IN THE HIGH COURT OF JUSTICE PORT OF SPAIN BETWEEN CHANDRAGUPTA MAHARAJ MAIANTEE MAHARAJ AND

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. Cv IN THE HIGH COURT OF JUSTICE PORT OF SPAIN BETWEEN CHANDRAGUPTA MAHARAJ MAIANTEE MAHARAJ AND Claimants NIGEL STELLA JOSEPH GENTLE Defendants BEFORE THE HONOURABLE MADAME JUSTICE JONES Appearances: Ms. H. Ramdhanie-Seemungal for the Claimants. Mr. A. Pierre instructed by Ms. S. Charles for the Defendants. JUDGMENT 1. On 18 th February 2011, by way of a fixed date claim, the Claimants commenced an action for possession against the occupier of a parcel of land owned by them. By an order made on 17 th June 2011 the Defendants, mother and son, were joined as parties to this action. 2. By and large the relevant facts are not in dispute. The Claimants are the owners of a parcel of land ( the land ) which is at present occupied by the First Defendant. The First Defendant is the son of the Second Defendant. The land had originally been tenanted by Dolly Preito ( the deceased ) who owned a chattel house situated on the land. It is not in dispute that Page 1 of 10

2 this tenancy comprised a statutory lease in accordance with the Land Tenants Security of Tenure Act Chap. 59:54 ( the Act ). 3. I accept the evidence of the Defendants that at the time of her death the deceased was ill and from the years 2001 to the date of her death resided with the Second Defendant on other premises. I also accept the evidence of the Defendants that while the deceased lived with the Second Defendant the chattel house on the land was occupied by the First Defendant. 4. The deceased died on 17 th January 2005 intestate and with no next of kin. On 11 th July 2007 the Second Defendant petitioned the Administrator General for a waiver of state rights with respect to the deceased's estate. To date this application has not been granted. On 23 rd December 2010 the Claimants served the Administrator General with a notice to quit dated 8 th December This notice required the Administrator General to quit and deliver up possession of the land on 31 st January By a notice dated the 31 st January 2011 the Second Defendant sought a renewal of the statutory lease and by a notice dated the 26 th day of May 2011 the Administrator General did the same. While it is not in dispute that these notices were served on the Claimants there is no evidence of the date of service of either of these notices. 5. The issues raised by the pleadings for my determination are as follows: (i) Had the statutory lease been determined by the time of the deceased s death? (ii) If not, are, either or both of, the defendants entitled to the benefit of that lease? and (iii) Are the Claimants entitled to an order for possession of the premises? Page 2 of 10

3 Had the lease been determined by the time of the deceased s death? 6. This is essentially a question of fact the burden of proof of which falls on the Claimants. Given my acceptance of the Defendant s evidence as to the circumstances upon which the deceased left the premises and the occupation of the same by the First Defendant, I find that there is no evidence of abandonment or surrender of the tenancy by the deceased prior to her death. At the time of her death therefore, the deceased held a statutory lease of the land in accordance with the Act. Are the Defendants entitled to the benefit of that lease? 7. The Defendants submit that pursuant to section 2 of the Act they are entitled to the tenancy of the land. As I understand the submission it is that, since by virtue of section 2 of the Rent Restriction Act a member of a tenant s family who was residing with the tenant for not less than six months immediately before the death of the tenant is deemed to be a tenant under that Act, the Second Defendant being the cousin of the deceased and with whom the deceased resided for more than six months immediately before her death is a person entitled in possession of the land under section 2 of the Rent Restriction Act. That being the case, the Defendants submit, that by operation of law, the Second Defendant is a tenant under the Act. 8. I do not accept the submission. Section 2(1)(b) of the Rent Restriction Act Chap. 59:50 defines a tenant as including the widow of a tenant who was residing with him at the time of his death, or, where a tenant leaves no widow, or is a woman, such member of the tenant's Page 3 of 10

