REPUBLIC vs. RENT MAGISTRATE; EX PARTE KESSIE [1968] GLR 207

COUNSEL

Tawia Adamafio for the respondent.

Applicant in person.

JUDGMENT OF AMISSAH J.A.

This application was brought by the applicant in this case to have an order of the rent magistrate quashed on the ground that he as defendant was denied an opportunity of being heard by the magistrate before he made his order. A second ground was filed but was not argued.

The order of the rent magistrate which is impugned is in the following form:

“Upon reading the findings of the rent officer, Accra, dated 2 June 1967, and upon being satisfied that the respondent herein has failed to settle and/or pay his rents due and owing, i.e. the sum of N¢154.00 as at 31 May 1967:

I do hereby order that the respondent herein (Kessie) do pay the said sum of N¢154.00 being arrears of rent due and owing and any subsequent rent or rents that may accrue on or before 30 June 1967 or quit the premises.”

It will be noticed that the order was made giving the applicant alternative courses of action. But it would appear from his affidavit that he took it as an unqualified order to quit the premises. However that may be, the rent magistrate had made an order asking him to pay a certain sum or to quit the premises and the applicant’s complaint was that he was not given an opportunity of being heard before the order was made. In his affidavit the applicant said that he had with the consent of the landlord made considerable improvements to the premises which would reduce the amount owing to some extent and if he had been heard the amount he would have been asked to pay would have been reduced. The landlord has before this court denied that the applicant had effected any improvements to the premises. However, this is not the forum for the determination of the truthfulness of the applicant’s claim as to improvements. The sole issue before me is whether the magistrate’s order was proper. In deciding this, it is necessary to go to the beginning of the proceedings under the Rent Act, 1963 (Act 220), between the landlord and the applicant.

On 25 May 1967, according to the record made by the rent officer, there was a complaint laid by the landlord that the applicant, his tenant, owed him five months’ rent in arrears, all to the total amount

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of ¢154.00. The amount had been brought down to the end of May 1967. The landlord said the applicant had always been defaulting and he asked the officer to eject him. According to the record, the applicant admitted that he owed the stated amount for the period. The rent officer decided that the applicant should settle the rents in two instalments in the months of May and June, failing which the matter would be referred to the rent magistrate for an order.

The landlord had asked the rent officer to eject the applicant. The rent officer very properly refrained from doing so because his powers as laid down in section 5 of Act 220 do not include a power to eject defaulting tenants. Section 5 (1)(e) of the Act gives him the power to investigate, in such manner as he may think fit, complaints by a landlord against a tenant in respect of arrears of rent and to make a determination thereon. This it appears is what he did. But he added to his order that if the applicant failed to comply, the matter would be referred to the rent magistrate.

This was followed on 2 June by the following record:

“Rent Officer:

At the hearing on 25 May 1967 the respondent [namely, the applicant] did not deny owing five months’ arrears in rent which is ¢154.00 up to the end of May 1967. The rent officer decided that the arrears shall be paid in two months’ instalments as arranged. Up to date of this final report, the respondent has failed to settle the first instalment. I therefore recommended that the rent magistrate make an order under section 17 (1) (a)

for ejectment against the tenant, and enforce payment of the arrears.”

It is not clear whether the matter was put directly before the rent magistrate by the rent officer, although I suspect that to have been the course adopted. In any case it may fairly well be assumed that the matter came before the magistrate as a result of this note made by the rent officer. Nowhere in the Rent Act is it expressly provided that the rent officer may refer a tenant who defaults in paying his rent to the rent magistrate with a recommendation for a summary order of ejectment. Section 6(2) requires the magistrate to decide any matter which has been referred to him by the appropriate rent officer. According to learned counsel for the landlord this entitles the rent officer to make a recommendation to the magistrate. Even if that is accepted, and I am not here saying that it is correct, the issue is whether the magistrate is then entitled to act on the recommendation so made without an independent inquiry of his own. Apart from the order of the magistrate complained of, there

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is no record of the proceedings before him. The applicant says that he had no notice of the proceedings before the rent magistrate and therefore was unable to put his case before him. The affidavit in which this averment was made was served both on the landlord and on the registrar of the rent magistrate’s court. No contrary averment has come from either sources. I am therefore bound to accept the applicant’s statement as correct.

Was the magistrate clothed with power to make his order without hearing the applicant? The functions of the rent magistrate are set out in section 6 of the Rent Act. By subsection (1)(d) of that section he may make an order for the ejectment of any tenant from any premises situated within his area of jurisdiction. Assuming therefore that he complies with any law as to the procedure to adopt when performing his functions an order made by him ejecting a tenant would be perfectly proper. Such a stipulation on procedure is found in section 7 of the Act which provides that subject to the provisions of the Act and any regulations made thereunder, a district magistrate functioning as a rent magistrate for the purposes of this Act shall have the same power and observe the same procedure as a district magistrate has and observes in the exercise of his ordinary jurisdiction. This shows the intention of the legislature that the rent magistrate should, subject to whatever express alteration which may have been imposed by the rent legislation, act judicially in arriving at his decisions. It is an elementary rule of justice that both sides be heard before a decision be given. Where an order is to affect a person adversely it ought not to be made before he has been heard. I do not think that the magistrate can delegate the task of hearing the parties to some other officer. The decision is his and he should make it after he had heard the party adversely affected. Whether there is substance in what that person has to say or not he can determine only after hearing it. It is not his function to prejudge the substance of the case. The importance of the principle involved is seen from the fact that now the applicant alleges that before the rent officer, things that he said in support of his case were not recorded. The rent magistrate failed in this duty and for that reason the order he made is vitiated.

It is ordered that it should be brought up to be quashed and it is hereby quashed.

DECISION

Application for writ of certiorari to quash the order of the rent magistrate granted.

S. K. T.