clr/1979/1979_1_533.pdf

(1){g)—Discrttionof trialJudge—A11personal circumstances of parties taken into consideration by trial Judge in exercising his discretion infavour of landlord—Tenantfailed to persuadeCourtof Appeal thatsuchdiscret onwas wronglyexercised or was not warranted by the evidence before the trial Judge— Failure of tenant to seek alternative accommodation—Rightly taken into account in consideringthe "circumstances of the case" under the said section 16(l)(

1. g)of the Law. 15 Rent Control Law, 1975(Law 36/75)—"His spouse" insection \6(\)(
2. g)ofthe Law—Includes"her spouse"—Section 2ofthe Interpretation Law, Cap. 1. 20 25 The respondent was the owner of a block of four shops one of which was occupied by the appellant as a statutory tenant. Her husband, who was the Manager and biggest shareholder of a trading company, sustained extensive losses because of the Turkish invasion and the business of his company was -considerably affected. As a result he decided to start a personal business of his own and set up such business in the shops owned by his wife—the respondent—by joining all of them and converting them into one spacy big shop and shawroom. When three 533 Themistocleous v. Stephanldou

(1979)of the shops were vacated the respondent did not let them but kept them vacant to be used by her husband. By letter dated 17th December, 1977,the respondent gave notice to the appellant to vacate the premises till the 20th January, 1978 and informed her that the said shop was reasonably required by her husband 5 for his business. The appellant failed to vacate the premises and the trial Court, on the application of the respondent, made an order for recovery of possession under section 16(J)(g)* of the Rent Control Law, 1975 (Law 36/75). The tenant occupied the said shop as a statutory tenant and used ii for selling sporting 10 goods. She has left Cyprus since February, 1975and has settled wiih her husband in Greece; both of them secured employment there and the business in the shop was run through an employee with a small profit made out of such business. Since the time she left Cyprus, she visited Cyprus only once. · 15 The trial Judge found** that the landlady has discharged the onus of proof that she reasonably required the premises in question for occupation by her husband and that the tenant failed tu discharge her burden of proving greater hardship to hci if an order for possession was made. 20 Upon appeal counsel for the tenant contended: (a) That the owner was not entitled to an order under section 16(l)(g) of Law 36/75, as the provisions of such section did not extend to, or render any protection to, the "husband" of the owner, in view of the wording 25 of such section which provided for cases where the premises were reasonably required by "the landlord, his spouse ", but made no mention of the "husband". (b) That the trial Court was wrong in finding that the 30 premises were reasonably required by the husband of the owner. (c) That the trial Court was wrong in finding that the tenant failed to seek alternative accommodation. Held,

(1)that section 2 of the Interpretation Law, Cap. I makes clear provision as to inclusion of females in the definition * Quoted at pp. 536-7 post. ** Sec the relevant part of thejudgment at pp. 538-9 post. 534 35 1 1 C.L.R. \ \ Themlstocleous τ. Stephanldou •\ 5 10 15 20 of males; that it is clear from the whole object and wording of the law that the protection was intended both for the wife or the husband of the owner, depending as to whether the owner was male or female; and that,accordingly, contention (a) must fail.

(2)That there was ample evidence on which the trial Judge could base his findings that thepremises were reasonably required by the husband of the owner and that the finding of the trial Judge in this respect was the correct one; that the trial Judge, on the evidence before him, arrived at the correct conclusion in finding that the appellant failed to satisfy the Court that greater hardship will be suffered by her if an eviction order was made; that all personal circumstances of the parties were taken into consideration by the trial Judge, who exercised his discretion in favour of the owner,, and the appellant failed to persuade this Court that the discretion of thetrial Judge was wrongly exercised or was not warranted by the evidence before him; and that, accordingly, contention (b) must fail.

(3)That the trial Judge was correct in finding that the tenant failed to seek alternative accommodation for her business and he very rightly took into account this factor in considering the "circumstances of the case" under section 16(l)(

1. g)of the Law; and that, accordingly, contention (
2. c)must, also, fail. Appeal dismissed. 25 Cases referred to: Beresford-Hope v. Lady Sandhurst [1889] 23 Q.B.D. 79: Nairn v. 5/. Andrew's University [1909] A.C. 147; Bebh v. Law Society .1914] 1 Ch. 286. Appeal. 30 35 Appeal by the tenant against the judgment of the DistrictCourt of Nicosia (HjiConstantinou, S.D.J.) dated , the 25th August, 1979 (Rent. Appl. No. 289/78) whereby she was ordered to deliver vacant possession of a shop at Gregoris Afxentiou Str. N o . 6 Nicosia. A. Pandelides, for the appellant. D. Koutras, for the respondent. Cur. adv. vult. 535 Themistocleous v. Stephsnidou

(1979)MALACHTOS- J . : The judgment of ihe Court will be delivered by Mr. Justice Sawides. SAVVIDES J.: This is an appeal against an order of the District Court of Nicosia whereby the appellant was ordered to deliver vacant possession of a shop at Gregoris Afxentiou Street, N o . 6, Nicosia, with stay of execution till the 15th of October, 1979. The order was made on the application of the owner under the provisions of the Rent Control Law (Law No. 36/75) and in particular, section 16(l)(g) which provides as follows: "16.-

