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JOSEPH FAWAZ
V.
J. F. NABBAN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
17TH DAY OF NOVEMBER, 1952
W.A.C.A. NO. 3465
2PLR/1952/65 (WACA)
OTHER CITATION(S)
2PLR/1952/65 (WACA)
(1952) XIV WACA PP. 226-228
LEX (1952) – XIV WACA 226-228
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
VERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
JOSEPH FAWAZ – Appellant
AND
J. F. NABBAN – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiff from Supreme Court’s decision affirming the Magistrate on appeal
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REPRESENTATION(S)
F. R. A. Williams — for Appellant
J. I. C. Taylor — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Landlord and Tenant – Restriction of landlord’s right to reclaim possession of shop –Balance of hardship – How determined – Relevant consideration – Increase of Rent (Restriction) Ordinance – Schedule II, para. (i) and proviso – Question of greater hardship – Trial Court’s view
APPEAL:- Appeals in Civil Cases – Trial Court’s view on greater hardship as between landlord and tenant – Principles on appeal
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CASE SUMMARY
The above-cited Schedule II, para. (i) 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).
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
1. The Magistrate’s judgment showed that he was aware of the onus being on the tenant to prove greater hardship.
2. 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.
3. 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.
Cases cited:-
(1) Sims v. Wilson, 2 All E.R. 261.
(2) Coplan v. Greene, 1947, 2 All E.R. 393, at 394.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
This is an appeal from a judgment of the Supreme Court which upheld on appeal the judgment of the Magistrate. Before the appeal was argued on the merits the Court ruled that the plaintiff-appellant had taken the correct step in applying to the Court below for special leave to appeal under section 4(1) of the West African Appeal Court Ordinance (Cap. 229), and that rule 13(1) of the Appeal Court rules does not apply.
The landlord, the appellant, a Syrian trader, required possession of a shop under his residence at 30 Balogun Street, Lagos, which was occupied by his tenant, the defendant-respondent, so that the appellant could set his son up in the textile trade in the shop in question. The landlord carries on business himself at 7A Ereko Street, Lagos. He says his son is too young to be in charge of a business without supervision so if he obtained possession of the store under his residence, his wife could go downstairs to the shop without inconvenience to assist the son, whilst at present she is unable, owing to her domestic duties, to go up the road to a shop at No. 2 Balogun Street (which is the same street) in which the son has been conducting a business for about 18 months, according to the appellant’s calculation, but for, nine months according to the son. The appellant offered No 2 Balogun Street to the respondent as alternative accommodation.
The tenant, the respondent, also a Syrian trader, has been in occupation of the shop at 30 Balogun Street since the year 1942 at a rental which had been increased from £48 to £75 in 1944 and to £100 in 1947. According to his testimony he carries on a large retail and wholesale trade in textiles in the premises; his business would be adversely affected if he had to remove as he would lose his cash customers and his debtors would use the fact of his removal as a pretext not to pay or to delay payment of their accounts, The alternative accommodation at No. 2 Balogun Street, he maintained, was not suitable for his business; it is smaller and the ceiling is lower. Another store adjoining No. 30 Balogun Street was offered to the respondent. It has been described by the Magistrate as a den and, if that is so, the public would certainly not unreasonably conclude that a strange change had overcome the respondent’s circumstances if he were obliged to move into it.
As stated above the appeal is from a judgment of the Supreme Court which dismissed an appeal from the judgment of the Magistrate, Lagos Magisterial District.
After inspecting the shops the Magistrate held that No. 2 Balogun Street was, in his opinion, not suitable for the respondent’s business. On a consideration of all the evidence the Magistrate further held that “having regard to the circumstances as revealed from the evidence, including the alternative accommodation offered to the defendant, greater hardship would certainly fall on the defendant if he made an order in plaintiff’s favour for recovery of possession.
There are two grounds of appeal, namely, that there was no evidence that any hardship would be suffered by the defendant-respondent if an order for possession were made and further that the judgment of the Magistrate is against the weight of evidence.
Section 13(1) of the Increase of Rent (Restriction) Ordinance (Cap. 93) and the Second Schedule thereof and paragraph (i) are identical with section 3(1) and Schedule 1 and paragraph (h) of the English Rent and Mortgage Interest Restriction (Amendment) Act, 1933.
Mr. F. R. A. Williams for the appellant has referred to Sims v. Wilson (1) in support of his submission that the onus was on the tenant to prove greater hardship under the proviso to paragraph (i) of Schedule 2 of Cap. 93.
I do not think there could have been any doubt in the mind of the Magistrate as to where the burden lay on this issue because he states in his judgment that he has applied the principles enunciated in a number of cases which he sets out, and Sims v. Wilson (1) on the question of greater hardship is one of them.
The Magistrate had to consider all the circumstances of the case, as he observes early in his judgment, and then to ask himself whether the tenant had established that greater hardship would be caused by granting the order than by refusing it. The Magistrate’s view, on considering the evidence, was that the appellant wished to extend his business by placing his son in charge of the store and that that could not be done without causing greater hardship to the respondent who, undoubtedly, had established a goodwill in the shop at 30 Balogun Street. That judgment could only be dissented from if it were based on some finding of fact of which there was no evidence or if the Magistrate had misdirected himself.
In my view, there was evidence upon which the Magistrate could come to the conclusion he did. The facts are sufficiently set out in his judgment and have already been given in outline earlier in this judgment. That disposes of the appeal, but having already drawn attention to the similarity between the relevant provisions of the English Rent and Mortgage Interest Restriction (Amendment) Act, 1933 and the Nigeria Increase of Rent (Restriction) Ordinance (Cap. 93), I wish to refer to the observations of Lord Greene, M.R., in Coplan v. Greene (2), on the question whether the decision of the County Court Judge on the issue of balance of hardship is final or should be made the subject of appeal. After expressing the view that it was not the intention of the legislature to allow these matters to be litigated to the Court of Appeal, much less the House of Lords, he continues:
“of course if in a case there is evidence of hardship on one side and none on the other, the County Court Judge can come to only one conclusion, and if he finds hardship where the facts are not sufficient to constitute hardship in law, for example something trivial, like the absence of a view of a neighbouring hill, river or tree or something pleasant of that kind, he makes an error in law, but once there is evidence which in law can amount to hardship on two sides, Parliament has deliberately made the County Court Judge the conclusive Judge of the fact which is the greater hardship”.
In my opinion therefore the appeal should be dismissed.
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FOSTER-SUTTON, P.
I concur.
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VERITY, C. J., NIGERIA.
I concur.
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Appeal dismissed.
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