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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