HIGH COURT, ACCRA
DATE: 14 MARCH 1967
BEFORE: EDUSEI J.
CASES REFERRED TO
(1) Maley v. Fearn [1946] 1 All E.R. 583; [1947] L.J.R. 276; 176 L.T. 203;.62 T.L.R. 693; 61 S.J. 67, C.A.
(2) Doe d. Cheny v. Batten (1775) 1 Cow p. 243; 98 E.R. 1006.
(3) Clarke v. Grant [1950] 1 K.B. 104; [1949] L.J.R. 1450; 65 T.L.R. 241; 93 S.J. 249; (1949) 1 All E.R. 768.
NATURE OF PROCEEDINGS
Action for the recovery of damages for trespass and an order for the recovery of possession. The facts are fully stated in the judgment.
COUNSEL
R. B. Duah for the plaintiff.
Bannerman-Williams for the defendant.
JUDGMENT OF EDUSEI J.
The plaintiff who is the landlord of house No. C250/4, Kokomlemle, Accra, is claiming damages for trespass against the defendant who is allegedly unlawfully occupying his house and he is also asking for an order for recovery of possession.
The facts in this case are these: the plaintiff let house No. C250/4, Kokomlemle, to one Hood, the first witness for the plaintiff. on a monthly tenancy for a consideration of £G26 or N¢52 per month. Without the knowledge and consent of the plaintiff the first witness for the plaintiff, let out a part of the said premises to the defendant. In 1965, the first witness for the plaintiff fell into arrears for the months of June, July and August and the plaintiff reported the matter to the rent officer in Accra. The first witness for the plaintiff, admitted his indebtedness to the plaintiff before the rent officer, but at the time the matter was being investigated at the rent office the first witness for the plaintiff had given up possession of the premises, and had asked the plaintiff to take possession. The defendant, however, stayed on despite a notice served on him by the first witness for the plaintiff to quit. This defendant also appeared before the rent officer and pleaded with him to convince the plaintiff to allow him, the defendant, to occupy the plaintiff’s premises. The plaintiff would not agree to this contending that he had agreed to let the premises to a company through an intermediary called John Boadu. It was at this stage that the rent officer warned the plaintiff that any attempt by him or John Boadu to throw out the personal effects of the defendant would be dealt with severely. It must be observed here that at the inquiry before the rent officer, the first
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witness for the plaintiff asked the defendant to pay his arrears of two months to him to enable him, thefirst witness for the plaintiff, to make payment to the plaintiff. The amount involved was £G26 for the two months because the part let to him was at the monthly rent of £G13. The defendant brought out this amount and gave it to the first witness to the plaintiff, who passed it on to the plaintiff. The rent officer for obvious reasons which will be referred to later in this judgment insisted that the plaintiff should issue the receipt for this sum in the name of the defendant instead of in the name of the first witness for the plaintiff. The plaintiff unwillingly carried out the instructions of the rent officer and prepared the receipt in the name of the defendant and this receipt is exhibit 4.
The defendant is contending that the plaintiff knew of the existence of the defendant as a sub-tenant in his house but this was strenuously denied by the plaintiff who in all honesty admitted that on a visit to his house on occasions he had seen the defendant there but was unaware of his relationship with the first witness for the plaintiff, the tenant. I believe and accept the plaintiff’s evidence which is supported by the first witness for the plaintiff that the defendant was never introduced to him by the first witness for the plaintiff as his sub-tenant. Counsel for the defendant has argued that at the time the first witness for the plaintiff left the house the defendant became by operation of law a tenant of the plaintiff and referred the court to the definition of a tenant in section 36 of the Rent Act, 1963 (Act 220). Counsel also referred the court to subsections (5) and (6) of section 17 of Act 220. I have no difficulty, however, in dismissing the contentions of counsel and hold that the prerequisite for the application of subsections (5) and (6) of section 17 is that there must have been an order for recovery of possession given by a rent magistrate or a judge against the original tenant (see section 17 (1) of Act 220). But this is not the position here. The first witness for the plaintiff, the original tenant left the premises as a result of a notice to quit served on him by the plaintiff.
