JOHN LAWRENCE CHEMISTS LTD vs. OBENG-ANSONG [1995-96] 1 GLR 146

CASES REFERRED TO

(1) Epsom Grand Stand Association Ltd v Clarke (1919) 35 TLR 525, CA.

(2) Gbedemah v Ofori [1991] 1 GLR 345, CA.

(3) Darnell v Millwood [1951] l All ER 88; sub nom Darnell v Millward [1950] WN 567; 66 TLR (Pt 2) 1100, CA.

(4) S A Turqui & Bros v Dahabieh [1987-88] 2 GLR 486, CA.

NATURE OF PROCEEDINGS

APPEAL By the appellant-company from the decision of the trial court wherein it ordered the appellant to yield vacant possession of its rented premises because the respondent-landlord reasonably required it for purposes of his business. The facts are sufficiently stated in the

[p.148] of [1995-96] 1 GLR 146 judgment of Lamptey JA.

COUNSEL

Dan Afari-Yeboah for the appellant.

W A N Adumua-Bossman for the respondent.

JUDGMENT OF LAMPTEY JA

The respondent, Richard Obeng-Ansong, is the landlord of a premises in Accra which he rented to the appellant-company, John Lawrence Chemists Ltd, sometime in 1972. On the expiration of the tenancy the respondent served the appellant with notice to give up vacant possession of the premises. This was after negotiations for a renewal of the tenancy broke down. The appellant duly completed Form 14 of the Rent Regulations, 1964 (LI 369) and filed it with the rent officer in Accra on 19 January 1988. Ten days later, ie on 29 January 1988, the respondent sued the appellant-company and claimed, among other reliefs, an order for recovery of possession of the demised premises pursuant to section 17(1)(h) of the Rent Act, 1963 (Act 220). The appellant resisted the claim of the respondent. After trial on the merits judgment was entered for the respondent. Aggrieved by the judgment, the appellant appealed to this court.

The gravamen of the complaint made against the judge was that he erred in making a finding that the respondent successfully proved that he reasonably required the premises for his own business purposes. Learned counsel argued that on the evidence before the court, the respondent did not have or own a business as a going concern in respect of which he required and needed accommodation or premises. He sought to show that the demand for vacant possession of the demised premises was made at a time when the respondent merely showed an intention to go into business. He submitted that the respondent failed to satisfy a mandatory statutory requirement, namely that he needed the premises for an existing and on-going business. Counsel for the respondent argued the contrary. He took the court through the evidence and sought to show that there was undisputed evidence that the respondent had and owned various businesses in active operation before and at the date of the demand for vacant possession of the premises. He submitted that the trial judge was right in the conclusion he reached on this issue.

The issue raised above is a fairly simple one. Is there evidence on the record to support the claim that the respondent needed the premises

[p.149] of [1995-96] 1 GLR 146 for his own existing business purposes? The trial judge posed the question and answered it in the affirmative. The judge made the following observation on this issue:

“I find that evidence about the nature of his business, the number of staff he employs, the suitability of the premises under consideration, evidence mostly uncontroverted; these pieces of evidence all go to support his contention about his need of the premises.”

There is evidence to support the finding made by the trial judge. In his evidence in-chief, the respondent testified: “The defendant is occupying the ground floor and the outhouse. My company Sun-Seekers Holidays Ltd is occupying the top floor. I am sharing it with my subsidiaries . . .” The respondent provided further evidence of the subsidiary companies as follows:

“Sun-Seekers Holidays Ltd is a holiday company and under it we have Sun Lodge Hotel, Accor Devimco and then there is the Tours section Sun-Seekers Tours which is a travel agency . . . I have registered the company about fifteen years.”

Of the companies listed above, the respondent admitted under cross-examination that at the date he demanded vacant possession only Accor Devimco was not yet a company carrying on any business. There can be no doubt that the business carried on by the respondent was expanding in scope by including tourism and air travel booking to mention only two. There was also appointment of additional members of staff to run the companies. In these circumstances, it cannot be disputed that the respondent reasonably needed and required additional accommodation and rooms for his existing and expanding businesses.

