(COURT OF APPEAL)

IBRAHIM RIZIG v. MILLAD FANOUS

AC-REV-231-1968

Principles

  Evidence—Appellate court has the power to draw an inference from facts proved Landlord and Tenant—Eviction for personal use—Rent Restriction Ordinance, s.11 (e)—Includes landlord and his dependants who live with him

(i) The appellate court has the power to re-examine the evidence given in the trial court so as to draw an inference from proved facts.
(ii) The need for personal use is not confined to the person of the landlord but includes his dependants who live with him under the Rent Restriction Ordinance, s 11 (e) (amended by the Rent Restriction Ordinance (Amendment) Act 1958 (1958 Act No. 39), s. 2 (2) (d).

Advocates: Abdalla El Hassan and Abdel Wahab Abu

Shakeima for the applicant

Grais Assa’ad for the respondent

Judgment

Mahdi Mohamed Ahmed J. September 9, 1969 : —This is an application for revision against the decision of Province Judge, Khartoum, dated May 19, 1968, reversing the decree of District Judge, Khartoum, dated April 6, 1968,whereby he dismissed respondent’s suit for eviction.

The gist of the application is that respondent failed to prove a genuine need.

In my opinion the court of first instance did not find as a fact that respondent’s need is genuine. In fact the said court did not consider the nature and degree of respondent’s need because its mind was distracted by the mistaken idea that a landlord can plead the need of the members of his household as his own personal need. The court merely remarked that respondent was able to show the need of his baby for a nurse, and the need of a nurse for a separate room, in addition to certain indefinite inconveniences to his own person. The court then concluded that the need shown is not that of the landlord and dismissed the suit. The learned Province Judge, in his turn, did not go into the nature of the need shown but relied on the above remarks of the court and reversed the decision on the ground that the landlord could plead the need of the members of his family in an action for eviction.

Therefore the question before this court is whether the facts proved before the trial court spell out a genuine need within the meaning of the Rent Restriction Ordinance, s. 11 (e). It will be observed that the question does not relate to a specific finding of fact but to an inference to be drawn from established facts. In such circumstances the appellate courts can draw their own inferences. In the two cases of Hellenic Community v. Petit Baazar (1956) S.L.J.R. 4 and Costis Trizis v. Idris El Kanzi (1960) S.L.J.R. 222 the Court of Appeal cited with approval the words of Lord Reid in the case of Benmax v. Austin Motor Co. [1955] 2 W.L.R. 418:

“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion".

As we have already indicated, neither the trial judge nor the Province Judge considered the point whether the need shown is sufficient for the purposes of the Rent Restriction Ordinance, s. 11 (e). Therefore this court is fettered in that respect.

It was proved before the trial judge that respondent’s house consists of a saloon and two bedrooms. The saloon is used as a sitting- and dining- room. One of the rooms is used as a sleeping-room and the other as a store because it has no adequate ventilation. It was also proved that respondent’s family consists of himself, his wife and daughter and a five months old boy. It is further proved that the wife and husband both work, and therefore need a nurse to look after the baby. It was again proved that the single bedroom is packed up and this creates inconveniences for the couple.

Thus it appears that the whole problem is the accommodation of the child’s nurse. It must not escape our notice that it is admitted that respondent used to have a nurse for his first daughter. One wonders why the daughter’s nurse did not create the accommodation problem which causes the headache now. We must also observe that the pattern of the couple’s life was not greatly changed by the birth of the second child. The daughter, now seven years old, goes to school and the new child is taken to the house of respondent’s parents. The wife of respondent admitted that she did not feel safe to leave her baby alone with the nurse. So if the couple were able to put up with these inconveniences for so long a time, why has it become a real problem now? I cannot think of any reasons.

Furthermore, it is admitted that one of the rooms was used as a store because it is not well ventilated and respondent’s wife is allergic about closed rooms. Well what about the nurse? Could not she use that room or is she equally allergic?

The court can take judicial notice of the fact that in a tropical climate like that of the Sudan people lead an out-of-door life most of the year.

They sleep in the hosh in the summer. They use the verandas: by night except in an exceptionally severe winter. Cannot the nurse use one of the two verandas? With the least expense, respondent could put in a partition wall and create privacy for the nurse and himself.

