Lewis v George Et. Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Moosai, J. |
| Judgment Date | 29 November 1999 |
| Neutral Citation | TT 1999 HC 108 |
| Docket Number | HCA No. S-1149 of 1994 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 November 1999 |
High Court
Moosai, J.
HCA No. S-1149 of 1994
Mr. DevindraRampersad for the plaintiff.
Ms. Carol Gobin for the defendant.
Real property - Landlord and tenant — Statutory tenancy.
In this action the plaintiff is claiming against the defendant, inter alia:
- Possession of a house spot measuring approximately 5,000 square feet more or less (hereinafter referred to as “the said parcel of land”). 2. An injunction restraining the defendant, his servants, agents or licensees from entering upon and/or remaining upon and/or from interfering in any other manner with the plaintiff's occupation of the said parcel of land. 3. Mesne profits from January 1, 1981 until judgment.
By the amended defence and counterclaim the defendant pleads estoppel by deed, that the plaintiff is estopped from denying the existence of the tenancy of the defendant's predecessor in title or from alleging that the tenancy was determined by notice dated June 6, 1980. Additionally the defendant counterclaims for:
- A Declaration that the said parcel of land is subject to the provisions of the Land Tenants (Security of Tenure) Act, No. 11 of 1981, and is the subject of a statutory lease for 30 years commencing June 1, 1981. 2. Alternatively, a Declaration that the said parcel of land is subject to the provisions of the Rent Restriction Act Chapter 59: 50 (hereinafter referred to as “the Act”) and that the defendant is a tenant within the meaning of section 2(1) of the Act.
By Deed of Conveyance made on the 12th day of October, 1979 registered as No. 19983 of 1979 and made between Laggarique Limited as vendor and Mustapha Ibrahim and Zeenora Ibrahim as purchasers, the purchasers became the fee simple owners of the said lands “subject to an existing tenancy.”
By Deed of Conveyance dated the 16th day of August, 1993 and registered as No. 13430 of 1993 and made between Mustapha Ibrahim and Zeenora Ibrahim (hereinafter collectively called “the Ibrahims”) as vendors and the plaintiff as purchaser, the plaintiff became the fee simple owner of land comprising approximately 14 acres being portion of a larger parcel of land comprising five quarries situate in the Ward of Guayaguayare being the remaining portion of that parcel of land formerly owned by Ann Ferrier but now owned by Laggarique Limited anal bounded on the north by lands of G.E. de Pompigan but formerly owned by Paul Lallemand on the south partly by lands of the heirs of Ann Dyett also called Ann Dyard and partly by Maloney Road on the east by GuayaguayareMayaro Road and on the west by lands of Louis Martin (hereinafter called “the said lands”).
The said parcel of land forms part of the said lands. The recitals and the operative part of the said Deed No. 13430 of 1993 set out that the plaintiff was purchasing the said lands “subject to an existing tenancy.”
The defendant is 60 years old and has been living in the dwelling-house on the said parcel of land from birth. The defendant's mother, the late Edith Danclair, was the yearly tenant of the said parcel of land on which she constructed a dwelling house. By a Notice to Quit dated June 26, 1984 and served on Edith George on June 28, 1980, the plaintiffs predecessors in title, the Ibrahims, effectively terminated Edith George's contractual tenancy. Thereafter, on April 21, 1982, in magisterial proceedings at the Mayaro Magistrates Court, the Ibrahims sought possession of the said parcel of land against the said Edith Danclair on the ground of personal use pursuant to section 14 of the Act. The said Mustapha Ibrahim completed his testimony on July 21, 1982 and the complainant closed its case. However the matter was dismissed on March 25, 1993 due to the repeated absence of the complainant and his legal advisers. On Oct. 22, 1993 Edith Danclair died intestate.
