REPUBLIC v. ACCRA RENT MAGISTRATE; EX PARTE OFOSU-AMAAH [1965] GLR 613

DIVISION: HIGH COURT, ACCRA

DATE: 11 OCTOBER 1965

BEFORE: ARCHER J.

CASE REFERRED TO

R. v. Wandsworth Justices; Ex parte Read [1942] 1 K.B. 281; [1942] 1 All E. R. 56; 111 L.J. K. B. 234;

106 J. P. 50.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to remove into the High Court, Accra, with a view to quashing it, an order for recovery of possession made by the district magistrate sitting in Accra as a rent magistrate.

The facts are set out in the ruling.

COUNSEL

Odoi for da Rocha for the applicant.

Amissah-Aidoo for the respondent.

JUDGMENT OF ARCHER J.

This is an application for an order of certiorari to remove into this court for the purpose of quashing an order made by the district magistrate sitting at Accra as a rent magistrate. The order reads: “Let tenants vacate forthwith.” It is being sought to quash this order under two grounds, namely:

(1) That the rent magistrate did not act according to natural justice in making the said order in that:

(a) the parties to the suit were not notified to be present at the making of the said order;

(b) the parties were not present and were not given an opportunity to be heard.

(2) That the rent magistrate failed to comply with the provisions of the Rent Act, 1963.1

After arguments had been heard, the court ordered that the record book of the rent magistrate should be produced for perusal by the court and the parties. When the record book and a certified true copy of the proceedings were produced, it became obvious that a rent officer had investigated a complaint by virtue of section 5(1) of the Rent Act, 1963, and had referred his findings to the rent magistrate under section 6

(2) of the Rent Act, 1963, and under regulation 13 of the Rent Regulations, 1964.2

It was argued on behalf of the applicant that section 7 of the Rent Act, 1963, stipulated that a district magistrate functioning as a rent magistrate for the purposes of the Act shall have the same powers and observe the same procedure as a district magistrate has and observes in the exercise of his ordinary jurisdiction. Section 7

[p.615] of [1965] GLR 613 of the Rent Act, 1963, begins with the words “Subject to the provisions of this Act and any regulations made hereunder.” These words in my view mean that the procedure to be followed by a district magistrate (when sitting as a rent magistrate) in the exercise of his ordinary jurisdiction, is subject to the provisions of the Rent Act and the regulations made thereunder.

Section 5 (1) (b) empowers the appropriate rent officer in mandatory terms by the use of the word “shall” to investigate in such manner as he may think fit complaints by a landlord against a tenant in respect of arrears of rent and in respect of any other matter and he shall make a determination thereon. Briefly, under this section he must not only investigate but should also determine the matter, that is, make findings. Complaints are not restricted to arrears of rent.

On 6 September the landlord, A. W. K. English, made a complaint to the rent officer to the effect that his tenant, Tam & Kapoa Trading Co., had been struck off as an incorporated partnership on 29 July 1964 and that be wanted vacant possession of his premises No. D.669/3, Selwyn Market Street. He had given the tenants one month’s notice as from 14 August 1965. On 8 September 1965, the landlord Mr. A. W. K.

English and a partner of the dissolved partnership Miss Margaret Quantren appeared before the rent officer who heard both of them. The other partner, the applicant, was not present although he had been served with notice of the complaint and the hearing. After having recorded their statements the rent officer decided as follows:

“The application for recovery of possession was served on the company by serving copies on the partners. At the hearing Miss Margaret Quantren appeared in person as a partner of the company. By the publication in the Industrial Bulletin, the company was dissolved on 29 July 1965. The premises were let to the company in the trading name of Tam & Kapoa Trading Company. The partner has no objection to the premises being recovered by the landlord. I order that the partners deliver possession by 14 September 1965. The proceedings will be transmitted to the rent magistrate for an order.”

It is obvious that no statutory provision in the Rent Act or the Rent Regulations enable the rent officer to order delivery of possession although he says so in his findings. He therefore properly added that the proceedings would be transmitted to the rent magistrate for an order.

On 10 September, the rent officer wrote the following to the registrar of the district court:

[p.616] of [1965] GLR 613

“I forward, herewith, under clause 13 of the Rent Regulations the attached documents in respect of the above-mentioned matter and shall be grateful if the appropriate order may be issued by the rent magistrate if he thinks fit.”

On 13 September 1964, the rent magistrate made the said order. It has been argued by the applicant’s counsel that the rent magistrate should have summoned the parties to appear before him to enable him to act judicially and, as the parties were not notified and were not heard, fundamental principles of natural justice had been violated and the order must be quashed by an order of certiorari. In reply, the landlord’s counsel pointed out that the procedure now prevailing in the rent magistrate’s court was that, whenever the rent officer had heard the parties and had made his recommendations to the rent magistrate, it was no longer necessary for the rent magistrate to summon parties before him and hear fresh evidence. I do not subscribe to this view. The rent magistrate in my opinion should always act judicially especially where there is a dispute being contested by two parties and the rent officer has made his findings. There are other cases in which the rent magistrate need not summon the parties before him before making an order on an application by the rent officer, for example measures against tenants under regulations 13 (4) and

(5) of L.I. 369. The form of reference under regulations 13, i.e. Form 9, reads:

“I forward herewith, a statement of the facts found by me in regard to the above complaint together with copies of the relevant document(s) for your opinion . . . The rent magistrate is respectfully requested to:— (a) determine the matter.”

