Bissessar et Al v Chandler et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Brooks, J.
• Judgment Date: 04 October 1996
• Neutral Citation: TT 1996 HC 177
• Docket Number: HCA 1679 of 1994
• Court: High Court (Trinidad and Tobago)
• Date: 04 October 1996

High Court

Brooks, J.

HCA 1679 of 1994

Bissessar et al

and

Chandler et al

Appearances:

Mr. R.D. Sowley for the plaintiffs

Mr. Samuel Saunders for the defendants

Real property - Possession — Plaintiffs claim in action was for possession of a parcel of land and an injunction to restrain the defendants from remaining or continuing in occupation of the said dwelling house and parcel of land and damages for trespass — Defendant counterclaimed that she was a tenant of the plaintiff and an injunction restraining the plaintiff from ejecting or removing her from the said premises — Court found that when the defendants broke into the premises and occupied the same, they did so as trespassers — Defendants' occupation was without the knowledge and the consent of the plaintiffs — Defendants not tenants of the plaintiffs — Judgment in favour of plaintiffs based on relief sought — Defendants' counterclaim dismissed.

Brooks, J.

1 The plaintiffs' claim in this action is for –

• (1) possession of all and singular the parcel of land situate at and known as Lot No. 139. Amaroosingh Street, Chaguanas, comprising 464.5 sq. metres which said parcel of land is more particularly described in the Certificate of Title registered in Volume 2843 Folio 363 (hereinafter referred to as ‘the said parcel of land’) together with the dwelling house constructed thereon;

• (2) an injunction to restrain the defendants whether by themselves their servants and/or agents or howsoever otherwise from remaining on or continuing in occupation of fine said dwelling house and the said parcel of land;

• (3) damages for trespass;

• (4) costs;

• (5) further and other relief.

2 The action itself was commenced by the plaintiffs by an Originating Summons filed on the 25 May 1994, and was continued thereafter as an ordinary action by order of Madame Justice Sealey made on the 2 December 1994.

3 The plaintiffs' case is very simple and straightforward. They say that sometime prior to 1982 the said parcel of land was rented by one Ida Salick to Leonora Gill who constructed a dwelling house on the said parcel of land. Some time in or about 1978, the said Leonora Gill surrendered the tenancy in the said parcel of land to Ida Salick. In or about July/August 1982, Ida Salick agreed to sell the said parcel of land to the 2nd plaintiff for the sum of $60,000, and the said sale was completed on the 21st April 1983 by memorandum of transfer between the said parties. Same time towards the end of 1979 or the beginning of 1980, Leonora, Gill gave the sand dwelling house to the Rev. Phillip Thorne in satisfaction of moneys owed by Leonora Gill to Rev. Thorne. In 1980, Rev. Thorne continued to rent the dwelling house to one Emelda Chandler who occupied the dwelling house until the 31 July 1982. On that date, Emelda Chandler surrendered her tenancy in the dwelling house to the 1st plaintiff and gave up possession of same. On the 5 May 1982, the Rev. Thorne sold the said dwelling house (which was in a dilapidated condition) to the 1st plaintiff for the sum of $2,000. The plaintiffs maintain that when Emelda Chandler vacated the dwelling house the 1st plaintiff, with the aid of a man named Mungroo, boarded up the doors and windows of same in order to prevent access thereto. The 1st plaintiff, after being hospitalised for approximately 2 months at the Caura Chest Hospital in August 1982, discovered upon his discharge from Hospital that the defendants had wrongfully entered the said dwelling house without his knowledge and/or consent and/or that of the 2nd plaintiff and were in unlawful occupation of the said dwelling house and the said parcel of land. The defendants have refused, and/or neglected to remove from the said dwelling house and parcel of land despite several requests so to do and have prevented the plaintiffs from obtaining possession of same. And, they now seek an order from the court to this effect.

4 The defendants, on the other hand, in their defence, assert that Leonora Gill had never surrendered or assigned her tenancy in the said parcel of land to Ida Salick and that upon Gill's death on the 25 day of September 1980, Gill's estate became the owner of the chattel house and was entitled to the said tenancy therein. The defendants further maintained that since 1975 the said Emelda Chandler was the tenant of Leonora Gill and that Rev. Phillip Thorne continued to be the agent of Leonora Gill for the purpose of collecting rent. The defendants emphasized that Leonora Gill died on the 25 September 1980 without surrendering or assigning her tenancy in the said land to Ida Salick and that Emelda Chandler continued up to the date of the death of Leonora Gill to be a tenant of the said premises. The defendants averred that they are the children of Emelda Chandler and have all lived with her in the said premises until her death intestate on the 20th June 1986 and they continue to do so up to the present date. The first defendant is the legal personae representative of the estate of Emelda Chandler, deceased, and having assumed responsibility for the said tenancy, tendered rent to the 1st plaintiff who has refused to accept same.