In his oral testimony the plaintiff sought to establish that when he purchased the said lands from the IbrahimsAsubject to an existing tenancy”, that that referred to a tenancy existing between the Ibrahims and W.A.S.A. I am of the view that based on the documentary evidence and the cross-examination of the plaintiff, the evidence has established quite conclusively that that could not be so. In the said magisterial proceedings express reference is made by Mustapha Ibrahim to the lands being subject to the tenancy of Edith Danclair. Mention is made of W.A.S.A. having a tank on the said lands but no mention is made of any tenancy between W.A.S.A. and the Ibrahims. The position is the same with respect to the affidavit of Mustapha Ibrahim admitted by consent of both parties and filed on April 12, 1995. Although the further letters admitted by consent make reference to the negotiations for acquisition by W.A.S.A. of the lands on which the tank stood or for a lease, negotiations seem to have broken down having regard to the tenor of the last piece of correspondence from Mustapha Ibrahim dated December 7, 1989. Finally the plaintiffs demeanor in the witness-box on this issue left a lot to be desired. He himself seemed to be in some confusion as to whether there was a concluded agreement between himself and W.A.S.A. for a lease, at times referring to a concluded agreement and at other times referring to negotiations for a concluded agreement. It necessarily follows that if at the time of execution of the said Deed No. 13430 of 1993 there was no existing tenancy between W.A.S.A. and the Ibrahims, then the property sold to the plaintiff “subject to an existing tenancy” must refer to the existing tenancy of the then tenant, Edith Danclair, whatever was the nature of that tenancy. In any event I reject the plaintiff's evidence on this issue.
Ms. Gobin pleaded estoppel by deed namely, that the plaintiff was precluded from denying the existence of the tenancy of the defendant's predecessor in title because in the recital and the operative part of the said Deed No. 13430 of 1993 the Ibrahims conveyed the said lands to the plaintiff “subject to an existing tenancy”. Halsbury's Laws of England 4th edition (Reissue), Vol. 16, Estoppel at paragraph 954 describes the principle of estoppel by deed:
“Where there is a statement of fact in a deed made between parties, an estoppel results, and is called ‘estoppel by deed.’ If upon the true construction of the deed the statement is that of both or all the parties, the estoppel is binding on each party; if otherwise, it is binding only on the party making it.”
But it is clear that there is no estoppel where the action is not founded on the same transaction. In Spencer Bower and Turner Estoppel by Representation, 3rd Edn, the learned authors set out the position at p. 168:
“The estoppel, being founded on the justice of holding the parties to a transaction to the conventional state of affairs to which they have agreed as its basis, extends no further than to disputes arising out of that transaction. There are numerous cases depending on estoppels by deed where this has been expressly stated, and it is conceived that identical considerations must in principle apply to all estoppels by convention, whether estoppels by deed or not.
While in a dispute arising out of one transaction, no estoppel can be founded on a statement of facts agreed to in a different transaction, yet such an agreed state of facts may of course still be put forward as an admission, its evidentiary value depending on the circumstances of the particular case; but it will not operate to preclude either party from asserting differently from the terms of the recital, and evidence may be admitted, e.g., to show that the assumption was made incautiously or mistakenly. Neither, a fortiori, will a recital in a deed or other contract estop a party as against any person who is not himself a party or a privy.”
It seems clear to me that in the instant case there is no estoppel as the action is not founded on the same transaction nor was Edith Danclair a party to the deed. Does the statement in the deed that the said lands were sold subject to an existing tenancy amount to an admission?
In Carpenter v. Butler (184I) 8 M & W 209 the headnote sets out the ratio decidendi. Where a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is not, as between the parties to the instrument, and in an action upon it, competent to the party bound to deny the recital; and a recital in an instrument not under seal may be such as to be conclusive to the same extent. But a party to an instrument is not estopped, in an action by another party, and founded on the deed, and wholly collateral, to it to dispute the facts so admitted; but evidence of the circumstances under which such admission was made, is receivable to show that the admission was inconsiderately made, and is not entitled to weight as a proof of the fact it is used to establish. At pp. 1014 and 1415 Parke B., stated:
“All the instances given in Com. Dig., Estoppel under the head of ‘Estoppel by matter of writing’ (except one which relates to a release), are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself, a party is assuredly bound, and must fulfill it. But there is no authority to shew that a party to the instrument would be estopped, in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts so admitted, though the recitals would certainly be evidence; for instance, in another suit, though between the same parties, where a question should arise whether the plaintiff held at a rent of, 170 in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive evidence of these facts. Still less would matter alleged in the...
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