MANUELLA PADILLA VARGAS, Appellant, v. EZZAT N. EID, Appellee

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: November 1, 1999. Decided: December 16, 1999.

1. Where parties to a contract, such as a sub-lease agreement, anticipated the damage or destruction of the demised premises and provided for such risk in the agreement, e.g. insurance of the property, the terms of that agreement are binding and enforceable.

 

2. A risk known by the parties at the time of execution of the sub-lease agreement and required by said sub-lease agreement to be insured by the sub-lessee ought to be complied with pursuant to the aforesaid contract, but not otherwise.

 

3. The obligation of the tenant to insure the property is not nullified, on ground of impossibility of performance, because certain insurers refuse to accept the risk, but the lessee will be excused from performance where the insurance is prevented by the acts of the lessor’s grantee.

 

4. Where the tenant agrees generally to repair, he is bound to furnish, at his own expense, the materials for the needed repairs.

 

5. The fact that the leased premises become defective through decay or deterioration does not impose on the landlord the duty of making repairs. In the absence of a covenant to do so, he is not required to rebuild when the premises are condemned, unsafe, or are injured or destroyed by fire or other accidental cause, although he may have received the proceeds of insurance.

 

6. In the absence of any statute or special agreement, a landlord is not generally liable to his tenant for repairs made by the latter to the demised premises, and is under no obligation to reimburse him for such expenditure and the same rule applies where the tenant has bound himself by the lease to repair.

 

7. In the absence of a statute or a provision in the lease to the contrary, the destruction of demised buildings, during the term, by a natural cause or through violence or public enemy, does not relieve the tenant of his obligation to pay rent, if some part of the premises demised by the lease are still habitable.

 

8. A tenant remains liable for the agreed rent for the demised premises so long as any part thereof remains in existence, capable of being occupied or enjoyed by him, irrespective of injury or destruction by fire or other casualty.

 

9. Partial payment of an obligation under an agreement negates the contention that the obligor is exempted from liability to pay the balance on the basis of common law. So where partial payment of rent is made for a period during which the tenant does not occupy the building due to fault not attributable to the tenant, the tenant cannot be exempted from payment of the balance of the rent for the period of her non-occupancy on the basis of common law.

 

Appellant, as sub-lessee, entered into a sub-lease agreement with appellee, as sub-lessor for a four-storey building located in Sinkor and in which appellant operated a hotel and entertainment business. After paying the rent for the period, November 1, 1995 to October 31, 1996, in April, 1996, there was a resurgence in the hostilities of the Liberian civil crisis. This forced appellant to leave the premises and the premises were a subject of looting and vandalism.

 

Initially, appellant delayed in renovating the property; but after appellee instituted an action of damages and took other actions to compel appellant to repair and renovate the property, appellant wrote a letter to appellee committing herself to renovate the property as she did not obtain the insurance policy required by the sub-lease agreement to cover damages to the demised premises. Appellant also actually proceeded to and did renovate the building. However, when appellee demanded payment of the rent, appellant refused; and appellant contended that firstly the rent already paid should be pro rated over the period that she did not occupy or enjoy the demised premises as a consequence of the resurgence of hostilities in the civil crisis and that the cost of renovation should be shared between appellant and appellee.

 

When appellee refused to concede to these claims by appellant, appellant filed a petition for declaratory judgment against appellee. In response, appellee prayed the court to deny the petition and instead declare that appellant is liable to appellee for the full overdue and unpaid rent. After a hearing, the trial court denied appellant prayer and granted appellee’s prayer. Appellant therefore excepted and announced an appeal to the Supreme Court.

 

The Supreme Court found that the sub-lease agreement clearly established appellant’s obligation to repair and renovate the demised premises in the event of damages to it. The Supreme Court also said that in the absence of an agreement, the landlord is not required to make the property habitable after damages; and when the property is capable of being occupied and the tenant does retain possession, the tenant is responsible for the payment of the rent.

 

Accordingly, the Supreme Court affirmed the judgment of the trial court.

 

Tiawan S. Gongloe appeared for Appellant. Musah Dean, Jr. and Momodu T.B. Jawandoh appeared for Appellee.

 

MR. JUSTICE JANGABA delivered the opinion of the Court.

