IN DEFENCE OF SECTION 17 OF THE RENT ACT [AUGUST 1975] VOL.

VII
NO. 2 RGL 144—151

WOODMAN GORDON R.

THIS note argues the case against the contention in the last part of Dr. Kludze's article
"The termination of leases."1 Dr. Kludze's contention is that section 17 of the Rent Act,
1963 (Act 220), does not protect a person who originally occupied premises under a lease
but whose lease has determined for any reason.
Section 17 and its predecessors2 have been in effect for more than 30 years, and it has
been generally assumed that they protected the occupier whose lease had expired. No
court or commentator has hitherto suggested otherwise. Dr. Kludze's vigorous argument
is nevertheless to be welcomed as a challenge to accepted learning. It can not be rejected
merely because of its surprising nature. However, one gains confidence in disputing it
when one reflects that no-one has taken the possibility seriously before, while for the
accepted view we have the authority of numerous judges and commentators.
And Dr. Kludze's view is indeed surprising. As he states, it entails the conclusion that the
Act defines the term "statutory tenant," and makes provisions regulating his status, but
yet leaves no possibility of anyone ever becoming a statutory tenant. If this is the case,
Dr. Kludze is justified in describing the drafting as "clumsy," "unsatisfactory" and
"inept." Moreover, since the 1963 Act substantially re-enacts the 1952 Ordinance in this
respect, 3 it would seem that two generations of legislative draftsmen have suffered from
these deficiencies.
Dr. Kludze's main argument turns on the meaning of the word "tenant" in the opening
words of section 17. These provide that "no order against a tenant for the recovery of the
possession of, or for the ejectment from, any premises shall be made or given . . . except
in any of the following circumstances . . . “This, writes Dr. Kludze, protects only
"tenants". A person whose lease has come to an end, on whatever ground, is no longer a
"tenant." He is merely a "former tenant." Therefore his position is in no way affected by
section 17, and he can be ejected whether or not any of the circumstances listed therein is
present.
This interpretation of section 17 appears persuasive, if the words are construed literally,
and without regard to the context. However, if the Act is considered as a whole it appears
doubtful whether the draftsmen can have intended this. The Act makes reference in
several sections to a "statutory tenant." This person is defined in section 36 as "a tenant
who . . . remains in possession of premises after the determination by any means of his
tenancy and cannot by reason of the provisions of this Act be deprived of such possession
by his landlord . . ." 4 As Dr. Kludze writes, if his view of section 17 is correct, "nowhere
in the Rent Act, 1963, is there a provision by reason of which such a former tenant cannot
be ejected." Thus, if section 17 does not create statutory tenants, there can in reality be no
such person. This does not merely render the definition otiose. It also takes away all
purpose from sections 28 and 29, which are devoted exclusively to regulating the position
of statutory tenants.
Two well-known principles of statutory interpretation are that words are to be construed
in their context, and that a statute should not be interpreted to deprive part of it of effect.5
These principles ensure that the courts give due respect to the wishes of the legislature. If