The other point raised by counsel is that the defendant is a tenant within the meaning of section 36 of Act 220. The point to consider here is this: Can the defendant in law be called a sub-tenant? If the answer is “yes” then he may come within the definition of the word “tenant” in section 36 of Act 220; if the answer is “no” then he is not such a tenant. Section 22 (1) of Act 220 states thus “No person, in the case of a monthly or shorter tenancy of any premises, shall sub-let such premises without the written consent of his landlord.” (The emphasis is mine.) “Premises” as defined in section 36 means “any building, structure, stall or other erection or part
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thereof, movable or otherwise, which is the subject of a separate letting.” There, is, evidence that the tenancy of the plaintiff’s first witness with the plaintiff was on a monthly basis and there is no evidence before me that the first witness for the plaintiff sub-let part of the premises to the defendant with the written consent of the plaintiff.
In the light of such evidence I hold that the defendant was unlawfully let into occupation of the part of the plaintiff’s premises. Thus in Maley v. Fearn (1947) 176 L.T. 203, C.A. the facts of which are not dissimilar from the instant case the only difference being that in the case cited there was a term in the tenancy agreement that there should be no sub-letting without the written consent of the landlord and in the instant case the condition against sub-letting is statutory: see section 22 (1) of Act 220. The Court of Appeal in Maley v. Fearn (supra) held that in the absence of a written consent from the, landord the sub-letting was unlawful and the person who was in occupation could not be regarded as a sub-tenant, and I find therefore that the defendant is not a sub-tenant of the plaintiff.
I now turn my attention to consider the effect of exhibit 4. Counsel has also argued that since the plaintiff accepted rent from the defendant at the rent office the defendant has become his tenant and action in trespass would not lie against him. The evidence about the issue of exhibit 4 is that the plaintiff was prevailed upon by the rent officer to issue the said receipt in the name of the defendant even though thepayment of the amount went to reduce the indebtedness of the first witness for the plaintiff to the plaintiff. The important matter to consider here is whether by accepting payment from the defendant and issuing exhibit 4, the plaintiff and the defendant bad any intention of creating a new tenancy. The tenancy between the plaintiff and the first Witness for the plaintiff having been brought to an end by notice to quit a payment of rent after the termination of the tenancy would operate in favour of the defendant if it could be shown that the parties intended that there should be a new tenancy. This has been the law ever since it was laid down by the Court of King’s Bench in Doed. Cheny v. Batten (1775) 1 Cowp. 243 where Lord Mansfield said at p. 245 “The question therefore is, quo animo the rent was received, and what t he real intention of both parties was?” It is impossible to say that the plaintiff and the defendant in this case intended that there should be a new tenancy for the landlord always desired to get possession of the premises and that is why he gave notice to the first witness for the plaintiff to quit and the first witness for the plaintiff also gave similar notice to the defendant.
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The plaintiff made it abundantly clear to the rent officer that through John Boadu he had let the premises to a company and that the defendant should leave the house if he was still in occupation. This all important piece of evidence which stands uncontroverted is supported by the first witness for the plaintiff whom I accept as a witness of truth. The defendant could not demolish this significant piece of evidence by calling the rent officer. I find therefore as a fact that there was no tenancy agreement between the plaintiff and the defendant. The conclusion I have reached in this aspect of the case is amply supported by the case of Clarke v. Grant [1949] 1 All E.R. 768 where it was decided that the acceptance by the landlord of rent in respect of a specific period after termination of the tenancy by the notice to quit did not operate as a waiver of the notice and the landlord was entitled to possession. A fortiori the plaintiff must succeed in his reliefs because the sub-letting was unlawful and there was no intention to create a tenancy between the parties. The combined effect of the unlawful sub-letting to the defendant and his failure to give up possession when asked to do so clearly constitute trespass. I have now to advert my mind to the quantification of damages that may be awarded to the plaintiff. The defendant has been in occupation of the plaintiff’s premises since September 1965, and he has not paid any rent since that time. There is evidence that the rent for the house is £G26 or N¢52 per month; there is evidence also that by themdefendant’s failure to quit the new tenant introduced by John Boadu could not go into occupation. There is, however, no evidence before me as to the rent that the new tenants agreed to pay to the plaintiff, and I shall therefore proceed on the basis that the plaintiff has lost his monthly rent of £G26 or N¢52 since September 1965. Having regard to the totality of the evidence I shall award the plaintiff the sum of £G494 or N¢988 as damages for trespass against the defendant and give judgment for the said amount. I further order that the defendant do give up possession of the premises No. C250/4, Kokomlemle, Accra, forthwith.
Costs to the plaintiff assessed at N¢200.
DECISION
Judgment for the plaintiff.
S.O.
