Fairbain v the Attorney General of Guyana

• Jurisdiction: Guyana
• Judge: Persaud, J.A.
• Judgment Date: 05 December 1997
• Neutral Citation: GY 1997 CA 9
• Docket Number: Civil Appeal No. 5 of 1993
• Court: Court of Appeal (Guyana)
• Date: 05 December 1997

Court of Appeal

Kennard, C.; Perry, J.A.; Persaud, J.A.

Civil Appeal No. 5 of 1993

Fairbain

and

The Attorney General of Guyana

Appearances:

Mr. O. M. Valz, S.C. for the appellant.

Ms. Crawford-Arbensetts for the respondent.

Real Property - Landlord and tenant — The appellant was in default of rent — The defendant authority granted a lease to a third party — Sometime after the appellant paid money to the defendant authority described as ‘payment for arrears' — Whether the defendant waived the forfeiture — If a landlord with knowledge of an act of forfeiture does an act which amounts to a recognition of continuance of the tenancy he will be treated as having waived the breach — The defendant by leasing the lot had already completed the act of forfeiture — When the defendant authority accepted the rent, having already forfeited, there was nothing to waive — Appeal dismissed.

Persaud, J.A.

1 In February 1961 the appellant applied to the Commissioner of Lands for a twenty-one year lease in respect of homestead lot 225 and cultivation lot 103 in the Black Bush area. The cultivation lot of 15.686 acres was for agricultural purposes, for the cultivation of rice. In his application the appellant undertook to pay all rents, charges, taxes and rates as may be levied in respect of each of the lots, and to comply with the additional covenants and conditions that were attached to the application, to occupy the lots beneficially and not to sub-let either of them except with the prior approval of the Government. The Government was empowered to eject him for failure to comply with any of the conditions.

2 No lease was ever granted to the appellant but he was put in possession of the lots and was required to pay for each of them on a yearly basis. He accordingly became a tenant from year to year.

3 Due to serious communal disturbances in the area, the appellant sought and was granted approval to occupy a different homestead - lot 143.

4 He claimed that except for one year when he allowed one Reasat Khan to plough the cultivation lot and to share the proceeds of the crop with him, he had always beneficially occupied both lots. But this, notwithstanding, and for no good reason he was told that he was not entitled to either lot: This was confirmed in a letter dated 8th March 1988 in response to a letter of protest that had been sent to the Minister of Agriculture on his behalf, by his lawyer.

5 He thereupon filed his action in the High Court and sought the following reliefs:–

• (a) a declaration that he is the tenant and is entitled to possession of homestead lot 143 and cultivation lot 103:

• (b) a declaration that the termination of his tenancies in respect of both lots is null and void and of no effect;

• (c) Damages.

6 In his evidence the Chief Lands officer on behalf of the State deposed that the leases in respect of both lots were terminated in November 1982 because of the appellant's persistent refusal to occupy them beneficially, and to pay the rent due. Evidence was also lead that Reasat Khan was in occupation of the cultivation lot for several years and Verone Park was in occupation of the homestead lot. He further deposed that appellant was in arrears of rent: As far back as October 1974 a letter had been written to him intimating that he was in arrears in the sum of $3,333.00 in respect of the cultivation lot up to the period ending December 1973. In November 1975 the Commissioner of Lands demanded payment of the outstanding rents on the cultivation lot and on the 20th December 1976 the appellant was given three months to pay the rent that was due on the said lot. He did not comply. No further action seems to have been taken until May 1981 when the appellant was invited to the Land Development Offices which had charge of the day to day administration of State Lands in the area, to discuss his problems.

7 On 27th May 1981 appellant went to the office and after discussions he promised to make good the arrears within one week. He failed to do so and in November 1982 he was notified that the leases of the two lots were terminated. Apparently, however, the appellant was not notified of this decision and in a letter to the Manager of the Scheme dated 19th January 1983 he stated that he first learnt of the decision when he went to the Local Office to make a payment towards the arrears of rent. He appealed in the letter that he be allowed to pay off the arrears and to continue to occupy the lots. This request was placed before an interviewing committee for consideration and appellant appeared before it on the 22nd August 1983. It was decided to defer action for three months. In November he again met with the Committee when he was told to cease sub-letting and personally occupy the lots. He was given six months within which to do so. At the end of this period he was still not personally occupying either lot and he was further interviewed on the 25th June 1984. The Committee again did not conclude the matter but a further deferral of one month was granted. On the 23rd July he was still not personally occupying either lot and it was decided to reject his appeal and the Minister of Agricultures who is the functionary vested with the powers of the President under the State Lands Act, to grant leases of State Lands, awarded the cultivation lot to Reasat Khan and a lease was later executed in his favour.

8 (See Delegation of Functions Order 1979 No. 60/1979). The Committee also recommended that the homestead lot be allocated to Verone Parks. There is no evidence, however, that she ever obtained a lease from the state, and indeed one Carol Punch, a niece of the appellant was occupying the building on the lot at the time the case was heard in the High Court.

9 The learned trial judge accepted the evidence led on behalf of the state and dismissed the applicant's action.

10 It was urged before us by learned senior counsel for the appellant that the determination of the appellant's tenancies amounted to their forfeiture and therefore could only be effective if the provisions of the landlord and tenant Act, Chapter 61:01 were complied with. Section 10 thereof prescribed the procedure to be followed in order to enforce a right of re-entry or forfeiture for any breach of the conditions and for the grant of relief against such re-entry or forfeiture; and section 11 empowers the High Court to grant summary relief in the case of an action by a landlord for the forfeiture of a tenancy for non-payment of rent.

11 In my judgment the state is not bound by the provisions of this Act because section 55 of the Interpretation and General Clauses Act, Chapter 2:01 expressly provides that the rights of the state are not to be affected by any statute except it so appears by implications and there is nothing in the Landlord and Tenant Act from which such an implication can be drawn: But in any event the Landlord and Tenant Act relates to leases generally, whereas Regulations 34 to 37 of the State Lands Regulations deal specifically with leases of State Lands; and Regulation 42 with their forfeiture: It is therefore to the State Lands...