(1)Ουδεμία απόφαση καΐ ουδέν διάταγμα εκδίδεται δια την άνάκτησιν της κατοχής οιασδήποτε κατοικίας ή καταστήματος, διά το όποϊον ισχύει ό παρών Νόμος, ή δια την εκ τούτου έΈωσιν ενοικιαστού, πλην των ακολούθων περιπτώσεων: 5 10 (ζ) είς περίπτωσιν καθ* ην ή κατοικία ή το κατάστημα J5 απαιτείται λογικώς προς κατοχήν Οπό τού Ιδιοκτήτου, της συζύγου του, τού υίοϋ του, της Θυγατρός του, τοϋ γαμβρού του, της νύμφης του, τοΰ αδελφού του ή της αδελφής του, οΐτινες είναι ηλικίας άνω των δεκαοκτώ ετών και είς οίανδήποτε τών περιπτώσεων τούτων τό 20 Δικαστήριον θεωρεί λογικήν τήν εκδοσιν τοιαύτης αποφάσεως ή τοιούτου διατάγματος: Νοείται ότι ουδεμία άπόφασις καΐ ουδέν διάταγμα Θά έκδίδωνται δυνάμει της παραγράφου αυτής, έάν ό ενοικιαστής πείση τό Δικαστήριον ότι, λαμβανομένων ύ π ' όψιν όλων τών περιστάσεων τής υποθέσεως, θά έπροίενεϊτο μεγαλύτερα ταλαιπωρία διά της εκδόσεως τοΰ διατάγματος ή της αποφάσεως παρά διά τής αρνή­ σεως εκδόσεως τούτου. 25 Διά τους σκοπούς τής παραγράφου αυτής ό όρος 30 ' περιστάσεις της υποθέσεως ' περιλαμβάνει τό ζήτημα κατά πόσον υπάρχει διαθέσιμον έτερον μέρος στεγάσεως διά τον ίδιοκτήτην ή τον ένοικιαστήν, και τό ζήτημα κατά πόσον ό Ιδιοκτήτης ήγόρασε τό άκίνητον μετά τήν ήμερομηνίαν καθ' ην ετέθη έν Ισχύϊ ό παρών Νόμος προς 35 τόν σκοπόν αποκτήσεως κατοχής δυνάμει τών διατάϋεων της παρούσης παραγράφου· (' 16.-

(1)N o judgment or order for the recovery of posses- 536 1 C.L.R. Themtstocleous v. Stephanidou Sawides J. sion of any dwelling house or business premises to which this Law applies, or for the ejectment of a tenant therefrom, shall be given or made except in the following cases;' 5 10 15 20 (g) Where the dwelling house or business premises are reasonably required for occupation by the landlord, his spouse, his sonj daughter, son-in-law, daughter-inlaw, brother or sister, who are over eighteen years of age, and in either case the Court considers it reasonable to give such judgment or make such order: Provided that no judgment or order shall be given or made under this paragraph if the tenant satisfies the Court that, having regard to all the circumstances of the case, greater hardship would bs caused by granting the order or judgment than by refusing to grant the same. For the purposes of this paragraph, the expression 'circumstances of the case' shall include the question whether accommodation is available for the landlord or the tenant, and the question whether the landlord purchased the premises after the date of the coming into operation of this Law for the purpose of gaining possession under the provisions of this paragraph; ")· The respondent is the owner of a block of four shops at 25 Gregoris Afxentiou Street, one of which is occupied by the appellant as a statutory tenant. Respondent's husband is the Manager and biggest shareholder of a trading company which, as a result of the Turkish invasion, sustained extensive losses and was declared as a stricken company, and in consequence, 30 the Income Tax Authorities accepted, for purposes of income tax, a loss of £200,000. Due to the extensive losses sustained by the company the Bank credit limits to the company were restricted and the business of the company considerably affected. As a result, respondent's husband for making his living and that 35 of his family, decided to start a personal business of his own by importing and selling electrical appliances and other goods, and set up such business in the shops owned by his wife by joining all of them and converting them into one spacy big 537 Savvides J. Themistodeous ?. Stephanidou

