Adu & Ors. v Clegg [1981] GLR 173.

ADU AND OTHERS v. CLEGG [1981] GLR 173

COURT OF APPEAL, ACCRA

EDUSEI AND WIREDU JJ.A. AND ABBAN J.

STATUTORY REF.

Rent Act, 1963 (Act 220), s.17(1)(g)(h)

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Abban J. delivered the judgment of the court. The appeal is from the judgment of the Circuit Court, Accra. We may briefly state the facts of the case. The appellants (hereinafter may be referred to as the defendants) have been tenants in the premises known as House No. D.794/4, Granville Avenue, Okaishie, Accra, owned by the plaintiff-respondent.

The plaintiff-respondent, who had retired from the Government Service was in need of accommodation and so he approached the defendants on several occasions asking them to find alternative accommodation and move out of the premises. The defendants having failed to comply with the plaintiff’s requests, the plaintiff served them with a written notice to quit. The notice was dated 6 September 1977 and on 7 February 1978 the plaintiff issued out his writ of summons for the recovery of possession.

The learned trial judge in a considered judgment held that the plaintiff-respondent was entitled to his claim and ordered the appellants to give up possession of the whole premises. The appellants, aggrieved by the said judgment, appealed to this court on two grounds, and the learned counsel for the appellants argued them in reverse order.

The first ground stated that the trial judge had totally misconstrued the provisions of section 17 (1) (g) of the Rent Act, 1963 (Act 220), under which the action was instituted. On this ground learned counsel forcefully submitted that the premises in dispute were not constructed exclusively as a dwelling-house but had a duality of purpose. He contended that in that respect, he was prepared to concede that the first floor could be classified as a dwelling-house, but the ground floor could not. The ground floor answered the description of business premises. So that if the plaintiff wanted possession of the ground floor as well, he should have resorted to section 17 (1) (h) instead of section 17 (1) (g). Counsel submitted that since section 17 (1) (h) made it obligatory on the plaintiff to give six months’ written notice and as the written notice which the plaintiff gave to the defendants fell short of the said statutory period, the learned trial judge erred in law in granting the plaintiff possession in respect of the ground floor. 

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Learned counsel for the plaintiff-respondent did not seem to have ready answer for this arguments in view of the wording of the writ of summons and also of the statement which was made during addresses by learned counsel who appeared for the plaintiff-respondent in the court below. That statement emphasised that the claim was based solely on section 17 (1) (g). We shall here set out the contents of the writ of summons in extenso:

“The plaintiff’s claim is for possession, under and in accordance with section 17 (1) (g) of the Rent Act, 1963 (Act 220), of all the premises occupied respectively by each of the defendants as tenants of the plaintiff in 7 Granville Avenue otherwise known as D.794/4, Okaishie, Accra, which premises plaintiff reasonably required immediately for occupation by his family and himself.”

The writ made it clear that the plaintiff based his claim on section 17 (1) (g) and in which case he was bound to show that all the two floors in the premises were constructed to be used as a dwelling-house.

The provisions of section 17 (1) (g) (ii) and (h) are:

“17. (1) Subject to the revisions of subsection (2) of section 25 and of section 28, no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, or any other Judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstances:—

(g) where the premises are reasonably required by the landlord for personal occupation as a dwelling-house by himself, a member of his family or any person in his whole time employment, such premises being constructed to be used as a dwelling-house, so, however, that—

(ii) no such order shall be made if the Magistrate or Judge 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;

(h) where the lease has expired and the premises are reasonably required by the landlord to be used by him for his own business purposes, such 

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premises being constructed to be used as such, if the landlord has given not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises.”

It was clearly established before the learned trial judge that the premises consisted of two floors and the firs floor was in fact constructed to be used exclusively as a dwelling-place and the rooms on that floor were let out to the defendants as residential quarters and for that purpose only. We may here refer to the following positive finding made by the learned trial judge on the first floor where the said, “That the upstairs apartments have been without controversy used for about 40 years as dwelling-rooms . . .” Thus so far as the first floor was concerned, the plaintiff was right in basing the claim on section 17 (1) (g).

Under section 17 (1) (g) six months’ written notice was not required. So whether the notice which the plaintiff gave to the defendants was less than six months or not was irrelevant. The plaintiff’s obligation was to satisfy the court that he reasonably needed the said first floor either for his personal occupation or for the occupation of his family as a dwelling-place.

However, the ground floor presented some problem. For a portion of it was constructed to be used as a dwelling-house while the remaining portion was designed for trading purposes. The portion for trading purposes consisted of only two stores. Since it was abundantly clear that the ground floor was used for dual purposes—namely for business as well as for a dwelling-place—it could not be said that the whole ground floor was constructed to be used as a dwelling-house within the provisions of section 17 (1) (g).

That being the case, the plaintiff should have based his claim so far as the stores on the ground floor were concerned on section 17 (1) (h) and not on section 17 (1) (g). As we have already stated, under section 17 (1) (h) the plaintiff was required to give the defendants, at least, six months’ written notice of his intention to apply for possession: see Rawanji Brothers v. Patterson Zochonis & Co., Ltd. [1975] 2 G.L.R. 352 at p. 361.

The written notices which the plaintiff gave to the defendants were all dated 6 September 1977 and the write of summons was issued on 7 February 1978. From 6 September 1977 to 7 February 1978 is a period of five months. It is quite obvious that the notices did not comply with statutory requirements. The plaintiff breached one of the essential prerequisites of section 17 (1) (h) of the Rent Act, 1963 (Act 220), which a landlord seeking possession of his

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business premises from his tenant ought to fulfil before he can institute proceedings for ejectment or possession of the said premises. We are therefore of the view that the learned trial judge should not have extended his order for possession to cover the two stores on the ground floor.

