Pertinent, it is, to note that the jurisdiction under Section 30 was not an equitable one. It was statutory although of equitable origin. The requirement to apply might have been procedural in character. But it was a procedure brought upon by a statute. And therefore, even if the Court retained its inherent equitable jurisdiction to grant relief, a tenant must apply for it. The law has not prescribed the form an application should take. It however indicated the path to use.
The need to satisfy the statutory requirement of an application under the section is to ensure that an applicant demonstrates sufficient factual and legal grounds to enable the Court consider whether or not relief ought to be granted and if so, on what terms. I shall reiterate that the jurisdiction is now statutory although equitable in origin and the statute has prescribed the mode of its invocation which I think must be followed. In my judgment, where the legislature steps in with a particular legislation on a particular subject, effect must be given to that legislation.
Pertinent, it is, to note that the jurisdiction under Section 30 was not an equitable one. It was statutory although of equitable origin. The requirement to apply might have been procedural in character. But it was a procedure brought upon by a statute. And therefore, even if the Court retained its inherent equitable jurisdiction to grant relief, a tenant must apply for it. The law has not prescribed the form an application should take. It however indicated the path to use.
I may here refer to section 83 of the Courts Ordinance which reads:- "Subject to the terms of this or any other Ordinance, the common law, the doctrines of Equity and the Statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the Courts." It follows that after 1874, laws enacted in the United Kingdom, the operation of which may have removed some of the fundamental distinctions between real property and personal property, and the incidents thereto, are not applicable in this country. Consequently, leasehold interest in land is still in our law personal property, and can be administered by the person to whom Letters of Administration have been granted by the Court in this country.
Effect of a covenant to renovate on the character of a tenancy
The terms of the tenancy, which included an auxiliary and/or peripheral obligation of the tenant to renovate and remodel the premises, could not therefore, derogate from the fundamental essence of the contract as a tenancy agreement into an ‘investment or construction agreement’ devoid or removed from the legal rules, laws and principles regulating a tenancy agreement.
We find that these nuances notwithstanding, the agreement was still fundamentally a tenancy agreement and, therefore, was amenable to the principles and rules that governed the regime of tenancy agreements. The document which formed the foundation of the instant dispute is captioned and described plainly as a ‘Tenancy Agreement’ between Mrs. Agnes Gertrude Osei of the one part and Innova Holdings of the other part. In this deed, the parties are clearly designated as Landlady and tenant, respectively, referable to the designations adopted by the parties in a tenancy agreement. Additionally, the agreement included clear terms, stipulating the monthly rent to be charged by the Land Lady and a corresponding obligation on her part to yield the rented premises for the benefit of the tenant. 35. The terms of the tenancy, which included an auxiliary and/or peripheral obligation of the tenant to renovate and remodel the premises, could not therefore, derogate from the fundamental essence of the contract as a tenancy agreement into an ‘investment or construction agreement’ devoid or removed from the legal rules, laws and principles regulating a tenancy agreement.
On the other hand, where there was a breach of a covenant there could not be forfeiture unless there was an express provision for re-entry in the lease
In the recent decision of this Court in the case of Royal Investment Company Vrs Quarcoopome and Another (66 of 2021) [2021] GHASC 104 (1 December 2021), the erudite Amegatcher JSC. opined as follows: “On the other hand, where there was a breach of a covenant there could not be forfeiture unless there was an express provision for re-entry in the lease based on the breach of the said covenant. This position was advanced by Ollennu J (as he then was) in the case of BASSIL v SAID RAAD & SONS (1958) 3 WALR 231 as follows: “Now at common law, there can be no forfeiture for breach of covenant under a lease unless there is an express provision in the lease for re-entry”.
Having wilfully engaged in conduct that directly violated the terms of the tenancy, the Defendant cannot now seek refuge under its own investment to shield itself from the consequences of its breach. To allow such a defence would be to permit a party to benefit from his own wrongful actions, undermining the fundamental principles of contractual enforcement and accountability.
With respect to the learned justices of the Court below however, we are of the considered view that the Defendant’s investment on the Plaintiff’s land cannot serve as a bar to the forfeiture of the tenancy. At the time the Defendant chose to unlawfully demolish the Plaintiff’s structures, it was fully aware of the substantial investment it had made on the land and the potential consequences of its actions. Despite this knowledge, the Defendant brazenly proceeded to raze down the Plaintiff’s building, knowingly exposing himself to the risk of forfeiture. 61. Having wilfully engaged in conduct that directly violated the terms of the tenancy, the Defendant cannot now seek refuge under its own investment to shield itself from the consequences of its breach. To allow such a defence would be to permit a party to benefit from his own wrongful actions, undermining the fundamental principles of contractual enforcement and accountability. In consequence of the forgoing, we hereby restore order of the High Court forfeiting the Defendant’s tenancy agreement with the Plaintiff.
On that score, section 36 of the Rent Act (Act 220) clearly prescribed that: “remodelling” in respect to premises does not include the demolition of the premises and the construction on the land on which the premises were situated of new premises, and cognate expressions shall be construed accordingly. 38. We wholly agree with the conclusions of the Court of Appeal with regard to the meaning and scope of the term ‘remodelling and renovation’ and the fact that this obligation did not and could not have encapsulated an option to demolish the five-bedroom building. From the outset, it is clear that within the context of the Rents Act, 1962 (Act 220), which regulates tenancy agreements like that implicated in the instant case, the use of the term remodelling did not contemplate an opening for the Defendant to demolish the building at his discretion and reconstruct other apartments.