(1979)shop and showroom to accommodate his business. Such shops were adjacent with their house which belonged to his wife and they provided ample parking space required for his business. The said shops were the only suitable ones for his business and for this reason, when the three of them were vacated by the 5 tenants, the last two in 1976 and 1978, his wife did not let them but kept them vacant to be used by her husband. By a letter dated 17th December, 1977, the respondent gave notice to the appellant to vacate the premises till 20.1.1978 and informed her that the said shop was reasonably required by her 10 husband for his business. The appellant, tenant, occupied the said shop as a statutory tenant and used it for selling sporting goods. Since February, 1975, appellant left Cyprus and has settled with her husband in Greece; both of them secured employment there and, according to theevidence, thebusiness in the shop is run through an employee with a small profit made out of such business. Since the time they left Cyprus, the appellant visited Cyprus only once and that was the only occasion when she visited her shop as well. The trial Judge in dealing with the questions as to whether the premises were reasonably required by the owner and as to whether greater hardship will be suffered by the tenant if an eviction order is made, concluded as follows: " Consequently, 1 find that the landlord has discharged the onus of proof and has convinced me that she reasonably requires the shop in question for occupation by her husband in order to start and establish therein a new business as aforesaid. 25 I can neither sec that the tenant will suffer any serious 30 financial loss or other serious inconvenience if the order for possession sought is granted. On the contrary if an order for possession is not made the landlord's husband will be precluded from starting and establishing the new intended business and will be deprived from the expected 35 c;uni!'gs therefrom. The landlord has already suffered Ιοί-s of rents in respect of the two shops kept vacant for a considerable time. In any case the tenant failed to 538 1 C.L.R. Tbemlstocleous v. Stephanldou Sawides J. discharge her burden of proving greater hardship to her if an order for possession is made. On the contrary, the evidence shows that greater hardship would be caused to the landlord if I refused to make the order sought." 5 Counsel for appellant argued before us that the owner was not entitled to an order under section 16(l)(g) of the Law, as the provisions of such section did not extend to, or render any protection to, the "husband" of the owner, in view of the wording of such section. Counsel submitted that the section 10 provided for cases where the premises were reasonably required by "the landlord", his spouse....", but nothing was mentioned about "husband". He agreed that the word "landlord" may be interpreted as including both male or female owner, but the words "his spouse" could not be interpreted as including "her 15 spouse". Under the Interpretation Law, Cap. 1, section 2, provision is made as follows: 20 25 " In this Law and in every other Law, and in all public instruments, enacted, made, issued, kept or in use, before or after the commencement of this Law, the following words and expressions shall have the meaning hereby assigned to them respectively, unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided— words importing the masculine gender include females; Such provision is in similar wording as the English Interpretation Act, 1889, section l(l)(a)"Halsbury's Statutes of England, Third Ed. Vol, 32, page 434 at p. 435. The following cases are referred to in the footnote of Halsbury's Statutes of England 30 at p. 435, as instances of "contrary intention", as found by the Court in construing this provision: Beresford-Hope v. Lady Sandhurst [1889] 23 Q.B.D. 79 (woman held to be incapable of election as a county councillor); Nairnv. St. Andrew's University, [1909] A.C. 147 (woman held to have no vote for parliamentary 35 candidate); Bebb v. Law Society, [1914] 1 Ch. 286 (woman held ineligible to be a solicitor). We find this ground of 'appeal as unfounded. The lnter539 Sawides J. Tbemlstocleoos τ. Stephanidoa

(1979)pretation Law makes clear provision as to inclusion of females in the definition of males. If we accept the construction suggested by counsel for the appellant that the word "landlord" may be applicable to both males and females then«-By, finding that the word "his" accompanying the word "spouse" does hot include "her", such construction will lead to absurdity. It is clear from the whole object and wording of the Law thatthe protection was intended both for the wife or the husband of the owner, depending as to whether the owner was male or female. 5 Coming now to the otherground of appeal thatthetrialCourt was wrong in finding that the premises were reasonably required by the husband of the owner, we find that there was ample evidence on which the Court based its findings and we are satisfied that the finding of the trial Judge in this respect, is 15 the correct one. As to the question of hardship which under the proviso to section 16(l)(g) the Court had to consider before making an eviction order, we are satisfied that the trial Judge on the evidence before him, arrived at the correct conclusion in finding 20 that theappellant failed to satisfy theCourtthatgreater hardship will be suffered by her if an eviction order is made. In dealing with the question of hardship the fact that the appellant and her husband have settled for the last five years in Athens and they are both working there, whereas the business in Cyprus is 25 carried out by an employee without their taking any active part in its running and with a small profit, was a material fact which was properly taken into consideration by the Court. The appellant did not give evidence before the Court to manifest any intention to return to Cyprus and it was in this respect 30 that the Court found that there was no intention shown,by the appellant to return to Cyprus and carry on the business in the said shop as her main occupation. All personal circumstances of the parties were taken into consideration by the trial Judge who exercised his discretion in favour of the owner and we 35 must say that the appellant failed to persuade us that the discre­ tion of the trial Judge was wrongly exercised or is not warranted by the evidence before him. We must further say that the trial Judge was correct in finding that the tenant failed to seek alternative accommodation for her business after the owner 40 had requested her to deliver vacant possession of the premises 540 10 1 CX.R. Tbemlstodeous v. Stephanldou Sarvides J- and, therefore, the ground of appeal on this issue also fails. Very rightly, in our view, the trial Judge took into account this factor in considering the "circumstances of the case" under section 16(i)(g)'"of the Law. " ' 5 10 In the result, the appeal fails and is hereby dismissed with costs." Taking into consideration, however, the fact that the eviction order expires today, in the exercise of the powers vested in us, we extend the stay of execution till the 30th November, 1979. Appeal dismissed with costs. Stay of execution until November 30, 1979. 541