 

This is an appeal from the judgment of the Civil Law Court for the Sixth Judicial Circuit, Montserrado County, denying appellant’s petition for declaratory judgment. Appellant, Manuella Padilla Vargas, filed a petition for declaratory judgment on 28 February, A.D. 1999 against Ezzat N. Eid, appellee, praying the trial court to declare the rights of the parties in litigation with respect to the payment and nonpayment of rent and the obligation of said parties for the renovation of the demised premises as a result of damage done to the subject property due to the April 6, 1996 crisis.

 

Appellee, as sub-lessor, and appellant, as sub-lessee, entered into and executed a sub-lease agreement on the 21′ day of August, A. D. 1992 for a parcel of land with a four-storey building constructed thereon on Tubman Boulevard, Sinkor, Monrovia, known as part of lot number nine (9), presently housing the Hotel Boulevard. We shall determine the relevant provisions of the sub-lease later in this opinion. What is important now is that appellant alleged in her petition that she paid the sum of US$50,000.00 (Fifty Thousand United States Dollars) as rent, covering the period, November 1, 1995 to October 31, 1996. She submitted, however, that she did not enjoy the benefits of rent already paid under the terms of the sub-lease agreement due to the April 6, 1996 crisis, which allegedly damaged the subject premises. Appellant asserted that she undertook renovation work on the said premises at the cost of US$92,773.12 (Ninety-Two Thousand Seven Hundred Seventy-Three United States Dollars and Twelve Cents) without any input from appellee.

 

Appellee filed his returns on March 5, 1998, which in essence denied the legal sufficiency of appellant’s petition, and alleged appellant’s breach and violation of article IV of the sublease agreement by appellant’s failure, refusal and neglect to obtain and maintain an insurance for the property against fire and its allied risks. Appellee also alleged appellant’s breach and violation of article I and article XI of the sub-lease agreement by her failure, refusal and neglect to pay the rent due. Appellee denied that he has any obligation under the law for the repairs of the demised premises, and declined to allow any deduction from the rent to cover the cost or to share in the cost of the repair of the demised building by appellant. Finally, appellant claimed the sum of US$175,000.00 (One Hundred Seventy-Five Thousand United States Dollars) from appellant as overdue and unpaid rent, prayed the trial court to dismiss the petition, and to declare his rights to payment of the US$175,000.00 (One Hundred Seventy-Five Thousand) by appellant.

 

Appellant filed a reply on 17 March A.D. 1999, and pleadings rested in this case.

 

Appellant then filed a motion for a jury trial, which was resisted and denied by the trial judge for having been filed beyond the statutory period of ten (10) days subsequent to the resting of pleadings. Appellant fled to this Court upon a petition for a writ of certiorari before Mr. Justice John Nathaniel Morris, then presiding in Chambers during the October 1988 Term of this Court. Mr. Justice Morris forwarded the petition to the Full Bench of the Supreme Court to determine the issues, since, by its nature, the claim to a right to trial by jury in a case raises constitutional issue.

 

The petition for the writ of certiorari was resisted by appellee, heard by this court and denied; whereupon, this Court ordered the trial judge to resume jurisdiction and proceed with the hearing and determination of the petition for declaratory judgment without the aid of a jury. Vargas v. Eid, [1999] LRSC 6; 39 LLR 368 (1999).

 

The trial judge, upon hearing this case as ordered, rendered a final judgment on May 24,1999, denying appellant’s petition for declaratory judgment in its entirety, granting appellee’s cross prayer for declaration of appellant’s monetary liability to appellee for overdue and unpaid rent, and ordering appellant to pay to appellee the sum of US$175,000.00 as overdue and unpaid rent. Appellant, being dissatisfied with the judgment of the trial judge, excepted thereto and appealed to this Court of last resort on a fourteen-count bill of exceptions.

 

This Court deems only counts 11 and 13 of the bill of exceptions decisive for the final determination of this case.

 

Appellant alleged in count 11 of her bill of exceptions and her counsel argued before this Court that the trial judge erred when he ruled that the parties herein did not provide for exemption from the obligations of the sub-lease agreement due to the resurgence of hostilities in the Liberian civil crisis, whereas Article XIII of the aforesaid agreement provides exemption for “other causes.” Appellant also contended that she is exempted from liability for rent during the period of her non-occupancy of the leased premises without her fault, as she was relocated therefrom by ECOMOG to a safe area. She averred that the building was subsequently looted and vandalized by the military forces during the April 6, 1996 crisis. Thus, she argued that the demised premises remained unused by her until she substantially repaired it and resumed business thereat in July, 1997.