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section 17 is looked at in context, it appears that the word "tenant" must have been
intended to include a "former tenant." Thus section 36, in defining a "statutory tenant,"
speaks of "a tenant" who remains in possession "after the determination . . . of his
tenancy": here someone whose tenancy has determined is still referred to as a tenant.
Thus the term "tenant" in section 17 also may include someone whose tenancy has
determined. Again, section 17 (1) itself, paras. (h) and (i), refers to situations where "the
lease has expired." Thus it contemplates the possibility of an "order against a tenant"
being made when there is no longer a lease. It seems peculiarly absurd for section 17 to
include conditions which can only be satisfied when a lease has expired if, as Dr. Kludze
contends, it protects only persons whose leases have not expired. It appears that the
section regards a person as a "tenant" if he was in possession under a lease, and has
remained after the expiry of the lease. This interpretation enables us to give effect to the
definition of a statutory tenant: he is the person who is protected from ejectment by
section 17.
In interpreting a statute it is helpful to look to other statutes, the terms of which it re-
enacts, and to the interpretation placed upon them by the courts. The provisions now
under discussion are derived from the English Increase of Rent and Mortgage Interest
(Restriction) Act, 1920. Section 5 of that Act provided:
"5. (1) No order or judgment for the recovery of possession of any dwelling-house to
which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given
unless— . . ."
There followed a list of alternative conditions similar to that in section 17 of the Ghana
Act. Section 15 made provision for the terms of holding by "a tenant who by virtue of the
provisions of this Act retains possession of any dwelling-house to which this Act
applies," and the marginal note to section 15 reads: "Conditions of statutory tenancy."
Apart from section 5, no section in the Act provided for a person to retain possession of a
dwelling-house when he would not otherwise be entitled to do so.
The question raised by Dr. Kludze for the Ghana Act was raised for the English Act of
1920 in Remon v. City of London Real Property Co. Ltd.6 On this point it was held by
Bankes L.J.:
"In no ordinary sense of the word was the respondent a tenant of the premises on July 2.
His term had expired. His landlords had endeavoured to get him to go out. He was not
even a tenant at sufferance. It is however clear that in all the Rent Restrictions Acts the
expression `tenant' has been used in a special, a peculiar sense and as including a person
who might be described as an ex-tenant, someone whose occupation had commenced as
tenant and who had continued in occupation without any legal right to do so except
possibly such as the Acts themselves conferred upon him."
"Scrutton L.J. held similarly7:
". . . the statute in endeavouring to define the new statutory tenancy uses the phrase `A
tenant who by virtue of the provisions of this Act retains possession of any dwelling-
house to which this Act applies' and the framers of the Act were obviously under the
impression that some provision of the Act did entitle a tenant to retain possession. They
can only have been referring to the section which prevents any order for the recovery of
possession being made. Whom did they mean to include in the term `tenant'? If a tenant
by agreement whose tenancy had expired was not within those terms, the whole purpose
of the Act would have been defeated, for it was obviously intended to allow former

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tenants who were willing to carry out the terms of their old tenancy, as modified by any
permissible statutory increases of rent, to stay on. If this was not so every weekly or
monthly tenant, the small tenant for whose benefit the Acts were obviously framed, was
outside the Act. Unless `tenant' includes a former tenant by agreement holding over
against the will of the landlord . . . the whole object of the Act is defeated. It is true that
some of these persons would never previously have been called `tenants' by any lawyer . .
. I feel that I am straining language in speaking of a person whose tenancy has expired,
and who stays in against the active protest of the landlord, as a `tenant' ...; but such a
person appears to be within the clear intention of the Legislature . . .”
This case was cited in Karam & Sons v. Traboulsi, 8 one of the Ghanaian cases cited by
Dr. Kludze as being opposed to his view, and it may be assumed that the court regarded
the arguments of the English judges as valid on this point. Bassil v. Sfarijlani9 has not
yet been reported, but, as Dr. Kludze notes, it is also authority against his view. It should
be noted further that other cases concerning section 17, and its application to periodic
tenancies, are also impliedly against his view.10
These English and Ghanaian decisions are of strongly persuasive authority for two
reasons. Firstly, the judgments considered the question raised by Dr. Kludze, and, at least
in the English case, set out persuasive arguments for the rejection of his view. Secondly,
the legislature may be deemed to have known of these decisions, and to have endorsed
the interpretation they placed on the statutes, by re-enacting similar terms in the Rent Act,
1963. This last argument is not merely a technical point on a rule of statutory
interpretation although as such it is an argument which should carry some weight.11 But
it is also good sense to suppose that the draftsmen of the 1963 Act considered the judicial
treatment of the previous legislation when drafting this Act. Indeed, on one point new
provisions were inserted, and it seems clear that this was because it was desired to reverse
a controversial judicial interpretation of the previous enactment.12
This, it is submitted, disposes of Dr. Kludze's principal argument. One subsidiary
argument needs mention. He contends that his interpretation "is reinforced by the sort of
circumstances stipulated in section 17 (1) of the Act, which include arrears of rent, breach
of covenants, nuisance or annoyance, immoral or illegal use of the premises, waste and
the tenant's notice to terminate the lease. None of these circumstances would be
applicable if section 17 were meant to cover a tenant whose lease has expired."
His argument is apparently that, if the lease has determined, the obligations under the
lease cannot be continuing. The implication is that, for example, rent is no longer
payable, so the occupier cannot be in arrears with his rent. The answer to this is that, on
the generally accepted interpretation, a tenant who remains in possession on the
determination of his lease is, until he can be ejected, a statutory tenant; and a statutory
tenant is, by section 29, subject to obligations as a tenant, these being generally the
obligations which he had under the original tenancy.
The objection put above to Dr. Kludze's argument is that it renders otiose that part of
section 36 which defines a statutory tenant, and the whole of sections 28 and 29,
regulating the statutory tenant's position. This was the main objection, but there are
others, each of which would need to be answered before his view could be accepted.
Firstly, it is doubtful whether, if Dr. Kludze's view were accepted, section 17 would have
any effect whatsoever. He recognizes some difficulty here when he writes:

