Supreme Court
Action No. 134 of 1981
27th January, 1983.
Rajasingham, J.

Mr. Glenn Godfrey, for the Plaintiff.
Mr. M. C. Turton, for the Defendant.

Trespass - Defendant entering his own premises which were leased to Plaintiff - Defendant causing damage to premises in the course of entering - Whether Defendant guilty of trespassing upon his own premises occupied by Plaintiff under a lease agreement.
Lease Agreement - Oral lease agreement - Plaintiff expending money to effect repairs to Defendant's premises on the basis of an oral lease agreement - Defendant denying ever entering into an oral lease agreement with Plaintiff - Whether the fact that Plaintiff expended money to effect repairs to Defendant's premises supportive of existence of oral lease agreement.

J U D G M E N T

This is an Action filed by the Plaintiff applying for an injunction to stop the Defendant and his servants and agents from trespassing on the Plaintiff's shop premises, and for damages for trespass. The Defendant, while admitting he broke into the premises, denies that he was trespassing, because the Plaintiff's lease had expired. The Defendant also counterclaims for possession of the premises and mesne profits.

The evidence in this case is brief. The Plaintiff gave evidence and, while he appeared to have a poor memory for dates, stated in essence that the premises in suit were leased to Hans Bhojwani, his brother-in-law, in 1975. In 1975, at the request of Hans Bhojwani, the lease of the premises was transferred to Devi Hotchandani, Plaintiff's mother. That lease was for a period of three years from the 18th February, 1972, in the first instance, with an option to renew it for a further period of three years. It was accordingly renewed in 1978, but this time in favour of the Plaintiff. Thus far, the Plaintiff and Defendant are agreed on the facts. The Plaintiff says that in October, 1980, he met the Defendant in the shop known as Manhattan Store and there asked him for a renewal of the lease for a further three years at an increased rental of $7,200 per annum; the rent at the time was $6,000 per annum and had during the first three years been $4,800 per annum. The Plaintiff says the Defendant agreed to lease the premises for a further three years and they also spoke of repairs which the Plaintiff was going to do and which were roughly estimated as costing in the region of $6,000 to $8,000. The Plaintiff, thereafter, proceeded to spend the sum of $6,000 on repairs to the Defendant's property. In his original defence the Defendant answered that he did not at any time consent to or approve of the Plaintiff spending sums in excess of $6,000.00 and denied that he was at any time "before or after the expiration of the lease aware of any renovation of the premises nor was such renovation as alleged ever brought to his attention". In his amended answer he denied the allegation made in the plaint in more general terms. However, in evidence he said, "I was not aware until recently that Hotchandani had done repairs to the shop". Thus he admits in effect that he is now aware that repairs were in fact done, although he may have become aware of it after his first answer was filed. I accept the evidence of the Plaintiff on this point, namely that he did spend over $6,000.00 on repairs to the Defendant's premises.

The Plaintiff goes on to talk of his having received a letter dated 19th January, 1981, from solicitor, Mr. Turton, asking him to vacate these premises by 1st February, 1981. He said he took the matter to his solicitor, Mr. Godfrey. The Plaintiff then said he cannot recall receiving a letter dated 22nd January, 1981 from Mr. Turton. On being shown the letter, he said he was positive he had not received such letter. He also said he did not receive the original of the letter dated March 24th, 1981 from Mr. Turton. Both these letters are addressed to Mr. Bob Hotchandani, c/o The City Centre Store, Belize City. The Plaintiff's Counsel had in fact filed an Affidavit signed by the Plaintiff in which these two letters are declared as being in the Plaintiff's possession. The Plaintiff could thus have no motive for falsely denying he received them. I can only surmise that he either just handed them over on receipt to his solicitor and forgot about them, or someone in his shop did so and he in fact never actually saw them.

