REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
(Sub-Registry, San Fernando)
CV2014 – 02598
BETWEEN
MARY GOMEZ
(suing in her personal capacity and as
Administrator of the Estate of MICHAEL GOMEZ
who died on the 18th day of October 1999)
SHAIRA MOHAMMED
DAVID SAMMY
Claimants
AND
ASHMEED MOHAMMED
Defendant
BEFORE THE HONOURABLE MADAM JUSTICE JONES
Appearances:
Mr. R. L. Maharaj S.C. and Ms. V. Maharaj instructed by Mr. A. Ramroop for
the Claimants.
Mrs. D. Peake S.C. and Mr. R. Heffes-Doon instructed by Mr. R. Mungalsingh
for the Defendant.
JUDGMENT
1.
The Claimants, Mary Gomez, Shaira Mohammed and David Sammy, each
occupy a parcel of land owned by the Defendant on which they each have a house
owned and constructed by them. They have been in the occupation of their parcel of
land for a number of years: from the year 1966 with respect to Gomez; the year 1958
with respect to Shaira Mohammed and the year 1963 with respect to Sammy. Each
has paid a yearly rent of $12.00 until 2011 when further payments of rent were
refused by the Defendant. By valuations obtained by the Claimants prior to the
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institution of this action Gomez’s house was valued at $920,000.00; Shaira
Mohammed’s house at $295,000 and Sammy’s $1,425,000.
2.
The parcels of land claimed by the Claimants form a part of a larger parcel
of land originally owned by Aziz and Elvina Andrews (collectively called “the
Andrews”). This larger parcel of land was sold by the Andrews to the Defendant’s
father in 1969. The Defendant’s father died in 2004. By a deed of assent dated 13th
March 2012 the Defendant became the owner of the land. By letters dated 20th June
2013 sent to each of the Claimants the Defendant, by his Attorneys, advised that the
Claimants were statutory tenants pursuant to the Land Tenants (Security of Tenure)
Act; had failed to renew their statutory leases in accordance with the provisions of the
Act and required them to quit and remove all structures on the land on or before 31st
December 2013.
3.
In response two letters, dated 12th November 2013 and 3rd December 2013,
were written by Attorneys for the Claimants on their behalf alleging that the
Claimants were statutory tenants of their parcels of land by virtue of the Land Tenants
(Security of Tenure) Act and had each given oral notice of renewal of their statutory
lease. The letters also stated that the Defendant and/or his predecessors in title had
encouraged and/or allowed the Claimants to believe that if they continued to live on
the land, pay land rent and construct and maintain their homes on their respective
parcels of land that they would in the future acquire the right to their respective
parcels of land. According to the letters the Claimants relied on this belief and acted
upon it to their detriment.
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4.
This action was commenced on 22nd July 2014. By this action, on the basis
of agreements that they say were made with the original owners of the land, the
Claimants seek declarations that they are the equitable owners of land they occupy,
injunctions protecting their occupation of the land and aggravated and/or exemplary
damages from the Defendant. In addition Sammy seeks a declaration that he is the
owner of a parcel of land comprising 2500 square feet (“the additional parcel of
land”) adjoining the eastern boundary of land tenanted by him by virtue of his
continuous and undisturbed possession of it for over 16 years. There is no reference
in the statement of case of their claim of having given oral notice to the Defendant for
the renewal of the leases.
5.
With respect to the equitable claim the Defendant says that the Claimants
were tenants of building land whose tenancies were by operation of law, on 1st June
1981, converted into 30 year statutory leases within the meaning of the Land Tenants
(Security of Tenure) Act Chap 59:54. In accordance with that Act and arising from
the failure of the Claimants to renew the said leases, the Defendant says, the
Claimants’ statutory leases terminated on 31st May 2011 and the Claimants are now
trespassers.
6.
With respect to the claim of adverse possession the Defendant denies that
Sammy was in the continuous and undisturbed possession of that parcel of land and
avers that: (i) any encroachment by Sammy on lands located along the boundary of
those tenanted by him amounted to a unilateral extension of the location of that
tenancy and was therefore subject to the terms and conditions of that tenancy; (ii)
Sammy had been granted permission to clear that land to establish a fire break and to
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erect his water tank and (iii) the Defendant and his predecessor in title from time to
time entered onto that land to inspect same and had surveyed the entire parcel of land
including that piece and had at all times exercised possessory control thereof. The
Defendant counterclaims seeking possession of the land from the Claimants in both
causes of action.