The complaint made by counsel for the appellant was that the demand for accommodation was made in relation to a business that the respondent intended and planned to bring into being. I do not accept this narrow and unduly restrictive meaning put forward by counsel for the appellant. In my opinion, the evidence before the court clearly and plainly established that the respondent who commenced his business from his dwelling-house and in due course moved his business to the top floor of the premises in dispute reasonably required the ground floor for his expanded business. In answer to the question on recovery of possession the respondent testified as follows: “I have indicated

[p.150] of [1995-96] 1 GLR 146 that I am running Sun-Seekers Ltd plus its units from 19 Sobukwe Road and that staff are not able to get accommodation.” Indeed, the evidence adduced by the respondent showed further that if he had accommodation and additional rooms, Accor Devimco Co would have commenced business. In my opinion, there was undisputed evidence to support the claim by the respondent that he reasonably required the premises for his own business.

An interesting issue obliquely raised by counsel for the appellant was that greater hardship would be caused to the business of the appellant with attendant loss of goodwill to it if the order for recovery of possession was made in favour of the respondent. That issue fell for consideration in the English case of Epsom Grand Stand Association Ltd v Clarke (1919) 35 TLR 525, CA. The court held that: “when the landlord has discharged the burden, the court’s discretion must be exercised in favour of the landlord and it is immaterial whether the tenant will suffer greater hardship or not.” I entirely agree with the opinion expressed in the passage. I wish to add that it is not a requirement under section 17(1)(h) of Act 220 that the court should and must consider the issue of hardship in determining the rights of the parties. The submission that greater hardship would be caused to the appellant if recovery of possession is ordered is plainly misconceived.

I wish to refer also to the statement of the principle of law in these cases as stated in the case of Gbedemah v Ofori [1991] 1 GLR 345, CA. The Court of Appeal held, as stated in the headnote at holding (3), as follows:

“(3) In landlord and tenant matters it was in the discretion of the court to decide on the reasonableness of the claim. The discretion to be exercised in such matters was not that of the Court of Appeal but that of the trial judge and his exercise of that discretion could not be set aside unless it appeared that he proceeded upon grounds which were wholly unreasonable . . .”

Ampiah JA (as he then was) in his judgment cited the following dictum by Evershed MR in the English case of Darnell v Millwood [1951] 1 All ER 88 at 90, CA;

“. . . the question [as to] what is reasonable is eminently a question of fact for the . . . judge, and, unless it can be shown that he has misdirected himself by omitting some point of substance or by

[p.151] of [1995-96] 1 GLR 146 taking account of something which should not properly have been considered, it is not for [the Court of Appeal] to disturb the judge’s findings.”

Another complaint made by counsel for the appellant against the judgment was that the trial judge erred in law when he decreed recovery of possession on the ground that the respondent reasonably needed and required the premises for his business under the style and name of Sun-Seekers Tours. He argued that at the date the respondent demanded vacant possession of the premises in dispute the company, Sun-Seekers Tours, was not in existence. He submitted that the trial judge erred in law in ordering vacant possession of the premises in dispute. Counsel for the respondent did not advert to this criticism made against the judgment.

I find from the evidence on record that Sun-Seekers Tours is not a limited liability company as the name clearly portrays. On the fact of exhibit C the Ghana Tourist Board granted a licence to Sun-Seekers Tours to operate as a “tour operator/travel agent in Ghana.” The licence bears the date 1 January 1988. In the instant appeal, counsel for the appellant had not shown that tour operating/travel agency is outside the scope of operations of and contrary to the regulations of Sun-Seekers Holidays Ltd which limited liability company was issued with a certificate to commence business on 19 January 1973. It will be seen that Sun-Seekers Tours is not a new company incorporated under the Companies Code, 1963 (Act 179). The evidence on record was that Sun-Seekers Tours is a unit of Sun-Seekers Holidays Ltd. Newlove Haimeng gave evidence as follows: “I was appointed executive consultant of Sun-Seekers Tours, a unit under the Sun-Seekers Holidays Ltd. I was appointed in January 1988. I am on a salary of ¢45,000 per quarter.” Counsel for the appellant cross-examined him on his evidence as follows:

“Q Sun-Seekers is a registered company?

A I am telling about Sun-Seekers Tours which is a unit.

