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(STEPHEN
O. MASSIAH
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PLAINTIFF |
BETWEEN |
(AND |
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(GEORGE
GOFF
(TEODOCIO OCHOA |
FIRST
DEFENDANT
SECOND DEFENDANT |
Supreme
Court
Action Nos. 37 & 38 of 1982
20th February, 1984
Moe, J.
Mr. O.
Sabido for the Plaintiff.
Mr. D. Lindo, S.C. for the Defendants.
Lease
Agreement - Failure by Defendants to pay agreed rent - Plaintiff
seeking to determine Lease Agreement and take possession
of premises - Plaintiff waiving his rights to possession
-Order for possession of premises denied - Order for payment
of outstanding rentals granted.
J
U D G M E N T
The Plaintiff
leased to the Defendants the lower flat of premises at 22
Burns Avenue, San Ignacio, from the 1st January, 1978 for
eleven years at the monthly rent of $100.00 payable in advance.
He also leased to the Defendants the upper flat of the said
premises from 1st March, 1978 for ten years at the rent of
$75.00 per month. By letter dated 24th August, 1981, the Plaintiff
gave notice to the Defendants that he intended to exercise
his right to re-enter the premises for non-payment of rent
in accordance with a clause of the lease. The Defendants are
still in possession. The Plaintiff now seeks (1) possession
of the premises; (2) 8 months rent from January, 1981 and
(3) mesne profits from September, 1981 until possession.
The Defendants
say that their rents have been prepaid from 1980 to 1985 because
on 10th October, 1978 the Plaintiff acknowledged in writing
his indebtedness to the Defendants in the sum of $11,795.07.
That he agreed that the amount would be liquidated by crediting
the Defendants with the payment of rent of $2,100.00 annually
for the years 1980 to 1984 and $1,295.09 for 1985.
The evidence
was that the Plaintiff received rent for the year 1978. In
July 1979, the amount of $11,795.07 was reduced by $2,100.00
by the Defendants agreeing to pay him that sum for some furniture,
thus leaving a balance of $9,695.07. He also received rent
for 1979. At the beginning of 1980 the rent owing would therefore
be $7,595.07.
The Plaintiff
said he did not receive rent for 1980, but that on 3rd November,
1980 he paid the first Defendant $9,695.07 in cash being the
balance due on his promissory note to the Defendants. He tendered
a receipt to that effect which he said he received from the
first Defendant. The first Defendant denied giving the receipt,
but alleged that the document tendered is a fabrication of
the Plaintiff. He admitted that the signature on the document
is his, but said that he signed a blank sheet of paper, a
big piece of paper. He signed the sheet because he had asked
the Plaintiff to write to the Income Tax Department for him
to state the way he was going to pay an assessment made on
him; the Plaintiff said he was busy, asked him to sign the
sheet and he would do the letter afterwards. There was no
line on the sheet where he signed. He says the typed line
now appearing under the signature goes over his 'g'.
I had
to determine whether to accept the receipt as genuine. I considered
carefully the evidence of both parties concerning the document.
The Plaintiff's evidence established prima facie that
the Defendant had signed and given the receipt tendered. I
observed edges at the top and bottom of the sheet of paper
concerned which indicate that portions were torn from the
top and bottom of a larger sheet of paper. Other than this,
I was offered no technical assistance in evaluating the document.
There was nothing put before me which assisted me in determining
whether matter (including the line under his signature) was
typed on the sheet of paper after he put his signature on
it. This was a serious charge made and as such one of the
circumstances taken into account in determining the matter.
I did not find that the evidence put before me was cogent
enough to displace the prima facie evidence raised
by the Plaintiff. On the evidence left with me I accepted
the document tendered as a receipt given by the first Defendant.
I found,
therefore, that the Plaintiff on the 3rd November, 1980 discharged
his obligation under his promissory note to the Defendants.
The Defendants were then liable to pay rent to the Plaintiff
for the years 1980 onward. There has been no payment of rent
by the Defendants since 1979. The Plaintiff is entitled to
the arrears of rent due him. He has, however, claimed arrears
of rent from 1st January, 1981.
By Clause
6 of the respective leases, the Plaintiff was entitled to
re-enter the premises and determine the tenancy. By his letters
of the 24th August, 1981 he gave notice terminating the tenancy
on 31st August, 1981 and in February, 1982 he filed these
Actions. However, there was put in evidence by the Defendants
the following documents which were issued from the Plaintiff.
The first dated 17th May, 1983 read:
"TO
WHOM IT MAY CONCERN
Mr.
George Goff, the present tenant of my property situate
at No. 22, Burns Avenue, San Ignacio, Cayo District, is
free to enter into any partnership agreement with anybody
whom he may choose in regard to the tenancy of the above
building.
Mr.
Goff's tenancy runs up to the year 1988 when new arrangements
for continued occupancy may be entered into if he so desires.
S.O.
Massiah"
The second
dated 21st May, 1983
"Received
from Mr. George Goff the sum of five hundred ($500.00)
dollars, being payment on account towards rental for the
years 1985 and 1986.
S.0.
Massiah"
N.B.
The balance of three thousand seven hundred ($3,700.00)
dollars for these years will be payable in June, 1983."
I held
these documents as showing that the Plaintiff recognized the
first Defendant as his tenant and did this with full knowledge
of the parties position under Clause 6 of the respective leases.
I regarded him as waiving his right thereunder. I therefore
decline to make an order for possession.
Judgment
for the Plaintiff in Action No. 37 for $3,600.00 arrears of
rent from January, 1981 to December, 1983; and in Action No.
38 for $2,700.00 arrears of rent from January, 1981 to December,
1983 and he is to have his costs in both Actions.
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