THE REPUBLIC OF TRINIDAD AND TOBAGO

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV No Between HV HOLDINGS LIMITED Claimant And ADELLA HAMID JUNE HAMID TREVOR HAMID Defendants Before the Honourable Mr. Justice Frank Seepersad Appearances: Mr.Manwah for the Claimant Mr. Ali for the Defendant Dated the 14 th February, 2013 **************************************** Page 1 of 12

2 DECISION This is a claim for possession of lands which was commenced by way of fixed date Claim Form. A Statement of Case was filed as well as a defence and counterclaim and a reply to same. The Claimant called two witnesses and the 1 st Defendant gave evidence. The Pleaded Case of Parties The Claimant s case is that it acquired title to a large parcel of land in 1974 and that the subject parcel of land in this matter formed part of same. The land was acquired from Herbert Vincent Gopaul who had a contractual tenancy with the 1 st Defendant s father Abdool Hamid and that the said contractual tenancy was determined by a Notice to quit dated 15 th June 1970 which was served on Hamid s wife, the 1 st Defendant s mother on the 16th June After the service of the said Notice, the Claimant contends that pursuant to the provisions of the Rent restriction Ordinance, Hamid retained possession of the building lands as a statutory tenant and upon his death, his interest was assigned to his wife who died on the 10 th September 1993 and that after her death, the Claimant was entitled to recover possession of the subject lands and that there was no further interest in the subject lands which the 1 st Defendant could have inherited or acquired. The 1 st Defendant s case The Defendant pleaded that she was a stranger to the service of any Notice to quit and put the Claimant to strict proof of this issue. Her case is that after her father s death, her mother continued to pay rent and upon her mother s death, her mother s estate was administered and a Deed of Assent was executed vesting her mother s interest in the subject lands to her and that she is entitled to lawful possession of the subject premises. Further or alternatively the 1 st Defendant pleaded that she has been in undisturbed possession of the lands for a period in excess of 16 years prior to the institution of these proceedings to the exclusion of the Claimant and that by virtue of provisions of the Real Property Limitation Act, the Claimant s title to the said lands has been extinguished. Further or in the alternative the 1 st Defendant further contends that her possession is protected under the Land Tenant s (Security of Tenure) Act. Page 2 of 12

3 The issues to be determined Having carefully considered the unagreed statement of issues filed by the parties and all the relevant facts of this case the Court determined that the issues to be resolved are as follows: i. Whether a Notice to Quit dated 15 th June 1970 was duly served on Abdool Hamid and if so what was the effect and/or validity of the said notice. ii. iii. iv. Whether the 1 st Defendant s mother Ernestine Hamid, became entitled to the transmission of a tenancy of the said lands after the death of her husband. Whether the Claimant s title to the said lands has been extinguished by virtue of the 1 st Defendant s undisturbed possession of same for a period in excess of 16 years and the consequent operation of the provisions of the Real Property Limitation Act. Whether the 1`st Defendant has a right to possession of the subject lands which is protected under the Provisions of the Land Tenants (Security of Tenure) Act. A further issue to be determined is whether the Claimant established its title to the subject lands and whether the Claimant established that the property initially let to Hamid which was known as Lot 95 is in fact the same property which is now known as lots 95 and 95A. The Law Service of Notice to Quit In the case of Ali Jumadeen v HV Holdings Ltd./HV Gopaul CA N0. 93 of 1988, the Court of Appeal considered the issue as to whether a Notice of Quit left with someone other than the tenant was effective and terminated the existing tenancy. At page 4 of the said judgment De La Bastide CJ considered the case of Mc Quilkin v Duprey 1963 WIR 122 as well as the provisions of the 1925 Law of Property Act and the learning as recorded in the Hill and Redman Law of Landlord and Tenant 11 th Ed. Pg 512, and concluded that a there was no requirement for the Notice to be served personally on the tenant and that same could be served on an agent of the tenant. The Court held that the agency could be express or implied and that where the person was an agent for the purpose of receiving a Notice and he has been so served it is immaterial whether Page 3 of 12