7.
By way of their reply and defence to counterclaim the Claimants do not
deny that the provisions of the Land Tenants (Security of Tenure) Act apply to their
tenancies but aver that any rights acquired under the Act were subject to the equitable
rights already acquired by them.1
A point on the pleadings
8.
By their written submissions the Claimants contend that the effect of Part
10.5 of the Civil Proceedings Rules 1998 as amended (“the CPR”) is that there has
been no denial in the defence of:
(i) the agreements between the Claimants and the Andrews;
(ii) the Claimants’ reliance on the promises made by the
Andrews in the agreements;
(iii) the Claimants’ acts to their detriment; and
(iv) the commencement date of the Claimants’ possession of the
land.
They submit that in the circumstances the allegations made by the Claimants in this
regard are undisputed.
1
Paragraph 10 of the reply and defence to counterclaim filed on 28th August 2014
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9.
In support of their submissions the Claimants rely on the cases of MI5
Investigations Limited v Centurion Protective Agency Ltd 2 and Andre Marchong v
Trinidad and Tobago Electricity Commission and Galt and Littlepage 3. The first and
general point that needs to be made with respect to these submissions is that the
specific provisions contained in Part 10.5 of the CPR do not in my view obviate the
need to look at the defence presented as a whole.
10.
To my mind it is pointless relying on alleged defects in a particular
paragraph of a defence out of the context of the whole defence. So that, for example,
with respect to an allegation in a statement of case a defendant may make a bare
denial in one paragraph of its defence but in another paragraph may, with respect to
the same allegation, provide a different version of events. It cannot be that a court is
required by the rule to ignore the different version of events provided by the
Defendant with respect to the particular allegation and only consider the bare denial.
11.
Neither can it be that merely because a claimant repeats an allegation of
fact more than once in its statement of case a claimant can simply chose to ignore a
valid denial to that allegation and seek to have the court act only on the basis of the
non valid one. One of the objects of the CPR is to avoid technical requirements in
rules of procedure and make the process simpler and better suited to its purpose4.
Even before the advent of the CPR the observation was made by Saville L.J. that
“pleadings are not a game to be played at the expense of the litigants, nor an end in
themselves, but a means to the end, that end is to give each party a fair hearing.”5 In
CA Civ 244 of 2008
Cv 2008-04045
4 Zuckerman on Civil Procedure : Principles of Practice para 6.3
5 British Airways Pension Trustees Ltd. V Sir Robert McAlpine & Sons Ltd. (1994) 45 Con. LR 1 at page 5
2
3
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my opinion this is even more so under the CPR where the overriding objective is to
deal with cases justly.
12.
Looking at the defence as a whole therefore it would seem to me that the
Claimants cannot really submit that on the defence as pleaded they did not understand
that they were required to prove the existence of the agreement; their reliance on the
promises made; the acts done by them to their detriment and the date of the
commencement of their occupation. Indeed the witness statements filed by the
Claimants in my opinion puts paid to that position.
13.
In any event I am satisfied that the Defendant has, in accordance with Part
10.5, properly answered to allegations by either admitting, denying or putting the
Claimants to the proof in accordance with part 10.5(3)(c) .
14.
Part 10. 5 of the rules state:
(1) The defendant must include in his defence a statement of
all the facts on which he relies to dispute the claim against
him.
(2) Such statement must be as short as practicable.
(3) In his defence the defendant must say(a) which (if any) allegations in the claim form or
statement of case he admits;
(b) Which (if any) he denies; and
(c) Which (if any) he neither admits nor denies,
because he does not know whether they are true, but
which he wishes the claimant to prove.
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(4) Where the defendant denies any of the allegations in the
claim form or statement of case(a) he must state his reason 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.
(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 reason for resisting the allegation.
(6) The defendant must identify in or annex to the defence any
document which he considers to be necessary to his
defence.
15.
Paragraph 8 of the statement of case addresses the agreements made
between the Claimants and the Andrews. This paragraph in the statement of case is
specifically answered by paragraphs 16 and 17 of the defence.
16.
Paragraphs 16 and 17 read:
“ 16.
As to paragraph 8 of the statement of case the Defendant
says that neither he nor his father was aware of any alleged
agreement between the Andrews or any of them and any of the
Claimants that, inter alia, included a right to buy the portion of the
lands occupied by the Claimants at the open market value thereof at
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the date of the alleged agreement (which is denied) without the
value of any improvements thereto or at all.
