John Young IP Chang Kit v Ramcharitar Dwarika

• Jurisdiction: Trinidad & Tobago
• Judge: Karen Reid
• Judgment Date: 04 September 2024
• Neutral Citation: TT 2024 HC 194
• Docket Number: Claim No. CV2023-04563
• Court: High Court (Trinidad and Tobago)

Between

John Young IP Chang Kit

Claimant

and

Ramcharitar Dwarika

Defendant

Before The Honourable Madame Justice Karen Reid

Claim No. CV2023-04563

IN THE HIGH COURT OF JUSTICE

Sub-Registry, San Fernando

Appearances:

Claimant: Mustapha Khan instructed by Kristin Khan

Defendant: Subhas Panday instructed by Kiran Panday

DECISION ON THE CLAIMANT'S APPLICATION TO STRIKE OUT THE DEFENCE

PROCEDURAL HISTORY

1 By Claim Form and Statement of Case filed on 6 December, 2023, the Claimant claimed vacant possession of certain lands in the Ward of Naparima, or, alternatively, an order that the Defendant purchase the said lands at market value. The said lands had been tenanted by the Defendant and his predecessors in title and the tenancy had been converted to a tenancy for thirty (30) years by virtue of the Land Tenants (Security of Tenure) Act, Chap. 59:54 (“the Act”) on 1 June, 1981. The Claimant claimed that the tenancy expired on 31 May, 2011 without the Defendant exercising his option to renew the tenancy in accordance with the provisions of the Act. In 2017, the Claimant wrote to the Defendant inviting him to purchase the lands upon which stands a dwelling house which is incapable of removal without being destroyed and for which the Claimant is not willing to compensate the Defendant.

2 By way of Defence filed 8 March, 2024, the Defendant averred that the Claimant only became the owner of the said lands on 10 July, 2023, that he gave notice to renew the statutory tenancy to the Claimant's predecessor in title, his mother Chanlin Chang Kit, on 11 June, 1991 and thus his tenancy had automatically been renewed and he remains a statutory tenant under the Act. As such, the Defendant averred that the Claimant is not entitled to the relief sought.

3 No Reply has been filed, nor has any application been made for permission to file a Reply.

4 On 9 April, 2024, the Claimant filed the present application seeking to strike out the Defendant's Defence and for summary judgment.

5 On 11 April, 2024, directions were given for the filing of an affidavit in opposition and submissions and the application was fixed for hearing on 15 July, 2024. On 15 July, 2024, the application was heard and the matter was fixed for today for decision.

The Claimant's Application to Strike Out the Defence

6 By his Notice of Application filed on 9 April, 2024, the Claimant sought the following orders:

• i. That the Defendant's Defence filed on 8 March, 2024 be struck out pursuant to Part 26.2 (1)(b) and (c) of the CPR, as disclosing no ground for defending the Claimant's claim.

• ii. Alternatively, pursuant to Part 15(2) (a) the Court grants summary judgment as against the Defendant as his Defence filed has no realistic prospect of success.

• iii. Costs.

7 The crux of the application is that the Defence discloses no ground for defending the claim and does not have a realistic prospect of success because the purported service of the renewal notice on 11 June, 1991 upon Chanlin Chang Kit was ineffectual to renew the tenancy and the tenancy has, therefore, not been renewed. The crux of the Claimant's argument is that at the time of the purported service of the renewal notice, section 4(3) of the Act provided that the renewal notice must be served “ at least six months before the expiration of the original term of the statutory lease” and so the Defendant could not have served the renewal notice some twenty years before the expiration of the statutory lease as he purported to do. The Claimant also argues that Chanlin Chang Kit was not a proper person upon whom to serve the renewal notice.

8 By way of affidavit in opposition, the Defendant averred that the notice was served upon the person he genuinely believed to be his landlord at the time and the service of his renewal notice properly fell within the terms of the Act and was effectual.

LAW AND ANALYSIS

Issue 1: Whether the Defence should be struck out pursuant to CPR Part 26.2 (1) (b) or (c)

9 Part 26.2 (1)(b) and (c) of the CPR provide as follows:

“ (1) The court may strike out a statement of case of part of a statement of case if it appears to the court –

• (a) …

• (b) that the statement of case or the part to be struck out is an abuse of the process of the court;

• (c) That the statement of case or the part to be struck out discloses no grounds for bringing or defending a claim;”

10 Although the Claimant references Part 26.2(1) (b) of the CPR in the Notice of Application, no grounds were set out therein regarding the same, nor were any arguments advanced with respect to abuse of process. In reality, the whole of the application rested on Part 26.2(1) (c) and has two limbs: 1. The date on which the renewal notice was served made it ineffective in law; and 2. The person upon whom the renewal notice was served was not a proper person upon whom the renewal notice could have been served under the Act.

The Date of Service

11 The Claimant argues that the Act could not reasonably be construed as permitting the service of a renewal notice some twenty years prior to the expiration of the tenancy. Section 4(3) of the Act provides:

“ In order to exercise the right of renewal conferred by subsection (2), the tenant shall serve on the landlord, a written notice of renewal at least six months before the expiration of the original term of the statutory lease.”

12 This was amended in 2010 1 to permit service of the renewal notice at any time up to the expiration of the statutory tenancy.

13 In any event, the Claimant argued that the Defendant was required to serve the renewal notice in November of 2010 and his failure to do so at that time meant that the statutory tenancy had not been renewed. The Claimant supplied no real foundation for this assertion and the section could not possibly be construed in the manner suggested by the Claimant.

14 The primary cannon of statutory interpretation is that where the words of a statute are clear and admit of only one interpretation, then that is the interpretation that ought to be applied. The words “ at least” in section 4(3) are not superfluous. It denotes...