Wells v Baypart Ltd

• Jurisdiction: Bahamas
• Judge: Sawyer, J.
• Judgment Date: 10 May 1991
• Court: Supreme Court (Bahamas)
• Docket Number: Common Law Side No. 1058 of 1983
• Date: 10 May 1991

Supreme Court

Sawyer, J.

Common Law Side No. 1058 of 1983

Wells

and

Baypart Ltd.

Appearances:

Mr. David C. Bethell for plaintiff

No appearance by or on behalf of defendant

Defamation - Libel — Publication of notice in newspaper — Words complained of not defamatory in themselves.

Sawyer, J.

1 This is an action for damages for breach of the landlord's covenant for quiet enjoyment contained in a lease under seal, for a fixed term of 10 years (“the lease”) of the Parliament Hotel (“the hotel”) entered into between the plaintiff and the defendant on 1st July, 1981. In addition, the plaintiff seeks damages for the alleged defamatory publication in the Nassau Guardian Newspaper of 14th October, 1983 of a notice to the effect that the plaintiff was no longer associated with the hotel.

2 Before dealing with the substantive issues raised at the trial, I shall deal with two peripheral matters.

3 The first such peripheral matter concerns the issue of the trial being carried on in the absence of the defendant or its representative.

4 Mr. Bethell (counsel for the plaintiff) indicated from the bar (as I understood him) that as counsel for the defendant had been notified well in advance of the trial date for this matter and as this was the second time that the matter had been set for trial and there was no appearance by or on behalf of the defendant, the trial should proceed.

5 Order 35 rule 1(2) of the Rules of the Supreme Court reads:–

“(2) If, when the trial. of' an action is called on, one party does not appear, the judge may proceed with the trial of the action or any counterclaim in the absence of that party.”

6 The English Order 35 rule 1(2) is in exactly the same and, in the notes to that Order in the Supreme Court Practice 1979, the learned authors state, so far as may be relevant –

… “If, however, the plaintiff appears but the defendant does not appear at the trial the plaintiff may prove his claim, so far as the burden of proof lies on him.

“The proof will be limited to the allegations in the statement of claim — see Barkcr v. Furlong [1891] 2 Ch. p. 179.

“The plaintiff having proved his case is entitled to such relief as he claims and such other relief as is consistent therewith ( Stone v. Smith 35 Ch. D. 18$; and see Kingdon v. Kirk, 37 Ch. D. 141).”

7 Evidence was adduced on behalf of the plaintiff to how that the notice of trial was served on the chambers of defendant's attorneys in good time. That evidence was given by Miss Tanya N. Bethell, a clerk in the chambers of the plaintiff's counsel. She was unable to produce a signed receipt for the notice but stated that that trial notice received by a Mrs. Barbara Johnson of the law firm which represents the defendant at about 3p.m. on 9th July, 1990, that is, the day on which the notice was filed.

8 The notice of trial as filed reads:–

“… TAKE NOTICE that the trial of the above action will be heard by a Judge of the Supreme Court at the Supreme Court Building situate in the public Square in the City of' Nassau on the Island of New Providence one of the Islands of The Bahamas on Monday the 8th day of April, A.D. 1990 at 10 o'clock in the forenoon.

Dated the 5th day of July A.D., 1990.”

9 The portions of the notice underlined above appear in manuscript on the original filed in the court.

10 If the date of trial on the notice which was served the defendant is as it appears on the original notice in it would make no sense. However I received the impression from what was said at the bar and from the evidence given that the copy of the notice which was served had been corrected to show the year of trial as 1991 rather than 1990 as in the original on the file.

11 It is only in those circumstances that I exercised discretion to hear the matter in the absence of the defendant or its representative as I was at all times aware pat any judgment given in such a case is likely to be set aside on the defendant's application within the time limited Order 35 r. 2.

12 The second peripheral matter arises out of the fact that the lease contains, in subclause 5(5) thereof, a provision for arbitration. That subclause reads:–

“(5) All questions or difference; whatsoever which may at any time arise between the parties hereto concerning these presents or the subject matter thereof or arising out of or in relation thereto respectively and whether as to construction or otherwise upon which no agreement shall be arrived at between the parties hereto shall be referred to a single arbitrator in case the parties can agree upon one otherwise to Two (2) arbitrators one to be appointed by each party to the difference (who shall be deemed to act as an expert or experts) and in either case in accordance with The Arbitration Act of the Commonwealth and any statutory modification thereof for the time being in force.”

