IN THE HIGH COURT OF JUSTICE. Between. And

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No.: CV Between ROSIE MOOSAI Otherwise ROSIE RAMDEO Claimant And DEANDIAL JAWAHIR Defendant Before the Honourable Mr. Justice Vasheist Kokaram Date of Delivery: 17 th March 2015 Appearances: Mr. Anthony Manwah for the Claimant Mr. Haresh Ramnath for the Defendant ORAL JUDGMENT 1. This is a claim for possession of a two storey residence situated at 9 Teak Drive off Pinewood Avenue Ridgeway Heights Tacarigua ( Teak Drive property ). It is owned by James Chanko by Certificate of Title Volume 2633 Folio 237 and consists of two self contained apartments on the ground floor and the main residence on the first floor. According to a valuation report, which was admitted into evidence, it was constructed in 1983 but the rear apartment on the ground floor and carport was added in the mid 1990 s. It is a property valued at $1.15m. The Teak Drive property is subject to a mortgage to Workers Bank Ltd. Page 1 of 15

2 2. The parties in this trial are at loggerheads over the Teak Drive property. Rosie Moosai, the Claimant, contends that she is entitled to possession based upon her entering into an agreement for sale with James Chanko in She claims that she was eventually dispossessed by the Defendant, Mr. Deandial Jawahir. He claims to be entitled to possession by virtue of his continuous occupation of the Teak Drive property since 1988 and by paying the mortgage instalments for that property. There is no counterclaim for possession by Mr. Jawahir as he himself withdrew such a claim a long time ago on 16 th May 2012 in CV (the Defendant s first claim). Later a claim which he instituted against Mr. James Chanko for possession in CV (the Defendant s second claim), was dismissed on the first day of this trial. 3. The main issue in this trial is really which of the parties have a superior right to occupation of the Teak Drive property and it is largely a question of fact. Neither of the protagonists, the Claimant and the Defendant, impressed me with their candour in this trial. However ultimately between the two, the Defendant is by far the more inconsistent, unreliable and simply cannot be considered to be a reliable witness. For the reasons set out in this judgment I am of the view that Ms. Moosai did enter into occupation of the Teak Drive property with her daughter in 1988 pursuant to an agreement for sale with Mr. Chanko and that Mr. Jawahir, who had no right nor interest in the property, unlawfully excluded her from possession of the said premises since The claim: 4. By her statement of case, Ms. Moosai contends that in 1988 she entered into an agreement for sale to purchase the Teak Drive property. It is an unusual agreement in that it postponed the actual transfer of title to Ms. Moosai upon her continuing to service and liquidate all the mortgage sums that fell due on the said property. By the agreement therefore there was no fixed time for completion. Completion would have occurred upon an occurrence of the event of liquidation, whenever that was. 5. Ms. Moosai claims to have entered occupation with permission of Mr. Chanko in October 1988 with her two daughters Geeta and Sita. She claims to have paid all the outgoing sums Page 2 of 15

3 including the mortgage payments. She arranged for her daughter to make the mortgage payments. In around August 2005 she claims Mr. Jawahir forcefully threw Sita out of the premises and took possession. This occurred while Ms. Moosai was in the USA. She had left this jurisdiction in 2002 leaving her daughter Sita in occupation together with her personal belongings including all her documents and records. She was incarcerated while in the USA and served a term of imprisonment. Ms. Moosai claims that the value of the unrecovered household items is in the sum of $50, Importantly at paragraph 13 of the statement of case she makes reference to the Defendant s first claim for possession as against her and Mr. Chanko which claim was withdrawn at the first day of that trial. 6. Ms. Moosai claims the following relief in this claim: (i) Possession of the said premises. (ii) Damages or mesne profits at the rate of $9, per month from August, 2005 until possession is delivered up. (iii)the sum of $50, being the value of the said household goods and furniture. 7. Mr. Jawahir s preliminary objections raised in paragraphs 1 to 3 of his Defence were already dealt with and overruled at an earlier case management conference. In substance Mr. Jawahir by his Defence claims to be in occupation since He pleads the fact that he instituted his second claim seeking a declaration that he has been in possession of the premises in excess of 16 years extinguishing the paper title holder s interest. 8. I should pause here to mention that this present claim was at an advanced stage of preparation for trial when it was brought to the Court s attention that the Defendant s second claim was before another Court and should be transferred to this Court for its management. It meant that this present action was delayed while directions were given for the Defendant s second claim so that both claims could be heard together. Mr. Jawahir later abandoned the second claim having gone through the entire case management exercise and the claim was dismissed with costs reserved to be determined at the end of this trial. The Defendant further contends in his defence that: (a) There is no interest of the Claimant noted on the certificate of the title. (b) The agreement for sale is subject to the limitation of actions (a matter that has not been pursued in closing submissions). (c) The Defendant is aware of the mortgage and in Page 3 of 15

