Samuel v Joseph; Gerald Third Party
| Jurisdiction | Trinidad & Tobago |
| Judge | Gopeesingh, J.A. |
| Judgment Date | 30 March 1993 |
| Neutral Citation | TT 1993 CA 9 |
| Docket Number | Civil Appeal No. 98 of 1987 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 30 March 1993 |
Court of Appeal
Bernard, C.J., Hamel-Smith, J.A.; Gopeesingh, J.A
Civil Appeal No. 98 of 1987
Mr. D. Cowie for appellant.
Mr. S. Marcus for respondent.
Mr. M. Hayes for third party.
Real property - Landlord and tenant — Tenancy — No assignment of tenancy to purchase of land — Surrender of tenancy by operation of law by original tenant prior to death — Appellant by bequest had no right to possession of land or to house affixed on land.
Costs - Third party — Order of costs — Defendant seeking variation of order that he pay costs of third party proceedings — Joinder of third party justified — Plaintiff/appellant to pay costs of third party brought in by defendant — O62, r 3(2) R.S.C., 1975.
The appellant, by Notice of Appeal dated July 17th, 1987, appealed against the decision of a trial Court Judge whereby the learned Judge dismissed her claim and gave judgment for the respondent on his counterclaim, with costs both on the claim and counterclaim. The respondent also, by Notice dated September 4th, 1987, sought a variation of the judgment of the learned Judge, whereby having dismissed the respondent's claim against the third party, he ordered that the respondent pay the third party's costs. The variation sought by the respondent is:
“That the plaintiff/appellant be ordered to pay to the defendant/respondent the costs ordered to be paid by the defendant/respondent to the third party.”
The grounds of appeal relied upon by the appellant are, in essence, that the learned Judge's decision cannot be supported having regard to the evidence; and that the learned Judge erred in law in holding that there had been an assignment and surrender of the tenancy to the third party.
The appellant's claim against the respondent, was for damages for trespass in respect of a parcel of land situated in the ward of Chaguanas comprising 12,100 square feet, known as Lot No. 100, injunctive reliefs and costs.
The respondent, on the other hand, in his defence, relied upon his title to the said parcel of land, the same having been conveyed by the third party by a deed of conveyance dated April 9th, 1981 and registered in the Protocol of Deeds No. 6411 of 1981. In his counter-claim, the respondent sought declarations that the sale of the said parcel of land to him was not made subject to any tenancy in favour of the appellant or anyone through whom she claimed; that no title or interest in a dwelling house standing on the same parcel of land and/or tenancy in the said parcel of the appellant under the will of Annie Gerald, deceased; damages for trespass; injunctive relief; and costs.
In a Third party Notice, the respondent claimed against the third party an indemnity for any sum which the appellant may have recovered against him; and “damages for misrepresentation inducing the contract of sale of the said parcel of land and/or for breach of he said contract of sale, in particular for breach of warranty and/or covenant contained in the deed of conveyance, registered as No.6411 of 1981.”
The third party, in his defence, denied that he “warranted and/or represented to the defendant that the said house was his property and/or that he had the lawful right, title interest or authority to demolish it or to authorize the demolition of it or to give the vacant possession of the said parcel of land to the defendant as alleged.”
The facts and circumstances which gave rise to this matter are as appear hereafter.
Annie Gerald, who died on November 1st, 1978, was the mother of the appellant and the third party. Sometime prior to the year 1960, she became a tenant of the subject parcel of land (known as lot No. 100), as well as adjoining parcels known as Lot Nos.98 and 99, which were then owned by Friendship Hall Estate. Messrs. R.A. Wohler and Agnes Maria Wholer became the successors in title to the Estate but Annie Gerald continued being their tenant, in respect of the said parcels of land. In or around the year 1960, Annie Gerald erected a dwelling house on the subject parcel of land. It was not disputed at the trial, and at the hearing before this Court it was agreed by Attorneys for all the parties, that this building was a fixture on the parcel of land.
