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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015 – 00546

IN THE MATTER UNDER THE REGISTRATION OF DEEDS ACT CHAPTER 19:06

AND

IN THE MATTER OF THE HOUSING ACT CHAPTER 33:01

BETWEEN

ANGELA JOSIAH MOSES Claimant

AND

THE TRINIDAD AND TOBAGO HOUSING DEVELOPMENT CORPORATION

(Previously the National Housing Authority) First Defendant

INGA BLACKWELL Second Defendant

Before the Honourable Madame Justice Margaret Y. Mohammed

Dated the 28th November, 2016

APPEARANCES:

Ms. Sally Ann King-Solomon Attorney at law for the Claimant.

Mr. Shankar Bidaisee instructed by Ms. Rachel Jaggernauth Attorneys at law for the First

Defendant.

Mr. Lasana Murray Attorney at law for the Second Defendant.

JUDGMENT

1. The First Defendant was established under the Trinidad and Tobago Housing

Development Corporation Act1 in 2005 and under section 41 (1) it assumed all the assets,

1 Chapter 33:03

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liabilities, rights and obligations of the National Housing Authority (“the NHA”). The

Claimant and Joseph Stollmeyer also known as Stollmeyer Joseph (“the Deceased”)

applied to the NHA to purchase a house. By letter dated 19th July, 19842 the NHA informed

the Deceased and the Claimant that their application to purchase a mortgage house was

accepted subject to certain terms and conditions. By Agreement dated 19th November,

19843 (“the Interim Agreement”) made between the State and the Claimant and the

Deceased, the State permitted the Deceased and the Claimant to occupy Lot 9009 Phase 5

La Horquetta South, Arima (“the property”) for a period of 364 days, commencing on 19th

November, 1984 for an annual rent of $529.21 payable to the NHA, for and on behalf of

the State, in twelve equal installments. The Claimant and the Deceased commenced

occupation of the property but in 1987 the Claimant left the property and in 1996 she went

to reside in the United States of America.

2. The Deceased continued residing on the property until his death on 19th March, 2008. On

14th November, 2008 the Second Defendant on behalf of Ridge Renaldo Anthony Joseph

(the alleged son of the Deceased and the Second Defendant) obtained the Grant of Letters

of Administration of the Deceased’s Estate4. The property was listed in the inventory as

part of the Deceased’s Estate5.

3. On the 27th July, 2010 the First Defendant granted a sublease of the property to the Second

Defendant for a period of 199 years commencing from 2nd January, 2010 (‘the Deed of

Sublease”). By letter dated 30th June, 20116 the First Defendant wrote to the Claimant

requesting the payment of the sum of $70,122.77 and the Claimant paid the sum of

$64,618.89.

4. The Claimant has instituted instant proceedings seeking the following orders:

2 Trial Bundle 1 page 27 3 Trial Bundle 1 page 25 4 Trial Bundle 1 page 131 5 Trial Bundle 1 page 133 6 Trial Bundle 1 page 48

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(a) The Second Defendant to quit and deliver up possession of the property

(b) The Second Defendant to execute a Deed of Surrender for the property.

(c) The First Defendant be ordered to release the property from Memorandum of

Charge No. CH201100206153D001.

(d) The First Defendant vests the property in the Claimant, or alternatively provide

the Claimant with suitable alternative housing accommodation.

(e) The Registrar General expunged from the records the Deed of Sub-lease.

(f) Damages for use and occupancy of the property from the period 27th July, 2010 to

date.

(g) Damages for loss of savings for rental payments from 1st October, 2014 to date in

the sum of Three Thousand ($3,000.00) Dollars per month.

(h) The First Defendant pay the costs.

(i) Such further and/or other reliefs the Court deems just.

5. The Claimant’s case was that she and the Deceased became the joint owners of the

leasehold interest in the property which they mortgaged to the NHA. After the Deceased

passed away the Claimant became the sole owner of the leasehold interest in the property

and that the First Defendant breached its duty of care to her as the sole owner of the

property when it granted the Deed of Sublease to the Second Defendant.

6. The First Defendant’s position was that the relationship between the State and the Claimant

and the Deceased was one of landlord and tenant initially for a period of 364 days and it

was terminated due to the effluxion of time on 17th November, 1985. Thereafter the

landlord/tenant relationship continued on a monthly basis with both the Claimant and the

Deceased until 1987 when the Claimant abandoning the property. After the Claimant left

the property, the relationship of landlord and tenant continued between the Deceased and

NHA and later after the 23rd March 2000 with the First Defendant. The monthly tenancy

came to an end when the Deceased died. At that time there was no joint tenancy between

the NHA and/or the First Defendant and the Claimant and/or the Deceased. There was no

right of survivorship to operate in favour of the Claimant. The First Defendant has also

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denied that there was a mortgage of the property. It has admitted that in error it collected

the sum of $64,618.89 from the Claimant and it has offered to reimburse the Claimant. It

has also denied that the Claimant is entitled for the damages she has pleaded.