4 fact liquidated the entire mortgage. (c) He is a stranger to any agreement and has been in possession paying all outgoings since (d) Noteworthy in response to the plea that the Claimant left the jurisdiction leaving her daughter in occupation with the Claimant s belongings he pleaded: The Defendant denies the contents of paragraph 6 in its entirety save and except that he is aware the Claimant left the jurisdiction and was later incarcerated in Brooklyn Prison New York for a period of time. The Defendant further contends that there was a common in law relationship with the Claimant whilst he was married and this relationship ended at his behest and as such the Claimant commenced making unfounded and baseless allegations as stated therein. (e) He contends that he has done extensive repairs and renovations to the Teak Drive property in the sum of $250, and on occasion rented out the downstairs portion of the property. The issues: 9. The issues for determination are as follows: a) What is the nature of the interest of the Claimant s interest in the Teak Drive Property and whether the Claimant is entitled to possession by virtue of the 1988 agreement? b) Whether the Claimant alone or both she and the Defendant together moved into the premises on c) Whether the Claimant abandoned possession of the premises in Preliminary issues: 10. At the morning of the trial the Defendant raised for the first time a preliminary issue that the Claim should be struck out on the ground that the Claimant failed to plead her particulars of title. That argument was further expanded in the Defendant s written submissions. 11. The Defendant relied principally on the authority of Olga Charles v H Singh and Anor CA 50 of 1960 per Wooding CJ: where however there is no suggestion that the Defendant received possession from the Plaintiff or had paid him rent the onus lies on the Plaintiff of strictly proving his title and he must state his title in full detail in his pleading deducing it step by step through the various mesne assignments. On the other hand, the Defendant is allowed to state merely that he is possession and thus to conceal all defects in his title unless Page 4 of 15

5 he is in possession by virtue of a lease or tenancy granted by the plaintiff of his predecessor in title or unless he relies on some equitable defence in which case he must plead it specifically. 12. The Defendant submits that: (a) no title has been pleaded by the Claimant (b) no certificate of title was tendered into evidence and the Claimant can only succeed on the strength of his title not on the weakness of the Defendant. These submissions however are not sound principles of law in light of the judgment of the Privy Council in Ocean Estates Ltd v Norman Pinder [1969] 2 A.C In that case the Court treated the claim as an action as if it were one between competing trespassers. The plaintiff claimed damages for trespass. The defendant claimed a possessory title on the ground of his full and free undisturbed possession of land for more than 20 years. The plaintiff relied on their documentary title and on the use of the land. The trial court held that the defendant failed to prove a possessory title and gave judgment for the plaintiff. Their Lordships held that the plaintiff had sufficient possession to bring an action for recovery of the land. Lord Diplock explained: In their Lordships view the question of what documentary title a vendor is entitled to insist on forcing upon a purchaser has no relevance to the present action. At common law as applied in the Bahamas, which have not adopted the English Land Registration Act, 1925, there is no such concept as an absolute title. Where questions of title to the land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 20-year period of continuous and exclusive possession by the trespasser. In the present case where the defendant made no attempt to prove any documentary title in himself or in any third party by whose authority he is in occupation on the land it Page 5 of 15

