Sammy v Earle
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 30 June 2009 |
| Neutral Citation | TT 2009 HC 166 |
| Docket Number | H.C.A. 1280 of 2003 |
| Court | High Court (Trinidad and Tobago) |
| Date | 30 June 2009 |
High Court
Rampersad, J.
H.C.A. 1280 of 2003
Mr. Premchand Dass for the plaintiff.
Mrs. Melanie A. Abdullah-Devenish for the defendant
Real property - Landlord and tenant — Whether deceased was a tenant at will of certain lands — Whether a statutory tenancy was created.
Civil practice and procedure - Action commenced by administrator prior to grant of letters of administration — Whether administrator had capacity to bring the action on the date when the writ was issued.
On 8 Mav 2003, the plaintiff commenced this action in her capacity as the legal personal representative of John Mankee. She claims as the daughter and executrix of the will of the said John Mankee that, prior to his death on 25 November 1978, he was the tenant of a lot of land measuring 156 feet on its northern boundary, 149 feet along its southern boundary, 50 feet along its eastern boundary and 49.4 feet along its western boundary which is situated at Maracas Royal Road, Lluengo Village, Maracas in the Ward of Tacarigua from one Jose Fernandez at an annual rent of $34.60. Upon this land, Mr. Mankee had a two-bedroom house and on 6 April 2003, the plaintiff claims that the defendant wrongfully entered on the said lands and destroyed the said house causing loss and damage to the estate of the late John Mankee. The plaintiff claimed special damages in the sum of $15,000.00 for the destruction of the house, damages for trespass and an injunction restraining the defendant by herself her servant her agent or howsoever otherwise from entering or remaining on the said lot of land. She also sought the costs of the action and the standard catch all relief clause for such further or other relief which the court may seem just.
In the defence, the defendant claimed that the late John Mankee was a tenant at will of Jose Fernandez and David Hernandez and that the tenancy was terminated by notice dated 1 January 1976. On the pleadings, the defendant admits the area of the tenanted lot and that it had a two-bedroom house on it and also accepts that the plaintiff was in the process of obtaining a grant of probate of John Mankee's will at the time of the filing of the statement of claim. However, the defendant alleges on the pleadings that in or about 1985 the subject property was deemed unfit for human habitation and, being unoccupied for many years thereafter fell into complete ruin. The defendant goes on to say that the tenancy was terminated prior to the death of John Mankee and or by operation of law or alternatively was surrendered or abandoned prior to 1981. The defendant goes on to deny that she wrongfully entered the said lands on or about 6th of April 2003 and destroyed the dwelling house thereon causing damage to the estate of John Mankee. The defendant says further in her defence that in or about 1994 she was granted a tenancy for the subject lands pursuant to the Land Tenants [Security of Tenure ] Act 1981 and that in or about 1999 by virtue of deed dated 11 August 1999 and registered as No. 19292 of 1999, she purchased the reversion in the subject lands and demolished the dilapidated building on the lands which she says had been deemed unfit for human habitation since about 1985.
The issues:
This court has to consider the following issues arising:–
3.1. Was John Mankee a tenant at will of the said lands? If not, was he a tenant at all and, if so, what type of tenant was he? 3.2. Was his tenancy determined by a notice to quit?
3.3. Was the tenancy surrendered or abandoned prior to 1981 or at anytime thereafter?
3.4. Was the dwelling house on the said lands deemed unfit for human habitation since about 1985?
3.5. Was the landlord entitled in law to grant the defendant a tenancy pursuant to the Land Tenants [Security of Tenure ] Act, 1981 in or about 1994?
3.6. Was there a merger of the tenancy and the reversion when the defendant purchased the land in or about 1999?
3.7. Was the defendant entitled to demolish the dwelling house on the said lands?
3.8. If not, what is the measure of damages which is applicable?
3.9. Did the plaintiff have the necessary locus standi to bring this action when she did?
The evidence:
There were 2 witnesses for the plaintiff [including the plaintiff herself] and 3 witnesses for the defendant [including the defendant herself].
