Bauro v Atauea - Judgment [2006] KIHC 137; 62-05 (27 April 2006)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case No. 62 of 2005

Between:

BETITAAKE BAURO T/A KIRIBATI ONLINE
Plaintiff

And:

ATATA ATAUEA T/A LIEBE HOME ENTERTAINMENT
Defendant

For the Plaintiff: Ms Fleur Hamilton
For the Defendant: Mr Banuera Berina

Date of Hearing: 25 April 2006

JUDGMENT

About May 2003 the parties - the plaintiff and her husband, Jinendra Jinadasa and the defendant and his wife - agreed to go into business in Bairiki. It seems they had been friends for some time. Premises then owned by Atoll Motor & Marine Services Ltd (AMMS) were found. The intention, which has been carried out, was that the parties would share the premises, the plaintiff and her husband running an electronic equipment business, Kiribati Online and the defendant and his wife running a video hire shop, Liebe Home Entertainment. Both businesses are still operating.

The negotiations with AMMS for the lease were conducted mainly by
Mr Jinadasa. Agreed was a 5-year term from 1 January 2004 at a monthly rental of $300. Mr Baie Teanako, then Managing Director of AMMS, the second witness for the plaintiff, said that at first Atata took no part in the negotiations but later, before the lease was drawn up, Kiribati Online asked that Atata be involved as a partner.

According to Mr Jinadasa, the first (and principal) witness for the plaintiff, the arrangement between the parties was for the defendant to give half the rent to the plaintiff who would pay the whole to AMMS: the defendant was to pay an agreed share of other outgoings. For some months, from February to October 2004, all went well. The two businesses were established and operating.

Relations soured: disagreements and unhappinesses between the parties have resulted in these proceedings. The plaintiff asks for relief:-

(a) An order that the Plaintiff recover possession of the premises to the exclusion of the Defendant.

(b) A declaration that the legal relationship between the parties is one of a licence and not a lease.

(c) An order that the Defendant immediately remove himself and his business from the premises.

The plaintiff claims that the defendant is merely a licensee and she alone the tenant of AMMS (and now of its successor Bobotin Kiribati Ltd). Accordingly, the plaintiff claims, she is entitled to evict the defendant.

The wording of the lease agreement which looks to have been professionally drawn and is in conventional form, is against this interpretation:-

The Lease made the 1st day of January 2004 between the Atoll Motor Marine Services Ltd ...... (hereinafter referred to as the Landlord) of the one part AND Betitaake Aritiera Bauro/Ataata Atauea carrying out business as Internet Café, Sales and Rental of Movie films and repairs of electronic equipment ...... (hereinafter referred to as the Tenant) of the other part.

The agreement has been signed by Betitaake Aritiera Bauro "on half of the Tenant" and the signature witnessed by Atata Atauea. Mr Teanako witnessed the signature of Tenanora Tekanene (now deceased) "on behalf of the Landlord".

The word "tenant" in the singular has been used to include both the plaintiff and the defendant and again under the signature of Nei Betitaake. "Tenants" would have been grammatically correct but the use of the singular rather than the plural is of no significance.

The obvious construction one may put on the Agreement is that both plaintiff and defendant are tenants.

Relying on the evidence of Mr Jinadasa Ms Hamilton argued that the defendant is a mere licensee - the plaintiff carried out and paid for renovations to the building, took back the keys from the defendant when there had been some pilfering, gave permission to the defendant to open on Sundays and so on. Mr Jinadasa asserted that the intention all along was for his wife to be the tenant and the defendant a mere licensee using part of the premises at the pleasure of the plaintiff. The name of the defendant on the lease agreement was a formality, he said.

I am afraid the unhappy differences which have developed between the parties have coloured Mr Jinadasa’s view of the relationship between them.

Mr Jinadasa I assessed to be intelligent and a shrewd businessman. I have no doubt that when the agreement was drawn up and signed he understood the nature of the relationship between the parties and their relationship with the landlord: that both parties were to be tenants of the landlord. There is no evidence that his wife did not understand the relationship. Indeed I infer with confidence that as he understood it, she would have too.

Mr Jinadasa may by now have persuaded himself that his wife is the tenant and the defendant only a licensee but the matters of which he gave evidence and which he asserted shewed a licence rather than an equal tenancy are not strong enough to overcome the plain words of the lease agreement. This interpretation is confirmed by the evidence of Mr Teanako that Kiribati Online asked that the defendant be involved as "a partner".

Lord Templeton said (although in a different context) in Street v Mountford ((1985) 2 All ER 289 @ 294):-

If the agreement satisfied all the requirements of a tenancy, then the agreement produced a tenancy and the parties cannot alter the effect of the agreement by insisting that they only created a licence.

I add: neither can one party unilaterally alter the effect of the agreement, as the plaintiff would now like to do.

The defendant called no evidence but as Mr Berina succinctly put it, the rights of the parties were determined at the time when the agreement was drawn up. The agreement describes both parties as "tenant" and that is what they are.

The plaintiff’s claims for relief are dismissed.

Dated the 27th day of April 2006

THE HON ROBIN MILLHOUSE QC
Chief Justice