13 In my view that subclause constitutes a “submission” to arbitration within section 4 of the Arbitration Act (Ch. 168). There has been no attempt to raise the matter of arbitration either by way of an application to stay these proceedings or by way of relying on an award by an arbitrator by way of defence. In those circumstances, I take the view that no question of arbitration can now arise. I turn now to the substantive issues in the case. The statement of claim (the onus of proving which rests on the plaintiff) was specially indorsed on the Writ of Summons and the relevant parts read as follows:–

• “l. The plaintiff and the defendant executed a lease on the 28th day of July, A.D., 1981 whereby the defendant demised to the plaintiff ‘ALL THAT the buildings offices cellars stores patios and gardens occupied therewith known by the name ‘Parliament Hotel’ fronting; on Parliament Street: in the City of Nassau in the city of New Providence with the appurtenances thereunto belonging which are held by the defendant under the Head Lease’ together with certain rights and affects mentioned in the said Lease for a term of Ten (10) years commencing from the 1st day of July, A.D., 1981 for the consideration of the rents reserved in the lease which are payable quarterly in advance.

• “2. The plaintiff paid to the defendant rents for the quarter ending on the 30th day of September, A.D., 1983 to the Defendant and otherwise complied with the terms of the said Lease.

• “3. The defendant wrongfully effected a re-entry upon the premises and possession of the demised premises whereby the plaintiff has suffered loss and damage.

• “4. On the 14th day of October, A.D. 1983 the defendant wrongfully caused to be published in the 14th October, A.D., 1983 issue of ‘The Nassau Guardian’ a notice to the general public that the plaintiff was no longer associated in any way with the Parliament Hotel thereby inferring that the plaintiff was no longer entitled to conduct business of any kind at upon or in respect of the said Parliament Hotel or in respect of its business or operation whereby the plaintiff has been defamed and in his reputation and credit has suffered in his business reputation and has suffered loss and damage.

• “5. By reason of the matters hereinbefore set out the defendant is in breach of Clause 1 of the said Lease and generally in breach of the condition for the quiet enjoyment of the said Parliament Hotel.

14 AND THE PLAINTIFF CLAIMS:–

• 1. Damages

• 2. Costs.”

15 That was followed by the defence the relevant parts of which read as follows:–

• “l. The defendant admits the Lease referred to in paragraph 1 of the Statement of Claim but says it Is not fully or accurately set forth therein and will refer to it at the trial for its full term and effect.

• “2. It was a term of the raid Lease that the plaintiff should pay the rent reserved thereby by equal quarterly payments in advance on the First day of July the First day of October the First day of January and the first day of April in each year.

• “3. The defendant consistently failed to perform his covenant to comply with the said term and ultimately, the rent not having been paid on the 1st day of July 1983 for the quarter commencing 1st July 1983 the defendant endeavoured on the 18th July 1983 to serve notice on the plaintiff to determine the Lease; the plaintiff then visited the President of the plaintiff company and tendered a cheque for the rent for the said quarter; the said cheque was dishonoured by the plaintiffs bankers. The plaintiff then paid the said rent with a certified cheque on 19th July 1983. The defendant accordingly denies Paragraph 2 of the Statement of Claim and says further that the plaintiff did not otherwise comply with the terms of the said Lease — the plaintiff in particular breached Clause 3(2) of the said Lease under which he had covenanted to pay all outgoings imposed or charged upon the demised premises; the plaintiff in breach of this covenant consistently failed to pay various bills for utilities in connection with the said premises and in particular the bills due to the Bahamas Electricity Corporation which resulted from time to time in the provision of' electric power thereto being cut off; on the 26th day of September 1983 the Bahamas Electricity Corporation once again cut off the said power as a result of which the defendant wrote to the plaintiff requesting compliance with the provisions of said Clause by the payment of all utilities and the production of receipts therefor before 1st October 1983 and threatening repossession in default.

• “4. As to Paragraph 3 of the Statement of Claim the defendant denies wrongfully entering upon the premises as pleaded and says that on the 30th day of September 1983 the plaintiff wrote to the defendant (in reply to the defendant's aforesaid letter of 26th September 1983” stating that he was unable to carry out any improvements to the premises until early 1984 and the plaintiff further stated in said letter that if the defendant was not satisfied with the facts he...