17. Further the Defendant says that prior to the issue of these
proceedings none of the Claimants alleged or informed or intimated
to him or his father Haniff Mohammed the existence of any such
alleged agreement. Consequently the Defendant denies the
allegation paragraph 8 of the statement of case of an agreement
between the Andrews and the Claimants giving each or any of them
the right to purchase any portion of the lands.”
17.
From the manner of pleading it is clear that paragraphs 16 and 17 need to
be read together. I am also satisfied that the words ‘which is denied’ in brackets in the
context of these rules serve no purpose. For our purposes therefore they can be
ignored.
18.
By the paragraphs 16 and 17 the Defendant in effect states that: (a) neither
he nor his father knew of the alleged agreement prior to the issue of the proceedings;
(b) neither he nor his father were informed of the existence of the agreement; and (c)
consequently he denies the allegation at paragraph 8 of an agreement between the
Andrews and the Claimants giving each other or any of them among other things the
right to purchase any portion of the lands.
19.
Part 10.5(3) establishes the two ways by which a defendant may require a
claimant to prove an allegation: by denial in accordance with Part 10.5(3)(b) and
10.5(4) or by neither admitting or denying in accordance with Part 10.5(3)(c). If a
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defendant denies an allegation he must in accordance with 10.5(4) state his reason for
doing so and, if he intends to prove a different version of events, must state his own
version.
20.
It is clear that by paragraphs 16 and 17 the Defendant does not state his
own version of what occurred. In those circumstances the Defendant cannot at the
trial lead evidence of any other version of the facts. However the Defendant has
denied the allegation in paragraph 8 that there was an agreement between the
Claimants and Andrews giving the Claimants among other things the right to
purchase any portion of the lands. And he has given a reason for such a denial. The
reason according to him being that neither he nor his father knew of the alleged
agreement and neither were informed of the existence of such an agreement. That, in
my opinion, is the only conclusion to be drawn from the Defendant’s use of the word
‘consequently’.
21.
To my mind this accords with the requirement of the rule. The rule does
not require that the reason be a good reason it merely requires that a defendant state
the reason for such denial. Neither, in my opinion, does the rule require that in
circumstances where the allegations are not known to be true or not a defendant must
use the exact words as stated in rule. It would seem to me that it is sufficient if the
defendant uses the formula identified, that is, the defendant does not admit or deny,
states it does not know and requires the claimant to prove.
22.
In my opinion this formula is merely one of the options provided to a
defendant in treating with an allegation in the statement of case. In this instance the
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Defendant has elected to deny for a reason rather that put the Claimants to proof
because he does not know. While the effect of the plea may be the same where the
allegation is not admitted the rule provides the Defendant with two options in order to
require the Claimants to prove the allegation.
23.
If, as in Marchong’s case, a defendant wishes specifically to put a claimant
to proof by pleading such then it must adopt the formula stated in the rule. Unlike
under the 1975 rules6 a defendant can no longer just merely state I put you to the
proof. Neither is the rule to be interpreted to prevent a defendant from denying an
allegation for a reason and in the same document stating that it does not admit or deny
because it does not know it to be true. While it may, in some cases, affect the
credibility of the defendant at the end of the day, in my opinion, it does not run afoul
of the rule.
24.
A word on the formula: because Part 10.5 (3)(c) states that the Defendant
must say which if any he neither admits or denies because he does not know whether
they are true but he wishes the claimant to prove this does not, in my opinion, mean
that the Defendant must necessarily use those exact words. To my mind once the
Defendant adopts that formula, that is, the Defendant must first in some way identify
the allegation to which it refers; indicate in some manner that she neither admits nor
denies it because she does not know whether it is true and ask that the claimant prove
the allegation.
6Rules
of the Supreme Court 1975
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25.
So for example a defendant who says ‘with respect to fact A the claimant
must prove it I cannot vouch for its accuracy because I just don’t know’ in my
opinion has satisfied the formula as required by the rule. At the end of the day the
defendant has identified the allegation and has given his position on it and the reason
why he has taken the position and told the claimant what he is required to do under
the rule.
26.
I am satisfied therefore that in accordance with Part 10.5 of the CPR the
Defendant has denied the allegation in paragraph 8 of the statement of case of an
agreement between the Andrews and the Claimants giving each or any of them the
right to purchase any portion of the lands.
27.