7. The Second Defendant’s Defence mirrored the First Defendant’s position.

8. In order to succeed with her claim, the onus was on the Claimant to prove that she and the

Deceased had acquired the leasehold interest in the property jointly; they mortgaged it to

the NHA/First Defendant; at the time of the death of the Deceased the Claimant was the

only person entitled to the property and the First Defendant breached its duty of care to her

by demising the leasehold interest in the property to the Second Defendant. The issues

which arise for determination are:

(a) Were the Claimant and the Deceased joint owners of the leasehold interest in the

property at the time of the Deceased’s death?

(b) Was there a mortgage between the NHA and the Claimant and the Deceased for the

property?

(c) Did either party rescind the offer to purchase the property?

(d) Did the First Defendant owe a duty of care to the Claimant with respect to the

property?

(e) Has the Claimant suffered any loss and if so has she proven it?

9. At the trial the Claimant gave evidence and Mr Jeremy Campbell was the First Defendant’s

witness. There was no evidence led for the Second Defendant.

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Were the Claimant and the Deceased joint owners of the leasehold interest in the

property at the time of the Deceased’s death?

10. Halsbury’s Laws of England7 defines a lease arrangement as:

“The relationship of landlord and tenant arises as a rule when one person, the

landlord, with the intent to create a tenancy confers on another, the tenant, the right

to the exclusive possession of land, mines or buildings. The grant or demise must

be either for a time which is subject to a definite limit originally, as in the case of

a lease for a term of years certain, or for a time, although originally indefinite, can

be made subject to a definite limit by either party as of right by that party giving

appropriate notice to the other, for example a year to year tenancy”.

11. It was submitted on behalf of the Claimant that the NHA sold the leasehold interest in the

property to the Claimant and the Deceased when they paid the consideration and signed

the Interim Agreement on the 19th November 1984. Therefore the Claimant and the

Deceased had a joint lease with the NHA/First Defendant for the property at the time of

the Deceased’s death and by the law of survivorship after the Deceased died she became

the sole owner of the property.

12. The law on survivorship was described in Halsbury’s Laws of England8 as:

“The death of one joint tenant creates no vacancy in the seisin or possession. His

interest is extinguished. If there were only two joint tenants, the survivor is now

seised or possessed of the whole. If there were more than two, the survivors

continue to hold as joint tenants. This incident, which is called the jus accrescendi,

is the most important feature of joint tenancy”.

13. According to the Claimant’s witness statement, in 1984 she and the Deceased received a

letter dated 19th July 1984 from the NHA which stated that their application to purchase a

mortgage house was accepted and that the selling price was the sum of $79,304.30 and that

7 4th Edition Volume 27 paragraph 1 page 1 8 4th Edition Volume 39 page 351 paragraph 531

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there were certain conditions which she and the Deceased were required to fulfil in order

to finalize the purchase. The Claimant and the Deceased fulfilled two of the conditions

namely they paid the consideration of $4,494.43 and they signed the Interim Agreement.

They were also required to enter into a lease for the property and to execute a mortgage but

this was contingent upon when legislation was in place to do so.

14. In cross examination the Claimant stated that she signed documents to purchase a

mortgaged house and that she was not aware that she signed any document to enter into a

tenancy agreement for 364 days. When she was shown the Interim Agreement she accepted

that the signature was hers and while she was not prepared to state that the Interim

Agreement was fraudulent she said she knew that she signed for a mortgage.

15. The First Defendant argued that the letter dated 19th July 1984 the NHA was an offer to the

Claimant and the Deceased to purchase the leasehold interest in the property, but the offer

was subject to the fulfilment of certain terms and conditions. The Claimant and the

Deceased did not meet all the conditions set out in the aforesaid letter therefore they were

not granted a lease of the property beyond the initial period of 364 days from the 19th

November 1984. Therefore the Claimant had no right under the law of survivorship when

the Deceased died. The Claimant and the Deceased remained in occupation of the property

jointly after the 17th November 1985 as month to month tenants and when the Claimant left

the property in 1987 only the Deceased remained as the NHA/First Defendant’s month to

month tenant until he died.

16. In my opinion there is merit in the First Defendant’s arguments when compared to the

Claimant’s for the following reasons.

17. Firstly, the letter dated the 19th July 1984 was only a conditional offer. According to the

letter dated the 19th July 19849 the Claimant and the Deceased were informed that: The

Claimant and Deceased’s application to purchase a mortgage house was accepted; the NHA

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offered them a two bedroom WAFDA unit at La Horquetta at a selling price of $79,304.30

inclusive of the Land Premium of $4000.00 with a 30 year state land lease; the application

was subject to verification/field investigation, the production of tax clearances from the

Board of Inland Revenue, the production of an Income Tax Assessment Notice;

irregularities in the application may result in the withdrawal of the offer to sell the property;

prior to the purchase they were required to enter into the Interim Agreement; to pay the

sum of 44,494.43 prior to occupation; 2 months after the execution of the Interim

Agreement they could occupy the property; and when the necessary legislation is passed

they would be required to enter into a lease and execute a mortgage for the property.

