IN THE HIGH COURT OF JUSTICE. Between RUDOLPH SYDNEY. (through his lawful attorney, Shirley Jones Rajkumar) And NICOLE HYACINTH JOSEPH MARSHAL

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between RUDOLPH SYDNEY (through his lawful attorney, Shirley Jones Rajkumar) Claimant And NICOLE HYACINTH JOSEPH MARSHAL STEPHEN MARSHAL Defendants Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Christopher Gidla for the Claimant Mr Anand Singh for the Defendant Date: 4 May 2016 JUDGMENT Page 1 of 9

2 1. This claim concerns a building located at the corner of Valencia Road and San Pablo Trace. It is a small building used as a snackette. On the same lot of land is a house. The house is occupied by the defendants. The snackette is rented out by the first defendant to one Kenneth Mohan. She collects the rent. The second defendant is her husband, who lives with her. 2. The claim is brought for vacant possession of the snackette. It is also brought for an account of rents and repayment of that rent to the claimant. 3. Rudolph Sydney brought the claim through his power of attorney, Shirley Jones Rajkumar, who is his common law wife for the past 10 years. 4. Mr Sydney says he built the snackette. The land on which it stands he says was left to him by his wife, Petra Sydney, who died, intestate, in He did a Deed of Assent for the property to himself and this was made and registered in He says he was the son in law of Rudolpho Paponette. The lands were owned by one Mr Pena. Mr Paponette would collect land rents for Mr Pena who had an estate. He says this plot of land was left by Mr Pena by word of mouth to Mr Paponette. He does not say how he knows this. My Sydney says he got a grant of representation for his wife s estate. But in cross-examination, he says, nobody got a grant for Mr Paponette s estate. He says his wife inherited Mr Paponette s interest in the lands. But he does not say how. Mr Paponette actually had several children, nine in all. Page 2 of 9

3 6. According to the first defendant, Mr Paponette had a common law union with Josephine Joseph from Each of them had children from previous relationships but none from their union. 7. Paponette died on 28 April Paponette and Josephine were considered joint tenants of the lands as shown by a receipt dated 29 January 1989 made out to both of them by an agent of Mr Pena. According to the defendant Paponette left a will leaving the property to his common law wife Josephine. Josephine died on 1 April Josephine is said to have done a will leaving the property to Cecilia Joseph and the first defendant. They were the persons who had lived in the house with Paponette and Josephine. 8. The issues in this case are essentially three. The first is whether the claimant has shown a right or title sufficient to displace the defendant s occupation of the snackette. Second, is the snackette affixed to the land? Third, does the claimant have any claim or right to the use of or occupation of or the proceeds of rent from the snackette? 9. The claimant said he renovated and re-built the board shop which was operated by his wife Petra. It was converted into a bigger concrete structure for the snackette. 10. He said on 28 October 1998 he agreed to let the snackette to Mr Mohan for 3 years, less one day at a monthly rent of $ The agreement had both his and the first defendant s name as landlords, but Mr Mohan paid the rent to him. At the end of this three year period, Mohan continued to pay the rent for the snackette, but this time, to the first defendant directly. The claimant has not received any of the rent since then. Page 3 of 9

4 11. His claim to the snackette, therefore, is through the Deed of Assent from himself to himself in 2009 purporting to convey the property to himself. LAW 12. In Bullen and Leake, Precedents of Pleadings, 12 th edition, page 67 it is stated: It was a rule of the common law that anyone who was out of possession must recover the land by the strength of his own title, and not by reason of any defect in the title of the person in possession. Even when it was clear that the person in possession had no right to be there, still the claimant in ejectment could not turn him out unless he could show in himself a title which was prima facie, at all events good against all the world. 13. This principle has been consistently applied in this jurisdiction. See Olga Charles v Harrichand, Civil Appeal No. 50 of 1960, per Wooding CJ; Ramdhan v Solomon, HCA 522 of 1975, per Ibrahim J.; Man Hong and Others v Singh, HCA 1278 of 1980 per Edoo J.; Murray v Biggart, HCA T 101 of 1998 per Smith J.; and Jobe v Ryan, CV , per Kokaram J. 14. In Mitchell v Cowie 7 WIR 118 at 122 Wooding CJ stated as follows: From this statement of the common law, which by enactment is deemed to be in force in Trinidad and Tobago, the applicable principles may in my judgment be summarised thus: Page 4 of 9

5 1. A house may be a chattel or a fixture depending upon whether it was intended to form part of the land on which it stands. But the intention is to be determined objectively rather than subjectively, that is to say, according to the circumstances as they appear and by the application of rules such as are set out hereunder. 2 To distinguish chattel from fixture, a primary consideration is whether or not the house is affixed to the land. 3 If the house is not affixed to the land but simply rests by its own weight thereon, it will generally be held to be a chattel unless it be made to appear from the relevant facts and circumstances that it was intended to form part of the land, the onus for so doing being upon him who alleges that it is not a chattel. 4 If the house is affixed to the land, be it however slightly, it will generally be held to form part of the land unless it be made to appear from the relevant facts and circumstances that it was intended to be or continue as a chattel, the onus for so doing being upon him who alleges that it is a chattel. 5 Specifically as regards a house affixed to land by a tenant thereof, a circumstance of primary importance is the object or purpose of the annexation. 6 To ascertain the object or purpose of the annexation, regard must be had to whether the affixation of the house to the land is temporary and for use as a chattel or is permanent and intended to be for the better enjoyment of the land. But for this purpose it must at all times be borne in mind that the intention or right of the tenant to remove the house from the land on the cesser of his interest as tenant with the result that no improvement will accrue to the landlord's reversionary interest does not make the affixation (albeit that it is in Page 5 of 9