Insofar as the other submissions are concerned it would seem to me that
these submissions are that the Defendant failed to deny, in accordance with Part 10.5,
each allegation contained in the particulars given under paragraphs 10 and 11 and the
contents of paragraphs 12.1 to 12.13. I do not agree that the Defendant has failed to
deny these allegations. With respect to these paragraphs I accept that the blanket
denial contained in paragraph 18 does not comply with Part 10. Paragraphs 19
through to 24 however amount to a denial of these allegations by way of (a) a general
denial by reference to any inconsistency with paragraphs 18 to 20 of his defence
which, in my view, accords with Part 10.5(4) and (b) by way of specific denials in
accordance with Part 10.5(3) and (4).
28.
In the circumstances I do not accept the Claimants’ submission that I ought
to construe the defence as filed by the Defendant as not denying the essential factual
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elements of promissory estoppel. In my opinion the existence of these facts is a live
issue for my determination.
29.
The action therefore comprises two distinct causes of action: a claim in
adverse possession with respect to the additional parcel of land and a claim based on
estoppel. With respect to the claim in adverse possession the law is not in dispute: a
claimant is required to prove factual possession in the absence of consent and an
intention to possess.
30.
With respect to the estoppel to succeed the Claimants must establish that (i)
there was a representation made which is binding on the Defendant; (ii) the Claimants
relied on such representation and (iii) pursuant to such reliance acted to their
detriment and (iv) to deny the Claimants an equitable remedy in the circumstances
would be unconscionable.
31.
If the answers to all or any one of the questions posed at (i) to (iv) above is
in the negative then the Claimants’ claim must fail and I must consider the effect of
the Land Tenants (Security of Tenure) Act (“the Act”) on their tenancies and whether
the Defendant entitled to recover possession of the said lands. In this regard it must
be noted that by the reply and defence to counterclaim filed the Claimants do not deny
that in the absence of any entitlement to the equitable remedies claimed the Act
applies.
32.
With respect to the claim in estoppel and adverse possession the burden of
proof is on the Claimants. With respect to the estoppel claimed the case stands or falls
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on whether the Claimants have proved the existence of the agreement relied upon by
them and, if it is proved, whether the Defendant is bound by it. With respect to the
facts establishing the agreement the Defendant by virtue of his defence can lead no
evidence. The success of this issue is therefore to be determined on the evidence led
by the Claimants: its credibility and the weight to be put on it. In somewhat similar
manner the case in adverse possession is also dependent on the evidence led by
Sammy.
33.
I propose therefore to examine the evidence led by the Claimants on both
these causes of action, with respect to the cause of action in estoppel, to ascertain
whether there is credible evidence upon which I can come to the conclusion that there
was an agreement as pleaded by the Claimants between themselves and the Andrews.
If there is no such evidence then the Claimants’ case in estoppel cannot succeed. If I
accept the evidence of the Claimants as to the existence of the agreement then I will
proceed to consider the other elements of the claim.
34.
With respect to the cause of action in adverse possession I propose to do
the same if Sammy discharges the evidential burden upon him in this regard I propose
to consider the evidence led by the Defendant.
The Claimants’ evidence
35.
Evidence in support of the Claimants’ case was given by each Claimant
and two witnesses: Hugo Somarsingh, a land surveyor, and a neighbour Theophilus
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Nirgoon. Neither Somarsingh nor Nirgoon gave evidence of the agreement between
the Claimants and the Andrews.
36.
Nirgoon’s evidence addresses the Claimants’ occupation of the land. Since
there is in fact no dispute as to the Claimants’ occupation of the land the only
relevance of his evidence was to corroborate the dates the Claimants say they entered
onto the land. From his cross-examination however I am satisfied given his age at the
time and the number of years that have passed the witness’ recollection of these dates
is not very reliable.
37.
Somarsingh’s evidence was of a survey done by him for Gomez and
Sammy that identified the boundaries of the land occupied by them. These survey
plans were tendered into evidence. With respect to the existence of the agreement
again his evidence is of no assistance except on the question of credibility of Sammy.
His evidence however was particularly relevant on the question of Sammy’s
occupation of the additional parcel of land. According to the Surveyor apart from the
land for which he was paying rent Sammy identified to him an additional area of land
that he said he was also occupying.
38.
This area, shown in the survey plan, was described by the Surveyor to be a
strip of land approximately 6 feet in width and measuring 68.9 square meters or
approximately 741 square feet. Sammy’s water tank was located on the strip of land
and, according to the Surveyor, occupied almost the whole width of the land. The
Surveyor’s evidence is that he was told by Sammy that he had cleared that area to
prevent fire coming onto his property. Soomarsingh described the land behind the
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strip as a steep hill. I accept his evidence in this regard. He had nothing to gain from
giving it. His oral evidence was consistent with the survey plan presented in this
regard and with Sammy’s evidence in his witness statement that he had both parcels
of land surveyed.
