Shivanand Kalipersadsingh v Beharry Singh

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Devindra Rampersad
• Judgment Date: 25 January 2019
• Neutral Citation: TT 2019 HC 19
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2018-01459
• Date: 25 January 2019

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Mr. Justice Devindra Rampersad

Claim No. CV 2018-01459

Between

Shivanand Kalipersadsingh

Draupati Bhagwansingh

(also Called Draupatie Kalipersad-bhagwansingh)

Ramkaran Bhagwansingh

Risal Bhagwansingh

Aniera Bhagwansingh

Tarini Bhagwansingh

Claimants

and

Beharry Singh

Defendant

Appearances:

Claimants: Richard Arjoon Jagai and Kent Samlal instructed by Andrea Bhagwandeen

Defendant: Balram Singh

Lease - Statutory lease — Renewal — Pleadings — Defence — Whether failure to serve notice for renewal automatically brought statutory tenancy to end — Whether defendant had a meritorious defence — Whether defence and counterclaim ought to be struck out — Land Tenants (Security of Tenure) Act — CPR, R. 8.6, 10.5, 26.2(1)(b).

RULING

Table of Contents

Introduction	3
Issues arising on the Pleadings:	3
Law and Analysis	9
What of the Defendant's status though?	16
Discussion	16
Conclusion and Order	19

Introduction

1 By notice of application dated 2 July 2018 the claimants seek an order pursuant to Part 26.2(1) of the CPR that the defendant's defence and counterclaim filed on 24 May 2018 be struck out on the ground that it (i) amounts to an abuse of the process of the Court; and (ii) discloses no grounds for defending the claim.

2 The claimants are seeking to restrain the defendant from entering upon the premises outlined in the claim form and previously tenanted by the defendant's mother (now deceased). The defendant has contended that the tenancy was subject to the Land Tenants (Security of Tenure) Act Chap. 59:54 (the Act) and as such he is now a statutory tenant.

3 There is no evidence or pleading to the effect that the statutory tenancy was renewed after the death of the defendant's mother as required by the Act. The claimant thus contended that any tenancy rights of the defendant has expired. Submissions made on the defendant's behalf mainly contended that equity ought to prevent the defendant from losing his rights simply because of a mere formality. The issue for the court's determination therefore is whether there ought to be a strict application of the Act or whether equity can intervene to protect the rights of a tenant despite the failure to serve a notice of renewal as required by the Act.

4 The court considered the defendant's pleaded case, counterclaim and the submissions made on his behalf. The court is of the opinion that the defendant has no meritorious defence and, in keeping with the overriding objective, and under this court's case management powers, there is no reason to continue this case any further. The claimant's application would be allowed and an order made on the terms outlined below.

Issues arising on the Pleadings:

5 Firstly, it is important to define the rules relating to pleadings and what they must contain. In that regard, the court refers to the provisions of Parts 8.6 of the CPR, which provides:

“(1) The claimant must include on the claim form or in his statement of case a short statement for the facts on which he relies”

and Part 10.5 of the CPR which provides:

“(1) The defendant must include in his defence a statement of all the facts on which he relies to dispute the claim against him.

(4) Where the defendant denies any of the allegations in the claim form or statement of case -

(a) he must state his reasons for doing so; and

(b) if he intends to prove a different version of events from that given by the claimant, he must state his own version of events from that given by the claimant, he must state his own version.

(5) If, in relation to any allegation in the claim form or statement of case the defendant does not -

(a) admit or deny it; or

(b) put forward a different version of events,

he must state each of his reasons for resisting the allegation.”

6 The court is also cognizant of the decision in M.I.5 Investigations Ltd. v. Centurion Protective Agency Ltd. Civ. App. No. 244 of 2008 in which Mendonca JA, in dismissing an appeal against an order that a defence be struck out warned that “the days when a defence may be filed containing a bare denial are over.” The learned Justice of Appeal explained how a defence should be drafted pursuant to the stipulations of Part 10.5 at paragraph 7 of the judgment in the following way:

“In respect of each allegation in a claim form or statement of case therefore there must be an admission or a denial or a request for a claimant to prove the allegation. Where there is a denial it cannot be a bare denial but it must be accompanied by the defendant's reasons for the denial. If the defendant wishes to prove a different version of events from that given by the claimant he must state his own version. I would think that where the claimant sets out a different version of events from that set out by the claimant that can be a sufficient denial for the purposes of 10.5 (4) (a) without a specific statement of the reasons for denying the allegation. Where the defendant does not admit or deny an allegation or put forward a different version of events he must state his reasons for resisting the allegation (see 10.5 (5)). The reasons must be sufficiently cogent to justify the incurring of costs and the expenditure of the Court's resources in having the allegation proved.”