Q Is it a company at all?

A It is a unit as far as I know.

Q Specifically who employed you?

A My director of Sun-Seekers Holidays Ltd—the plaintiff.”

It is clear from the pieces of evidence above that Sun-Seekers Tours

[p.152] of [1995-96] 1 GLR 146 is only a unit of Sun-Seekers Holidays Ltd and not a limited liability company. The argument that the respondent demanded vacant possession of the premises for use by a non-existent company as at the date of the demand was not open to the appellant. The evidence from both the respondent and Newlove Haimeng was that the premises were required for the business carried on by Sun-Seekers Holidays Ltd, a company which had been carrying on business since 1973. The appeal on this ground fails.

Counsel for the appellant submitted that the failure of the trial judge to make primary findings of fact, namely that the respondent reasonably required the premises for his own business was fatal to the decision he reached. He pointed out that the trial judge did not examine and evaluate the evidence on this issue. In reply, counsel for the respondent took the court through the evidence and submitted that the trial judge examined and considered the evidence and reached his conclusion. I have carefully read the proceedings and I find no merit in the complaint made against the trial judge. It is trite learning that there is no formula for writing a judgment. Every judge adopts a style and approach peculiar to himself. It is pertinent to refer to and quote from the case of S A Turqui & Bros v Dahabieh [1987-88] 2 GLR 486, CA the standard of proof in a case brought under section 17(1)(h) of Act 220. The Court of Appeal held at 509-510 that before an order for possession of business premises should be given against a tenant the following matters should be considered:

“(1) That there had been an agreement whether oral or otherwise for the letting of premises by a landlord to a tenant (2) That the lease has expired.

(3) That the premises are reasonably required by the landlord to be used by him for his own business purposes.

(4) That the premises are constructed in such a way that they can be used for the said business purposes.

(5) That the landlord has given not less than six months’ written notice to the tenant.

(6) That the written notice must inform the tenant of the landlord’s intention to apply for an order for:

(a) the recovery of possession, or (b) ejectment from the premises.”

[p.153] of [1995-96] 1 GLR 146

A careful reading of the judgment shows that the trial judge painstakingly considered the case before him guided by the principles of law reproduced above; including that stated under head (3).

Indeed, counsel for the appellant did not show by his argument that the trial judge failed to discharge the duty placed on him under head (3) above. In my opinion, counsel for the appellant was enjoined to support his submission by demonstrating by argument that the respondent did not prove that he reasonably required the premises for his own business purposes. I have elsewhere in this judgment addressed the issue raised and held that there was undisputed evidence in proof of head (3). I find no merit in this ground of appeal. In the result, I find that the trial judge came to the right conclusion on the evidence before him. I find that the appeal fails. I accordingly dismiss the appeal. I affirm the judgment of the lower court.

The lower court ordered the rent officer to ascertain and fix the recoverable rent for the period 1986 to 1990. In view of the decision of this court we vary the order as follows:

“Let the Rent Officer, Accra assess and fix the recoverable rent for the period 1986 to date of this judgment paying due regard and taking into account the purchasing power of the cedi during the said period.”

The tenant is hereby ordered to give up vacant possession of the premises in dispute on or before 1 September 1996—without further order or orders from this court.

At the commencement of the hearing of this appeal, counsel for the respondent informed the court that the appellant had purchased outright in his own name property on the same road as the premises in dispute. He added that the property was being developed and furbished to be used as a pharmacy shop. The property is by far bigger and more spacious than the premises in dispute. He stated further that the appellant owned another pharmacy shop at the Kaneshie Market, Accra. In reply to the above, counsel for the appellant agreed and confirmed the substance of the above matters. We are making an order on the appellant to give up vacant possession of the premises having taken into account the above statements of fact and the period between the commencement of the hearing and the final determination of the instant appeal. We have also considered the balance of convenience [p.154] of [1995-96] 1 GLR 146 and hardship of each of the parties herein. We find that in all the circumstances we should order the appellant to give up vacant possession of the premises on or before 1 September 1996.

JUDGMENT OF FORSTER JA.

I agree.

JUDGMENT OF SAPONG JA.

I also agree.

DECISION Appeal dismissed.

DRKS