6 would have been sufficient for the plaintiffs to rely upon the conveyance of the land to himself of March 30 th, 1950; for where a person has dealt in land by conveying an interest in it to the estate in the land which he purported to convey. In fact, however, the plaintiffs went further than was strictly necessary. They proved the devolution of title going back through a series of intervening conveyances to the conveyance of the fee simple in the land by Mrs. Key to the Chipper Orange Co. Ltd of May 3, There is therefore no requirement to adduce evidence of title to the lands for the periods required under section 5 of the Conveyancing and Law of Property Act if the Defendant is himself not relying on any documentary title to justify his right to possession. This was also explained in CV Harracksingh v James. 15. See also Justice Rajnauth Lee s decision in CV Bartholomew v McCauley. 16. Subsequently our Court of Appeal in Xavier Goodridge v Baby Nagassar CA 243 of 2011 has doubted whether Olga Charles should be any authority for the proposition that a Claimant who is claiming possession needs to prove his title by deducing it step by step simpliciter in all cases. 17. In examining the decision of the Privy Council in Ocean Estates, Mendonca JA ruled in his judgment that the Olga Charles line of authority should be restricted only to those cases where there are battle of titles. Where questions of title arise in litigation the Court is concerned with the relative strengths of the title proved by the rival claimants. A claimant, who relies on his documentary title to obtain possession of land against a trespasser who does not seek to prove any documentary in himself, although he has to adduce some evidence of ownership of the lands, need not adduce evidence title to the lands for the same period as may be required of a vendor by a purchaser under a contract for the sale of lands under section 5 of the CALPA. The claimant may rely on the presumption as referred to by Lord Diplock. As the claimant may succeed even though he need not strictly prove his title for the same period as may be demanded by a purchaser of lands, it follows that he need not set out such a title in his pleading. Page 6 of 15

7 The Court of Appeal is bound by its previous decisions and is obliged to follow them. There are however certain limited exceptions to this. One of them is where a decision of the Court of Appeal, though not expressly overruled, is inconsistent with a decision of the Privy Council that is binding on it (see Young v Bristol Aeroplane Co. Ltd [1944] 2 All ER 293 and Civil Appeal 25 of 2003 The Attorney General of Trinidad and Tobago v Rodney Teeluck). As I am of the view that the decision of the Privy Council in Ocean Estates is binding on this Court (as I will discuss below) and the decision of the Privy Council is inconsistent with Olga Charles, in my judgement to the extent that Olga Charles and the cases that applied it decided it was necessary for claimant seeking possession of lands in against a trespasser, who proved no documentary title in himself, to plead and prove each link in his title for the same period as a purchaser may require of a vendor under a contract of sale as provided for in section 5 of the CALPA, they were wrongly decided and should not be followed. 18. However this is not such a case. This is not a case of rivalling claims to title. This is a case of rivalling claims to possession of the Teak Drive property. On the one hand Ms. Moosai relies upon an agreement for sale and the fact that she went into occupation of the Teak Drive property together with her daughter, paying the mortgage payments. When she left for the USA she maintained her residence until she was dispossessed by Mr. Jawahir who had no authority to enter into possession. Mr. Jawahir on the other hand alleges that he was in occupation of the property from 1998 without force, without secrecy and without permission of the title holder. 19. The resolution of the issues in this case therefore depends upon an analysis of the evidence of the parties on their rivalling claims to possession. The preliminary objection is therefore overruled. Page 7 of 15

8 Preliminary matters of evidence: 20. Before embarking upon an assessment of the evidence of the parties I first deal with their respective applications to strike out portions of the witness statements of the Claimant and the Defendant. 21. With respect to the witness statement of Ms. Moosai; the Defendant filed his notice of evidential objections. The following paragraphs of Ms. Moosai s witness statement are struck out: i. Paragraph 6 and 8 on the ground that they are material facts which have not been pleaded by the Claimant and therefore irrelevant. The issue of whether Mr. Jawahir was a roving occupier of premises is indeed a material fact which ought to have been pleaded in a reply. Similarly any allegation of an arrangement to use the premises as a mailing address should have been pleaded. As the pleadings stand there is a bare denial. ii. Paragraph 10 is struck out on the ground of hearsay and on the ground that the last sentence is a material fact which should have been pleaded in a reply. 22. Portions of Mr. Chanko s witness statement were already struck out during the trial by consent. 23. Similarly with regard to Mr. Jawahir s witness statement the following paragraphs are struck out: i. Paragraph 3 the words I instituted to the parties on the ground that they are material facts which should have been pleaded in the defence. ii. Paragraph 7 the copies of the documents are struck out on the ground of hearsay iii. Paragraph 8 is struck out as it is a material fact which should have been pleaded. Assessment of the Evidence 24. Both parties, Ms. Moosai and Mr. Jawahir, in my view were not exemplary witnesses. They were both either exaggerating their stories or not telling the truth. However overall when I examine the material aspects of their case I found Mr. Jawahir far more wanting than Ms. Moosai. In the balance in my view it is more probable that Ms. Moosai had entered into an Page 8 of 15