7 Based on the pleadings, it is clear that the following matters are uncontested:

• 7.1. The claimants' title to the land which the defendant admitted at paragraph 2 (a) of the defence and counterclaim as not being the relevant issue in these proceedings;

• 7.2. The defendant's mother, Khemrajie Abhaisingh was a tenant of the subject lands 1;

• 7.3. The last time that rent was paid by the defendant's mother was on 21 June 2002 for the period 01 July 2001 to 30 June 2002;

• 7.4. Subsequent to the payment of rent in 2002, the said Khemrajie became ill, paid no further rent and abandoned the chattel house (situate on the portion of lands) taking up residence in the homes of her children 2;

• 7.5. Khemrajie passed away on 30 June 2005;

• 7.6. After Khemrajie's death (no specific date was given but a time period stretching from 2005 and 12 December 2009 when one Savitri Kalipersadsingh 3 died and then again in November 2017),

  without prejudice discussions were held with the defendant concerning the potential purchase of the subject lands;

• 7.7. On or around 20 February 2017, the third claimant, with the consent of the other claimants, removed several iron fence posts on the subject lands after which the defendant went to the home of the second and third claimants and raised objection to their removal of the fence posts 4;

• 7.8. At that 20 February 2017 meeting, the second claimant informed the defendant that Khemrajie had abandoned the tenancy since 2002 and he had no permission to occupy the lands. In response, the defendant said that Khemrajie had given him a “paper” giving him permission to utilize the lands but refused to show it when called upon to do so and said that he “wasn't going to show anybody anything” and left. To the date of the statement of case which was filed on 25 April 2018, the defendant has failed and/or neglected and/or refused to produce any documentation as alleged or otherwise granting him permission to use the lands despite requests for him to do so 5;

• 7.9. In or around November 2017, without permission, he drove into the yard of the second and third claimant and informed the third claimant in the presence of the second claimant that he intended to repair the chattel house which the claimants pleaded had come to be in a dilapidated state. The second claimant reiterated that the tenancy had been abandoned and that he had failed to produce any documentation showing his entitlement and that if he entered onto the lands he would be doing so as a trespasser and legal action would be taken against him 6;

• 7.10. In an effort to maintain peace and good order, on 26 November 2017, 7 the first claimant contacted the defendant and made certain without prejudice offers to the defendant for an amicable resolution which the defendant refused. He was cautioned by the first claimant that any further acts of trespass would not be treated lightly and recourse to the courts would be sought;

• 7.11. Notwithstanding the warning, on 2 December 2017, without the claimants' permission, the defendant came on to the subject lands and began cutting and burning grass;

• 7.12. On 11 December 2017, without permission, the defendant again drove into the yard of the second and third claimants alleging that they had forged the will and deed surrounding the estate of Savitri Kalipersadsingh and he informed them that he was going to repair the dilapidated chattel house and he wanted to see “what they could do”;

• 7.13. The defendant entered onto the lands and began repairing the dilapidated chattel house thereon on 3 March 2018, caused the placement of a “No Trespassing” sign sometime during the period late March or early April and re-entered the land on 04 April 2018 and begun conducting repairs on the roof;

• 7.14. A letter to cease-and-desist dated 5 April 2018 was served on the defendant on 7 April 2018 to which the defendant never replied but, instead, on 9 April 2018 re-entered the lands without permission and proceeded to carry out further roof repair works;

• 7.15. A pre-action protocol letter was issued dated 18 April 2018 which, again, the defendant never replied to but, instead, continued the repair and renovation of the roof and continued works on the house itself and cutting the grass on the lands.

8 Essentially, the statement of case raises the issue of whether or not Khemrajie's tenancy was abandoned. That, of course, is a question of fact to be determined at the trial and cannot be dealt with on a summary judgment application. The claimants have gone on to seek a declaration

that the defendant is not...