39.
The witness statements of the Claimants all contain statements to the effect
that prior to going onto the land agreements were made with the Andrews that:
(a) they would at their own expense clear a parcel of land, prepare
it and build their home on it,
(b) they would be responsible for all the physical infrastructure
necessary for them to build their homes and to maintain the
land;
(c) they would pay a small land rent and that in the future they
would have the right to purchase the occupied parcel of land at
its open market value as undeveloped lands without the value
of their homes and improvements. It was agreed that the open
market value of the land would be assessed as at the date of the
entry into occupation.
In this regard while the evidence accords with the agreement as pleaded it does not
totally accord with the position taken in the letters of the 12th November or 3rd
December 2013 written on their behalf.
40.
Gomez says she was present when the agreement was made. Her evidence
is that the assurances were made to her husband who was the tenant. This is consistent
with the fact that she claims in her capacity of administrator of the estate of her
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husband. She gives the date of the agreement and date at which the lands would be
assessed as 1966. This too is consistent with her pleading. According to Gomez the
Andrews offered to rent them the land at a cheap rate.
41.
With respect to the Defendant’s father Gomez says that he told both her
and her husband that he was aware of the agreement that they had with the Andrews
and he would honour that agreement. She says that he arranged for the rent to be paid
to either him or his daughter Shaffina. According to her, on some of the occasions
when she paid rent to Shaffina, Shaffina also assured her that her father was aware of
the arrangement and that at any time when they were ready the lands would be sold to
them.
42.
In her witness statement Shaira Mohammed expresses the agreement in
terms of she being the tenant but says that the Andrews were approached by her
husband on her behalf. According to her the rent was to be deducted from her
husband’s salary. She says her husband told her of the agreement. The impression
given by the witness statement is that she was not there at the time when the
agreement was made. She gives the date of the agreement and the date of the
assessment of the value of the lands to be 1958.
43.
Shaira Mohammed gives no indication in her witness statement of either
the Defendant or his father indicating any knowledge of the agreement with the
Andrews. She however says in the witness statement that Elvira Andrews came to her
and told her that she had sold to the Defendant’s father on the condition that he would
not interfere with their possession and that he would honour the agreement.
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44.
Sammy says the agreement was made in 1963 but does not state the actual
date for the assessment of the value of the lands. According to him he began to
prepare the land in 1963 but did not start paying rent until 1965. He provided no
reason for this delay. Unlike the other Claimants who claim that the Andrews referred
to the land to be rented to them in terms of lots according to Sammy the agreement
specified the square footage of the land, 5000 square feet, to be rented to him.
45.
According to Sammy soon after he purchased the land the Defendant’s
father told him that he was aware of the agreement and assurances made by the
Andrews to him and that he could purchase the parcel of land at any time whenever
he was ready at the market price of the land as at 1963. According to Sammy the
Defendant’s father encouraged him to extend the house on the land to be more
comfortable with his family.
46.
All the Claimants speak of improvements being done by them to the
houses on the land. All three give evidence of the Defendant and his father observing
the improvements and not objecting. Indeed according to Sammy he was encouraged
by the Defendant’s father to extend his house. Shaira Mohammed however admits
that the Defendant objected to her demolishing and reconstructing a new building on
the land. According to her there was an exchange of lawyer’s letters in this regard.
47.
The Claimants all confirm the receipt of letters dated 20th June 2013 from
the Defendant’s Attorney requesting that they quit the premises and remove all their
structures on the land. They also advise of letters in response from their Attorneys
dated 30th July; 19th August; 12th November and 3rd December 2013. Strangely
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enough although they all purport to give a narrative of what occurred between the
Defendant and themselves none of the Claimants refer to the oral renewal of their
tenancies claimed in the correspondence of their Attorneys before the action.
48.
Gomez was not really shaken in cross-examination. While there were some
minor inconsistencies in her evidence the inconsistencies could as easily be attributed
to her age and the effect of the importance of the occasion as to a lack of
creditworthiness. From her cross-examination however two things were made clear:
this action was not prompted from any desire on her part to purchase the land but
rather by the issue of the letter by the Defendant demanding possession and the
language used in the witness statement was not her language. Both of these to my
mind affect her credibility.
49.
