OWUSU vs. ASANTE [1973] 2 GLR 220

NATURE OF PROCEEDINGS

APPEAL against the decision of a Kumasi District Court Grade II in which a landlord was granted an order for possession of a rented room occupied by the appellant. The facts are sufficiently stated in the judgment.

COUNSEL

W. Y. Agyenim-Boateng for the appellant.

Ayim-Owusu for the respondent.

JUDGMENT OF MENSA BOISON J.

This is an appeal against the decision of the District Court Grade II, Kumasi, whereby that court granted an order for possession of a rented room to the landlord.

The claim of the landlord was for the possession of one room only which was reasonably required for the occupation of the landlord’s nephew. The defence denied any relationship of the nephew with the landlord and in the alternative asserted that there was alternative accommodation for that relative. The trial court rejected the defence and found for the landlord making an order that the tenant “quits forthwith.”

The main ground of appeal by the tenant against that decision was that the judgment was against the weight of evidence. The one submission of counsel for the tenant to which I may first address myself was that the relationship of the person for whom the premises were

[p.221] of [1973] 2 GLR 220

required, being that of a nephew, was not within a member of the landlord’s family under the Rent Act, 1963 (Act 220).

Section 17 (1) (g), of the Act is the pertinent section and provides:

“(1) Subject to the provisions of subsection (2) of section 25 and of section 28, [which provisions are not relevant in this appeal] no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by 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, except in any of the following circumstances [the one relied upon by the tenant being] . . .

(g) where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself, a member of his family or any person in his whole time

employment, such premises being constructed to be used as a dwelling house . . .”

A member of the landlord’s family is defined by section 36 of the Act to mean, “the father or mother, a wife, husband, child, brother or sister, or such other person as may be prescribed.”

The grounds for recovery or ejectment under section 17 of the Act should be satisfied by a landlord as a prerequisite, before the court proceeds to consider whether or not it exercises its discretion to make an order for the recovery of the possession or for the ejectment of a tenant. Where the prerequisite ground has not been satisfied, the trial court does not embark upon any such consideration of its discretion.

Section 36 as it now stands does not include a nephew in the category of members of the landlord’s family. That, in the matrilineal pattern of Ghanaian society may sound odd to deny the nephew who, may possibly inherit the whole estate on the death of the landlord, the status of his being a member of the landlord’s family in the sense of being a dependant, while the landlord was alive. Whether that was the real intention of the legislature or the draftsman’s oversight that is the present state of the law and the court must give effect to it. The point was conceded by counsel for the landlord.

On that submission alone the appeal must succeed, namely, that there was no evidence to sustain the order for recovery of possession.

I allow the appeal and on this conclusion I do not find it necessary to consider the other grounds or submissions of counsel for the tenant. Accordingly I set aside the decision of and order for ejectment by the trial court and enter judgment for the tenant. The tenant shall have both the costs of the action at the court below and that of this appeal assessed at ¢65.00. Costs in the court below if already paid by the tenant shall be refunded.

DECISION

Appeal allowed.

S. O.