The rent magistrate can only determine the matter after considering the proceedings before the rent officer and giving an opportunity to the parties of being heard on the findings of fact made by the rent officer.

Briefly there is a duty to act judicially and this duty is contemplated by the words of section 7 of the Act.

It was revealed in court that many orders had been made on the strength of the findings of the rent officer without hearing the parties. I do not know whether my interpretation of section 6 (2) of the Act is correct, however that is my feeling.

Nevertheless taking the present application into consideration, the affidavits filed by the parties and the proceedings before the rent officer disclose that the applicant was notified of the proceedings before the rent officer.

Regulation 40 of the Rent Regulations, 1964, reads:

[p.617] of [1965] GLR 613

“40. (1) If at any hearing of an application or appeal, the applicant or appellant appears but the other party does not appear, the appropriate Rent Officer or Magistrate shall, before hearing such application or appeal, inquire into the question whether the other party to such application or appeal has been duly notified in respect of the matter of the day, time and place of the hearing of such application. Such Officer or Magistrate, if he is satisfied that the application or appeal has not been duly notified, may adjourn the hearing to permit the necessary notification; but if, satisfied as to due notification, may proceed to hear such application or appeal, notwithstanding the absence of such other party.”

The applicant was absent at the hearing and his quondam partner appeared and raised no objection to the premises being recovered by the landlord. Indeed there was nothing before the rent magistrate to decide or determine on a reference because the partner who chose to be present on behalf of the tenants had consented to the premises being recovered and in my view it was superfluous for the rent magistrate to summon the parties before him again for the repetition of the consent. The view I take is that the rent officer had no statutory power to make a formal order for recovery of possession and he rightly referred the proceedings to the rent magistrate who according to section 6 (d) has power to make an order for the ejectment of any tenant from any premises situated within his area of jurisdiction.

The applicant’s case is that if he had appeared before the rent officer he would have maintained that although the partnership had been dissolved, the business had a goodwill and had an interest in the premises and would have resisted the landlord’s claim to possession. In other words, the rent officer did not have all the facts before him or had decided without evidence of both partners to justify the decision.

The decision of the rent officer was adopted by the rent magistrate before he made his order and therefore he also did not have all the facts before him.

As I can gather from the decided authorities, an order for certiorari will issue mainly where an inferior court has made an order without or in excess of jurisdiction. I cannot say in this case that the rent magistrate has acted without jurisdiction or in excess of jurisdiction. R. v. Wandsworth Justices; Ex parte

Read3 also lays it down that the order of certiorari will issue where there has been a disregard

[p.618] of [1965] GLR 613 of the fundamental conditions of the administration of justice. As I have already stated, the present case is a peculiar one in which the rent magistrate acted on findings made by a rent officer who had summoned all the parties and no objection had been raised by the tenants to vacant possession being granted. I humbly hold that the applicant cannot complain after being absent at the hearing before the rent officer when he had been notified of the appointed time and place.

It is laid down in Halsbury’s Laws of England (3rd ed.), Vol. 11 at p. 63 as follows: “Certiorari will not be granted to quash the decision of an inferior tribunal within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts.”

This passage authorises me to rule that the order for certiorari should not issue in this case. But is the applicant remediless? I think not. When I granted leave for the application to be made, I exercised my discretion under rule 3 of Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954,4 by not adjourning the application until the time allowed for appealing had expired because the rent magistrate’s order was very brief and it was doubtful what the whole proceedings were about and whether in fact he had jurisdiction to make the order.

Notwithstanding my refusal to grant the order sought, I am relieved to note that section 24 of the Rent

Act, 1963, provides that any person aggrieved by any order or decision of the appropriate rent magistrate shall have the right to appeal to any other court of competent jurisdiction in accordance with the provisions of any enactment for the time being in force. In the circumstances of this case, the applicant’s right is to appeal to the High Court against the rent magistrate’s order as I consider that the facts of the application do not justify the issue of the order of certiorari to quash the rent magistrate’s order. Finally, I consider the Rent Act, 1963, and the regulations wanting in many procedural aspects. This deficiency is bound to baffle lawyers, landlords and tenants until the courts have construed various sections of the Act and the regulations. If the regulations had specified in clear terms what the rent magistrate should do on a reference to him by the rent officer or the minister this application would not have been necessary. The

Rent Act, 1963, does not expressively exclude an application for an order of certiorari.

[p.619] of jurisdiction to make the order.

I therefore made no order as to costs, as I would have allowed the application but for the special circumstances in the case.

DECISION

Application dismissed.

S. K. D.-B.