CHIN YEE KIM LONG WW L v COOSHNA A

2007 SCJ 231

IN THE SUPREME COURT OF MAURITIUS

SCR 5754

In the matter of:

Ww. Lilian Chin Yee Kim Long
Appellant
v.

Arjoon Cooshna
Respondent

SCR 5756

In the matter of:

Arjoon Cooshna
Appellant
v.

Ww. Lilian Chin Yee Kim Long

Respondent

JUDGMENT

The premises, subject matter of the above appeals, consist of a shop at Tamarin,
Black River, two rooms adjacent to the shop and used as stores, residential quarters at
the back of the shop and a garage. Before the lower Court, the landlord sued the tenant
for possession of tenement on the ground that he reasonably required the property for
his personal use and occupation. The learned Magistrate found that the landlord had
failed to prove that he reasonably required the shop for his personal use and occupation
and refused to make the order prayed for save for the garage. As regards the garage,
the learned Magistrate found that no hardship would be caused to the tenant if asked to
vacate same. Accordingly, the tenant was ordered to quit, leave and vacate the garage
within a delay of three months.
Both the landlord and the tenant now appeal from the judgment of the learned
Magistrate. And on joint motion of learned Counsel, the two appeals have been
consolidated and a single judgment is delivered.

The appeal of the landlord in substance challenges the findings of fact of the
learned Magistrate.

The appeal of the tenant raises the issue whether the lower Court is entitled to
split the tenancy and order the tenant to vacate part of the premises viz. the garage.
Moreover, it is contended that, having found that the landlord did not reasonably require
the premises for his personal use and occupation, the learned Magistrate should not
have made the order concerning the garage.

Before the lower Court evidence was adduced to the effect that the original
lessee of the premises was the tenant’s late husband until he died on 21 June 1994.
The circumstances in which the original lessee took the lease are as follows: in 1972,
the late husband of the tenant bought the business of Rajoo Cooshna as a going
concern. As a result, the premises on which the business was carried out, were rented
to him. The shop was repaired and with the permission of Rajoo Cooshna, a kitchen, a
bathroom and a garage were added at the back of the shop. Occupation of the
premises started in 1973 and the business was uninterrupted except for two days
following the death of the tenant’s late husband. At the death of the latter, the tenancy
was transmitted to his wife.

In the meantime, the property had passed on to the present landlord who is the
son of Rajoo Cooshna. The case of the landlord before the lower Court is that he
requires the property to cater for the growing needs of his family and especially for his
elder son who was then 21 years old. His son is unemployed and his wife holds
a tobacconist’s shop in the same building, next to the premises leased to the tenant. His
son helps in the tobacconist’s shop and would like to set up his own business.
 On the issue whether the landlord has proved a reasonable requirement for the
premises, the learned Magistrate found as follows:

"There is nothing on record to suggest that he needs the premises for him or
for his wife, not even that extra space is needed for the expansion of her
business. Instead, the plaintiff only laid emphasis on his wish to place the
premises at the disposal of his elder son. The son is actually helping her
mother in her business next to the premises in lite and the plaintiff stated that
his son prefers to run his own business. However there is nothing on record
to indicate what business his son proposes to set up and whether any steps
have been taken for the realisation of the project, for example whether there
has been an application for the relevant licence and how he would go about to
establish the business. The Court therefore is (of) opinion that the plaintiff
has not shown on a balance of probabilities that he reasonably requires the
premises for his use and occupation. There is only a preference and no
urgent need."

On the term “required”, the learned authors in The Rent Acts by R. E. Megarry
(11th Edition) commenting on decisions of the English Courts note at page 424:

"The landlord need not, however, demonstrate a 'dire necessity'. He must

show a 'genuine present need' for the house, and not be 'moved by
considerations of preference and convenience merely ……'. The words
'reasonably required' connote something more than desire, although at the
same time something much less than absolute necessity will do."

Applying the test of “genuine present need”, we are unable to say that on the evidence
adduced, the learned Magistrate came to the wrong conclusion and that her findings are
so erroneous that they must be disturbed.

Learned Counsel for the landlord submitted to us at some length on the issue of
hardship. However, having found that the landlord did not reasonably require the rented
premises, the issue of the relative hardship of the landlord and tenant does not arise.
Under section 24 of the Act, such issue arises when the landlord has proved to the
satisfaction of the Court that he reasonably requires the premises. (Vide also
B. Dassaye v. Dilmahamood [2003 SCJ 96]).
 Turning to the appeal of the tenant, it is submitted on behalf of the landlord that
the garage which was built by the original lessee, was subject-matter of a separate
lease. We note that on the pleadings and also on the evidence adduced in the course of
the trial, such was never the case of the landlord. Indeed, the evidence adduced shows
that the whole premises were let at the same time under one lease. Therefore the
learned Magistrate was not warranted to order the repossession of the garage. This is
all the more so after her findings to the effect that the premises are not reasonably
required by the landlord.

For the reasons given above, in SCR 5754, we allow the appeal of the tenant
and quash the order for possession of the garage. With costs.

In SCR 5756, we dismiss the appeal of the landlord. With costs.

A. F. Chui Yew Cheong

Judge

N. Matadeen
Judge

7 September 2007

Judgment delivered by Hon. A. F. Chui Yew Cheong, Judge

For Appellant in the 1st case Mr. Attorney M. A. Moollan

and for Respondent in the 2nd case: Sir H. Moollan, Q.C. together with
 Mr. A. Moollan, of Counsel

For Respondent in the 1st case Mr. Attorney J. C. Ohsan-Bellepeau

and for Appellant in the 2nd case: Mr. G. Bhanji-Soni, of Counsel