COURT OF APPEAL, ACCRA
Date: 8 APRIL 1974
LASSEY JA
NATURE OF PROCEEDINGS
APPEAL against the judgment of a trial circuit judge that the plaintiff landlord had not shown a genuine intention for requiring recovery of possession of his demised premises from the defendants. The facts are fully, set out in the judgment of the court.
COUNSEL
J. C. Armah for the appellant.
Ofosu Asante for the respondents.
[p.303] of [1974] 1 GLR 301
JUDGMENT OF LASSEY JA
Lassey J.A. delivered the judgment of the court. On 19 November 1973, this court allowed an appeal in this case after hearing the submissions of counsel for the parties, and reversed the decision of the trial court given in favour of the defendants, dismissing the plaintiff s action for recovery of possession, and the order for costs. In its place, there was substituted a judgment for the plaintiff to recover possession of the demised premises together with an order that the plaintiff was entitled to his costs in the court below as well as those of the appeal assessed at 0116.80. As the court was differing from the learned trial judge, it proposed that it would give reasons for allowing the appeal later.
The appeal which was from the decision of a circuit court, Accra, raises the question whether the plaintiff as landlord is entitled to be given possession of certain demised premises in accordance with the requirements of the Rent Act, 1963 (Act 220). The plaintiff ‘s action to recover possession was brought through his lawful attorney against the defendants who are traders. The defendants are tenants of the business premises of the plaintiff described as house No. 822/4, Knutsford Avenue, Accra, comprising display shops or stores on the ground floor. Each defendant occupies a store or shop, while an adjoining wholesale is used by the plaintiff himself for his business purposes.
By virtue of section 17 (1) (i), subparas. (i), (ii) and (iii) of the Rent Act, 1963, if a current tenancy has terminated and the tenant becomes a statutory tenant, and the landlord, after giving six months’ notice to the tenant to quit,
“(i) intends to pull down the premises and construct new premises,
(ii) intends to remodel the premises and the remodelling cannot be carried out with the tenant in occupation, or
(iii) requires possession of the premises to carry out a scheme of re-development. . . “
the court is entitled to order possession of the demised premises to be given to the landlord.
The facts given in evidence at the trial are that the plaintiff as landlord desires to demolish part of the building in which the demised premises of the defendants are situated in order to rebuild the same and render it more suitable. The condition of the building is stated to be weak and dangerous because it is an old building. To achieve this purpose, the plaintiff had the drawings of the new renovations in the building prepared and the specifications drawn up. These he submitted to the planning authority of the Accra-Tema City Council for approval, and a permit was issued authorising the new works. He produced the approved plan in evidence as exhibit C.
The plan shows that the plaintiff intends to carry into effect a scheme of redeveloping and remodelling the building of which the demised premises occupied by the defendants form part, and wants the defendants to quit their stores upon the termination of their current tenancies, but they stoutly refuse to go out. Whereupon the plaintiff took the defendants
[p.304] of [1974] 1 GLR 301
to court for an order of recovery of possession or ejectment, but the court declined to make any such order, holding that the plaintiff ‘s intention was not genuine and that the scheme of reconstruction is intended to breach the provisions of the Rent Act. The plaintiff was dissatisfied and appealed.
Excepting the ground of appeal which alleges that the decision is against the weight of the evidence, the combined effect of the other grounds of appeal filed turns on the proper interpretation of the relevant provisions under the Act which apply to the facts in this case. In this regard, it was the contention of the plaintiff that the learned circuit judge placed a wrong interpretation on the words of the subparagraphs of the relevant paragraph of the Act, and by reason of that interpretation or application came to a wrong decision on the evidence.
The defendants, on their side, refuse to give up possession of their respective stores or shops because they say the plaintiff shows no genuine intention of requiring possession of the rooms for redevelopment or remodelling, and that he put out such a scheme as a mere pretext with the object of getting the occupants out and resuming possession for his own business purposes contrary to the spirit and intention of the Rent Act. They allege that the kind of redevelopment and remodelling envisaged by the plaintiff can easily and conveniently be carried out without their being out of occupation of that part of the building, and that, in any case, on completion of the projected works, reinstatement of the individual defendants in his store or shop would be impossible as a result of the proposed changes in the nature of the premises. It is further urged on their behalf that the scheme presented by the plaintiff is meant to breach the provisions of the Rent Act and defeat its object or purpose.
In our opinion, the judge’s grounds for refusing to give possession to the plaintiff in the circumstances of this case do not seem to us tenable, having regard to the nature of the available evidence and the relevant terms of the Rent Act. There can be no doubt that while it is the main object of the Act to protect a tenant against arbitrary eviction by a landlord and to restrict the landlord’s common law right to recover possession in some cases, it does not preclude a landlord from getting possession in those cases where he has exhibited a genuine intention to embark upon a scheme of redevelopment and remodelling in the way required by the Act. It follows, therefore, that a landlord desiring possession of a demised house for the purposes of the Act must discharge the onus on him of showing that he has not feigned intention for putting in hand the scheme.