6 one sense) temporary. The critical consideration, therefore, is whether the tenant in affixing his house to the land has manifested a purpose to attach it thereto so that it becomes and remains a part thereof coterminously with his interest as tenant. 15. The claimant s secondary claim to vacant possession of the snackette is that he renovated and re-built the building from a board structure to the concrete structure for his wife to use as a snackette. However, he does not tell us how much he spent on doing this. 16. The first defendant also gave evidence. Her claim to the land starts with her living in the property all of her life. She says that the owner was Mr Pena. She bought the land through the National Land Tenants and Rate Payers Association (NLTRPA) who collected for the land for the owner Alvon Pena. She showed receipts paying money to the NLTRPA. Mr Wazir Hosein, the Vice President of the NLTRPA, gave evidence to confirm these payments. She says she is awaiting a Deed of Conveyance. She also said the property is assessed in the name of her husband and herself with the District Revenue Office. She pays the water rates. She said her grandfather, Mr Paponette, gave permission to Petra to operate a snackette on the premises. Petra never lived on the premises. She said renovations were carried out on the snackette by the claimant. But that Petra and the claimant separated and the snackette continued to be used by Petra for a short while, then it was closed. 17. She said it was she who tenanted the property to Mr Mohan but she acknowledged that Mr Sydney had contributed to the improvement of the snackette so she agreed with him that he would collect the rent money for 3 years to compensate him for his Page 6 of 9

7 expenditure and it was also agreed the lease would be put in both their names for that period. Since then all leases have been made in her name with Mr Mohan. 18. She also received a copy of the renewal of her statutory lease done through the NLTRPA. 19. She called Cecelia Joseph, her aunt; her mother, Christine Aguillera; and a neighbour, Elizabeth Yearwood, to support her evidence. 20. They confirm the events which the first defendant has related in her witness statement in several material respects. Mr Wazir Hosein also confirms her evidence that a sale of the land to the defendants is taking place through his organisation from the records of the NLTRPA. 21. Where there is a conflict between the versions of the claimant and the first defendant I resolve them in the first defendant s favour. The evidence is essentially supported by documents in material respects such as the 1989 receipt, the payments to the NLTRPA, the Assessment Roll entry, the WASA bill, electricity bill, renewal of statutory tenancy. There is also support of the events provided by her witnesses. In particular, I accepted the first defendant s evidence that the snackette was renovated or improved. It was not built by the claimant. 22. Between the claimant and the defendants, the claimant has not shown any entitlement to the property superior to that of the first defendant to displace her present Page 7 of 9

8 occupation of the premises including the snackette. It is readily apparent from the cases cited above that the claimant s deed of assent is not a good root of title. 23. The first defendant has shown, through her evidence, a better entitlement to occupation of the property. This is even though she does not produce the wills referred to in her evidence. In respect of the will leaving the property by Josephine to Cecelia and herself, she has indicated that the attorney who had prepared it has stated it was misplaced but she gives evidence of its preparation. Even if this is completely discounted as hearsay, the other evidence she has advanced, together with her occupation of the premises, is sufficient for the court not to make any order to vacate the building known as the snackette. In any event the claimant in cross-examination, said he is making no claim to the land, only to the snackette. 24. The claimant seeks to distinguish these cases on the basis that it is not a claim to land, but to a building on the land. He relies on the judgment of Cross J. in Anderson and Lezama v Duke, HCA 722 of 1970, delivered 29 July The structure in that case was a wooden building. However Cross J. at page 5 of the judgment said: I am also satisfied that the house in this case, no matter how described, was erected for use as a permanent residence and became a part of the realty and therefore a fixture. 25. I accept the evidence of the first defendant relating to the arrangement to compensate the claimant for the money he spent to improve the property. This is both plausible and consistent with the other evidence. Page 8 of 9

9 26. The next matter concerns the nature of the snackette itself. It is affixed to the land. It is not a chattel that can be removed without destroying it. The claimant accepted this in cross-examination. He said it cannot be removed and it has a firm and solid foundation. Therefore it remains with the land: See Mitchell v Cowie 7 WIR 118 per Wooding CJ. 27. In any event, the claimant did not construct the snackette. My finding is that he renovated it. There was one standing there before. It cannot therefore be said that he owns it. I have also indicated that I accepted the first defendant s evidence that she compensated the claimant through the payment of rent money for the first three years that the place was tenanted to Mr Mohan. 28. The result is that the claim must be dismissed. I will hear the parties on costs. Ronnie Boodoosingh Judge Page 9 of 9