Baboolal et Al v Lee, Foucade and Indian Walk Death Benevolence Friendly Society

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Soo Hon, J.A.,Narine, J.A.,Rajnauth-Lee, J.A.
• Judgment Date: 10 March 2015
• Neutral Citation: TT 2015 CA 7
• Docket Number: C.V 176 of 2011; H.C.A 1194 of 2001
• Date: 10 March 2015

Court of Appeal

Soo Hon, J.A.; Narine, J.A.; Rajnauth-Lee, J.A.

C.V 176 of 2011; H.C.A 1194 of 2001

Baboolal et al

and

Lee, Foucade and Indian Walk Death Benevolence Friendly Society

Appearances:

Mr. R. Bissessar instructed by V. Gopaul-Gosine for the appellants

Mr. E. Koyless S.C. instructed by D. Roopchand for the respondents.

Real Property - Landlord and tenant — Land initially rented by the appellant's father — After father's death their mother became the tenant — Whether the appellants are tenants of the disputed land — Whether the first appellant's failure to bring the claim as the personal representative of the mother was fatal to the claim.

I have read the judgment of Narine J.A. and agree with it.

A. Yorke Soo-Hon, Justice of Appeal.

I too, agree.

M. Rajnauth-Lee, Justice of Appeal.

NARINE J.A.

THE FACTS:

1 By a Writ of Summons filed on 23rd August, 2001 the appellants claimed against the respondents, inter alia, a declaration that they are the lawful tenants of a parcel of land comprising eight tasks more or less situated at Perry Young Road, Indian Walk, (hereinafter referred to as the disputed parcel).

2 It is not in dispute that Ishmael Khan, the appellants' father was the tenant of the third respondent (the Society) of one house lot and eight tasks of agricultural land at the back of the house lot. Ishmael died on 12th June, 1974.

3 After Ishmael's death, the Society accepted his widow, Zohora Khan (also called Zarah Khan) (the appellants' mother) as their tenants. However, there is a dispute as to how much land was tenanted to Zohora. The Society alleges that Zohora was made a tenant of the house lot only. The appellants contend that Zohora became the tenant of the disputed parcel as well.

4 Zohora died on 17th June 1989. A grant of probate of Zohora's will was made to Afrose Baboolal, (the first appellant) on 2nd November, 1991. However, the action was not brought in her capacity as executrix of her mother's estate.

5 On 26th April, 1991 the first two respondents, as trustees of the Society, brought summary proceedings in the High Court for possession of the eight tasks against the first and fifth appellants. The action was subsequently withdrawn.

6 By notices to quit dated 20th February, 1992 the Society purported to determine the yearly tenancies of the appellants.

7 On 11th and 12th August 2001, the Society cut teak and cedar trees on the disputed parcel. This resulted in H.C.A. No. 1194 of 2001 being filed against the respondents, seeking inter alia, a declaration that the appellants are tenants of the disputed parcel and an injunction to prevent the Society and its servants or agents from removing the logs.

FINDINGS OF TRIAL JUDGE:

8 The action came up for trial on 27th July 2009. An oral judgment was delivered on 1st July 2011 dismissing the claim. On 1st December 2013, a written judgment was given. In his written judgment the trial judge made the following findings:

• (i) At the time of his death Ishmael Khan was not a tenant of the disputed parcel.

• (ii) Even if Ishmael Khan was a tenant of the disputed parcel and this land formed part of the estate of Zohora Khan, the failure of the appellants to bring the action as personal representatives of Zohora Khan was fatal to the action, since the appellants were claiming to be tenants of the disputed parcel by devolution through their mother.

• (iii) The tenancy that existed at the time of the parents' deaths was personal to them and was in the nature of a tenancy at will which was determined by the death of either of them.

9 The main issue that arises for determination in this appeal, is whether the appellants are tenants of the disputed parcel. It was conceded by Mr. Koylass at the hearing of the appeal that the house lot is the subject of a statutory tenancy under the Land Tenants (Security of Tenure) Act Chap. 59:54, and falls outside the ambit of this appeal.

ISSUES:

10 Having regard to the written and oral submissions of counsel the issues to be determined in this appeal are:

• (i) Was Ishmael Khan a tenant of the disputed parcel?

• (ii) Was his tenancy of the disputed parcel determined before his death?

• (iii) Did Zohora Khan become a tenant of the disputed parcel after the death of Ishmael?

• (iv) Did the appellants become tenants of the disputed parcel after the death of Zohora?

• (v) Is the failure of the first appellant to bring the claim as personal representative of Zohora fatal to the claim?

THE FIRST ISSUE: WAS ISHMAEL KHAN A TENANT OF THE DISPUTED PARCEL?

11 Having regard to the rent receipts that were admitted as part of an agreed bundle, there is no dispute that Ishmael Khan became at least from 1962, the tenant of the disputed parcel.

THE SECOND ISSUE: WAS HIS TENANCY OF THE DISPUTED PARCEL DETERMINED BEFORE HIS DEATH?

12 There was no admissible evidence that Ishmael's tenancy was determined before his death. An attempt was made by notice filed on 14th December 2007, to introduce at the trial, an oral statement of a former secretary of the Society, now deceased, to the effect that sometime in 1973 or 1974, Ishmael had surrendered his tenancy of the disputed land to the Society. The evidence was not admitted. There was no evidence before the trial judge of any determination of the tenancy of the disputed parcel before the death of Ishmael Khan. The respondents contend that after the death of Ishmael, the Society refused to accept rent for the disputed parcel, and accepted rent from Zohora Khan for the house lot only. Upon being pressed by the court on this issue, Mr. Koylass was forced to concede that this would not have been effective to determine the tenancy in respect of the disputed parcel.

THE THIRD ISSUE: DID ZOHORA KHAN BECOME A TENANT OF THE DISPUTED PARCEL AFTER ISHMAEL'S DEATH?

13 There is no dispute that Zohora Khan became the tenant of the Society after her husband (Ishmael) died in 1974. The issue is the extent of the tenancy — whether she became the tenant of the house lot and the disputed parcel (as the appellants contend) or a tenant of the house lot only (as the Society contends).

14 As noted earlier, the respondents admit that Ishmael was the tenant of the house lot and the disputed parcel. There was no evidence before the trial judge that the tenancy of the disputed parcel was determined before Ishmael's death. The appellants did not plead in their statement of claim that the tenancy of the disputed parcel passed to Zohora through his estate. In cross-examination Afrose Baboolal testified that her father died testate, but could not say whether his will was proved.

15 The appellants pleaded in their Statement of Claim that their parents were tenants of the house lot and the disputed parcel and they remained in possession of the disputed parcel. In fact in April 1991 the Society brought summary proceedings in the High Court for possession of the disputed parcel against the first and fifth appellants. It follows that there is undisputed evidence that the appellants remained in possession of the disputed parcel after the death of Zohora in 1989.

16 The contemporaneous documentary evidence in this case appears to support the appellants' case that following the death of their father the Society...