3PLR – JOSEPH FAWAZ V. F. NABBAN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JOSEPH FAWAZ

V.

F. NABBAN

 WEST AFRICAN COURT OF APPEAL

CITATIONS

(1952) 14 W.A.C.A. 276.

 

BEFORE THEIR LORDSHIPS

FASTER-SUTTON, P.

VERITY, C.J. (NIGERIA).

COUSSEY, J.A.  (read the lead judgment of the court)

 

REPRESENTATION

  1. R. A. Williams for Appellant.
  2. I. C. Taylor for Respondent.

 

MAIN ISSUES

REAL ESTATE/LAND LAW:- Landlord and Tenant – Claim for recovery of possession – Provision of alternative accommodation – When can be refused by court – Established goodwill of a business – When change in address would amount to greater hardship –  Increase of Rent (Restriction) Ordinance – Schedule II, para. (i) and proviso – How interpreted

BUSINESS AND INDUSTRY:- Goodwill of a longstanding business – When can be ground for court to refuse an application for recovery of premises on ground of greater of hardship finding or using alternative accommodation

CHILDREN AND WOMEN LAW:- Young people/Women in Business Young People/Women an Justice Administration ­– Desire of father to set up business for young son in a shop  under his resident – Need to enable mother support the business without neglecting domestic duties – Whether suitable ground for recovery of possession of shop from a person carrying on rival business – How treated

PRACTICE AND PROCEDURE – APPEALS: Appeals in Civil Cases – Trial Court’s view on greater hardship as between landlord and tenant – Attitude of appellate court to invitation to interfere therewith

 

 

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 L48 to 05 in 1944 and to £300 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.

 

FASTER-SUTTON, P.

I concur.

 

VERITY, C.J. (NIGERIA).

I concur.

 

 

Appeal dismissed.

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