Harry v Mitchell

• Jurisdiction: Trinidad & Tobago
• Judge: Collymore, G.
• Judgment Date: 03 February 1984
• Neutral Citation: TT 1984 HC 17
• Docket Number: No. 4139 of 1983
• Court: High Court (Trinidad and Tobago)
• Date: 03 February 1984

High Court

Collymore, J.

No. 4139 of 1983

Harry

and

Mitchell

Appearances:

Mr. Fitzpatrick for the appellant

Mr. H. Sinanan with him

Mrs. Morean for the respondent

Injunction - Plaintiff sought injunctive relief restraining the defendant from interfering with certain land — injunction granted.

Collymore, G.

1 By her writ filed on 1st September, 1983 the plaintiff claimed inter alia for:

• “2. An injunction restraining the defendant from entering all that parcel of land situate at Cumuto Road or from in any way interfering with the plaintiff's use and enjoyment of the same.

• 3. A declaration that the plaintiff is the tenant of the defendant of the said land …”

2 Her statement of claim endorsed on the writ set out that –

• “1. The defendant is the lessee of State lands known as Lot No. 163….

• 2. In or about December 1974 the defendant by oral agreement sublet to the plaintiff and her reputed husband, Roy Patrick, now deceased, the said land at the yearly rent of $2,400.

• 3. In pursuance of the said agreement the plaintiff and her husband went into possession of the said land and with the knowledge and actual encouragement of the defendant expended sums in excess of $30,000 to convert an old shed which was standing on the said land into a substantial two bedroom house.

• 4. Roy Patrick died on the 2nd day of July, 1983.

• 5. On the 14th day of July, 1983 the defendant called upon the plaintiff to vacate the said land immediately and the plaintiff refused.

• 6. On July 26, 1983 the defendant entered the said (sic) with three men and removed the roof from the said dwelling house exposing to the elements the plaintiff and all her furniture and other personal effects.

• 7. On Monday August 15, 1983, the defendant entered the said land with a bulldozer and drove it right through the plaintiff's said house completely destroying the plaintiff's furniture, clothing and other household effects…

3 Her affidavit filed on 1st September, 1983 is to similar effect and by order of the Court dated 2nd September, 1983 an injunction was issued ex parte against the defendant:

“…that the defendant be and is hereby restrained from entering upon all that piece and parcel of land known as allotment No. 163 or from in any way interfering with the plaintiff's use and enjoyment of the same pending the determination of the summons issued herein returnable the 12th day of September, 1983.”

4 At the hearing of the said summons, there was exhibited the affidavit of the defendant filed on 16th September, 1983 which, in substance, set up the following:

1

He is the lessee of State lands as alleged. 2. He never sublet to the plaintiff and Roy Patrick as alleged, since this would have constituted a breach of covenant: but had allowed Roy Patrick to use the land for the rearing of animals since December, 1974; but on the clear understanding that he should vacate whenever it was wanted. 3. There had never been any relationship of landlord and tenant, nor had he ever received any rent or money whatsoever. 4, He had seen the plaintiff on the lands from time to time on his occasional visits there, but did not know who she was. 5. There had been an old shed on the land in which Patrick may have spent the odd night, but it was untrue that this had been converted into a dwelling house. 6. He informed Patrick first of his plans to build a factory, in the year 1979; and next in February, 1983 of his intention to erect a two storey building on the land; and in March, 1983, he began construction of a wooden building. 7. On 6th July, 1983 Patrick died; and a few days later, on visiting the land, he was surprised to see the plaintiff using the old shed as a dwelling house. He told her she had no right to be there, but she ignored him, whereupon, he caused a solicitor's letter to be written to her, a copy of which was annexed. 8. The plaintiff replied to this letter (copy annexed) and this was followed by solicitor's letter falsely alleging that the plaintiff and Roy Patrick were tenants. 9. On the plaintiff's continued refusal to vacate the premises, he caused his workmen to remove her furniture.

5 In the forefront of their argument counsel for the appellant impugned the good faith of the respondent on the ground that she had failed to disclose in her application for the ex parte injunction, solicitor's letter to her dated 14th July, 1983, and her reply thereto of 2nd August, 1983. Solicitor's letter reads –

6 “We act on behalf of Mr. Valentine Mitchell and are instructed by our client that the above named deceased, Roy Patrick, was granted permission by him to occupy certain lands owned by our client, known as Lot #163, and situated at the corner of Cumuto Road and the Churchill Roosevelt Highway.

7 We are further instructed by our client that permission was granted to Roy Patrick and. no one else, but since the death of Roy Patrick on 6th July, 1983, you have illegally occupied his lands.

8 We advise that unless you immediately vacate our client's lands, legal proceedings will be instituted against you without further notice.”

The plaintiff's reply to this was in part:

9 “I am informing you that I was the common law wife of the said Mr. Roy Patrick and I have been living with him as man and wife for the past ten years on the premises known as Lot #163 up to the time of his death. This fact is also well known to your client Mr. Valentine Mitchell who visited the premises on several occasions in my presence. It is not true to say that I occupied the premises illegally after his death.

10 During this time I have been...