(COURT OF APPEAL)

PITSILADES BROS. v. COSTA SLAVOS

AC-REV-545-1965

Principles

·  Landlord and Tenant—Eviction for personal use—Rent Restriction Ordinance, s.II (e) (Amendment) Act 1958, S. 2 (3)—” Essential” means absolute necessity and not mere convenience—Burden of proving necessity lies on the landlord

According to Rent Restriction Ordinance. s. x (e) (Amendment) Act 1958. S. 2 (i), the word essential” means absolute necessity and not mere convenience for better residence. The burden of proving such requirement lies on the landlord, and it is not possible to shift such burden on the tenan

Judgment

Advocates: Abdalla El Hassan and

Abdel Wahab Abu Shakiema……………………. for applicant

Mohamed Beshir Abdel Rahman………………… for respondent

S. M. A. .Attig P.j. August 21, 1965:—This is an application for revision of the decree of District Judge, Khartoum, dismissing plaintiff’s (applicant’s) claim for recovery of possession of the premises known as plot No. 3 in Block 1, I East Khartoum.

Applicant, who is living in a rented house for £s.30.— a month, purchased the plot in question in May 1963. He contends that he purchased the said house for his personal occupation and in fact’ served respondent with a notice as soon as the formalities of registration were completed.

The question before the court below was whether it was in all the circumstances essential for the landlord to reside in that house.

The court below found that point in favour of the tenant. I cannot .agree with the findings of the court below, It is true that the word essential m “indispensable requisite which means an absolute necessity.”

Applicant gave evidence in the court below that he purposely purchased the house in question for his personal use and promptly served respondent with notice to vacate. Furthermore it is established that applicant has no other house and is in fact living in a rented house in the same area in which the house in question is situated. What is essential or in other words “an absolute necessity” is a question of fact to be determined in each particular case on its own merits. In the case before the court, the applicant was living in a rented house comprising an area of 400 sq.m. He purposely purchased the house which is more than double the area of the old house and as soon as he held the legal title to it served respondent with notice to quit. His children are growing older in addition to the fact his brother and his wife are living with him. It became necessary for him to accommodate this large family in a bigger house. In all cases in which a tenant who has no house of his own purchases a. house for his residence an absolute necessity must be presumed. The burden lies on the tenant to rebut this presumption of fact.

Respondent failed to rebut this presumption and to the contrary applicant established in the court below that it was in all circumstances necessary for him to reside in his own house. It is true that the applicant stated in his examination-in-chief that he does not know the number of the rooms of the house in dispute. On re-examination, the applicant gave a full description of the house, particularly the residential quarter.

The discrepancy in applicant’s statement should not be taken to his detriment, particularly when the applicant is a foreigner and giving evidence in Arabic. The re-examination showed that he clearly under stood the question. Moreover an ordinary man of the applicant’s calibre and standing would not venture to purchase a house for three thousand pounds without knowing full particulars of the house.

In the circumstances, I am satisfied that applicant is under an essential necessity to reside in his own house.

The decree of the court below shall be set aside and a decree in favour of applicant be entered with no order as to costs.

Osman El Tayeb 1. November 21, 1965 :—Respondent (plaintiff in the original suit), on May 28, 1963, purchased the house known as plot No. 3 Bk. i, I East Khartoum Town, for the sum of about £s.3.000 This house was at that time and still is occupied by applicant (defendant in the original suit) as tenant.

Respondent instituted this suit claiming recovery of possession on the ground of requirement for personal use, after serving notice on applicant in compliance with Rent Restriction Ordinance, s. I I (c). Applicant contested the claim on the grounds .that there was no need for personal use, as it was not in all the circumstances essential for respondent to reside on these premises, and also denied the notice or its validity. The issues for the trial of the case were confined to these points.

As to the issue of the notice respondent gave evidence that he sent a letter by post to applicant on the same day on which he purchased the house, and further sent a telegram on May 31, 1963, giving in both a six-months’ notice to quit. Applicant denied the receipt of the letter but admitted the receipt of the telegram, which he alleged was not a plain notice. The learned District Judge found that there was good notice to quit. Applicant raised this point before us, and we have to dismiss it, since, as submitted by advocate for respondent, it was not raised at the hearing of the revision before the Province Judge.

On the second issue of the need of the house by respondent for his own residence , the learned District Judge decided that it was not proved to his satisfaction that in all the circumstances it was essential for respondent to reside in the house in question. The facts are as follows:

Respondent is occupying a rented house as tenant, this house is composed of five rooms with verandahs and outbuildings. The house, he purchased, consisted of four rooms with verandahs and outbuildings. The two houses are in the same locality and their rents are about the same thing. The only difference is that the area of the required house is about double the area of the other. The learned District Judge added that it is a matter of convenience for respondent to reside in his own house, rather than residing in a rented house. He dismissed the case.

S. Attig, Province Judge, in his judgment on revision, tried t enunciate a new principle of law, which in his own words is: In all cases in which a tenant who has no house of his own purchases a house for own residence, an absolute necessity must be presumed the burden lies on the tenant to rebut this presumption of fact”

Advocate, Abu Shakiema, for applicant, argued that there is no such

principle, and referred us, in support of his client’s case, to lbrahirm Abdel Gadir v. Mohamed Ahmed Mohamed Ali, AC-REV-258 Advocate Beshir, for respondent. could not press the soundness of the statement of the learned Province Judge, and submitted that, on the facts, respondent proved satisfactorily his essential need for the house,

The case above referred to is very similar to the present, and in it the ratio was that the mere fact that the plaintiff purchased a house for his own residence while he was occupying a rented house, does not by itself ,constitute essential need. This rule is applicable to this case.

The suggested principle of the presumption in favour of the person who purchases a house for his residence is not justified by the letter or the spirit of the Rent Restriction Ordinance. The said Ordinance requires the landlord, without distinction as to whether he is an old or a new one, to prove to the satisfaction of the court that it is essential for him, in all the circumstances, to reside in his house. The clear meaning is that the burden of proof of essential need rests on the landlord, and it is by no means possible to think of that meaning of shifting the burden of proof on the tenant. The essential need is a private matter relating to the life of the person alleging it, and so he alone has to prove it.

As it has been before decided in Helen Dirpiatis v. Heirs of Ahmed El Mahdi (1960) S.L.J.R. 164, essential requirement for personal use does not mean mere convenience or better residence; it means absolutely necessary for the landlord to have the house. Such necessity that gives the import of hardship or other perilous situation to the landlord, if he is not allowed to reside in his house.

So the fact that the respondent purchased a better and mqr6 convenient house than that in which he is residing, with the intention of residing in it, it not by itself to be taken as proof of essential need for residing in that house. Respondent and his family, including his brother with his wife, are according to the evidence, adequately accommodated in the house they are now occupying, and in this case they cannot be allowed to disturb their own tenant, merely for securing to themselves more convenient living.
 

For these reasons, we allow this revision, by setting aside the order of possession made by the learned province Judge and restore the order of dismissal of the case made by the learned District Judge.

Babiker Awadalla C.J. November 2!, 19 :—l concur.

* Court: Babiker Awadalla C.J. and Osman El Tayeb J.