B.J.

ABDOOLA v G HOSANY

2013 SAV 74

BIBI JOOBEDA ABDOOLA v GORAH HOSANY

Cause Number 157/13

In the District Court of Savanne

In the matter of:-

Bibi Joobeda Abdoola

Plaintiff

Gorah Hosany

Defendant

Judgment

In virtue of a Plaint dated 28th November 2006, the Plaintiff averred that she is the owner and
landlord of a commercial building situated at Royal Road, Tyack, Riviere des Anguilles. She averred
that since in or about 1994, the Defendant is occupying the said commercial building as a tenant for
and in consideration of a monthly rent of Rs.500 to be used as a cobbler and he has by his own
freewill increased the rent from Rs.500 to Rs.700 in the year 2008. She further averred that on several
occasions, she has requested the Defendant to quit, leave and vacate the said premises as she needed
same for her personal use and occupation but Defendant has failed and neglected to do so. Plaintiff
further averred that in or about December 2011, a notice Mise en Demeure was served upon him
asking him to quit, leave and vacate the premises but up to now he has failed and neglected to do so.
She therefore prayed the Court for a judgment condemning and ordering the Defendant to quit, leave
and vacate the premises.

The Defendant for his part admitted the ownership of the premises by the Plaintiff and also being a
tenant thereof. He also admitted the fact that he increased the rent as averred by the Plaintiff. The
Defendant denied having been requested by the Plaintiff on several occasions to quit, leave and vacate
the premises as averred by the Plaintiff. He admitted having been served by a notice Mise en Demeure
and averred that he was not bound to comply with the said notice. The Defendant averred that greater
prejudice would be caused to him than to the Plaintiff should he be ordered to quit, leave and vacate
the said premises. He further averred that it shall not be reasonable to grant the prayer in favour of the
Plaintiff and he moved that the present action be dismissed.

At the hearing of the case, both the Plaintiff and the Defendant were assisted by their respective
Counsel and the proceedings were held in Creole.

The Plaintiff’s Counsel called the Plaintiff who solemnly affirmed as per the averments of his Plaint
and further averred that the Defendant has no permit to work as cobbler. She added that she has a rent
book and that she did not take any rent from the Defendant as she needed her building and she had
asked him to look for another building. Plaintiff further averred that the present rent is not sufficient
for her personal use and that she will use the building to sell vegetables and cakes and the proceeds
will be used to buy medicines for herself. She added that her pension is not sufficient to meet her
needs. She averred that she is not agreeable to an increase in the rent and needs her building. The
Plaintiff prayed for the Court for a judgment ordering and condemning the Defendant to quit, leave
and vacate the premises and for costs. In cross-examination, the Plaintiff agreed that the commercial
building does not form part of her house, that same is divided into two parts and that the first part is
occupied by the Defendant and the second part, which was occupied by a ‘magasin’, is now vacant.
Upon being told that at the beginning, she was paid a rent of Rs.500 and same was increased to
Rs.700 later, the Plaintiff replied that she accepted same. She also admitted that she owns a storeyed
house behind the commercial building, that she has 2 sons and one daughter and that they are all
married. She also admitted that his son resides in Curepipe, her daughter and her children live on the
first floor and that she lives on the ground floor, which consists of one room, bathroom, kitchen and
toilet. She admitted that she did not have any problem with the Defendant and that she needs the
building to get some more money for her personal needs. She was not agreeable to the fact that
instead of selling cakes, she could have obtained more money by increasing the rent of the Defendant.
She admitted that her aim was not to get more money but to get the Defendant out of the building and
added that she needed her building for her own business. She admitted that the Defendant is her tenant
since a long time, i.e. 19 to 20 years, but stated that she was not concerned with the fact that the
Defendant is the sole bread winner and that he has three daughters and that the last one is still a
student.

The case was then closed for the Plaintiff.

The Defendant’s Counsel then called the Defendant who testified that he is a cobbler since 35 to 40
years and that he is occupying the Plaintiff’s premises since approximately 23 years. He further
averred that he has only one job, i.e. that of a cobbler and that from that job, he attends to the needs of
his family. He added that he has two children attending school and an elder daughter whose husband
has died. He also averred that he has no other means to earn money. He averred that he is agreeable to
an increase in rent and he moved that the plaint be dismissed with costs. In cross-examination, the
Defendant agreed that the Plaintiff is the owner of the commercial building and that in 1994, he paid a
monthly rent of Rs.500. He admitted being a cobbler and averred that he has a permit to work as
cobbler in the said building. The Defendant denied having been served with a notice in 2012 and
denied not having been in possession of a permit to work as a cobbler prior 2011. He admitted having
increased the rent from Rs.500 to Rs.700 of his own freewill. He denied having been asked by the
Plaintiff on several occasions to leave the building and averred that the Plaintiff only asked him same
once. He admitted having been served with a notice Mise en Demeure in 2011. He denied that the
Plaintiff did not insist upon the rent thus helping him to look for another building and he averred that
the Plaintiff was taking the rent money personally, then stopped taking same and he had to send same
by the post. The Defendant admitted that the Plaintiff was returning the money back. He admitted that
he has three children but denied that the elder child is working. He also denied that because he was
served with a notice, he is not working in the building but his wife is. He averred that his wife is only
giving him a helping hand in his job and maintained that his job as cobbler is his only source of
earnings.