4 the Notice was brought to the attention of the tenant. Where however, the notice was left with the wife or servant of the tenant, there is a strong but rebuttable presumption that the contents of same was brought to the tenant s attention and this presumption also applied where the notice was served on a member of the tenant s household. The Court further stated that the Landlord ultimately has to prove on a balance of probability that the Notice reached the tenant and that the service of same on a wife or servant gives rise to an inference of fact not a presumption of law and that this rebuttable presumption of fact is based on common sense and on the premise that people will generally behave in a way that is consistent and predictable given the nature of the relationship that exists between them and the tenant. The effect of service of Notice to Quit In Herman Ramdass v Marilyn Bahaw Nanan (2009) UKPC 51, the Privy Council considered the law with respect to the Rent Restriction Ordinance, the Rent Restrict Act of 1981 and the subsequent reenactment and validation Acts as well as the provisions of the Land Tenant (Security of Tenure) Act 1981 and the Board considered the issue as to who was statutory tenant under the Rent Restriction Act and whether the Land Tenant (Security of Tenure) Act applied to such a statutory tenant. In a judgment delivered by Lord Walker, the Board noted that under the Rent Restriction act the term tenant included an offspring who could survive a parent and that such a person would be a statutory tenant and such a tenancy would have continued until the said Act finally expired on the 23 rd February The Board also agreed with the approach that was taken by Mc Millan JA (ag) in De Hayney v Ali (1986) Mag. App. No. 169 of 1984, where the Court of Appeal treated the expression tenant in the Land Tenants (Security of Tenure) Act as having a restricted and specific meaning. The Board went on the hold that the De Hayney decision and the decision in Alexander v Rampersad (1998) CV App. No 11 of 89 were correct. The law is therefore quite clear and where a contractual tenancy with respect to building lands which were lands referred to in the schedule to the Rent Restriction Ordinance was duly determined by the service of a Notice of Quit, the tenant if he remained in possession thereafter did so as a statutory tenant protected under the provisions of the Rent Restriction Ordinance and this statutory tenancy was not Page 4 of 12

5 converted into a statutory lease under the provisions of the Land Tenants (Security of Tenure) Act Further upon the death of the statutory tenant, his interest could be once transmitted to his widow or such member of his family that was residing with him for not less than 6 months prior to his death. Such a person could continue in possession and the obligation to pay rent also continued, however upon the death of such person there is no further transmission of any interest and the Landlord is then entitled to possession of the premises. Further this statutory tenancy under the Rent Restriction Act would have ended when the said Rent Restriction Act finally expired on the 23 rd February The Real Property Limitation Act/Adverse Possession The law in this regard is settled and there is no need for any in-depth discussion of same. A party who claims that the Landlord s title to land has extinguished pursuant to the provisions of the Real Property Limitation Act has to show that he has been in undisturbed exclusive possession of the land for a period of at least 16 years and that he has done so with the requisite intention to dispossess the landlord of his interest in the said land. The Evidence The Claimant s evidence Byron Gopaul The Witness Statement stated as follows: 1. I am Managing Director of the Claimant Company and I am duly authorized by the Claimant to make this statement on its behalf. 2. The Claimant is a Company duly registered and continued under the laws of Trinidad and Tobago. True copies of the Certificate of Incorporation and of the Articles of Continuance are hereto attached and marked B.G.1. and B.G.2. respectively. 3. By a Deed of Conveyance dated the 20 th February, 1974 and registered as No of 1983, the Claimant became the owner in fee simple of several parcels of land of which the lots Nos. 95 and 95a, Guaracara Tabaquite Road, Marabella, the subject matter of this action (hereinafter referred to as the said lands ) form part. A true copy of the deed No of 1983 is hereto attached and marked B.G.3.. Page 5 of 12