The Plaintiff certainly did not appear to be a fool. The Plaintiff does not appear to have ever replied to these letters of 19th and 22nd January, 1981, but his solicitor replied to the letter of March, 1981. Mr. Turton's letter of 22nd January, 1981, states that the Plaintiff's "request to re-lease the premises" was conveyed to the Defendant and the Defendant is not agreeable. The Plaintiff says he spoke to Mr. Turton and asked him for a further lease because of the Defendant's oral agreement. Since the "re-lease" referred to in Mr. Turton's letter could be a request for a written agreement, it does not contradict the Plaintiff with sufficient certainty to throw any substantial doubt on his evidence on his point.

The Plaintiff then speaks of the occurrence of civil disturbances in March/April, 1981, and of the ransacking of his shop. He said he lost about seventy-five percent of his stock. He said that when finally he was allowed to do so, he instructed a carpenter to board up the broken windows and doors, but found someone had beaten him to it. He said he then removed the locks and began removing old stock and restocking his shop. After he had been doing this for a day or two he came to the shop to find that someone had removed part of the zinc roofing and that four fans were missing. He said the fluorescent lamps on the roof had fallen. He reported the matter to the Police. He later learnt that the Defendant was responsible and this led to his filing this Action.

The Defendant gave evidence and denied any oral agreement in October, 1980. He said he instructed his lawyer to send a demand to the Plaintiff to vacate the premises on the due date. He agreed with Plaintiff's Counsel's suggestion that he did this because he had changed his mind, and then denied there had been any change of mind. He says he decided to evict the Plaintiff because these Indians were burning shops and when asked to elucidate mentioned the burning of his shop by a Mr. Bhojwani. He did, therefore, finally agree with a suggestion, at first denied by him, that it was fear of fire that led him to seek to evict the Plaintiff. It is not clear when this fear was born in his mind. The Plaintiff suggests that it was after October, 1980.

The Defendant admits he broke into the premises in issue in April 1981, by breaking down the rear door. He said he did so in the belief that the lease having expired, he was entitled to do so and also because he thought the premises had been abandoned. This is totally unacceptable for several reasons. If, in fact, he thought the premises were abandoned, he could very easily have obtained the key to it - instead he chose to cause damage to his own premises by breaking in a door. He then removed roofing sheets, hardboard and light fixtures, according to his first answer, and zinc sheets and some electric wiring, according to his evidence and his second answer. The removal of the zinc sheets and leaving them off overnight - because the Plaintiff discovered them when he opened the store - while the Plaintiff's goods were still in the shop, as stated by Plaintiff and not denied by Defendant, was clearly a malicious act by the Defendant and not one done in furtherance of repairs. It clearly shows that the Defendant knew, when he did it, that the Plaintiff was still in occupation of the shop. The only interpretation one can give to such an act in these circumstances is that the Defendant, knowing he had no legal recourse or not knowing he had, decided to take matters into his own hands; and this in turn tends to give support to the Plaintiff's claim that the Defendant had agreed orally to lease the premises to him for a further period of three years from February, 1981, and that that was why he expended such a large sum on the renovation of the shop in October, 1980. Accordingly, I find that the Defendant did agree orally to lease the premises at 5 Albert Street or Market Square to the Plaintiff for a period of three years from the 1st of February, 1981, at a rental of $7,200.00 per annum. In view of the admissions made by the Defendant, I have no difficulty in also arriving at a finding that the Defendant did cause damage to the premises while it was in the occupation of the Plaintiff and that the Plaintiff expended a sum of $600 in repairing the said damage. In so entering and causing damage to the premises, the Defendant is guilty of trespass. As there is no evidence of any explicit damage suffered by the Plaintiff, I award a sum of $500 as damages for the said trespass and the inconvenience caused by it. The Plaintiff will, of course, be liable to pay the agreed rental of $7,200.00 per annum for the lease period.

I award the Plaintiff the sum of $600 as damages for the cost of repairs borne by him, a sum of $500 as damages for trespass and the costs of this Action. I also grant the Plaintiff an injunction restraining the Defendant, his servants or agents from trespassing on the said premises at 5 Albert Street or Market Square for so long as the Plaintiff is lawfully in occupation thereof.

I dismiss the Defendant's counterclaim with costs.

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