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"One may question why section 17 was provided at all, if it is intended to protect only
tenants. The simple and direct answer is that it is intended to protect tenants against
harsh, oppressive or unconscionable terms and covenants in leases. For, a landlord who
seeks to eject his tenant for the breach of a covenant in the lease must show that the term
breached is consistent with the provisions of section 17 of the Rent Act."
He gives the example of a term in a monthly tenancy for the payment of rent half-yearly
in advance. This provision would be contrary to section 25 (5) of the Act, and thus its
breach would not come within section 17(1)(b), which permits ejectment for the breach
of an obligation "so far as such obligation is consistent with the provisions of this Act."
However, it is submitted that, even if section 17 (1) (b) did not exist; a tenant could not
be ejected for breach of such a term. If indeed such a term would be inconsistent with
section 25 (5), 13 then it would surely be an illegal term, which the courts would refuse
to enforce. Thus section 25 (5) would prevent ejectment on this ground. Furthermore,
there would seem to be no circumstance whatever where the common law would allow
forfeiture, and where section 17 would not.14 Therefore even this function of section 17
(1) would disappear on Dr. Kludze's interpretation and this much-discussed, lengthy and
complex section would have no more effect than a blank page in the statute-book.
Secondly, section 17 (1) (i) refers to the case "where the lease has expired and the tenant
is a statutory tenant." Thus section 17 itself contemplates the existence of statutory
tenants. Dr. Kludze's view does not merely posit a conflict between section 17 and other
sections; it posits self-contradiction within section 17.
Thirdly, section 17 (1) (k) would have no operation, even if the other paragraphs had.
This paragraph expressly allows an order for ejectment in certain cases where the lease
has stated in writing that it was for a term during the absence of the landlord from Ghana
or from that part of Ghana where the premises are situated, and the landlord has returned
to Ghana or that part of Ghana. But at common law a lease granted for such a term would
necessarily determine on the landlord's return. Thus this paragraph can never be satisfied
unless the lease has determined, in which case, according to Dr. Kludze, section 17 has
no application.
We may now turn to wider issues. Dr. Kludze objects that the generally accepted view
would make every lease in Ghana a perpetual lease, because no landlord could
automatically recover possession on the expiry of the lease. This, of course, applies only
to those leases to which the Act applies, which generally means all leases of premises.
But even in this respect, the conclusion seems unjustified. It has been held that section 17
only restricts, and does not enlarge the landlord's powers of recovery of possession. He
cannot recover possession merely by establishing one of the conditions specified in
section 17. He also has to show that he would, apart from section 17, be entitled to
possession. This is why the duration of the lease is important. If the lease is still in force,
a landlord seeking possession must both show a right under the lease, and satisfy one of
the conditions in section 17. If, for example, he has granted a lease for ten years without a
forfeiture clause, he cannot recover possession for breach of a covenant before the ten
years have expired: if a covenant is broken, section 17 is satisfied, but the common law
does not allow recovery. However, as soon as the lease has expired, the common law
allows a landlord to recover possession. From this point onwards, only the Act can save
the tenant. If the lease is for two years only, this situation arises much sooner. Thus it is

