(COURT OF APPEAL)*

MOHAMED SALIH KHIDIR v. HASSAN EL ZAHIR

AC-REV-135-1966

 Principles

·  Landlord and Tenant—RecoVeIY of possession of shop for personal use—Rent Restriction Ordinance, s. 11 (e) (Amendment) Act, 1958 s. 2 (3) requirement sexisten of business and its expansion

To recover possession of premises on the ground of personal use for business under Rent Restriction Ordinance. s. 11 (e) (Amendment) Act, 1958, s. 2 (3), by landlord who is running his business in a shop; he must prove the existence of such business and its rapid expansion. The need in such case is not limited to one shop, as in the case of residence where it is limited to one house; but to more than one shop according to the expansiOo of the business.

Judgment

Advocate: Abdel Rahman Yousif for applicant

Osman El Tayeb J. December 20, 1966: —This is an application for revision from the order of Province Judge, Khartoum, dated Felu uary 20, 1966, dismissing a similar application to him from the ordei of District Judge, Khartoum, dated December 31, 1964, granting to p the relief of possession of the plot known as shop No. 2- 1 Bk. 4 H.W. Khartoum Town, against defendant (the tenant) on the ground of personal use.

The facts that have been proved, and accepted by the learncd Ditrct Judge, and also on revision by the learned Province Judge, as constituting essential and absolute need by plaintiff as a landlord, to have the shop in question are as follows: Plaintiff was a senior Gcvernmeat official, after his retirement on pension, and in J9 he entered into business. He started as a retail trader in grocery business in Omdurrnan. Some time later he developed his business to a wholesale trade, and he was obtaining the commodities of his trade from the iinportcm. Later still he became an importer for all the imported goods and commodities of his trade. He is still running this business in Omdurman that has from year to year considerably increased, and expanded. Accordingly he has become of essential and absolute need of a shop’in Khartoum for his expanding business, since Khartoum is the biggest ccntre of business in the Sudan; it is a place of business of all the top-class commercial companies and firms, of all the importers, of all factories, etc. That his business reached that top-class, a fact which would make him a competitor with the big business men of the country, and that further would enhance his business, and give him the chance of realisation cf n ore a more profits.

It was proved that plaintiff during the period from No ember 1962 to May 1963 imported goods to the value of £S.4,381, and during the period from November 1963 to May 1964, imported goods to the value of £S.25.600. The goods included tea, cocoa, biscuits, soap, gamardin, all kinds of tinned fruits, and the like. In one year the imports increased six times, and that still more increase is coming. Those figures were given up to May 1964, because the suit was instituted in April 1964, and he gave them in his evidence, which was taken in June of the same year.

The argument is focused on the issue of the case, as to whether it is essential for plaintiff to have the shop in que5- for the purposes of his business. It is worthy of mention that business premises in English law are not subject to control under the Rent Acts, and therefore no assistance cou’d be given by it in deciding this case. Tbe other point that is worthy of mention is that the law in the Sudan is substantially the same as regards premises used for residence and premises used for business. Rent Restriction Ordinance, s. 11 (d) provides for premises required to be used as residence, and paragraph (e) provides for premises required to be used for some purpose other than residence. In each of the two paragraphs, the words used are the same, to the effect that in each case the landlord has to prove “to the satis faction of the court that it is in all the circumstances essential for him,” in the first paragraph the context goes on to say “to reside in those premises,” and in the second it goes on to say “to have the use of those premises for that purpose.” The purpose being “some purpose other than residence,” no doubt includes the use of premises for business. It appears that the only difference between the two provisions is that when the landlord requires the premises as residence, it is immaterial whether the tenant is usihg them as residence, for business or for any other pur pose, but when the landlord requires the premises for business or for a purpose other than residence, and the tenant is using them as residence, the landlord cannot have a right of possession. This is a further protection to the tenant who is using the premises as residence against the landlord who wants to use them for a purpose other than residence. However, this point of difference between the two paragraphs does not concern us in this case, inasmuch as we are concerned with their similarities. Here it is a shop in the centre of the market area used by the defendant for business and plaintiff is intending to use it for business too.

I do not think that we can give the word “essential,” any meaning other than that given to it in the previous cases, on the grounds that that meaning was given to it in cases of residential premises, and here it is intended to be applied in business premises. To give the same word used in one legislatidn in more than one place more than one meaning would be contrary to any logical rules of interpretation, unless the legislation itself clearly intended it to be given more than one meaning. That meaning of the word “essential” as given in the previous cases, if it is necessary to recapitulate it here, is the absolute necessity for the landlord to have the premises, in the present case, for the purpose of his business.

In my opinion, if there is any difference between the two cases of residential and business premises, it comes from the words “in all the circumstances.” There is no doubt that the circumstances of the two types of purposes differ considerably, and as those different and divergent circumstances are related to the necessity, regard being had to the purpose for which possession is required, they tend to render the necessity differs from one case to th other. I think this is what was in the mind of S Shibeika, Province Judge, when he said in his judgment on revision in this case: “I think there is no criterion which is absolutely objective, nd which serves as a basis for defining necessity. The notion of necessity is a relative one and necessity is governed by circumstances which vary from case to case.”