The second ground of appeal stated that the judgment was against the weight of evidence. Learned counsel for the appellants argued that the evidence showed that the appellants consisted of four different families who were occupying different apartments in the premises. They had been occupying the premises for many years, some even 40 years and they had no alternative accommodation. In the circumstances, the learned trial judge ought to have considered the question of greater hardship in favour of the appellants because the effect of his granting possession would be to throw four families into the street while if he had refused, only one family—the plaintiff’s family—would be affected.

Learned counsel for the plaintiff on the other hand contended that the trial judge, so far as the question of greater hardship was concerned, was right in deciding the issue in favour of the plaintiff. He submitted that since the plaintiff was able to establish his reasonableness in requiring the premises the burden was on the defendants to prove that they would suffer greater hardship if the order for ejectment was made.

But they failed to do so. Learned counsel referred us to two cases, namely, Sims v. Wilson [1946] 2 All E.R. 261, C.A. and Smith v. Penny [1946] 2 All E.R. 672, C.A.

Section 17 (1) (g) of Act 220, among other things, stipulates that the order for possession should not be granted if the court finds that by granting it greater hardship would be caused to the tenants. The question is, was there evidence before the learned trial judge on which he could decide for the plaintiff and against the defendants on the issue of greater hardship? On the true construction of the proviso (ii) to section 17 (1) (g) of the Rent Act, 1963, we are of the view that the onus of proving “greater hardship” is on the tenants and not on the landlord. Once the landlord has been able to satisfy the court that the dwelling-house or premises are reasonably required by him for the occupation of himself or any member of his family, then the court is entitled to draw the inference that some hardship would be caused to the landlord by refusing to grant possession. At that stage, the burden is then shifted to the tenant to prove that he would suffer greater hardship by granting possession than by refusing it. The case of Sims v. Wilson (supra) is in point. In that case the Court of Appeal in England was dealing with the Rent and Mortgage Interest Restrictions

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(Amendment) Act, 1933 (c.32), s. 3 (1), Sched. I (h) (ii) which substantially contained the same proviso as in section 17 (1) (g) (ii) of our Rent Act, 1963. In the course of his judgment Morton L.J. at p. 263 of the report said:

“The other question is whether in so far as the burden of proof may be material, the burden is upon the tenant to satisfy the court that greater hardship will be caused by granting the order or judgment than by refusing to grant it, or whether the burden of proof is the other way ... I incline to the view that the burden is upon the tenant to prove that greater hardship would be caused by granting the order or judgment than by refusing to grant it. It seems to me that this is the natural construction of the proviso, and, further, if the landlord has satisfied the court that the dwelling-house is reasonably required by him for the occupation of himself or, for instance, as in this case his daughter, it is obvious that some hardship would be caused to the landlord by refusing the order. I think once the landlord has brought himself within the provisions of para. (h) it is for the tenant then to satisfy the court that greater hardship would be caused by granting the order than by refusing it.”

See also Smith v. Penny (supra).

In the present case, there was enough evidence, we would say more than enough evidence, upon which the learned judge could tilt the balance of greater hardship in favour of the plaintiff. Here we have a landlord who had reached his retiring age and had therefore been retired compulsorily from the Government Service. The court found that while he was in the Government Service as Principal Dental Surgeon attached to the Ministry of Health, he was given a bungalow at Korle Bu where he was living with his wife and children. On retirement he was compelled by the Ministry of Health to vacate that bungalow. He had no alternative accommodation anywhere except the premises in dispute. The refusal of the defendants to move out of the premises had created unnecessary problems for him and his family. We quote the learned trial judge on this issue:

“The plaintiff and his family consisting of the plaintiff ‘s first witness [the wife] and four children are at present suffering great hardship by the plaintiff being at present forced by circumstances to continue to live away from his family while the plaintiff’s first witness [wife] and the children are compelled to hang on at her parent’s two-room house at Dansoman with their furniture being kept by friends.”

It is obvious from this finding that lack of alternative accommodation was even having adverse effect on the family life of the plaintiff as it had compelled him to live away from his family. This alone ought to be considered sufficient hardship and if the situation continued it was likely that the plaintiff ‘s family might suffer complete disintegration, and the court must not allow this to happen. It has been said time and again that the family is the unit of our civilisation and to keep the family together is of high public importance.

We are not oblivious of the fact that the trial court also found that some of the defendants had been tenants in the house for over 40 years, they had no alternative accommodation and they consisted of four different families as against the plaintiff’s one family. So that on their part too there was some hardship.

But it must be pointed out that the question of “greater hardship” is a question of fact for the trial judge and his decision on it is unassailable unless it can be shown that he has misdirected himself in some way.

But no misdirection of any kind was pin-pointed to us. We think on the evidence as a whole, the defendants failed to discharge the burden of proving greater hardship. Indeed, the learned trial judge was right in holding that the plaintiff-respondent would suffer greater hardship if he refused to make the order for possession and we wholeheartedly endorse that conclusion.

As we have already pointed out, he should not have extended the order for possession to cover the two stores on the ground floor for the reasons we stated earlier on in this judgment. The appeal is therefore allowed in respect of the two stores.

Accordingly, we shall amend the order for possession to exclude the said two stores. That is to say, the plaintiff-respondent is granted possession of the whole premises save the two stores on the ground floor; and the defendants-appellants should vacate the premises within two months from today.

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