6 4. Prior to 1974, the said lands were owned by my father Hubert Vincent Gopaul and were tenanted to Abdool Hamid, the now deceased husband of Ernestine Hamid, as building lands. 5. A Notice of Quit dated the 15 th June, 1970, was served on the said Ernestine Hamid on the 16 th June, 1970 at the tenanted lands by Hugh B. Webster in my presence and in the presence of other employees of the said Hubert Vincent Gopaul. A true copy of the said Notice is hereto attached and marked B.G Apart from the said notice which was served on the said Ernestine Hamid, a number of Notices to Quit were served on the same day on other tenants by the said Hugh B. Webster in my presence and in the presence of other employees of the said Hubert Vincent Gopaul, and on the said 16 th June, 1970, at the end of the exercise, a record of all the notices served on that day was prepared by H. Ali Kajim and the said record was signed by the said Hugh B. Webster the said H. Ali Kajim and the other persons who were present when the notices were served, and thereafter, in their presence, I also signed the said record. A true copy of the said record of service is hereto attached and marked B.G Abdool Hamid died on the 11 th June, 1983 leaving his widow the said Ernestine Hamid also called Marvis Ernestine Hamid in possession of the said lands and thereafter, rents for the said lands were collected subject to the Notice to Quit. 8. The said Ernestine Hamid also called Marvis Ernestine Hamid died on the 10 th September, A true copy of the receipt for the rent paid on the 3 rd June, 1993 is hereto attached and marked B.G The Defendants are in possession of the said lands and are claiming to be entitled to possession of same by virtue of a Deed of Assent registered as No. DE or by virtue of adverse possession by the First Defendant. The Witness amplified his Witness Statement and sought interalia to clarify that the land rented to Mr. Hamid was known as Lot 95 and was subsequently subdivided when the lands were Page 6 of 12

7 resurveyed and that the lands is now known as lot 95 and 95A. The Witness also pointed to plan 7 annexed to the said Deed and demonstrated where the land was on the said plan. Cross-Examination The Court found the cross-examination of this Witness to be uneventful. The Witness did admit that the resurveyed properties known as lot 95 and 95A were not shown in any of the plans that were before the Court and said that there was such a plan but that some was not produced before the Court. Hollister Taylor The Witness Statement of this Witness stated as follows: 1. I knew and was well acquainted with one Hugh Barclay Webster who was my maternal grandfather. 2. For about five years prior to 1969, I worked with the said Hugh Barclay Webster, commonly referred to as HB Webster as his assistant. During that time HB Webster was a Bailiff and a Real Estate Agent, and among other persons he worked for Mr. HV Gopaul. I used to drive HB Webster around as well as assist him with his work 3. The said Hugh Barclay Webster died on the 28 th August, 1986 as is evidenced by the copy of the death certificate hereto attached and marked X. 4. During the time I worked with the said HB Webster, I saw him write and sign his name on numerous occasions, and I am able to recognize and identify his signature. 5. The sixth signature shown on the copy of the document hereto attached and marked Y, the original of which I have seen is the signature of the said Hugh Barclay Webster commonly called HB Webster. The cross-examination of Mr. Taylor was also uneventful. The 1 st Defendant s case The first Defendant gave evidence and her Witness Statement was as follows: Page 7 of 12

