Joseph Fawaz V. J. F. Nabban (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Landlord and Tenant—Increase of Rent (Restriction) Ordinance—Schedule II, para, (i) and proviso—Question of greater hardship—Trial Court’s view.
Appeals in Civil Cases—Trial Court’s view on greater hardship as between landlord and tenant—Principles on appeal.

Facts

The above-cited Schedule II, para, (t)-and proviso reads as follows:—
“A Court shall, for the purposes of section 13 of this Ordinance, have power to make or give an order of ejectment for the recovery of possession of any premises to which the Ordinance applies or for the ejectment of a tenant therefrom without proof of suitable alternative accommodation (where the Court considers it reasonable so to do) if:—

“(i) the premises are reasonably required by the landlord for occupation
for—(i) … or
“(ii) any son or daughter of his over eighteen years of age;
“Provided that an order or judgment shall not be made or given on any ground specified in paragraph (i) of the foregoing provisions of this Schedule if the Court is satisfied that having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order or judgment than by refusing to grant it”.

The plaintiff as landlord sued for recovery of premises being a shop under his residence. The landlord said his son was too young and needed supervision, which his mother could easily give from their residence.

The son had been having a shop on his own for months in the same street; the landlord said it was too far for his wife to go to owing to her domestic duties; and he offered this shop in exchange for the one under the landlord’s residence occupied by the defendant as his tenant.

The defendant had been in occupation of his shop for many years; he testified that his business would be adversely affected if he moved: he would lose cash customers and debtors would either not pay or delay payment; also that the other shop offered by the landlord was smaller and the ceiling lower.

The Magistrate inspected the shops and was of opinion that the shop offered
was not suitable for the defendant’s business; and upon consideration of all the evidence and circumstances he held that greater hardship would fall on the
defendant, and refused the plaintiff’s claim.

The plaintiff appealed to the Supreme Court without success and appealed further on the grounds that there was no evidence that the defendant would suffer any hardship, and that the decision was against the weight of evidence, arguing that the onus was on the tenant to prove greater hardship under the proviso to the above-cited para. (i).

Held

The Magistrate’s judgment showed that he was aware of the onus being on the tenant to prove greater hardship. There was evidence for his conclusion that the landlord (the plaintiff-appellant) wished to extend his business by placing his son in charge of the store and that that would cause greater hardship to his tenant (the defendant-respondent) who had established a goodwill there.

Per curiam: Once there is evidence which in law can amount to hardship on two sides, the legislature has deliberately made the trial Court the conclusive judge of the fact which is the greater hardship.

Appeal dismissed.