 

It is alleged by appellant in count 13 of the bill of exceptions and strongly argued before this Court that the trial judge erred in holding her liable for the renovation of the leased premises damaged during the April 6, 1996 by both public authorities and public enemy. Appellant maintained that she is exempted from the renovation of the demised property under the common law. Appellant also contended that Article XII of the sub-lease agreement provides that she shall quietly and peaceably yield up and surrender the demised premises unto appellee in as good and tenantable condition but acts of God and damage and/or destruction by other causes or agencies under Article IV of the sub-lease agreement are excepted. Appellant averred that she is therefore exempted from the obligation to repair the demised building as the condition in which the demised premises should be surrendered at the expiration of the term is also an exception to the covenant to repair during the term of the sub-lease agreement.

 

Appellant therefore prayed this Court to reverse the judgment of the trial court, and to enter judgment exempting her from paying rent for the period of non-occupancy of the subject property from April 6, 1996 to July, 1997. Appellant also prayed this Court to render judgment ordering that appellant and appellee share in the cost of renovation of the demised premises.

 

Appellee on the other hand, raised four (4) issues in his brief. The first issue raised and argued by Appellee is that appellant, as a tenant under the sub-lease agreement, remains liable for the agreed rent for the demised property, so long any part thereof remains in existence, capable of being occupied or enjoyed by appellant, irrespective of injury or destruction by fire or other casualty. Appellee also contended that in the absence of a specific statute to the contrary, the destruction during the term of the lease of the demised property by fire, inevitable accidents, violence of nature or public enemy, not so complete as to leave no part of the demised premises in existence, does not relieve the tenant from the obligation of her covenant to pay rent, neither does it entitle her, the tenant, to an abatement of a proportional part of the rent. It was further argued by appellee that there is no showing by appellant that the demised four-storey building was so badly looted in the wake of the April 6, 1996 crisis that it was incapable of being occupied, or that it was not in existence at all so as to relieve her from the obligations of her covenant in the sub-lease agreement to pay rent, or to entitle her to an abatement of a proportional part of the rent.

 

Appellee’s second issue of contention is that appellant’s obligation to repair and renovate the subject property is established in Article IV of the sub-lease agreement, wherein it is required that appellant, as sub-lessee, will obtain two (2) insurance policies, one of which was specifically stated to be used to repair any damage or destruction of the demised premises to the extent of such damage or destruction and in the event of any damage or destruction. It was averred by appellee that Article V of the sub-lease agreement establishes appellant’s obligation for all maintenance and repairs, both minor and major, of the demised property at her own cost and expense without any exception. Thus, appellee contended that it is not provided in the sub-lease agreement that depending on the nature of the agent for the damages, appellant would be relieved from her obligation to repair the demised premises.

 

It was the contention of appellee that appellant defaulted on her obligation to obtain the insurance policies pursuant to the sub-lease agreement to repair the damages; and as such, she was obligated to use funds from other resources to repair the premises as in keeping with the intent and express language of the sub-lease agreement.

 

Thirdly, appellee contended that appellant’s letter of October 8, 1996 specifically and clearly establishes her obligation to renovate the subject property, in that, she said absent any insurance proceeds, she had definite plans to renovate and rehabilitate the demised premises but was hesitant to do so only because the United Nations allegedly said that the Sinkor area was unsafe in October, 1996. Appellee averred that counts 33, 37 and 42 of appellant’s answer in a certain action of damages sued out by appellee against appellee for the same subject matter clearly reveal that appellant knows that pursuant to the terms of the sub-lease agreement, she is exclusively obligated to renovate and repair the demised premises and that she would do so. Appellee argued that appellant is estopped by her admission and she is precluded from denying her obligation to exclusively make the repairs and renovations of the demised premises.

 

The fourth item of appellee’s argument is that appellant has withheld the rent only on her submission that appellee should share in the cost of such repairs, when in fact, she is exclusively responsible for the repairs and renovations of the leased property pursuant to the sub-lease agreement, including repairs which became necessary as a consequence of the looting during the wake of the April 6, 1996 crisis. Appellee contended that appellant is responsible and liable to pay all overdue and unpaid rent which may have accrued up to and including the date of this Court’s final judgment in this case.

 

Appellee therefore prayed this Court to affirm the judgment of the trial court and that appellant be ordered to pay all overdue and unpaid rent up to and including the date of this Court’s final judgment, which amounts to US$175,000 (One Hundred Seventy-Five Thousand United States Dollars) with 6% interest per annum for the wrongful withholding of the rent.

