Samad v Jordan and Khan

• Jurisdiction: Guyana
• Judge: George, J.
• Judgment Date: 09 December 1972
• Neutral Citation: GY 1972 HC 37
• Docket Number: 1289 of 1970
• Court: High Court (Guyana)
• Date: 09 December 1972

High Court

George, J.

1289 of 1970

Samad

and

Jordan and Khan

Appearances:

Mr. M.G. Fitzpatrick instructed by Mr. D. De Caires for plaintiff

Mr. A.O.H.R. Holder instructed by H.D. Eleazer for 1 ^st defendant.

Mr. M. Muntaz Ali instructed by H.B. Fraser for 2 ^nd. defendant.

Real property - Landlord and tenant — Tenancy

George, J.

1 During the year 1960 the second defendant entered into an oral agreement with the first defendant and her sister Ophelia Grant, to rent from them a plot of land situate at lot 1, Anna Catherine, West Coast Demerara, at an annual callender rental payable in advance. Situate on the plot of land and on a portion of the adjoining lot, which was owned by the Demerara Company Limited, was a defunct gasoline station and a shop. And, there is no doubt that the premises on which the station and shop are situate are subject to the provisions of the Rent Control Act, Cap 186. The station and shop premises had been put up at execution sale and the second defendant had intended bidding for thorn. It was with this object in view that he had approached the first defendant and her sister for their consent to have him as a tenant in the event of a successful bid. This they agreed to. He was successful in his bid and went into possession of the promises during the year 1960. He reactivated the station and shop, both of which he operated until in the year 1966. During this period he lived with his family on the premises and the first defendant lived next door to them. Early in 1966 he was appointed the distributor of Esso petroleum products for the West Demerara area, and was offered the management of a larger gasoline station situate at Vreed-en-Hoop.

2 In February 1966, the second defendant handed over the operation of the gasoline station and shop to the plaintiff, a clerk in the employ of a sugar estate, and, on the 12 ^th September, 1966 entered into an agreement to sell him the buildings and stock-in-trade as well as his right title and interest in and to the land rented from the first defendant and her sister.

3 In 1968, the second defendant was served with a notice to quit the premises rented by one Vieira, the attorney of the first defendant and her sister, and on the 20 ^th March the following year was summoned for possession. The grounds for possession were as follows:

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) own use 2) subletting 3) breach of obligation of tenancy.

4 The case was called on several occasions between April and August, 1969 and finally on the 18th August, 1969 the second defendant consented to an order for immediate possession. An order was made for immediate possession, and on the 5th January, 1970 an order for ejectment was granted to the first defendant and her sister. But, before this was effected, the plaintiff filed the present Action.

5 He seeks the following reliefs:

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) declaration that he is the tenant of the first defendant and the estate of her sister in respect of the parcel of land rented by the second defendant, 2) a declaration that the order for possession made on the 18th August, 1969 and the order for ejectment made an the 5th January, 1970 are invalid and of no effect; alternatively a declaration that the said orders are invalid and/or of no effect in relation to the plaintiffs tenancy and occupation of lot 1, Anna Catherina. 3) an injunction restraining the first defendant personally and/ or in her capacity as executrix of her sister's estate from ejecting him from the premises or from taking any other steps pursuant to or under the orders for possession or ejectment.

6 Aside from the facts which I have already mentioned, there were substantial differences between the evidence lead by the plaintiff and the second defendant and between them and the first defendant. One of the conflicts surrounds the consideration for the original letting. While the second defendant insists that it way $100.00 (one hundred dollars) per year, the first defendant states that it was $144.00 (one hundred and forty-four dollars). She is corroborated by her brother who claims that it was he who introduced the second defendant to her and their sister, after the former had intimated to him his desire to rent the premises and had requested his personal intercession on his behalf. In her further testimony in this regard the first defendant says that after paying rental at the rate of $144.00 (one hundred and forty-four dollars) per annum for about three (3) years, the second defendant requested a reduction due to an alleged falling off of business during the civil disturbances of 1964. This request was favourably considered by her and her sister and the rent was reduced to $100.00 per annum. However, for the purposes of resolving the central factual issue in this case viz. whether the first defendant had knowledge of and/or consented to the take over by the plaintiff of the premises, it is not necessary for me to make any final pronouncement as to the original rental charge for the premises. It is sufficient to say that for the year 1967 the agreed rental was $144.00 (one hundred and forty-four dollars) per annum.

7 Another area of conflict was whether at the time of the letting there was any prohibition against assignment. The first defendant states that during the discussions she and her sister had with the second defendant about the renting of the premises she specifically told him that they were agreeing to do so on condition that he did not rent or lease it to anyone else. According to the second defendant however, there was no such discussion.

8 The first defendant states that the events which lead up to the present controversy commenced early in 1966, when the second defendant told her that his wife who it is admitted assisted him in running the station had fallen ill and could no longer carry out these duties. He further told her that he intended to “put the plaintiff to carry on the business”. On the 1 ^st February he paid her the rental for the year 1966 and apparently went to live at Yreed-en-Hoop where he began operating the other gasoline station. Early in 1967 he paid her fifty dollars on account of the rental for that year. Some time later she went to him at Yreed-en-Hoop for the balance, taking with her a receipt for $94.00 (ninety-four dollars). The second defendant however, referred her to the plaintiff to whom she went. She showed him the receipt which was written in the second defendant's name but he refused to pay, pointing out that he could not do so when the receipt was in some one else's name. She states that she returned to the second defendant and told him what had transpired. He advised her to return to the plaintiff and accept the money and that she should not bother about a receipt. On her return to the plaintiff he gave her a cheque which she states she did not examine. It was for $144.00 (one hundred and forty-four dollars). As she was leaving he asked her if she desired to have the cheque cashed and in response to her affirmative answer he took the cheque which she endorsed and handed over to her the sum of $94.00 (ninety-four dollars). In the following years the plaintiff sent her cheques for the rental but she returned them to him. As to the incident early in February, 1967, the plaintiff says he paid the first defendant the sum of $144.00 (one hundred and forty-four dollars) by cheque and in order to save her the trouble of going to the bank he offered to cash the cheque. She endorsed it and he gave her $144.00 (one hundred and forty-four dollars).

9 The second defendant on the other hand gives a quite different story. According to him in January 1966 he told the first defendant of his appointment as a distributor and also intimated to her that he intended handing over the station to the plaintiff and she replied she had no objection provided she received her rent promptly. He denies that his wife was ill during 1966 or 1967 or that he wrote the plaintiff's sister to that effect, intimating at the same time that he intended to put one Samad to run the business. However in a letter to the first defendant's sister dated the 1 ^st February, 1967 the second defendant had stated that he had obtained a “certain other position from the Esso Company” presumably referring to his appointment as a distributor. He also stated in the letter that he had called the first defendant over to the gasoline station and explained this to her “in the presence of Mr, Abdul Samad” the person who will be in charge of the station. He was asked to read the actual words used in the letter. These were “I called her over to the...