NIMAKO v. ARCHIBOLD [1966] GLR 612

Division: SUPREME COURT

Date: 27 JUNE 1966

Before: MILLS-ODOI, BRUCE-LYLE AND SIRIBOE JJ.S.C.

CASES REFERRED TO (1) Bazalgette v. Hampson (1920) 89 L.J.K.B. 476; 122 L.T. 683; 84 J.P. 136; 36 T.L.R. 240.

(2) Tendler v. Sproule [1947] 1 All E.R. 193; 97 L.J. 81, C.A.

NATURE OF PROCEEDINGS

APPEAL against a decision of the High Court wherein the court reversed the decision of a circuit court granting the plaintiff’s application to recover his premises rented to the defendant. The facts are sufficiently stated in the judgment of the court.

COUNSEL

Agadzi for the appellant.

Annan for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

Siriboe J.S.C. delivered the judgment of the court. This appeal is from the decision of Hayfron-Benjamin J. delivered on 11 January 1965, in an appeal brought before him from the Circuit Court, Accra. The plaintiff as landlord of house No. 337, South Labadi Road Estate, claimed recovery of possession of the said house on the ground that he reasonably required it for the occupation of himself and his children. The house consists of two bedrooms, a sitting or living-room and a dining-room; all of which at the time of hearing, the defendant alone occupied, paying a monthly rent of £G3. This rent, as admitted by the defendant, is cheap considering the premises in question and the housing problem in Accra. That however, was not the ground for asking for possession, because, as further admitted by the defendant, the plaintiff had never at any time during the tenancy, suggested an increase of the rent to him. On the contrary, the evidence shows that some time between July and August 1962, the plaintiff notified the defendant that he required the house for himself and his family. This was because he has been living with four of his children (all girls) in his wife’s house at Weija, from where he comes to work in Accra, which he described as inconvenient, because of the distance. His wife, according to him, has been persistently demanding

[p.614] of [1966] GLR 612 money from him. Furthermore, the plaintiff said he has no comfortable place to stay at Weija, and also one of his two sons had arrived back from studies overseas, and was experiencing difficulties in getting accommodation.

The trial circuit judge, his honour Judge Attoh (as he then was) in a well-considered judgment delivered on 20 July 1963, held inter alia that he was satisfied that the plaintiff’s grounds in support of his claim for recovery of possession were reasonable. He accordingly granted the defendant time up to 20 September 1963 to give up possession to the plaintiff.

From that judgment, the defendant appealed to the High Court, on the sole ground that the judgment was against the weight of evidence. The record shows that the learned judge, after hearing counsel for the plaintiff very briefly on the question of alternative accommodation, did not call upon defence counsel, but allowed the appeal without stating any reasons for his decision which is as follows:

“Per curiam:

Appeal allowed, judgment of the circuit court appealed against set aside. It is directed that judgment be entered dismissing the plaintiff ‘s claim. Costs to the defendant in this court and in the court below assessed at 50 guineas. That judgment certainly sinned against the accepted principle of law that a judge must give reasons for his decision, more so, where he is upsetting a decision of the court below on appeal.

Being aggrieved by and dissatisfied with that judgment, the plaintiff also appealed to this court on these two grounds:

“(a) The judgment is erroneous and cannot be supported by the evidence on record.

(b) The learned judge was wrong in holding that the learned circuit judge did not consider the availability of alternative accommodation for the defendant-appellant-respondent.”

It would seem from the above grounds of appeal, and the plaintiff’s counsel’s brief submission made before the High Court, that the learned judge, like defence counsel, was of the erroneous opinion that a landlord cannot obtain an order of the court for possession as in the instant case, unless he can provide the tenant with an alternative accommodation.

Defence counsel’s submission before the circuit court on this point which was rejected, and rightly so in our view, was: Plaintiff ejecting defendant under section 11 (1) (d) of the Rent Control Ordinance . . . Order must be made if plaintiff can show that he has provided reasonable alternative accommodation for the tenant.” That

[p.615] of [1966] GLR 612 submission was based on the defendant’s evidence that although it was between July and August 1962 that the plaintiff told him he would need the premises, yet the plaintiff had not offered him any alternative accommodation.

Because of the perfunctory manner in which the learned judge disposed of the appeal as evidenced by his judgment referred to earlier on, and also having regard to all the circumstances of the case as appearing on record, we considered it proper to call upon counsel for the defendant to support the judgment of the High Court.

His submissions can be placed under four heads as follows: (a) that the words “any member of his family” as used in section 11 (1) (d) of the Rent Control Ordinance, 1952,1 do not include children who are of age, or who are married. That under the Ordinance or by customary law, there is no obligation on the plaintiff to provide accommodation for such children; (b) that the main ground for asking for possession is not one of hardship or reasonableness, but rather comfort and convenience, which ground falls outside the requirements of the Ordinance; (c) that the trial court failed to satisfy itself of the availability of alternative accommodation for the defendant, so the order for possession ought not to have been made and (d) that on the question of hardship, the defendant’s position with regard to the lot of furniture he had, should have been considered, as it would be a hardship on him if ordered to give up possession of the house. Section 11 (1) (d) of the Ordinance in question states that:

“where the premises are reasonably required by the landlord (not being a landlord who has become landlord by purchasing the premises or any interest therein after the commencement of this Ordinance,) for personal occupation as a dwelling house by himself, any member of his family or any person in his whole time employment:

Provided that the ground that the premises are reasonably required by the landlord for personal occupation by someone in his employ shall not be a sufficient ground if the Court is not satisfied that such landlord usually provides premises for occupation by an employee of the class to which that employee belongs:

Provided further that no such order shall be made if the Court is satisfied having regard to all the circumstances of the case, including any alternative accommodation available for the person for whose occupation the premises are so required or for the tenant, that greater hardship would be caused by granting the order than by refusing it.”