8 1. I am First Defendant herein. The Second Defendant is my sister, and the Third Defendant is my brother. 2. I am informed by Shairoon Ali, the last surviving child of my grandfather Aziz Mohammed, that the lands situate at 95 Guaracara Tabaquite Road, Marabella were originally part of a larger parcel of land settled by my great-grandfather, Bagaloo Meah, at the end of his period of indutureship. He built a very large house at the time on those lands, and he cultivated crops such as sugar cane, and reared animals such as goats and sheep. Bagaloo paid land rent to one Mr. Stollmyer. 3. Upon Bagaloo s death in 1934, my grandfather Aziz Mohammed, the eldest of Bagaloo s children, inherited the lands. Aziz continued in occupation and continued paying the rents. Aziz built another small house on the lands at the location of what is now known as Lot 95. By 1946, my grandfather began paying rents to Mr. Gopaul, the new owner of the lands. 4. My father, Abdool Hamid, entered into occupation of the house built by Aziz at Lot 95. This was when he married my mother. In or about 1955 or 1956, my father constructed a new house, which is the present structure. My father continued paying rents to Mr. Gopaul of Lot 95 up until death in After my father s death, my mother Ernestine Hamid, continued paying the rent to Mr. Gopaul until her death on the 10 th September I have been able to locate some of the rent receipts, for rent paid on the land by both my father and my mother. True copies of the receipts are attached hereto and marked in bundle AH1. 6. Consequent upon my mother s death, I continued in exclusive occupation of Lot 95. I was advised by my then Attorney-at-Law, Mr. Premchand Dass, that under the law I was entitled to Lot 95 and caused a Deed of Assent to be prepared in my name. A true copy of the Deed of Assent DE is attached hereto and marked AH2. 7. I continue to live in a modest dwelling on Lot No. 95 without protest and/or interruption from the Claimant or anyone else in undisturbed possession. I have paid electricity bills, Page 8 of 12

9 water bills and telephone bills in respect of my home true copies of which are attached hereto and marked AH3. 8. The San Fernando City Corporation has since in or about 1994 collected house rate charges from me and in my name. True copies of receipts from the San Fernando City Corporation are attached hereto in a bundle and marked AH4. 9. I have had the undisturbed possession of the lands described in paragraph 2 of the Statement of Case to the exclusion of the Claimant and/or its predecessors in the and/or heirs and/or assigns and I have exercised acts of ownership over same. 10. I have been in occupation of the premises in dispute in excess of 16 years prior to when these proceedings were started. In cross-examination the Witness stated that up until her mother s death she lived with her mother and other family members at the premises. She said she was young in the 70 s and did not know what went on with her parents and the landlord but she knows that her mother paid rent and that she knew the lands to have been owned by HV Gopaul and that the parcel she currently occupies is the same parcel her father rented. She confirmed that the receipts in evidence were for this same parcel of land and that the schedule to her Deed of Assent refers to the same piece of land. Resolution of the issues With respect to the service of the Notice of Quit, the law as outlined earlier clearly states that service on the wife of the tenant raises a rebuttable presumption of fact that the contents of the Notice came to the attention of the tenant and the landlord has to prove on a balance of probability that the Notice to Quit reached the tenant. Mr. Gopaul at paragraphs 5 and 6 of his Witness Statement which was outlined earlier dealt with the serving of the Notice, the Court notes however that Mr. Gopaul did not say that he read the Notice that was served on Abdool Hamid s wife before same was served nor does he indicate the contents of the document that was handed to Mrs. Hamid. The Notice annexed to the said paragraphs as BG 4 is a Notice of Quit addressed to Abdool Hamid of Guaracara Tabaquite Road and is dated 15 th June 1970 and is signed by Hubert Vincent Gopaul. The said document has no endorsement as to service by Hugh Page 9 of 12

