Gayadeen v Gayadeen et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendonca, J.A.,Jamadar, J.A.,Stollmeyer, J.A. |
| Judgment Date | 05 April 2012 |
| Neutral Citation | TT 2012 CA 4 |
| Docket Number | Civil Appeal 43 of 2009 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 05 April 2012 |
Court of Appeal
Mendonca, J.A.; Jamadar, J.A.; Stollmeyer, J.A.
Civil Appeal 43 of 2009
Mr. H. Seunath, S.C. appeared on behalf of the appellant
Mr. G. Mungalsingh appeared on behalf of the respondents
Real property - Landlord and tenant — Assignment of statutory lease.
The appellant, Balwant Capil Gayadeen, and the respondents, Chitranjan Gayadeen and Ramanand Gayadeen, are brothers. The dispute in this matter relates to a parcel of land at 12 Jaipaul Street, St. Madeleine (the lands). The appellant claims that he was the lessee of the lands jointly with his and the respondents' mother at the time of her death and on her death, by virtue of the right survivorship; he became the sole tenant of the lands. The respondents, on the other hand, claim that their mother was the sole tenant of the lands and on her death on September 7th, 1992 her interest passed to her estate.
On June 20th, 2008 the respondents commenced these proceedings against the appellant and Caroni (1975) Limited (Caroni) seeking a declaration that the unexpired residue of the lease of the lands forms part of the estate of the deceased. The proceedings were however subsequently discontinued against Caroni. In the respondents' statement of case, the respondents alleged that their mother was up to the date of her death the tenant of the lands. As at June 1st, 1981 there was a building constructed on the lands which was used as a dwelling house and they contended that the tenancy was converted to a statutory lease for a term of thirty years from June 1st, 1981 by virtue of the provisions of the Land Tenants (Security of Tenure) Act, 1981 (the Land Tenants Act). They further alleged that a dispute arose between them and the appellant as to whether there was an absolute assignment by the deceased of the statutory lease to herself and the appellant as joint tenants, which upon the death of the deceased would enure solely for the benefit of the appellant by the virtue of the principle of jus accrescendi of joint tenants. The respondents however alleged that the assignment was incomplete and as a consequence the statutory lease created by the Land Tenants Act formed part of the estate of the deceased on her death to be administered in accordance with the provisions of her will under which the appellant and the respondents all benefited.
The following particulars are material to understanding why the respondents contended that there was an incomplete assignment from the deceased to the appellant of the lands. The respondents say that the deceased, for no consideration, requested Caroni to have the tenancy converted to a joint tenancy between herself and the appellant and to have the tenancy agreement between themselves and Caroni approved and completed. The request was made on a form prepared by Caroni and is in four parts: part A, Part B, Part C and Part D. The form is headed “House Lot Transfer Application” and is annexed to the statement of case and marked “D”. For convenience I will refer to this document as Exhibit D.
Part A, of Exhibit D, is addressed to Caroni and states:
“I wish to have the tenancy which I now hold on [the lands] converted to a joint tenancy between myself and [the appellant] “.
This is signed by the deceased opposite an attestation clause which reads “Signed by the within named, I having first truly and audibly read over to him/her the contents of the above written when he/she appeared perfectly to understand the same and made his/her mark hereto in my presence”. There is a signature appearing below this clause.
Part B is also addressed to Caroni and states that:
“We wish to apply to the Company to be placed on its records as tenants of the [the lands] which tenancy is now held of the Company by the deceased jointly. We hereby forward a tenancy agreement on behalf of [the deceased and the appellant] for approval by the Company. This will be completed and approved by the Company only if it agrees to your application.”
The names, addresses and occupations of the appellant and the deceased are then set out, as well as their relationship to each other. Part B is signed by both the deceased and the appellant opposite a similar attestation clause as in Part A. Both Parts A and B were signed on May 10th, 1989.
Part C is reserved for the Section/Area/Cultivation Manager to indicate whether or not he approves of the application. Part D is reserved for Caroni to indicate its approval of the application. Both sections are signed indicating the Manager's as well as Caroni's approval of the application.