5 The 1st defendant, therefore, has brought a counterclaim for –

• (a) a declaration that she is a tenant of the 1st plaintiff;

• (b) alternatively, that she is the tenant of the heirs of Leonora Gill, also called Nom Gill;

• (c) an injunction restraining the plaintiffs from ejecting and/or removing the defendants from the said premises;

• (d) further and/or other relief;

• (e) costs.

6 Nicholas Bissessar said in his Evidence In Chief that he had purchased the house from the Rev. Phillip Thorne on the 5 May 1982 for the sum of $2,000. At that time Emelda Chandler was still living in the house. As a result of discussions with Emelda Chandler, Emelda Chandler left the house on the 31st July 1982. The house was then in a dilapidated condition. His intention was to demolish the old house and to erect a new one for his son, Phillip Bissessar. Thereafter, he (the 1st plaintiff was hospitalized at the Caura Sanitarium with a chest cold for approximately 2 months and on his discharge from Hospital he saw the defendants (Mary and Clara) there — in the house. They have since refused to vacate the house, hence the reason for the institution of these proceedings against them. His son, Phillip Bissessar, had purchased the land from one Ida Salick in 1982. But the transaction was only completed in 1983.

7 In cross-examination, Nicholas Bissessar admitted that when he purchased the dwelling house Emelda Chandler was living in the house. He was aware, too, that Leonora Gill used to rent the parcel of land from Ida Salick. At the time of the purchase of the house, Mary Chandler was not living in the house with her mother. He is aware that the premises were subject to the Rent Restriction Act. After Emelda Chandler vacated those premises, she never moved back into the said premises. Emelda died at the Port of Spain General Hospital. She was at that time living at Cunupia and they carried her to the Hospital. He had boarded up the house, as alleged.

8 John Sylvester, a truck driver of Enterprise, stated in his Evidence In Chief that he had known the plaintiffs in this matter and the dwelling house, the subject matter of this action, for about 14 years. Sylvester further explained that Emelda Chandler used to live in the said dwelling house with an old lady (referring obviously to Leonora Grill) who had since died. After a while Emelda Chandler left there and went to live at Church Street, Cunupia. Emelda lived there as next door neighbour to Mr. Basdeo Maharaj. He (Sylvester) worked for Mr. Bono at Bono's sawmill for a long time; afterwards, he worked for Bono's brother, Mr. Basdeo Maharaj of Church Street, Cunupia. Bono Maharaj resided at Amaroosingh Street. One Tony owned the house that Emelda resided in at Cunupia. Matthew Chandler (the 3rd defendant) lived in that house with Emelda. When Emelda moved out of the old house at Amaroosingh Street, and went to live at Cunupia, no one was living in the old house. He was asked by Emelda to bring some posts from under the old house at Amaroosingh Street for her, and when he went there he saw the old house nailed up with pieces of board. As a consequence, he did not go into the house. Sylvester gave evidence on behalf of the plaintiffs.

9 According to Andre Persaud, a witness for the plaintiffs, the said dwelling house at 139 Amaroosingh Street was in a dilapidated condition, and as a result, he made curtain recommendations to the Building Inspector concerning its condition.

10 Mungroo's testimony was most telling and compelling. He gave evidence on behalf of the plaintiffs. He lives next door to 139 Amaroosingh Street, Cunupia. Mary Chandler now lives there — at 139 Amaroosingh Street. According to Mungroo, Miss Gill lived in that said house before Mary Chandler. Miss Chandler (obviously referring to Emelda Chandler) used to live in the old house with Miss Gill. Gill died, and about 2 years after Gill's death Emelda Chandler moved out of the house. After Emelda Chandler left the house, Nicholas Bissessar, with Mungroo's assistance, nailed up the doors of the old house, which was in a bad condition. Thereafter, Mary Chandler and one ‘Cross’ Chandler broke open the doors of the house which had been boarded up, and went inside the house. Mary Chandler, when questioned by Mungroo, as to why she was breaking into the old house, cursed Mungroo. ‘Cross’ Mungroo attacked him with a fork, and he ran. Mary Chandler is living there right now. It was brought to his attention that Emelda Chandler had died; Emelda did not return to live in the old house.

11 Mary Chandler alone was called on behalf of the defendants. Emelda Chandler was her mother, and the other two defendants are her sister and her brother respectively. She testified that she had been...