10 B Webster or any other person. At paragraph 6 of the Witness Statement Mr. Gopaul says that a record of all the Notices served on the 16 th June 1970 was prepared by H Ali Kajim and same was signed by Webster in his presence and that he signed same as well. This record was annexed as BG 5. This exhibit says: We the undersigned hereby certify that a copy of the notice shown attached was served by Hugh Barclay Webster in our presence on the several persons, the names of who are stated on the list attached hereto on the 16 th June, The record is signed by, among others, Mr. Byron Gopaul and Mr. Webster. Annexed is a list of names of person served, the last endorsement the first page says Abdool Hamid Lot 95 Tarouba Road served on wife. No notice (s) was however attached to the said endorsement or record of names. In the Ali Jumadeen case, the copy of the notice tendered into evidence carried an endorsement in handwriting that same was served on Naziraon Ramjohn daughter in law and was signed by Webster and Kajim and dated 15 th April A list was also put into evidence as to the tenants upon whom notices were served on the 15 th April 1971 by Webster and Kajim and a certificate attesting to that was attached and signed by Webster and Kajim. In the instant case, as pointed out BG4, (the Notice to Quit), has no endorsement of service thereon and Byron Gopaul did not say that he read the notice given to Ernestine Hamid before same was handed over to her. The record of service BG 5, speaks of a copy of notice shown attached was served by Mr. Hugh Barclay in our presence but no notice and in particular no notice addressed to Abdool Hamid dated 15 th June 1970 with respect to No. 95 Guaracara Tabaquite Road was annexed to the said document. The Court wishes to point out that the last document attached to the Bundle AH1 annexed to the 1 st Defendant s Witness Statement is a Notice from the Claimant addressed to the estate of the late Abdool Hamid dated 9 th July 1996 and the said document called upon Hamid s estate to pay rent and taxes for the years 1994 to 1996 in the sum of $ This document was sent after the death of Mrs. Ernestine Hamid in 1993 and therefore the position outlined in same is inconsistent with the case of the Claimant, since the effect of the service of the Notice in 1970 would have meant that upon Mrs. Hamid s death there was no interest that survived and consequently there would have been no need to call Page 10 of 12

11 on Hamid s estate to pay rent. This effect of this document was however not addressed by either the Claimant or the 1 st Defendant but the said document does cast significant doubt in the Court s mind as to the veracity of the Claimant s stated position. In the circumstances the Court is not satisfied with the evidence of service provided by the Claimant and is of the view that the Claimant has not discharged the burden of proof so as to satisfy this Court on a balance of probabilities that the document annexed as BG 4 was in fact the document that was served on Mrs. Hamid on the 16 th June Consequently I therefore cannot hold and do not hold that Hamid s contractual tenancy was determined and that Hamid s continued possession was as a statutory tenant under the Rent Restriction Ordinance nor can I hold that upon his death his interest passed to his wife Mrs. Ernestine Hamid and that upon her death there was no further transmission to anyone thereby entitling the Claimant to possession the said lands. With respect to the 1 st Defendant s contention that the Claimant did not discharge its burden to prove that on a balance of probability that it is the owner of lands upon which the 1 st Defendant resides and that the Claimant has failed to convince the Court that the land rented to Hamid as lot 95 is the same land which is now referred to as lot 95 and lot 95A, the Court is firmly of the view that all the evidence and the 1 st Defendant s cross-examination clearly demonstrates that lots 95 and 95A were formerly known as lot 95 and which said lot was owned by Hubert Vincent Gopaul and in 1974 was conveyed to the Claimant. With respect to the 1 st Defendant s counterclaim, the Court is of the view that the issue of adverse possession does not arise since at all times the 1 st Defendant was of the view that her parents occupation of the land was as lawful tenants and that after 1981 her family was protected under the provisions of the Land Tenant (Security of Tenure) Act and this position was evidenced by the Deed of Assent executed in favour of the 1 st Defendant after her mother s death. With respect to the rights of the 1 st Defendant under the Land Tenant (Security of Tenure) Act there is no evidence before this Court to suggest that the requisite notice pursuant to the provisions of the said act was in fact served on the landlord upon the expiration of the first 30 Page 11 of 12

12 year lease. Having found that Abdool Hamid s contractual tenancy was not determined, upon the advent of the Land Tenants (Security of Tenure) Act 1981, he would have been entitled to a 30 year statutory lease however in the absence of any evidence to suggest that there was the service of the requisite notice by or on behalf of the 1 st Defendant on the Claimant for a further 30 year lease, the Court is unable to make any declaration in favour of the first Defendant since in the absence of service of the requisite notice, subject to the terms of the Act the Landlord may be able to receive possession. The Court wishes to point out that at the time this action was filed the issue as it related to the notice under the Security of Tenure Act would not have yet arisen. For the reasons outlined above the Claimant s claim is dismissed and the 1 st Defendant s counterclaim is also dismissed and in the circumstances each party shall bear their own costs... FRANK SEEPERSAD JUDGE Page 12 of 12