 

The facts and circumstances in this case present the following questions to be resolved by this Court for the determination of this case:

 

1. Whether or not appellant is exempted from liability for rent under the sub-lease agreement during the period of her non-occupancy of the leased premises without her fault.

 

2. Whether or not appellant is contractually liable or obligated under the sub-lease agreement to repair and renovate the leased premises, which were damaged without her fault.

 

The above stated issues shall be resolved by this Court in the reverse order.

 

As to the issue of whether or not appellant is contractually liable or obligated under the sub-lease agreement to repair and renovate the leased premises damaged without her fault, this Court observes that the parties in litigation entered into and executed a sub-lease agreement on the 21st day of August, A. D. 1992, wherein their rights, obligations and liabilities are prescribed and provided. Thus, the intent of the parties can clearly be gathered from the express language of the sub-lease agreement with respect to their obligations and liabilities for the repair and renovation of the demised premises as a result of the April 6, 1996 crisis.

 

In Article IV(a) of the aforesaid agreement, it was understood and mutually agreed by the parties that the sub-lessee, appellant herein, shall at her own cost and expense, provide and maintain two (2) adequate insurance policies, one of which was designated for the demised premises and the other for the goods, furniture and fixtures for appellant, as sub-lessee. It was required that the insurance policies would be obtained from a reputable insurance company operating within Liberia against fire and allied risks in the event of any damage or destruction to or of the demised premises, and that any insurance payment received by the sub-lessee by reason thereof will be applied to the repair of such damage or to the extent of such damage or destruction. The parties also agreed in Article IV(b) of the sub-lease agreement that the sub-lessee (appellant) shall surrender the demised premises in the event of any damage or destruction should she so desire not to repair and restore the premises; provided, however, appellant shall pay unto appellee the proceeds of any insurance payment for such damage or destruction as shall be adequate to cover the cost of the restoration of the demised property. The proceeds from the insurance payment shall be applied to the replacement of sublessee’s goods, furniture and fixtures that may be destroyed.

 

We shall hereunder quote verbatim Article V of the sublease agreement for the benefit of this opinion:

 

“It is further mutually agreed and understood by the parties hereto that the sub-lessee shall be responsible for and undertake, at her own cost and expense, all routine maintenance and repairs, both minor and major, in respect of the demised premises.”

 

The first question that comes to the mind of this Court is, what was the intent of the parties that the sub-lessee shall procure and maintain two (2) adequate insurance policies at her own cost and expense? The intent of the parties is clearly stated in Article IV (a) of the sub-lease agreement that the proceeds from the payment of insurance shall be used by appellant in the event of any damage or destruction to or of the demised premises, to repair such damage or destruction to the extent of such damage or destruction without any input for appellee. Notably, the proceeds from the other insurance policy were intended and understood by the parties to be used by the appellant for the replacement of her goods, furniture and fixtures that may have been destroyed. The parties further agreed and mutually understood in Article V of the aforesaid agreement that appellant shall have the exclusive responsibility and obligation at her own cost and expense for both minor and major repairs in the events of any damage or destruction to or of the demised premises as contemplated by them in Article IV(a).

 

It is also important to note that the parties in litigation entered into and executed this sub-lease agreement on August 21, 1992; which is a time when Liberia was still in the state of civil conflict; and as such the parties contemplated the resurgence of said conflict which would possibly result into the looting, vandalism and damage and/or destruction of the demised premises. The intention of the parties is evidenced by Article IV (a) of the sub-lease agreement when they mutually understood and agreed that the appellant shall procure two (2) adequate insurance policies at her own cost and expense for repair and renovation of the demised property in the event of any damage or destruction of the subject property, as well as to replace the goods, furniture and fixtures owned by appellant if they may be damaged. It is clear therefore that appellant and appellee anticipated the damage or destruction of the demised premises by the resurgence of the Liberian civil conflict, as they contemplated and provided for such risk.

