercise my discretion in favour of the applicant. I would, therefore, hold that the appeal should not operate as a stay of execution. Execution to proceed.

DECISION Application granted. S. O.