The case was then closed for the Defendant.

I have assessed the evidence on record and the submission of Counsels. The present case rests on
section 24 of the Landlord and Tenant Act under the premise that the premises are reasonably
required by the Plaintiff for use by herself and her family. In V. Madhoo v G. Ramhota [2006 SCJ
29], their Lordships laid down the conditions that the Plaintiff needs to prove in order for a possession
of tenement can be obtained, namely:-

(i) First, the landlord must prove that he has a reasonable requirement of the premises for
occupation or use by himself or his family;

(ii) Second, the landlord must establish that greater hardship would be caused to him by refusing the
order than to the tenant if such order were granted;

(iii) Third, the Court must be satisfied that it would be reasonable to make the order for the recovery
of possession.

The distinction between 1 and 3 has been clearly explained in the old but entirely relevant case of
Ken Sew v King Sen Lee Kien Vong 1952 MR 349, referring to Acton , J., in Shrimpton V
Rabbits:
“…There are two processes which have to be gone through. The first process is to ascertain whether
the wish which the landlord has for the possession of the premises is a reasonable wish, and of course
unless that is demonstrated there is an end of his claim. But after it has been ascertained that the
desire or requirement of the landlord is a reasonable desire or requirement, there follows a further
question too often hitherto either ignored altogether or confounded with the question I have already
mentioned, namely, is it in all the circumstances of the case reasonable that the court should grant or
gratify that reasonable requirement?”

Reasonably required

Section 24(1) of the Act stipulates that the Court may grant a possession order where the premises are
reasonably required by the landlord for use and occupation by himself and his family.

It is now settled that the words “reasonably required” connote “something more than desire, although
something much less than absolute necessity” as was enunciated in the case of Ismael v Cassim 1951
MR 187. The court after referring to the case of Aitken V Shaw 1933 S.L.T. (Sh. Ct.) 21, Scotland,
went on to say that the landlord must have a genuine present need for the house for his own
occupation. The genuine present need constitutes the test to determine whether the order should be
granted (see also Chin Yee Kim Long V Cooshna 2007 SCJ 231). The landlord need not however
demonstrate a ‘dire necessity’, but must not also be moved by considerations of preference and
convenience merely.

The question whether the landlord reasonably requires the premises is one which should be
determined solely on considerations affecting him and his family, independently of the requirements
of the tenant.

In the present case, the Plaintiff has explained that her monthly pension and the rent received from the
Defendant is not sufficient to meet her needs and that she requires the premises to carry out her own
business in order to cater for her needs. However, the Court also takes into consideration the fact that
she is also the owner of another commercial site found in the same building as the property in lite and
that the said site is vacant. I have also noted that the Plaintiff has averred that she is not interested in
an increase in rent but wants the Defendant to leave the building. Had the Plaintiff genuinely been in
need of more money to cater for her personal needs, she could still have accepted an increase in rent
or used the other available premises to carry out her business. I therefore find that the Plaintiff has not
proved on a balance of probabilities that the property is reasonably required for her personal use and
occupation.

Greater hardship
With regard to the issue of hardship, it is trite law that once it is established that the landlord required
the rented premises for his personal use, the onus shifted on the tenant to prove that greater hardship
would be caused to him should an eviction order be made. (Vide Mustapha v Soobye [1979 MR 96]
and Mardaye v Raddhoa [1980 MR 66]).

Even if there is no need to consider the issue of hardship, bearing in mind the fact that the Plaintiff has
not even crossed the first hurdle, that is she has not satisfied the Court as to the first condition to be
satisfied as per V. Madhoo v G. Ramhota [2006 SCJ 29], the Court has also noted the fact that the
Defendant in this case is carrying out his job as cobbler at the said premises and is the sole bread
winner of the family. He has no other means to earn a living and the Court considers that greater
hardship would be caused to the defendant by granting the order than to the Plaintiff by not granting
same.

Reasonableness

The next question is whether it is reasonable to grant the order. Bearing in mind the fact that the
Plaintiff in the present case clearly does not bona fide and reasonably requires the premises presently
occupied by the Defendant for her personal use and occupation, I find that it would not be reasonable
to order the Defendant to quit, leave and vacate the premises

I, therefore, find that the Plaintiff has failed to prove on a balance of probabilities that the she needed
the premises for her personal use and occupation and that of his family which would have warranted
an eviction order against the Defendant.

The prayer for the Defendant to quit, leave and vacate the premises is set aside.

Delivered by Yashumatee Gopaul (Mrs), Acting District Magistrate

Delivered on 29th November 2013