 

We shall now peruse appellant’s letter of 8 October, 1996, paragraph five (5) of which is germane to the determination of this case and we hereunder quote it verbatim for the benefit of this opinion, as follows:

 

“Further and relative to Article IV of the contract on the Picasso Palace Hotel, whilst it is true that the same demands that two separate insurance policies be obtained by our client, it must be understood that major insurance companies in and out of the bailiwick of the Republic of Liberia, are not willing to grant coverage in consequence of the ongoing Liberian civil crisis; this is the prevalent position of all major insurance companies as was proved correct by the incident of April-May 1996. Besides, absence any insurance proceeds, our client has definite plan to renovate and rehabilitate the premises; however she has been very hesitant to do so against the background that the Sinkor area is still maintained by the United Nations as a non-thorough fare zone. As soon as the area can be declared safe, renovation and rehabilitation works shall commence immediately, as can be evidenced by the security squad currently maintained by our client at the site, since our closure of the hotel.”

 

It is clear from the plain language of appellant’s letter of 8 October 1996 to appellee that appellant indeed acknowledged Article IV of the sub-lease agreement to procure two (2) separate insurance policies, but defaulted due to the refusal of major insurance companies in and out of Liberia to grant coverages as a result of the ongoing Liberian civil crisis. Besides, the appellant, in the absence of insurance proceeds, agreed and accepted her exclusive obligation to renovate and rehabilitate the premises as soon the United Nations declared the Sinkor area safe. Consequently, appellant renovated and rehabilitated the demised premises in the absence of any insurance proceeds pursuant to the contract without requesting appellee for any contribution therefor.

 

Appellant rightly and legally renovated and rehabilitated the demised property as required by the contract without the aid of appellee, as her failure to procure insurance policies for an insurance company did not preclude her from the renovation and rehabilitation of the subject property.

 

It is a settled principle of law that: “The obligation of the tenant to insure is not nullified, on ground of impossibility of performance, because certain insurers refuse to accept the risk, but the lessee will be excused from performance where the insurance is prevented by the acts of the lessor’s grantee.” 51 C.J.S., Landlord and Tenant, § 380.

 

In the instant case, there is no evidence that the appellant failed to procure and maintain two (2) separate adequate insurance policies as required by the contract in consequence of the acts of appellee’s grantee. Appellant is therefore not excused from the performance of her obligation since she was not prevented from doing so. Further, the agreement of the tenant to repair the demised premises pursuant to the contract and her letter of 8 October 1996, is legally and contractually binding on her. It is also held that “Where the tenant agrees generally to repair, he is bound to furnish, at his own expense, the materials for the needed repairs.” 51 C.J.S., Landlord and Tenant, § 368(e).

 

It is also contended by appellant that she is not obligated under the common law to repair and renovate the demised premised damaged by public forces and public enemy in the wake of the April 6, 1996 crisis without her fault. This Court disagrees with appellant’s contention as there is a contract entered and executed by the parties, wherein appellant has her exclusive obligation to repair and renovate the leased property in the event of any damage or destruction of the subject property. It is a fundamental principle of law that: “The fact that the leased premises become defective through decay or deterioration does not impose on the landlord the duty of making repairs. In the absence of a covenant to do so, he is not required to rebuild when the premises are condemned unsafe, or are injured or destroyed by fire or other accidental cause, although he may have received the proceeds of insurance…” 51 C.J.S., Landlord and Tenant, § 366.

 

Further in her prayer, appellant urged this Court to render judgment ordering both parties to share the cost of renovation of the demised premises. This Court perceives no legal reason to render such judgment requiring and commanding that appellee share in the cost of renovation of the subject property in the absence of an agreement to do so. Law writers have held that in the absence of statute or special agreement, a landlord is not generally liable to his tenant for repairs made by the latter to the demised premises, and is under no obligation to reimburse him for such expenditure and the same rule applies where the tenant has bound himself by the lease to repair. 51 C.J.S.,-Landlord and Tenant, § 369.

 

This Court holds that a risk known by the parties at the time of execution of the sub-lease agreement and required by said sub-lease agreement to be insured by the sub-lessee ought to be complied with pursuant to the contract, but not otherwise.

 

Every contract ought to be construed according to the intention of the parties thereto. Appellant in the case at bar had covenanted for the exclusive repair and renovation of the demised property pursuant to the terms of the sub-lease agreement as well as her letter of 8 October, 1996. She is not excused from her exclusive obligation to renovate the subject property, neither can she now repudiate her covenant just because her position or interest has been changed.

 

The second and last issue for our determination is: Whether or not appellant is exempted from liability for rent under the sub-lease agreement during the period of her non-occupancy of the demised premises without her fault.

