Webster v Gumbs
| Jurisdiction | Anguilla |
| Judge | Satrohan Singh, J |
| Judgment Date | 17 October 1991 |
| Neutral Citation | AI 1991 HC 3 |
| Court | High Court (Saint Christopher, Nevis And Anguilla) |
| Date | 17 October 1991 |
| Docket Number | No. 27 of 1991 |
High Court (Civil)
Singh, J.
No. 27 of 1991
Dr. Henry Leonard Grenville Stukumba Browne for the Plaintiff Mr Lee Llewelyn Moore, Mr Thomas Wadia Astaphan with him for Defendant.
Real property - Lease — Lessee's covenants — Implied covenant not to sublet — Whether lessor waived breach by accepting rent.
The plaintiff herein Palmavon Jasmine Webster is a Barrister-at-Law and Solicitor of the Supreme Court of Anguilla.
By a lease agreement dated October 9, 1989 made between the plaintiff and the defendant, the defendant leased to the plaintiff premises situate at the Quarter, Anguilla and described as North Central Block 488148 Parcel 35 for a term of twenty-five years from October 9, 1989.
The plaintiff alleges in her statement of claim that on or about January 28, 1991 she obtained verbal assurance from the defendant, that upon herself and one Didric Webster reaching an agreement regarding the possible subleasing of the demised premises by the plaintiff to Didric Webster, he would grant the appropriate consent necessary for such a subleasing and would have no objection to Didric Webster improving the demised premises prior to the settling of the terms of the lease. The defence denies this allegation.
The plaintiff further alleges that, relying on that verbal assurance from the defendant, she permitted Didric Webster to effect certain works and repairs to the building. The defence categorically denies giving these assurances. The defence also denies the assertion of the plaintiff that on February 7, 1991 he examined the draft sublease and expressed no objections. The defence also denies that the defendant gave Didric Webster advice and instructions regarding the cleaning of the premises.
The plaintiff then contends in her Statement of Claim that as a consequence of the defendant's conduct and assurance to the plaintiff, the plaintiff's reliance on same caused her to act to her detriment, thus the defendant is estopped from withholding his written consent to the intended sublease and from relying on S55 of the Registered Land Ordinance 1974.
The plaintiff further asserts that Didric Webster deposited cheques with her for the sum of $6,300 US with the understanding that they or their value would be returned to him in the event of the sublease not being affected. The payment aspect only of this assertion is admitted by the defence. The defence denies the further assertion by the plaintiff that on or about March 11, 1991 the defendant inspected the premises.
The defendant admits receipt of rent from the plaintiff for March 1991 but states that at that time he was not aware of the breach of covenant not to sublease by the plaintiff, Accordingly, he contends that he did not waive any right to forfeiture of the lease as alleged by the plaintiff.
It is admitted that on April 10, 1991, the plaintiff received notice from the defendant alleging breach of covenant by the plaintiff, which notice advised the plaintiff to remedy same with 7 days, and, that on that said day, the plaintiff wrote the defendant enclosing rent due and advising the defendant that she would take immediate steps not to bring into effect any proposed agreement with Didric Webster. The defence admits receipt of this letter.
The defendant then wrote the plaintiff, signifying his re entry on the demised premises and admits that he took steps to bar the entry of the plaintiff to the premises.
There is dispute in the pleadings whether the letter was dated April 18 as asserted by the plaintiff or April 16, 1991 as stated by the defendant. The defendant admits that he has interrupted the plaintiff's quiet enjoyment of the premises but denies that he derogated from the grant as alleged by the plaintiff. The defence further contends that the defendant was entitled by virtue of the plaintiff's breach of covenant not to part with possession of the property by virtue of s.53(1) of the Registered Land Ordinance, 1974, to forfeit the said lease.
The defence relies on s.55 (2) (a) of the aforesaid Ordinance and states that at the time of the exercise of the right of forfeiture the plaintiff was not in occupation of the demised premises.
The defence further contends that the plaintiff was in breach of the covenant not to part with possession of the demised premises which covenant was implied in the lease under and by virtue of s. 53(i) of the aforesaid Ordinance, and that the said breach could not be remedied at the instance of the plaintiff.