I think it is pertinent to mention at this juncture, that there has been some dispute as to whether the third party in fact contributed financially to the erection of this building. It should be observed, however, that whereas the third party specifically pleaded, at paragraph 2 of his defence to the Third party Notice, that “sometime in or about the year 1960, the deceased, partly out of monies provided by the third party and partly out of her own monies constructed a house on the said parcel of land”, and he gave details of the contribution made by him in evidence-in-chief, and reiterated, under cross-examination by Attorney for the respondent, that he assisted financially in the reconstruction of the house, Attorney for the appellant, however, did not cross-examine the third party on this aspect of his evidence. Moreover, although in a letter dated March 25th, 1982, written by solicitors acting on the appellant's behalf to the respondent, it was stated that the appellant erected the said dwelling house, the appellant, when cross-examined both by Attorney for the respondent and Attorney for the third party, categorically admitted that she did not in fact so contribute to the construction of same and that the statement in the said letter was incorrect. She went on to state, immediately thereafter, however, that it was Herman, another of the appellant's brothers, who built same with his money. And under cross-examination she denied the third party's contribution. Herman, who testified in support of the appellant's case, whilst being cross-examined by the Attorney for the respondent, maintained that he constructed the said house for his mother and that it was certainly not the appellant who did so. However, although Herman, in an affidavit him on December 19th, 1983, in support of an application by the appellant, for injunctive relief, had stated, at paragraph 3 thereof, that “sometime in the sixty's I constructed with my own moneys an upstairs house on the aforesaid parcel of land”, he was not specifically asked, under examination-in-chief, whether or not the third party's contentions were true.
It is not surprising, therefore, in light of the evidence, that the learned Judge, in his findings of fact, came to the conclusion: “That in the year 1960 Annie Gerald decided to reconstruct the house she was occupying on Lot 100. She did so with financial assistance from her son Everald Gerald”.
It was not disputed that during her lifetime, Annie Gerald had, prior to the year 1975, provided various properties for all her children save for the third party, Everald Gerald. Indeed the appellant admitted that she hart been allowed by Annie Gerald to exercise an option to purchase Lot No.98, of which Annie Gerald had been a tenant. She also admitted that she was the sole owner of a property at Bank Village, Carapichaima; that this property had been settled on her, her brother, Fitzroy and her mother, Annie Gerald, as joint tenants, by her father, but Fitzroy and Annie Gerald having died, the said property devolved upon her as the sole survivor. The appellant admitted as well that another brother. Irvine, had a property transferred to him by her mother, Annie Gerald. So too, it was not disputed that which had been previously tenanted by Annie Gerald, was transferred by her to Herman. In fact, Herman, in his evidence, supported that these various dispositions had been made by his mother Annie Gerald, to the various members of the family.
Whereas the third party contended that his mother, Annie Gerald, had, prior to 1975, in the presence of the whole family, clearly indicated her intention to transfer the house standing on Lot No.100 as well as the tenancy thereto, to him, and frequently repeated these intimations from time to time, the appellant denied any knowledge of this. Her brother Herman, a witness called in support of her case, however, categorically cross-examination: “I am also aware that my mother said Everald got nothing and he will get the house and land at 100 Freeport Mission Road”.
Nor is it in dispute that when, in 1975, Lot No.100, of which Annie Gerald had been a tenant and on which she had constructed her house with the assistance of the third party, was offered for sale to Annie Gerald by the landlords, she “assigned her right to exercise the option to purchase” same to her son, the third party. Not only did she so do but Annie Gerald accompanied the third party to the Bank and assisted him in procuring a loan with which to buy the said parcel of land and moreover, allowed him to use both the house standing on the said parcel of land as well as security for the said loan. It was in this setting that Lot No. 100 was conveyed to the third party by the landlords, on September 13th, 1975, as evidence by Deed of Conveyance registered in the Protocol of Deeds No. 17201 of 1975. It is important to observe, however, that in this Deed it was, for whatever reason, recited that the agreement to sell was “subject to Rights of Working and existing tenancy but otherwise free from all encumbrances”; and in the habendum thereto it was specifically stated that the purchaser was “To hold same unto and to the use of the Purchaser in fee simple subject to the Rights of Working and subject to the existing tenancy”. Indeed in his defence to the third party Notice, the third party specifically pleaded: “By Deed dated the 13th day of September, 1975 and registered as No. 17201 of 1975 the third party purchased the fee simple absolute in the said parcel of land from the Vendors subject to the aforesaid tenancy”.
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