The plaintiff:
5.1.1. In her witness statement, the plaintiff stated that she was the legal personal representative of the late John Mankee and that before he died in 1978, he published his will wherein he left the house and the tenancy on the said lands to the plaintiff and her mother. She said that after the father's death, her mother remained in occupation of the house and land until her death in 1997. In cross examination, she went on to say that she also lived in the house up to 1982 which was something which she accepted she did not say in her witness statement. She went on to say in her witness statement that one Urban Mathura lived in the said house as a tenant with his family whilst her mother was living there and that after her mother died [in 1997] she terminated the tenancy of Urban Mathura to renovate the building. She says that after the tenant left, she employed one Lewis Hernandez to maintain the premises until the defendant wrongfully entered the premises and destroyed the house. In her witness statement, she does not say when the house was destroyed or when the defendant entered the premises. No independent, cogent or professionally valued evidence of the value of the house which was allegedly destroyed by the defendant was presented by or on behalf of the plaintiff.
5.1.2. She was allowed to amplify her statement by giving evidence that she was never told about nor shown a notice to quit served on her father.
5.1.3. In cross examination, the plaintiff was not seriously discredited or shaken. She said in cross examination that she paid rent for the lands up to the year 2008 to one Jose Fernandez Junior but those receipts, which she said she had given her attorney, were never produced and Jose Fernandez Junior was never called as a witness in this matter. She went on in cross examination to refer to Lewis Hernandez who she said she paid to take care and clean the premises and who she says lives in the area. She did go on to say however that if she knew it was significant she would have brought him as a witness but she did not. No evidence of any payment to Mr. Hernandez was produced.
5.1.4. She was shown the photographs which were put in by consent as exhibit number 16 and she admitted that those pictures showed a dilapidated house which is why she said she gave the notice to quit to the tenant to allow her to do renovations after her mother died.
5.1.5. She admitted knowing the defendant and that the defendant occupied the parcel of land next door.
5.1.6. It is important to note that the plaintiff was not the executrix of the will of John Mankee but was a beneficiary thereunder. The sole executrix was her mother – Doolarie Mankee – who died without proving the will. The plaintiff was really the administrator appointed by the court by reason of her application for letters of administration with will annexed which was granted on the 15th August 2003 – 3 months after the issue of the Writ in these proceedings.
Urban Mathura:
5.2.1. He was the only other witness for the plaintiff. Mr. Mathura impressed this court as a witness of truth who had come to state exactly what had happened in the manner in which it happened.
5.2.2. It is clear from his evidence that he rented the house belonging to the Mankee family in 1977 on the said lands paying a monthly rent of $100.00 and he remained in possession of the house until about May 1998. He also said that in 1978, after John Mankee died, John Mankee's wife [who was Mr. Mathura's cousin] and her daughter [the plaintiff] came to live in the house.
5.2.3. Even though his rent receipts were not produced for the court, his manner and demeanour in the witness box impressed the court as being credible.
5.2.4. The court accepts his evidence especially since material parts of it were corroborated by the defendant and her witness.
5.2.5. As such, the court accepts that he remained in possession of the house until about May of 1998.
The defendant:
5.3.1. In her witness statement, the defendant says that she had been living in the area from as far back as 1972 at the home of her mother but that she did not know John Mankee to be living in the next door lot which is the subject of these proceedings in the 1970s even though she resided in the area from 1972 to 1976. From 1976 she went to live in San Fernando. In 1982 she got married and continued living in San Fernando although she regularly visited her mother in the area. She said that after her husband retired in 1990, she returned to the village to take care of her mother and lived next door to her home.
5.3.2. She said that all through the years her mother complained about the nuisance created by the neighbours [presumably the persons in occupation of the lot which is in question] because they never kept the property in a proper manner and they refused to do anything to control the wastewater flowing from theft lot across to her yard. This clearly shows that there were persons in occupation of the subject lot over the years.
5.3.3. She went on to say in her witness statement that the house had been unoccupied or abandoned for something like nearly 20 years. This statement was dated 20 February 2008 so that 20 years from that date would be the year 1988. What is very interesting is that in cross examination, she admitted that she knew Urban Mathura and that he had lived in the house until he left sometime in 1998. This is in stark contradiction to her assertion that the house was not occupied since around 1988 — a discrepancy of about 10 years. It is also...
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