The tenancy agreement referred to in Part B was forwarded to Caroni with Exhibit D. The tenancy agreement purports to grant a tenancy of the lands for one year with effect from July 1st, 1989, and thereafter from year to year until the tenancy is determined, at the annual rent of $2.00. The tenancy agreement was signed on behalf of Caroni on December 1st, 1989 which is the same date on which Caroni indicated their approval of the application in Part D of Exhibit D. The tenancy agreement was however not signed by the appellant until November 25th, 1992, after the death of the deceased, and it was never signed by the deceased.
The respondents alleged that the assignment was incomplete because of the failure/refusal of the deceased to sign the tenancy agreement and by Caroni continuing to accept rent from her until she died.
The appellant in his defence denied that the Land Tenants Act applied to the lands. He also denied that the assignment was incomplete. He averred that the deceased applied to Caroni to have the tenancy made into a joint tenancy on May 10th, 1989 and the application was granted by Caroni on December 1st, 1989. On that date Caroni affected the lease to himself and the deceased. He further pleaded that on August 19th, 1993, after the death of the deceased, Caroni removed the name of the deceased from its records and he became the sole tenant of the lands. The appellant contends that the transfer of the tenancy to himself was done in accordance with clause M of the tenancy agreement.
At a case management conference before the Trial judge, the parties agreed to proceed without oral evidence, and according to the judge, to determine the matter by written submissions on the relevant law. The judge in his judgment stated that it was agreed between the parties that the issue “which effectively decided the case was whether Exhibit D created a joint tenancy between the deceased and [the appellant] by which Caroni was bound”. The judge subsequently received and considered written submissions from the parties and subsequently delivered a written judgment. In his judgment, the judge asked himself three questions namely:
- Did the Land Tenants Act apply to the lands? 2. Did the appellant become a joint tenant of the lands? 3. Did the tenancy become vested in the estate of the deceased upon her death?
With respect to the first question the judge answered it in the affirmative. The consequence of that conclusion was that the tenancy of the lands in favour of the deceased subsisting immediately before June 1st, 1981 became a statutory lease for thirty years subject to the provisions of the Land Tenants Act.
With respect to the second question the judge held that the appellant did not become a joint tenant of the lands. He was of the opinion that there could not be a valid assignment of the tenancy to the deceased and the appellant unless it was done by deed. He stated:
“In this case exhibit “D”, the House Lot Transfer Application Form, along with Exhibit E, the tenancy agreement, bearing commencement date December 1st, 1989, show, at most, an intention which may have existed on the part of [the deceased] at some point and time, to transfer the said tenancy to herself and [the appellant) as joint tenants.
This indication of such intention was never followed by the requisite preparation, execution and registration of a deed of assignment. Based on the authorities cited above, this was clearly required by law for the assignment and thus, the creation of a joint tenancy to have been effective and more importantly enforceable against a third party. The application form and the tenancy agreement, quite apart from their completeness or lack thereof do not constitute a requisite deed in writing and hence were ineffective in assigning the statutory lease from [the deceased] to herself and Balwant Gayadeen as joint tenants.
As a matter of law and on the pleadings, there is no assignment of the tenancy of [the deceased] to herself and [the appellant], and as a result [the appellant] could not claim to be joint tenants of the said premises.”
The judge then appeared to consider the position in equity. He stated that Exhibit D was at most an intention to transfer the tenancy by way of gift. It put the completion, approval and agreement by the landlord of the proposed joint tenancy, along with the completion of the new tenancy agreement, to some date in the future. The judge stated that a donor has no enforceable obligation in equity and a donee no enforceable right. The appellant therefore had no enforceable right in equity to compel the completion of the new tenancy arrangement.
With respect to question 3, following on his conclusion that the deceased was the sole tenant of the lands at the time of her death, the judge concluded that the tenancy formed part of her estate and fell to be distributed in accordance with the provisions of her will.
The judge's treatment of the matter reflected the submissions made in the matter by counsel for the parties. The main focus of the argument was whether there was an assignment or transfer of the tenancy by the deceased to the appellant effected or evidenced by Exhibit D by which Caroni was bound. That, however, I think is...
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