4 family as was residing with the tenant for not less than six months immediately before the death of the tenant as may be decided in default of agreement by a Court, or by a Board. 9. The first difficulty faced by the Defendants in this regard is the fact that there is no evidence that either the First or the Second Defendant is a member of the deceased s family. The only evidence with respect to any relationship comes from the evidence the Second Defendant. The Second Defendant however merely states that she grew up knowing the deceased to be her cousin. In my view this is not sufficient evidence to establish a family relationship. 10. Further in the case of Gafooran Ali v Ashraph (1964) 7 WIR 354, a case to which I would refer in detail later, it was held by the Court of Appeal of Trinidad and Tobago that since the primary object of the Rent Restriction Act was to confer personal security upon a tenant and his family in respect of the house in which they resided a widow could not invoke the provisions of section 2(1)(b) of that Act with respect to a tenancy of premises in which she was not residing at the time of the tenant s death. On the evidence before me it is clear that the Second Defendant did not reside with the deceased on the land and while the First Defendant resided on the land it was not with the deceased. For these reasons even if the definition of tenant in section 2(1)(b) of the Rent Restriction Act is relevant, in my opinion, it would not apply to these circumstances. 11. The second and more fundamental difficulty with this submission is that the Defendants seek to incorporate a definition which applies to one act, the Rent Restriction Act, into another act without any statutory or other basis. This, in my opinion, is impermissible. In this regard some assistance is found in the Court of Appeal decision of Alexander v Rampersad Civil Appeal No. 11 of It is clear from that decision that the protection given to tenants under Page 4 of 10

5 these two pieces of legislation is not the same. In my opinion the Act does not specifically incorporate into its provisions the definition of tenant found in the Rent Restriction Act. Neither can the words by operation of law contained in the Act do so. 12. Section 2 of the Act defines a tenant as any person entitled in possession to the land under a contract of tenancy, whether express or implied, and whether the interest of such person was acquired by original agreement or by assignment or by operation of law or otherwise; and includes a tenant at will and a tenant at sufferance and tenancy shall be construed accordingly. To establish a tenancy under the Act therefore the Defendants will have to satisfy me that they are entitled to the possession of the land under a contract of tenancy. 13. The fact that the definition in section 2 refers to a contract of tenancy whether express or implied, and whether the interests of such person was acquired by original agreement or by assignment or by operation of law or otherwise does not, in my opinion, assist the Defendants. These words in my view are descriptive of the contract of tenancy. There is no evidence before me of any contract of tenancy, express or implied, acquired by original agreement or assignment or operation of law or otherwise which entitles the Defendants to the possession of the land. Of course the position would have been different had either of the Defendants been the next of kin of the deceased. 14. At the end of the day therefore I find that neither of the Defendants are tenants within the ambit of the Act. Page 5 of 10

6 Are the Claimants entitled to an order for possession? 15. It is accepted by both sides that the estate of the deceased is vested in the Administrator General, by virtue of section 10(4) of the Administration of Estates Act Chap. 9: According to the Defendants even if they are not tenants under the Act since a contract of tenancy postpones a landlord s right to the possession of the premises once the statutory lease is in existence the Claimants have no right to the possession of the premises. In those circumstances, they submit, the claim must fail. 17. The real question here is whether there is still in existence a statutory lease. The Act provides for a 30 year statutory lease to be granted from 1 st June This statutory lease therefore expired on the 31 st of May Section 4(2) and (3) of the Act provides for a renewal of the lease by the tenant for a further period of 30 years upon the service of a written notice to renew on the landlord before the expiration of the original term of the lease. The Act therefore specifically confers the right of renewal on a tenant. It follows therefore that, not being tenants, the Defendants are not entitled to the benefit of section 4 (2) and (3) of the Act. 18. The answer to whether the statutory lease is still in existence lies with the notice to renew served by the Administrator General. While it is not in dispute that, in accordance with section 10 of the Administration of Estates Act upon the death of the deceased the tenancy vested in the Administrator General, two questions arise. The first and more fundamental question is the extent of the jurisdiction of the Administrator General under section 10 of the Administration of Page 6 of 10