The circumstances of residence do differ from those of carrying on business, when related to necessity in each case. Though the necessity for residence is a common one among all persons, it is rather limited to one house, unlike the necessity for business purposes, which cannot be limited to one shop. The necessity for residence may not extend to more than one house, but that for business may extend to more than one shop, according to the magnitude and expansion of the business.

We have been referred to two cases, which are Mohamed Ahmed Yousif v. Ahmed hOmer Ahmed (1960) S.L.J.R. 271, and Abdel Rahim Ahmed v. Kamal Moamed Ibrahim (1963) S.L.J.R. 192. They are both about shops, claimed for personal use as shops, and in both of them claim for possession was not allowed by this court. In the first one the landlord had three or four shops in Omclurman Market that he was intending to start a draper’s business, and he chose the shop in the suit as it suited him best. In his judgment Babiker Awadalla J. (as he then was) said:

“I am unable to understand how a person who had been doing no business for several years can be believed to say that his ‘business requirements’ make it essential for him to recover a specific shop. Even assuming for the sake of argument that he wants to start a draper’s business and con siders that the shop in question is best suited for that purpose, that is an allegation which it is impossible to prove without taking into considera tion the position of all the shops owned by him and at any rate even if such allegation that having regard to all the circumstances of the case, including the attitude of respondent when examined by the court, the facts are far short of satisfying the requirements of section it (e) of the Rent Restriction Ordinance.”

In the second case, plaintiff (the landlord) had recently started the business of contractor and owner of brick-kilns, and he was the owner of shops other than the specific one that he claimed in Wad Medani Market. In this court the claim was disallowed on the grounds (1) that plaintiff could manage to run his business without a shop, and (2) that he failed to prove the lack of a vacant shop equally adequate for his purpose in the same market, since the plaintiff stated that his need was for a shop,” in other words not necessarily that specific shop In his judgment Babiker Awadalla J. (as he then was) stated: “The landlord (respondent) adduced evidence that he is a contractor and owns a brick- kiln, but this by itself is far short from proving that in all the circumstances it is essential for him to have the use of the shop for the purpose of his business. At the most, he has proved that he ‘requires’ a shop, but that is not enough. The objects of the 1958 amendment would be defeated if a laadlord can be said to di his onus by simply alleging a specific trade and then simply producing a current trader(s) licence in support of his contention. The ‘purpose for which the premises are required,’ within the nieaning of section 11 (e) cannot be determined without adequate evidence of the nature and volume of the business involved and the difficulties to be encountered by the landord if he were denied the relief sought.” -

It can be seen that in the first of the above two cases, the landlord had no running busine at that time, but he was intending to start one, and that assuming that he had proved the genuineness of his intention, he could not prove that the shop he chc was the best suited, and that in all the rcumstances that it was essential for him to have it. In the second case, plaintiff had a business, but he could not prove that it was essential for him to have a shop for that business, and that it was that specific shop.

In view of the above, those cases can easily be distinguished. Plaintiff here has a running business, which is of a large magnitude and volume, and further, it is rapidly expanding, as has been revealed in the evidence. The expansion of the business requires, as a matter of course, more shops to accommodate it. The logical consequence for not making available the additional accommodation required is curtailment and impairment of the expan of the business, followed by loss and general hardship to plaintiff.

It was argued on behalf of defendant, that plaintiff has already been, without having the shop in dispute, making good profits, and his desire for making niore profits should not be taken as essential need, I think, agreeing with the view of Shibeika, Frovincejudge, that it is not part of the duty o the courts to hinder people from making more and more I the expaaaion and careful and proper management of their b The making of profits as well as the incurring of loss is the nati re of business, but the important thing is the existence of bu and its expansion, for establishing the essential need. In my opinion, the essential and absolute need, in the circumstances of this case, has been egablxshed.

This revision is dismissed with costs.

El Fati Awauda 1. December 20, 1966: —I entirely agree with the opinion my learned colleague. I would, however, like to add this:

In HeIk Dirpis V. Heirs of Ahmed El Mahdi (1960) S.L.J.R. 164, which was acase of possession for residential use, B. Awadalla J. (as he then’ was) in ib1cow bla judgment said:

I am convinced as regards the first two grounds given by respondent that they can at the most amount to nothing other than saying it would be better for me if I live in Khartoum instead of Omdurman,’ in other words it is an assertion that pertains to the category of convenience rather than necessity.”

Better living in the circumstances of that case could include shortening the distance from home to office and thereby reducing the expenses of transport, and enjoying the pleasures of living in an independent home which are all matters of personal convenience. What could be said to be a matter of convenience in the case of residential premises could be said, if looked at with insight, to amount to absolute necessity in the case of business premises for it goes without saying that the two greatly differ in nature. The essence of trade is profit-making. Nowhere in the Rent Restriction Ordinance could it be read that the legislature intended to plan for a businessman how and in what town he is to conduct his business. It follows that having satisfied the court that he is a business man and that be intends to transfer his business say, from Omdurman to Khartoum because his business has enormously expanded and because in Khartoum he will prosper or make better profit and that by that reason it becomes necessary for him to have possession of one of his shops in Khartoum for the purpose of the said business it will not be within the province of the court to deny him the remedy of possession by telling him to continue in Omdurman and be content with the profits he is making there.

I agree that this application be dismissed with costs.