4
not correct to argue that, on the generally accepted view, "a tenant who takes a ten year
lease would be in exactly the same position as a tenant who agrees on a two-year lease."
It may be added on this point that paragraphs (h) and (i) of section 17 (1) are applicable
only "where the lease has expired." Here it is clearly indicated that the duration of the
lease affects the rights of the parties.
Finally, we should consider the social effects which would ensue from the
implementation of Dr. Kludze's view. According to him, the Act does not give any
protection to a tenant if the lease has been terminated by any mode known to common
law. Most leases of premises in Ghana are monthly tenancies, according to an
observation of Sowah J.A., cited by Dr. Kludze.15 Such a tenancy can be determined by
either party giving one month's notice. Therefore, if Dr. Kludze's view were correct, in
the majority of tenancies a landlord who wished to recover possession could do so simply
and rapidly by giving notice. The notice would take effect within two months at the most,
and would place the tenant outside the protection of section 17. In this majority of cases
a landlord would be wasting his time trying to prove a breach of obligation, a plan for
remodelling, or any of the other circumstances listed in section 17, when he could so
easily recover possession by giving notice. From the tenants' point of view, the Act
would, in the majority of cases, offer no security. (Indeed, if, as has been argued, Dr.
Kludze's contention renders section 17 completely otiose, the Act would never give any
tenant more security than the common law.) It should be remembered, moreover, that
there is a relation between the various parts of the Act. The provisions for restricting
rents will not be effective if landlords can easily eject tenants. A tenant who can be
ejected on a month's notice, for no stated reason, can hardly argue about the scale of his
rent. In such circumstances landlords would not need to resort to threats, which are a
criminal offence. It would be quite clear to everyone concerned that a tenant who tried to
take advantage of the rent restriction provisions in the Act was liable to be sleeping in the
streets within two months, without any discussion or possibility of protest. It is submitted
that Dr. Kludze's view is not merely opposed to the authorities; it does not merely turn
sections 17, 28, 29 and all other references to statutory tenants into verbiage; it also
destroys the purpose of the entire Act.

FOOTNOTES
1. (1975) 7 R.G.L. 10-35.
2. Defence (Rent Restriction) Regulations, 1942 (Regulations No. 20), reg. 5; Defence
(Rent Restriction) Regulations, 1943 (Regulations No. 18), reg. 8; Rent Control
Ordinance, 1947 (No. 30), s.9; Rent Control Ordinance, 1952 (No. 2), s.11.
3. S.11 of the Ordinance corresponds to s.17 of the Act. The definition in the Ordinance
of "a tenant" includes what is now the definition of a statutory tenant.
4. There are two other types of statutory tenants, but they are not relevant to this
argument.
5. See, e.g. Maxwell, The Interpretation of Statutes (12th ed., 1969, Langan), pp. 58 et
seq., 36 et seq., respectively.
6. [1921] 1 K.B. 49 at p. 54, C.A.
7. Ibid. at pp. 57-58.
8. [1964] G.L.R. 513.
9. High Court, Accra, 1 October 1966; digested (1967) C.C. 20.

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10. See, e.g. Alameddine Bros. v. Paterson Zochonis [1971] 2 G.L.R. 403, C.A., where it
was assumed without question that the landlord must not only terminate the tenancy by
proper notice but also satisfy one of the conditions in section 17. Megarry states the view
being argued here, citing Remon's case. He comments: "It would probably be superfluous
to state this out for the fact that [one case] may be read as indicating the contrary."
Megarry, The Rent Acts (8th ed., 1955, Brammall and Baker), p. 177, n. 55.
11. Maxwell, op. cit., p. 73. See also Anin v. Ababio [1973] 1 G.L.R. 509, 515-516.
12. S.16 (2)-(5), reversing the effect of Hinawi v. Bassil (1958) 3 W.A.L.R. 495.
13. S.25 (5) merely prohibits demands for such payments as conditions for the grant,
renewal or continuance of such tenancies. It is arguable that this does not prevent the
parties from agreeing to them, although this writer would take the view that it normally
does.
14. There might appear to be a possibility of this in respect of forfeiture for non-payment
of rent. S.17(1)(a) allows ejectment only if rent is at least one month in arrears. A term in
a lease might provide for forfeiture immediately the rent is in arrears, even by one day.
But at common law it seems certain that relief would be given in any case where
forfeiture was demanded within the first month. Thus even here no tenant would need to
rely on section 17.
15. Alameddine Bross. v. P.Z. Ltd. [1971] 2 G.L.R. 403 at p. 410.