The real problem with the evidence of this witness was the inherent
improbability of the evidence as it related to the agreement. Since this runs through
the evidence of all the Claimants I propose to deal with this aspect separately.
50.
Unfortunately for them neither Shaira Mohammed nor Sammy presented as
credible witnesses. The first difficulty encountered by Shaira Mohammed was that it
was evident that she could not read. She admits to merely being able to sign her name.
When that came to light early in her oral evidence she claimed that the witness
statement had been read over to her by her daughter. The witness statement however
gives no indication of having been read to her by anyone and at the end of the day
there was no evidence as to what exactly was read over to this Claimant.
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51.
To my mind while this does not totally discount her evidence altogether it
certainly affects the weight to be placed on it. Accordingly I allowed the witness
statement into evidence as her witness statement and invited Attorneys to address me
on the weight to be put on it at the end of the day. The precariousness of her position
was worsened by her insistence under cross-examination that even the attachments to
the witness statement had been read over to her by her daughter. The attachments
included a deed with a plan attached; print outs of payments made to the Water and
Sewage Authority and numerous receipts. As with the First Claimant it was clear
from her cross-examination that the language used in the witness statement was not
hers.
52.
With respect to the agreement her evidence under cross-examination
contradicts the contents of her witness statement. In her witness statement she gives
clear and precise information as to the agreement made with the Andrews as told to
her by her husband. According to her in the witness statement she, not her husband,
was the beneficiary of the agreement. She says that Elvira subsequently pointed out
the land to her and said the rent would be deducted from her husband’s salary.
53.
In cross-examination however her evidence is that both she and her
husband went to see Elvira Andrews. She says they asked if they could rent a spot and
Elvira said “Ok” and told her husband to find a spot because it was a forest area. She
then says that Elvira told her that they could live on the land as long as they want and
clear the land. That is the extent of her evidence with respect to what occurred on that
occasion. Under cross-examination she accepts that neither the Defendant nor his
father encouraged them to build on the land.
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54.
There were in my opinion significant contradictions with respect the
circumstances and contents of the agreement between Shaira Mohammed’s witness
statement and her cross-examination. As well the position taken in her witness
statement of her being the tenant despite that fact that the arrangement with the
Andrews was made by her husband, he was their employee and the money for rent
was being deducted from his salary seems a little contrived. Could it have been to
deal with the fact that her husband had died and, unlike Gomez, she had no grant for
his estate. In all the circumstances I put little or no weight on the contents of her
witness statement and am not at all impressed with her credibility.
55.
Sammy too did not give a good account of himself under cross-
examination. He quite frankly came across as dishonest and shifty and, when it suited
him, prepared to manipulate the facts. For example in his reply and defence to
counterclaim, the facts of which he certified to be true, he pleads that in 1985 he
installed a water tank along the back boundary of the additional parcel of land. 7
Thereby giving the impression of an area of land the width of which was much wider
than the water tank. This is consistent with his claim that the land occupied by him
comprised 2500 square feet. The evidence from his surveyor however is that the water
tank takes up almost the whole width of the additional parcel of land.
56.
In his evidence given under cross-examination Sammy was inconsistent
and vacillating. A good example is his evidence with respect to the additional piece of
land that he says was occupied by him. His claim is with respect to 2500 square feet
of land. In his witness statement he says that he has since 1970 been in the occupation
7 paragraph 20(g) of the reply and defence to counterclaim.
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of a parcel of land comprising 2500 square. In size that amounts to a parcel of land
half the size of his tenancy. He says that in 2014 he commissioned a survey of the
parcels of land that he occupies.
57.
In cross-examination Sammy first attempts to avoid the issue of the
contents of the survey plan as it pertained to the additional area of land by claiming an
inability to understand plans. This despite the fact that he had been referred to and
answered many questions earlier in his cross-examination on one of the survey plans.
When that approach did not work he initially says that the surveyor did not survey the
extra piece of land. Later in the cross-examination he admits that he pointed out the
extra piece of land to the surveyor. At one time in the cross-examination,
contradicting what he said in his witness statement, he claims that it was his son not
him that was seeing about the survey. He later on admits that it was he who was
seeing about the survey.
58.
It does not end there he displays a similar attitude under cross-examination
on the payment by him of rent in the early years of his tenancy and the cost of the
work done and the purchase of materials over the years. It was clear from the crossexamination that he could not have spent the money he claimed to have spent on the
house or the improvements to the land. Some of the receipts presented by him were
questionable to say least. With respect to at least two of the receipts it was clear that
the receipt book was a receipt book for years beginning with 20 yet the receipts
presented are dated 1998 with the 20 crossed out.