9 agreement to purchase the Teak Drive property which has not been terminated, is under an obligation to pay the mortgage until liquidated, moved into possession with her family in 1988, paid the mortgage until she left in 2002 and three years later found Mr. Jawahir in her home when she returned. I am not satisfied on the evidence that Mr. Jawahir was in a common law relationship with Ms. Moosai or that he lived there with her paying the mortgage since The Claimant s witnesses were herself and Mr. Chanko. A hearsay notice was filed to admit into evidence statement made by Sita to Rosie Moosai. According to Ms. Moosai she was living in 221 Eastern Main Road, Cane Farm with her common law husband Mr. Seepersad Moosai where they operated a dry goods business. Mr. Jawahir (who was known by Ms. Moosai as Sham ) was living with his family in Mr. Moosai s house in Macoya and was employed in the business as a truck driver. After her husband died Ms. Moosai kept Sham on as a driver and worker. According to her evidence under cross examination he would come to her home everyday to help in the business. After her husband died around August 1988 Mr. Chanko approached her with a proposition. He was unable to pay the mortgage on his home and was willing to sell it to her if she continued to pay the mortgage instalments. There has been no challenge to this agreement and indeed Mr. Jawahir indicated in cross examination he was aware of this agreement. 26. The agreement is an important indicator of the rights of the parties in this case. By that agreement the following are established: a) The Teak Drive property was subject to two mortgages one where the outstanding principal sum at that time was $250, and the other $15, b) Mr. Chanko in consideration of the sum of $10, agreed to sell the said premises to Ms. Moosai subject to those two mortgages. c) At paragraph 2 the agreement provided: the purchaser agrees to pay to the Bank all sums accrued in arrears under the said Mortgages to date and to continue to pay all future monthly instalments due, so as to indemnify the Vendor in respect of all debts due and accruing under the said Mortgages, also to observe and perform all the covenants under the said Mortgages and to indemnify and keep the Vendor indemnified in respect of any breaches in respect thereof. Page 9 of 15

10 d) Mr. Chanko delivered vacant possession of the said premises to Ms. Moosai. e) Importantly at paragraph 4 the time for completion of this agreement would have been at the payment of all the sums due under the said mortgage. Clause 4 provided: That upon payment of all moneys due in respect of the said Mortgages with the Bank, the Vendor shall obtain a Memorandum of satisfaction in respect thereof, and shall execute a Memorandum of Transfer in the name Purchaser or as she shall direct.. f) No mention was made of Mr. Jawahir in this agreement. 27. Ms. Moosai went into occupation pursuant to the agreement with Mr. Chanko and this was not challenged under cross examination nor her intimate knowledge of the details of the mortgage as set out in paragraph 4 of the witness statement. Attached to her witness statement were copies of her receipts and cheques for the said mortgage payments. Although it was disputed in cross examination that she did not pay all of the mortgage sums there was no denial that she never paid any mortgage instalments. Indeed it is more likely than not that she did commence paying the mortgage in 1988 as deposed to in detail in paragraph 4 of her witness statement and continued thereafter. Although the cheques and receipts do not show a consistent pattern of payment what they do demonstrate is a pattern of payment when she moved into the Teak Drive property, in the 1990 and in the 2000s. It demonstrated that while she was away she continued to make the mortgage payments and that when she returned in 2006 even though she was not in possession of the premises she continued to make the said payments. 28. It is more probable therefore that upon making this agreement with such a financial obligation she would have been in possession of the Teak Drive property and would have occupied it as her home. Indeed there was no suggestion of anything else. 29. She denied that Sham lived with her at Teak Drive and insisted that she lived there with her daughters. It was suggested that she wrote a love letter to Sham but that letter was not tendered into evidence and she denies authorship of it. I do not believe that she paid all the mortgage payments as certainly her documentary evidence does not suggest this and there is no explanation as to who would pay the mortgage when she was incarcerated in the USA. Page 10 of 15