7 Estates Act and in particular whether there is vested in the Administrator General by the section the power to renew the statutory lease. The second is whether there is evidence before me that the Administrator General did in fact renew the lease in accordance with section 4(3) of the Act. 19. Section 10 (4) of the Administration of Estates Act Chap. 9:01 states: On the death of any person all his estate real and personal whatever within Trinidad and Tobago shall vest in law in the Administrator General until the same is divested by the grant of Probate or Letters of Administration to some other person or persons: provided that the Administrator General shall not, pending the grant of such Probate or Letters of Administration, take possession of or interfere in the administration of any estate save as in this Act, and in the Wills and Probate Act provided. 20. There is nothing in the Act or the Wills and Probate Act Chap. 9:03 which is relevant to the operation of the section in this particular case. 21. The question that arises is whether section 10(4) permits the Administrator General to take any steps with reference to the tenancy or whether, as was stated by Wooding CJ in Arthur v Gomes (1966) 11WIR 25,...only the bare legal title passes to the Administrator General. He is merely a depository, so to speak, holding things in medio until such time as the grant is obtained. This is because the title at law cannot remain in vacuo pending the grant. Page 7 of 10

8 22. It would seem to me that the service of a notice of renewal by the Administrator General is not consistent with the role of a mere depository of title or holding things in medio. In my opinion section 10(4), does not allow the Administrator General to meddle with or take positive action in the estate. To my mind, that is the effect of the words the Administrator General shall not, pending the grant of such Probate or Letters of Administration take possession of or interfere in the administration of any estate. 23. In this regard some assistance can be obtained from the case of Gafooran Ali v Ashraph referred to earlier. In this case the deceased had died intestate and at the time of the action no Letters of Administration had as yet been obtained with respect to his estate. A notice to quit had been served on the Administrator General. It was submitted on behalf of the widow of the deceased that since the Administrator General held the tenancy as a trustee to the persons beneficially entitled thereto, one of whom was the appellant, section 2(1)(a) of the Rent Restriction Act which extended the definition of tenant to a person deriving title from the original tenant should operate to so as to protect the possession of the widow. 24. In dealing with this submission Phillips, J. A. had this to say: The answer to this argument appears to be simple. It is that the intention of the Rent Restriction Ordinance is to protect the possession of persons who are either contractual tenants or statutory tenants, as defined by the Ordinance. The appellant falls into neither category. Moreover, although the Administrator General became clothed with the legal estate in the demised premises on the death of the tenant, he had no possession, which would be the subject of protection by the Ordinance, and accordingly when the contractual tenancy was Page 8 of 10

9 duly terminated by notice to quit served upon him there was no question of his becoming a statutory tenant of the premises. : page It seems to me that both these cases give support to my view that section 10 of the Administration of Estates Act does not allow the Administrator General to take any step with respect to the estate, to do so would, in my view, amount to interference in the administration of the estate. Accordingly, the action of the Administrator General in serving a notice to renew the statutory lease is in my opinion invalid and ultra vires the powers granted under the section. 26. In any event there is no evidence before me that the notice to renew served by the Administrator General was in fact served in accordance with the Act. While it is not in dispute that a notice dated 31 st May 2011, was served on the Claimants there is no evidence as to the date of that service. The Act provides service of the notice of renewal before the expiration of the original lease. For the notice to have effect therefore I will have to be satisfied that this notice was served by the Administrator General by midnight on 31 st May While the notice itself is dated the 31 st May there is no evidence of the date of service. Accordingly, I am of the opinion that even if the Administrator General could have validly served a notice to renew the statutory lease there is no evidence before me that the statutory lease was renewed in accordance with section 4(3) of the Act. 27. In these circumstances there is no need to consider the submission by the Defendants that the term of the statutory lease could not be determined by the notice to quit served on the Administrator General in December 2010 or the submission by the Claimants that the notice to renew did not properly describe the land the subject of the tenancy. Page 9 of 10

10 28. With respect to the Defendants submission however it seems to me that, as was held by me in Jean Mackay and others v Jesse Henderson Co. Ltd. CV , the effect of section 5 of the Act is to incorporate into the statutory lease the terms and conditions of any existing tenancy not inconsistent with the provisions of the Act. On the evidence it is clear that prior to the creation of the statutory lease the deceased held a tenancy of building land under the Rent Restriction Act to which section 14 of the Rent Restriction Act applied. In my opinion, except with respect to obtaining possession on the grounds of arrears of rent, the provisions of section 14 are not inconsistent with the terms and conditions of a statutory lease under the Act and therefore it is possible to terminate a statutory lease within the 30 year period on grounds as contained in section 14 of the Rent Restriction Act. 29. In all the circumstances of the case therefore I find that the Claimants are entitled to the possession of the land the subject matter of this action and I so order. Dated this 27 th day of January, Judith Jones Judge Page 10 of 10