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59.
His evidence as to the nature of his occupation of the additional parcel of
land was also not credible. With respect to the nature of his occupation he says in his
witness statement signed on the 14th October 2014: “in 1970 I cleared the additional
parcel of land of grass and planted various trees including cashew and several fruit
trees such as mango and pomemerac on the land. I have since the 1970 used this
parcel as part of my garden. I exclusively maintain the garden and regularly cut the
grass on the second parcel of the land.”
60.
Under cross-examination he admits that the purpose of the land is as a fire-
break and that there is no longer any garden there. While admitting that the land was
steep and that he had to cut into the hill to build a ledge to put his water tank he insists
that it was possible to make a garden there and that that was what he used to do.
When pressed he claims that he dug steps up the entire fire break to go up to the
garden. Not only is this not in accordance with his witness statement but it contradicts
the evidence given by his surveyor of Sammy identifying a strip of land 6 feet wide
with a steep hill to the back of it as the additional parcel of land occupied by him.
The Surveyor gives no evidence of any steps there.
61.
I do not accept Sammy’s evidence as to his occupation and user of the
additional parcel of land. I do not find Sammy to be a credible witness.
The claim in estoppel
62.
Looking at the evidence as to the agreement on the whole, except with
respect to the conversation which Gomez alleges to have had with the Defendant’s
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sister Shafina Ali, the Claimants’ case is based on agreements made and
conversations with dead persons, the Andrews and the Defendant’s father. There is no
allegation by any of them of any conversation with the Defendant referable to the
agreement or his knowledge of it. With respect to Gomez’s allegation of her
conversations with Shafina Ali these allegations were never put to Ali when she gave
her evidence.
63.
That the only evidence of the existence of the agreement comes from the
Claimants themselves is both a curse and a blessing. The blessing is that their
evidence is undisputed by any other oral evidence. The curse is that in those
circumstances a prudent court will look for some corroborating evidence simply
because they are not impartial witnesses and there are no other witnesses alive who
can challenge their evidence.
64.
The absence of such evidence does not of course prevent a court from
accepting the evidence of such witnesses if it is of the opinion that they are credible
witnesses. Where the evidence is unchallenged a court should carefully scrutinize the
evidence presented to ascertain whether any there is any evidence which will either
corroborate or put that evidence into question. This is particularly when from their
evidence, manner and demeanor in the witness box the witnesses are not particularly
credible.
65.
The Claimants submit that the fact of the permanence of the buildings
erected on the land and the money expended by them in this regard is evidence
corroborative of the existence of the agreements. I do not agree. In my opinion the
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nature of the buildings on the land and the rent receipts are equally applicable to a
finding that the Claimants were simply tenants of building land under the Act and its
predecessor the Rent Restriction Act. Indeed the rationale for introducing the Act
was for the protection of persons in a similar position to the Claimants: tenants of
building land who owned large buildings that were incapable of being removed
without being destroyed.
66.
For these tenants the Act provided additional security of tenure in the form
of 30 year leases which were renewable for a further 30 years. These leases prevented
a landlord from easily increasing the rent or ejecting the tenant. Where the Act did
allow the landlord to eject the tenant during the currency of the lease it provided for
the payment of compensation for the house on the land. The Act also gave the tenant
the right to purchase the land at half the market value during the currency of the lease.
67.
There are no contemporaneous documents that refer to the existence of any
agreement between the Andrews and the Claimants except the rent receipts. Shaira
Mohammed does not present any rent receipts issued for the land prior to the death of
her husband. Sammy presents receipts but none of them reflect that they were made
on behalf of the Andrews. The only receipt tendered into evidence that reflects that it
was made on behalf of the Andrews is a receipt dated 15th July 1969 for rent for the
year ending December 1968 made in the name of Gomez’s husband and signed by a
B. Chin Pang for A & E Andrews. This receipt makes no reference to the agreement
and only confirms the tenancy. None of the other rent receipts tendered into evidence,
contain any reference to the agreement alleged by the Claimants.
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68.
The only other document in this category is the deed of conveyance from
the Andrews to the Defendant’s father. Although it would have been possible in that
deed to make reference to the agreement no mention is made of any agreement
between the Claimants and the Andrews.
69.