11 She was also aware that other persons in the form of a Mr. Khan and his sister paid a sum $165, towards the mortgage. She was exaggerating her case therefore when she insisted that she was the only one who paid the mortgage. 30. Interestingly there were two admissions made by her in cross examination suggestive of a residence maintained by Mr. Jawahir at the Teak Drive property. First, that Teak Drive was his mailing address. Second that he had a phone installed at the residence in the lower floor. Her explanation was that she gave him permission to use the premises as a mailing address and to use the phone based on the relationship she had with him which was not an intimate one but obviously a close working relationship. Based on this she allowed him to use the residence and mailing address and a phone line at the premises. These two concessions and explanations must be viewed in the context of the Defendant s case to determine what effect this has had in demonstrating that the parties were living in a common law relationship and that they occupied the premises together. 31. In her examination in chief she made reference to earlier High Court proceedings which was withdrawn by Sham. Both his statement of case and witness statements were exhibited. They are indeed quite important in unravelling the facts in this case discussed later in this judgment. 32. With regard to the state of the premises again I found her evidence to be exaggerating the dilapidated condition of the house when she insisted that the roof was falling apart when no such observation was made by the valuator. The house was valued at $ 2.1 million however to be fair to Ms. Moosai the valuator did observe that the house needed repairs to the ceiling of the first floor and of the roof. A picture of the roof does show some state of disrepair of guttering and bashboards. 33. Mr. James Chanko the owner of the premises was a forthright witness and he struck me as honest. He wanted to free himself of his mortgage obligations and wanted Ms. Moosai to take over this indebtedness. It is clear from such an arrangement that Mr. Chanko would have as the agreement suggested gave Ms. Moosai vacant possession of the premises. He confirmed that as far as he observed Sham was the worker and driver for Ms. Moosai. However he had no dealing with him concerning the mortgage. That evidence was however Page 11 of 15

12 contradicted by an agreement for sale which he signed and which was tendered into evidence. By that agreement he agreed to sell the property to one Mr. Khan. In the recital it stated that Mr. Jawahir was the husband of Ms. Moosai and that the surplus of the sale was to be paid to Mr. Jawahir. That suggests therefore that Mr. Jawahir may have been paying the mortgage payments as suggested by counsel for the Defendant in cross examination. Though Mr. Chanko denied any knowledge of Mr. Jawahir paying the mortgage payments there was no cross examination of this document by Counsel for the Claimant. 34. Again this document has to be viewed in the context of the Defendant s defence. 35. Mr. Jawahir in his evidence in his witness statement was simple, perhaps too simple as it failed to provide relevant details and is woefully inadequate to properly articulate a right in the Defendant to possession of the premises. He states that he was in occupation of the Teak Drive property since Notably however he has failed to state anywhere in his witness statement or his defence how he came into possession of the premises. He simply, I presume suddenly, appeared on the scene without colour of right to occupy from anyone. Under cross examination he admitted he was not given permission to occupy the premises by Mr. Chanko. When asked whether Ms. Moosai gave him possession he insisted We were living together. However strangely such an important fact is notably absent in his defence and in his witness statement. Both documents give the impression that he was in sole occupation of the premises since A fact which obviously could not be true having regard to Ms. Moosai s evidence and the manner in which she was cross examined about her occupation which was premised upon her occupation from 1988 until she left for the USA. Indeed he virtually admits in cross examination that Ms. Moosai would come and go: She used to come and go she will come back after periods of time. This response is indicative that Ms. Moosai maintained the Teak Drive property as her home despite the fact that she left the jurisdiction for the USA. 36. He contends that he paid all the existing mortgage with Workers Bank including paying all outgoings and exhibited copies of receipts of the said payments. The receipts do not bear his name and in one instance bears the name of R. Moosai. The signatures appearing on the documents are unknown. However I pause here for a moment to analyse this aspect of the Page 12 of 15