 

A recourse to paragraph two of appellant’s letter of February 3, 1998 reveals that she paid the rent for the period November 1, 1995 to October 31, 1996; which period elapsed while the hotel remained closed as a result of the crisis. We further observe on page two (2) of said letter that appellant made payment of US$25,000.00 (Twenty-Five Thousand United States Dollars) to appellee as partial payment of annual rent of US$50,000.00 (Fifty Thousand United States Dollars) for the period November 1, 1996 to October 31, 1997, the period for which he alleged that the lease attained no benefit to her. Thus, the balance US$25,000.00 (Twenty-Five Thousand United States Dollars) is still outstanding.

 

The partial payment of US$25,000.00 (Twenty-Five Thousand United States Dollars) by appellant to appellee as rental for the period November 1, 1996 to October 31,1997 is acknowledgment of appellant’s obligation for rental payment of US$50,000.00 (Fifty Thousand United States Dollars) for the aforesaid period, and is therefore an admission of her liability to pay the full rental for the period she claimed that she attained no benefit of the lease. Her payment of US$25,000.00 (United States Dollars Twenty-Five Thousand) as rent also presupposes her intention to pay the balance US$25,000.00 (Twenty-Five Thousand United States Dollars) for the period November 1, 1996 to October 31, 19977. She is therefore required under the sub-lease agreement to make full payment of her rental obligations to appellee, as her partial payment negates her contention that she is exempted from liability to pay rent for the period of her non-occupancy without her fault as required by common law.

 

The common law provides that: ” In the absence of a statute or a provision in the lease to the contrary, the destruction of demised buildings, during the term, by a natural cause or through a violence or public enemy, does not relieve the tenant of his obligation to pay rent, if some part of the premises demised by the lease are left for occupancy.” 49 AM JUR 2d., Landlord and Tenant, § 586.

 

The records in this case are devoid of any evidence that the demised premises have been substantially damaged or destroyed to the extent that a part thereof does not remain in existence, capable of being occupied by appellant. This conclusion is supported by appellant’s own letter of October 8, 1996, indicating that she maintained security squad at the demised premises subsequent to its closure in consequence of the April 6, 1996 crisis.

 

It is also a settled principle of law that a tenant remains liable for the agreed rent of the demised premises so long as any part thereof remains in existence capable of being occupied or enjoyed by him, irrespective of injury or destruction by fire or other casualty . Thus, in the absence of a provision in the lease, the destruction during the term of buildings upon the leased premises by fire, inevitable incidence, the violence of nature, or public enemy, not so complete as to leave no part of the subject matter of the lease in existence, does not relieve him of the obligation of the rent or entitle him to an abatement of a proportional part of the rent. 49 AM JUR 2d., Landlord and Tenant, § 591.

 

Appellant is also contractually obligated for the payment of the agreed rents for the demised premises consistent with Articles I and XI of the sub-lease agreement executed by the parties on August 21, 1992. This Court disagrees with the contention of appellant that Article XII of the agreement exempts her from the payment of rent since the aforesaid Article provides that the demised premises should be surrendered to the appellee in as good and tenable condition, excluding acts of God and damage and/or destruction by other causes or agencies under Article IV of the lease. This Court says that Article IV(b) of the contract provides that appellant, as sub-lessee, shall surrender the demised premises to the appellee, as sub-lessor, with the provision that the appellant shall pay the insurance proceeds to appellee for any damage or destruction of the subject property as shall be adequate to cover the cost of the restoration of the demised property. Thus, the cost of the restoration of the demised premises is provided for in Article IV(b) of the lease should the sub-lessee elect to surrender. So while appellant is not obligated under Article XII for the restoration of the demised premises at the expiration of the sub-lease agreement and when she surrenders same to appellee at that time, appellant is obligated for the restoration of the subject property in the event of damage as provided for under Article IV(b).

 

It is important to note that appellant, sub-lessee, has been in possession of the demised property from July, 1997 up to and including the date of this opinion without the payment of her rent for the period herein above stated.

 

Wherefore, and in view of the foregoing, it is the candid opinion of this Honourable Court that the judgment of the trial court should be, and the same is hereby affirmed that appellant shall pay to appellee the sum of US$175,000.00 (One Hundred Seventy-Five Thousand United States Dollars) for all overdue and unpaid rents up to and including the date of this opinion with 6% legal interest per annum for the wrong withholding of the rents. The Clerk of this Court is hereby ordered to send a mandate to the court below commanding the judge presiding therein to resume jurisdiction and enforce this judgment. Cost against appellant. And it is hereby so ordered.

 

Judgment affirmed.