As already pointed out, the plaintiff possesses the plan, exhibit C, for the new works and the necessary authority to carry them out. That being so, for the judge to be in a position to be able to adjudge the plaintiff ‘s bona fides in putting out the scheme he must take these factors into account as well as look at the specifications of the projected extension. For it is no valid objection to giving possession that the plaintiff landlord has no present means or ability to execute the scheme. The defendants say that the plaintiff has started the renovations for well over a year and
[p.305] of [1974] 1 GLR 301
that in carrying them out he has been able to evict only one tenant occupying a portion of the ground floor of the building. They argue that as the present works in hand affect part of the building only, they can be safely carried into effect without their being out of occupation.
Our view is that the defendants’ contentions are not well founded. The plaintiff s case here comes straight within the scope of the instances mentioned under the relevant provision of the Act under which a court is entitled to give possession to a landlord. It seems that the learned circuit judge was himself satisfied on the evidence that the plaintiff intends to carry out a scheme of redevelopment and remodelling and for that purpose was issued with authority to undertake the new works by the planning authority, but he took the wrong view that, as the new works affect only a part of the building in which the demised premises of the defendants are situated, it is not necessary for the defendants to be put out of occupation of their respective stores or shops on the ground floor of the building in the process of reconstruction. For this reason also he refused to give possession to the plaintiff.
On reviewing the whole of the evidence on record, we are satisfied that the plaintiff s primary and immediate purpose for wanting possession of the demised premises in question is to put into effect his scheme of redeveloping and remodelling a substantial part of the building. The fact that the new works are being executed in stages or that the amount of expenditure for the project so far has not been shown to indicate that the plaintiff has the present means to redevelop and remodel is no legal ground for refusing to give him vacant possession. The true test, in our view, is the extent to which the whole of the scheme of redevelopment and remodelling affects, not only that part of the building which is the subject of the defendants’ tenancy, but the whole of the reconstructed building including the demised premises. It is clear to us that the scheme for redevelopment and remodelling of which the demised premises of the defendants form a part cannot be carried out unless and until possession of the rooms is recovered, and the plaintiff s case, therefore, falls within the relevant provisions under the Act. In our opinion, it is essential that in this kind of case, a court should not easily refuse to order that possession be given up merely because it has reason to suspect the bona fides of a landlord’s intention in putting such a scheme in hand. The right approach, we think, is for the court to find out if the landlord desiring possession has discharged the onus on him of fulfilling the conditions required to be satisfied under the express provision of the Act, and also has taken steps to carry into being the projected works.
One other reason for refusing possession by the judge is that the nature of the remodelling and redevelopment was designed to breach the provisions of the Act as reinstatement of each of the defendants in his separate store was impossible on completion of the new works. The learned judge, no doubt, must have reached this conclusion of the trial without regard to the mandatory provisions of section 18 (1) (a) of the Act which makes it compulsory for a landlord to give the dispossessed tenant an option to be reinstated if the tenant is willing to pay the recoverable rent for the
[p.306] of [1974] 1 GLR 301
reconstructed premises. It is clear, therefore, that although the 1963 legislation gives the right of possession to a landlord in certain cases, it does not however intend to put a tenant out of occupation indefinitely or unconditionally. By its provisions the Act imposes a mandatory condition on the landlord that after completion of the new works a dispossessed tenant should have a first choice to be reinstated. Such being the case, even if it is shown that the plaintiff in this case may have in contemplation that after the redevelopment and remodelling of the property he could resume possession himself or find it not convenient to reinstate the dispossessed tenants, that circumstance alone would not justify a conclusion that reinstatement is impossible, for it is obligatory under the Act to reinstate the defendants in this case on completion of the new scheme.
Finally, the question of the plaintiff s bona fides is a matter of fact primarily for the trial court to decide, but this court can upset such a finding of fact if it is of the opinion that the judge arrived at it regardless of the law as laid down. That the plaintiff here requires possession in order to reconstruct and redevelop a substantial portion of the building admits of no doubt on the evidence. But the trial judge was inclined to think that the plaintiff has not exhibited qualities of genuineness in his intention for requiring possession, and that his purpose in putting out the scheme was to circumvent the requirements of the Act by showing a secondary purpose as though it were a main purpose.
It seems the judge wrongly appreciated or assessed the value of the evidence given in relation to the plaintiff s intention for requiring possession of the demised premises. We think there is no question of sharp practice by the plaintiff which can be said to cast doubt or suspicion about his intention in putting out the scheme at all. On the contrary, he has been perfectly frank in saying that he wants possession of the demised premises for the main purpose of reconstruction and remodelling, and has the necessary permission from the planning authority to carry out the new works on the building. It is thus abundantly clear that the plaintiff as landlord has not put in hand the present scheme merely as an ancillary purpose open to him in law as if it were genuine. All the evidence is there to demonstrate that the structural changes in the building he intends to carry out are put forward in good faith as his main purpose shows that he wants to render the whole of the building safer and more commodious. That being his real reason for requiring possession, under the law he has brought himself under the relevant provisions of the Act, and there can be no legal difficulty in his way to recovering possession. We think the trial judge was wrong to construe his scheme as amounting to a design on his part to breach the Act or defeat its intention. It, therefore, follows from what we have stated that as a matter of law the plaintiff should have been given the possession he requires in the first instance.
DECISION
Appeal allowed.
S. E. K.