As a consequence of the above, the plaintiff claims:
1. Possession of the said premises
2. A declaration that the lease between the parties is valid and subsisting.
3. Alternatively, to paragraph 2 relief against forfeiture of the said lease dated 8th day of October 1989.
4. An injunction restraining the defendant from breaching the covenant for quiet enjoyment stated in Clause 3(a) of the said lease.
5. Damages
6. Interest and costs
7. Further and other relief as the Court deems just.
In his defence, the defendant makes no admission of any loss or damage suffered by the plaintiff and denies that the plaintiff is entitled to possession of the demised premises or that she is entitled to relief from forfeiture of the said lease for these reasons:
(i) Plaintiff parted with possession of the demised premises without the written consent of the defendant;
(ii) Defendant approached plaintiff on 22nd March, 1991 and spoke to her about her breach of covenant and plaintiff's response to defendant was that her arrangement with Didric Webster was none of plaintiff's business.
(iii) Plaintiff acted in breach of covenant in order to make a profit unjustly at the expense of the defendant and at a time when she was refusing to comply with the terms of the lease regarding the rental;
(iv) Plaintiff has not up to now sought any written consent from defendant for parting with possession of the demised premises to Didric Webster;
(v) Defendant verily believes that use by Didric Webster would have been inconsistent with the user stipulated in the terms of the lease;
(vi) Plaintiff's conduct after the defendant's re entry upon the demised premises was high handed and unrepentant and it would be inequitable to grant the plaintiff relief;
(vii) Despite the plaintiff undertaking in the Interlocutory proceedings herein to pay the rent as it falls due plaintiff has since the date of the Order that is the 11th day of June, 1991 notwithstanding the said Order and undertaking failed neglected or refused to pay any rent due to the defendant.
The defendant says that this re-entry upon the demised premises was a lawful exercise of his right of forfeiture and re-entry.
The main question that arises herein to be answered is, putting it simply, did the plaintiff herein sublet the demised premises to Didric Webster without the written consent of the defendant as is required by S53(i) of the aforesaid Ordinance.
It is agreed on both sides that the plaintiff had no written consent from the defendant to do a subleasing of the demised premises. The issue thus becomes narrowed to the question whether as a matter of fact and law there was a subleasing of the demised premises by the plaintiff.
In this regard, I find as a fact that there was an agreement for such a sublease between the plaintiff and Didric Webster. This agreement was put in draft and a copy given to Didric Webster for his consideration. In the meantime, Didric Webster paid the plaintiff rental on that agreement in the sum of $4500 US and also gave the plaintiff $1800.US by way of security, all in pursuance of that agreement. Didric Webster signed the agreement, according to the plaintiff's evidence, on February 5, 1991.
Didric Webster then entered the premises and did work of cleaning and landscaping the property and some work on the building.
The draft sublease was never signed by both parties. Two things happened. Didric Webster was arrested for murder and the plaintiff, having received a notice from the defendant accusing her of breach of the terms of the lease by subletting, responded to the defendant that she will forthwith terminate her arrangement with Didric Webster. The plaintiff refunded to Didric Webster all the monies she had received from him.
I disagree with the contention of Dr. Browne for the plaintiff that for the Court to find a sublease or an agreement for a sublease, the document should have been in evidence. This contention of Dr. Browne took away somewhat from the eloquence of his remaining presentation to this Court. The entire case for the plaintiff was based on the fact of the plaintiff entering into an agreement with Didric Webster for the subleasing of the demised premises to Didric Webster, the plaintiff so doing on an alleged assurance given to her by the defendant that he will give it his blessing. Indeed, the pleading of the plaintiff and her evidence is that she acted on that assurance to her detriment. The only issue was whether the agreement ripened itself into a sublease.
The plaintiff's evidence is that she did not part with possession of the property to Didric Webster when he did work on the premises, that she had her own stuff on the premises and that she only gave Didric Webster permission to go on the premises and do the work he did, pending the final isingAtne sublease which included obtaining the written consent of the defendant.
On this issue as to whether or not the plaintiff parted with possession of the demised premises to Didric Webster I find that the fact of her having stuff on the premises, without more, is not enough to convince this Court that she did not part with possession. If her evidence is to be believed, she acted on an assurance from the defendant of a forthcoming consent which would be readily given...
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