13 Defendant s case. If it is that he is contending that he paid the mortgage, the question that must loom over this witness is how did he, a total stranger to the 1988 agreement and not having any permission from Mr. Chanko to enter into possession of the premises, obtain the information to pay mortgage instalments with Mr. Chanko s bankers. There is absolutely no reference to the 1988 agreement in the witness statement save for paragraph 2 in which he said I further say that I was not a signatory to the agreement dated 29 th August Indeed this aspect of Mr. Jawahir s case is rather confusing. 37. In one instance in the defence he says he is aware of the agreement. Then he says in his defence he does not know anything about the agreement giving Ms. Moosai occupation of the premises. He then further stated in cross examination that he was there when the agreement was signed. Then he asserts quite another story in his previous witness statement in the first claim and his statement of cases suggesting that there was another agreement where he would be the one to liquidate the arrears and the property placed in his name. It is quite a number of stories and indeed this inconsistency repeats itself throughout the Defendant s case making him totally unreliable as a witness and tending one to view his defence really as his nick name suggests a sham. 38. In his evidence in chief he states that they lived in a common law relationship. However one has to ask rhetorically where is the evidence of such a crucial fact raised in his defence. Again one has to examine this allegation with the proverbial pound of salt. Nowhere in his pleadings does he specifically say that he was in a common law relationship with Ms. Moosai when he occupied the premises. In paragraph 4 of the witness statement for instance he said The Claimant and I were in a common law relationship and we lived at no 221 EMR Cane Farm Tacarigua. He mentions it again in paragraph 6: I say that the Claimant and I common law relationship persisted whilst I was married and the common law relationship ended by me which caused difficulties as the Claimant started to make false allegation about me which led to charges being laid against in the Arima Magistrates Court for the same items stated in this claim. The Claimant never attended court to pursue same and the matter was hence dismissed. Page 13 of 15

14 39. However was the relationship ended when he was in Cane Farm Tacarigua or did they live together in the Teak Drive as husband and wife? There is no answer to this question in the witness statement or the defence. Indeed in his previous statement of case and witness statement in the first claim he states affirmatively that the common law relationship began in Eastern Main Road and continued at the Teak Drive property where he moved in together with Ms. Moosai and her children. Indeed in cross examination he mentions for the first time in this case that they moved in together. When pressed upon this common law relationship he stated that his wife and family were living in Dinsley while he went to live with Moosai at the property. But later state that they moved in with him when she went to the USA. Another instance of this Defendant spinning multiple versions of a story making it difficult for this Court to rely on his credibility. 40. Finally in his witness statement he attested to the fact that he spent $250, on repairs on the premises but there is absolutely no evidence of this. Even if the receipts were considered he admits that they were not originals but were manufactured for this case. 41. It appears that it is his case that because he paid the mortgage payments he was entitled to this property. 42. In cross examination this witness appeared belligerent, difficult and simply at times impertinent. It is not difficult to imagine that he would forcibly take possession of premises from Ms. Moosai. 43. What is even troubling with Mr. Jawahir s case is that there were several witnesses scheduled to appear for the Defendant to attest to the fact that he was living there continuously from 1988 and that he and Moosai lived there together. They were not called as witnesses and I am entitled to draw an adverse inference against him for failing to do so without explanation. See Wisniewski (A Minor) v Central Manchester Health Authority [1998] EWCA Civ 596. Further his case asserting his own right to possession were both scuttled before Justice Pemberton in his first claim and before this Court in his second claim. The Defendant appears not even to have the faith in his own case that he is entitled to possession of the premises. Page 14 of 15

15 Conclusion 44. Having considered the evidence I conclude that Ms. Moosai was let into possession by Mr. Chanko pursuant to her agreement for sale. She moved in with her family. She was not in a common law relationship with Mr. Jawahir. They may have had a very close relationship perhaps closer than just an employer employee however it was not an intimate relationship of man and wife. 45. The Defendant was simply not a reliable witness and was discredited to an extent where his evidence was a sham: He had multiple different versions to account for some basic facts such as how he entered into possession. He had no documentary evidence to support his material contentions such as he paid all the mortgage payments. He had inconsistent claims of adverse possession equity which were simply abandoned. His story was inconsistent with his pleaded case. There was insufficient evidence to demonstrate that the parties were in a common law relationship. Even if that was so it was no basis for denying her possession of the premises. It must really be that his case was that she never paid any mortgage payments, a fact which is clearly refuted on the documentary evidence. 46. Ms. Moosai is therefore entitled to judgment for possession of the premises and that Mr. Jawahir must immediately give vacant possession of Teak Drive property to Ms. Moosai. 47. There was no evidence by Ms. Moosai however as to the rental value of the premises nor has she strictly proven her claim for special damages. Those claims are dismissed. 48. Mr. Jawahir is to pay to Ms. Moosai the prescribed costs of this claim in the sum of $14, Vasheist Kokaram Judge Page 15 of 15