To my mind, although not contemporaneous, of relevance however are
letters written by Attorneys for the Claimants on behalf of the Claimants prior to the
action insofar differences in the positions taken by the Claimants may suggest an
element of fabrication by them. In the letters dated 12th November and 3rd December
2013, the first being described as a preliminary response and the second as a full
response, the terms of the alleged agreement are somewhat different than what is now
alleged by the Claimants. In particular in neither letter is there any claim that the
agreement contained a term that the land would be sold to them at the open market
value at the time of the agreement as undeveloped lands without the value of their
homes and improvements as is now contended. This to my mind suggests that at least
with respect to that aspect of the claim there is some recent fabrication on the part of
the Claimants.
70.
The final point in my assessment of the Claimants’ credibility is the
inherent implausibility or improbability of the case as presented. It is difficult to
comprehend why the Andrews would enter into such an agreement with the
Claimants. Why would the Andrews make these promises to them on the condition
that they continue to live on the land pay the rent and construct and maintain their
houses on the land once they were tenants of the land when the very nature of their
tenancy meant that in any event the Claimants would have had these very obligations.
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71.
Under the Rent Restriction Act there was no requirement on a landlord to
clear and develop building land before renting to tenants. This was land rented to the
tenant specifically for the purpose of the erection of a chattel house used as a
dwelling. For such a tenancy therefore the Claimants would have been required to
clear and develop the lands themselves and build their houses at their own cost.
72.
Why would the Andrews bind themselves to sell land to the Claimants at a
price fixed at the value of the land as undeveloped in 1958 to 1963. What benefit
would the Andrews have obtained from this agreement. There is no suggestion that
the rent charged by the Andrews was more than the usual rentals obtained at the time.
Indeed if Gomez is to be believed this was a cheap rent. Further the Claimants, as
tenants of building land under the Rent Restriction Act, would already have had some
measure of security of tenure. Why would this agreement have been necessary.
73.
It is abundantly obvious on the facts as presented that despite the fact that
issues arose between the Defendant and the each of the Claimants before December
2013 the Claimants did not, individually nor collectively, seek to assert this
agreement until the receipt of the letter demanding possession. Indeed none of the
Claimants allege that the Defendant, whom they agree had been dealing with the land
even prior to his father’s death, ever indicated to them his knowledge and acceptance
of the special terms that attached to their tenancies. Why did they then wait until the
expiration of their statutory leases and the demand for possession by the Defendant to
assert the agreements.
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74.
I find the Claimants’ positions to be inherently implausible and
improbable. Indeed looking at the facts in the round they certainly suggest that the
agreement may have been a fabrication of the Claimants to deal with the situation that
arose because of their failure to obtain a second 30 year lease and the absence of any
provision in the Act for compensation in cases as these. While this is unfortunate I
also have to bear in mind that the Act with the provision of two consecutive 30 year
leases at fixed rents rendered serious hardship to an owner of land who was unable to
treat with the land at its full value either for rental or sale.
75.
Taking all these facts into consideration that is: (a) the lack of credibility
on the part of the Claimants; (b) that the only evidence of this agreement comes from
them; (c) the lack of support of their claim by any contemporaneous documents;(d)
that the evidence in support of their claim is equally relevant to the position as
contended by the Defendant and (e) the inherent improbably of the story presented by
the Claimants. I do not accept the evidence of the Claimants’ as to the agreement
made between them and the Andrews. In those circumstances the Claimants’ claim to
each be a beneficiary of a proprietary estoppel in their favor with respect to the land
occupied by them fails.
76.
In these circumstances given the Claimants’ admission contained in
paragraph 10 of their reply and counterclaim and the manner in which their cases
have been presented the effect of the failure by the Claimants to establish any
equitable rights is that the provisions of the Act applied to their tenancies. It is not in
dispute that the Claimants did not comply with the provisions of the Act with respect
to the renewal of their 30 year lease for a further 30 years in the circumstances the
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Claimants’ occupation of the land since the 31st May 2011 was as trespassers and the
Defendant is entitled to the possession of the land occupied by the Claimants that was
the subject of their 30 year statutory lease.
77.
With respect to the additional parcel of land I do not accept Sammy’s
evidence in this regard. He was not a credible witness and his evidence was
contradicted by his own surveyor. In these circumstances I find that Sammy has not
discharged the evidential burden him on to prove this claim. This claim is also
dismissed.
78.
Accordingly the Claimants’ claims are dismissed and the Defendant is
entitled to the relief sought in his counterclaim.
Dated this 28th day of May, 2015.
Judith Jones
Judge
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