I therefore conclude that the nurse, if indispensable, could be well accommodated in the room used now as a store or in the veranda with little alterations and expense and therefore it is not absolutely necessary for respondent to have the other house.

If my learned colleague agrees, this application should be allowed and the decision of the learned Province Judge ordering eviction be set aside.

Mahdi El Fahal J. September 9, 1969 :—I dissent.

The application should be dismissed because the respondent has proved genuine need for the part of the house occupied by the applicant. The proof of indispensable requisiteness does not mean that people have to be stacked like animals in a pen. The respondent has a wife, a daughter, and a son together with a nurse to look after the infant son and yet the part of the house they occupy consists of a sitting room a bedroom and a third room used as a store. The premises they require are a part of their house and not a separate house which shows that they are actually residing in a part of a proper house.

The Province Judge did not when reversing the District Judge alter a finding of fact but has drawn an inference from the facts adumbrated before the District Judge. His inferences are in my view warrantable and genuine need has been shown from the facts adduced.

B M A Baldo J. September 9, 1969 —I am of opinion that this application should be dismissed The main point of contention in the submission of the learned counsel for applicant is that respondent failed to prove genuine or essential need, and only proved inconvenience. It is evident that the bedroom used by the couple and their children is packed with furniture and other things, and the store room is not suitable for living in. It seems that the couple had endured life in such a state of affairs in the past, but it would be unfair if the law compels them to continue to live in a state of increased inconvenience occasioned by the birth of a second child, the reluctance of the nurse to live in verandas or under the air, and the welfare of the children. Unlike the landlord in Fadle Barbari v. Abdel Gadir Mohmmed Omer (1965) S.L.J.R 103 where the landlord was living in Singa and sought to evict the tenant in Khartoum for his wife and children to live in the house; applicant, his family and nurse all live in part of the house in dispute. The interpretation of the word “ need” in the Rent Restriction Ordinance, s. 11 (a) is not confined to the person of the landlord, but includes his dependants. The landlord and his dependants are one single unit, and the need of each member of the complete whole is the need of the other or others. - The landlord- can, therefore, plead his children and other dependants who live - with him to prove essential need for possession of his property on grounds of personal use. Hence the problem is not only that of accommodating the nurse, it is the problem of the children and their parents. The nurse looks after the children all the time, and she cannot be separated from them. The duty of the nurse is to be beside the children all day, especially when the parents resort to rest, whether in the afternoon, the evening, or at night, or when they go out. The nurse is always accommodated -in a suitable place not for her own sake, but, for that of the children. The nurse is, of course, indispensable where the parents are working. In my view these circumstances make it essential for applicant to annex the other part of his house.

In Heliens Dirpiates case (1960) S.L.J.R. 165 the word “essential” in the Rent Restriction Ordinance, s. 11 (e)  has been decided to mean indispensable, requisite or absolutely necessary, and it was held that mere inconvenience does not satisfy the strict requirement of personal use; it is not sufficient for the landlord to show that it is better or more convenient to reside in the premises in dispute. The words - or phrases like indispensable requisite genuine need convenience are questions of fact which differ from case to case. The best method of interpreting such words is to subject them to the merits of every case. Moreover, even convenience could be a factor inter alia of indispensable need, though all - alone by itself cannot provide a footing for a successful claim for personal use.

The fact that applicant with his family lives in part only of their house and - seeks to possess the other -part is of much significance in this particular case.  The word “ premises” is defined in the Rent Restriction Ordinance, s. 4, as “any building or part of a building whether occupied together with any land or not which is the subject of a separate tenancy actual or potential.” Notwithstanding -this definition of the word “premises” the fact remains that the need of a landlord  for the annexation of a small part of his -house is more pressing than that which seeks to evict a tenant from the whole premises.

If we are convinced that the building of partition walls, alterations and conversions will make respondent’s house suitable, and will solve the problems experienced by respondent, this is in itself an admission on our part that it is in all the circumstances essential for- respondent to recover his premises. It would be unfair to compel respondent to carry - out the -suggested improvements and repairs even at little expense. This only means that the law favours one section of the population more than the other. This view of the law would help tenants who may be protected to overcome the difficulties they encounter once or twice, but the law would not be on their side for ever. The problem of respondent is not, in my opinion, one of convenience only; but it is, I believe, in all the circumstances essential for him to recover the other part of his house for his personal use.

Applicant has no alternative but to look for other accommodation.