[p.616] of [1966] GLR 612

Dealing with (a) of these submissions, the view of this court is that the Rent Control Ordinance or customary law does not place any limitation on the class or age of the landlord’s family, for whose occupation the landlord should establish that he reasonably requires possession of his premises from the tenant.

In considering (b) of the submissions, it is essential to bear in mind the plaintiff’s evidence about his living conditions at Weija, the distance he covers to work and back, and the son’s difficulty in getting accommodation. In short, he complains that he is not comfortable at Weija, and also finds it inconvenient to travel to and from Weija and Accra.

If, as defined in the Concise Oxford Dictionary (4th ed.) “ ‘comfortable’ means, such as to obviate hardship, or free from hardship,” then it is difficult to understand counsel’s submission (b), that the plaintiff’s claim falls outside the requirement of the Ordinance, because it is based on the ground of comfort and convenience and not hardship. Surely, it cannot be said that a landlord in the position of the plaintiff, who from the nature of the evidence on record, has been living at the mercy of the wife, and covering all that distance to attend work, suffers no hardship. Nor should sight be lost of the evidence about the son’s difficulty in getting accommodation. All this the trial court took into consideration in its judgment before arriving at the conclusion that reasonable grounds had been established by the plaintiff for asking for possession, as opposed to the defendant whose claim to retain the house was that he had a lot of furniture and so as the plaintiff had not offered him alternative accommodation, he would suffer greater hardship if ordered to give up possession of the house.

The submissions in (c) and (d) therefore, that the trial court did not consider the question of hardship are not supported by what appears on the record of proceedings.

Further on the question of hardship, the trial circuit judge disbelieved the defendant’s bare assertion of a lot of furniture which the defendant claims to possess, but to the extent of which he led no evidence to prove. In any event, the learned circuit judge did not consider the possession of furniture a hardship on the defendant. In his judgment, he found as a fact, that even though the defendant had notice of the plaintiff’s desire to recover possession of the house many months before the date of trial, yet, no attempt had been made by him to find another place. Neither could the defendant prove, as pleaded by him, which the plaintiff denied, that the latter has other houses.

[p.617] of [1966] GLR 612

In Bazalgette v. Hampson,2 where an action was brought for recovery of possession of a dwelling-house under an Act — the provisions of which ate similar to the one under consideration, Avory J. had this to say:

“I am satisfied that the premises are reasonably required by the plaintiff for the occupation of herself and her family. But to entitle the plaintiff to obtain an order for possession the Court, by virtue of the Increase of Rent and Mortgage Interest (War Restrictions) Amendment Act., 1919, has to take into consideration, among other things, the ‘alternative accommodation available for the tenant.’ That does not mean that a tenant is entitled to say that no case has been made against him unless the landlord proves affirmatively that there is actual alternative accommodation available for him. The tenant cannot sit down and do nothing but wait until the landlord has found alternative accommodation for him. The onus is on the defendant to show that he has done his best to secure alternative accommodation. In this case the defendant has not satisfied that onus. . . the defendant has taken up the position that it is the business of the landlord not only to find the alternative accommodation, but also to pay the cost of the removal. That is not my view of the meaning of the Act … Therefore, there will be judgment for the plaintiff for possession . . .”

We therefore agree with the trial court in rejecting counsel’s submission that under our Ordinance, a plaintiff must provide a defendant with alternative accommodation before a plaintiff could obtain an order for possession of the house. What the court has to decide, after taking all the circumstances of the case into consideration, including the conduct of the parties, and any evidence about the availability of alternative accommodation for either the landlord or the person for whom possession is required, or for the tenant, is, whether it is reasonable to grant the order for possession without causing greater hardship than to refuse it. The matters to be taken into consideration are those as they exist at the date of hearing. The question of reasonableness or greater hardship is pre-eminently one for the county court judge (in this case the trial circuit judge) whose decision will only be upset, if there was no evidence upon which he could properly have based his conclusion: see Halsbury’s Laws of England (3rd ed.), Vol. 23, p. 814, para. 1593, and p.823, para. 1606. Hence in Tendler v. Sproule,3 Morton L.J. said:

[p.618] of [1966] GLR 612

“[W]hen evidence is led which is directed to the question of reasonableness, and when the judge gives a decision giving possession to the landlord, this court will always assume that he has applied his mind to the question of reasonableness before giving his decision.”

In the instant case, we are satisfied that the trial court’s decision giving possession to the plaintiff was based upon evidence directed to the question of reasonableness, with which we have no justification to disagree. The learned judge of the High Court, therefore, erred in upsetting it, and so we have no alternative but to allow the appeal against his decision.

DECISION

Appeal allowed.

T. G.