18. The Claimant understood that the letter of the 19th July 1984 was only a conditional offer

since at paragraph 2(a) of the Reply10, the Claimant admitted that, “… letter of the 19th July

1984 was a conditional offer to her and the deceased to purchase a mortgage house which

they were free to accept or reject”. Therefore, by the Claimant’s own admission she

understood that the letter dated 19th July 1984 did not grant a lease of the property to the

Claimant and the Deceased and that it was only a conditional offer to purchase a mortgage

house.

19. Secondly, the Claimant failed to prove that she and the Deceased had fulfilled all the

conditions in the 19th July 1984 letter. One of the conditions in the letter of the 19th July

1984 was the execution of an Interim Agreement. The First Defendant accepted the validity

of the Interim Agreement which was only signed by the Claimant and the Deceased and

not by the Sub-Intendant of State Lands. However, the Claimant challenged the validity of

the Interim Agreement since she pleaded at paragraph 3 of the Reply11 that it was not

binding. In my view this position undermined the Claimant’s case since it meant that she

and the Deceased did not satisfy all the requisite terms and/or conditions of the 19th July

1984 letter in order to have a Deed of Lease prepared and executed in favour of her and the

Deceased.

10 Trial Bundle 1 page 231 11 Trial bundle 1 page 27

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20. But that was not all. In cross examination the Claimant admitted that she signed an

agreement which she believed was to purchase a mortgaged house. It is reasonable to

conclude that the agreement which the Claimant signed was the Interim Agreement.

Therefore this evidence is entirely opposite to the position articulated in her pleadings and

submissions that the Interim Agreement was void. In my opinion the inconsistency between

the Claimant’s evidence and the position adopted in her pleading further undermined her

case that she and the Deceased were joint tenants of the property.

21. Thirdly, the Claimant failed to prove that she and the Deceased had fulfilled certain

conditions in the Interim Agreement. According to the Interim Agreement the Claimant

and the Deceased became the NHA’s tenants of the property for 364 days subject to

renewal based on the fulfillment of the conditions in Clauses 6 and 7 which provided:

“6. If the Tenant [the Deceased and the Claimant] is desirous of taking a new

Tenancy of the Premises [the said property] from and after the expiration of the

Tenancy hereby created and of such his desire, delivers or sends by registered post

to the Executive Director, of the National Housing Authority for the Landlord [the

State] notice in writing not less than 3 months before the expiration of the said

Tenancy then the Landlord at or before the expiration of the said Tenancy hereby

created if there is no subsisting breach of any of the Tenant’s obligations under this

present Agreement at the cost of the Tenant grant to the Tenant a new Tenancy

hereby of the Premises for a like period to commence from and after the expiration

of the Tenancy hereby grant at a rent being a rent not less than the rent payable

hereunder to be agreed between the parties hereto not less than three months before

the expiration of the said Tenancy and subject in all other respects to the same

stipulations as are herein contained.

7. Upon receipt of written notification by the Tenant from the Landlord of the

preparation of the Lease and provided that the rent shall have been paid and

several stipulations and conditions on the part of the Tenant be performed and

observed and upon payment of a premium which shall be based on the aggregate

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amount of the costs of constructing the building and the appurtenances thereto

belonging the Tenant shall be required to execute the said lease of the premises for

the term of 30 years with an option for renewal for a further term of 30 years at the

premium aforestated and at a yearly rent which said lease shall contain an absolute

covenant against assignment”.

22. Based on the Interim Agreement if the Claimant and the Deceased wanted a lease for any

period after the 364 days they had to fulfil the conditions in clauses 6 and 7 namely they

had to send written notice to the Executive Director of NHA of their intention to continue

the tenancy three (3) months before the 364 days expired, and once that written notice was

received and other stipulations and conditions were met, then the Deed of Lease would

have been prepared and executed. The Claimant failed to place any evidence before the

Court to show that she and the Deceased had fulfilled the conditions in clauses 6 and 7 of

the Interim Agreement which she admitted in cross examination she executed and the other

conditions in the July 1984 letter.

23. I have therefore found that for 364 days from the 19th November 1984 the Deceased and

the Claimant were joint tenants of the leasehold interest in the property.

24. I turn now to their occupation of the property after the 17th November 1985. According to

Halsbury’s Laws of England12 “A lease may only be determined in one of certain

recognized ways, that is by (1) effluxion of time …”. A tenant at will is a tenant who

continues in possession of the premises with the landlord’s consent13. It is a personal

relationship which is determined by death of either of them14.

25. By the Interim Agreement the State agreed to allow the Deceased and the Claimant to

occupy the property for 364 days commencing from 19th November, 1984 at the payment

of $529.21 payable in twelve equal installments. At the end of that period, which was17th

12 4th Edition Volume 27 page 324 paragraph 419 13 Halsbury’s Laws of England 4th Edition Volume 27 page 130 paragraph 175 14 Halsbury’s Laws of England 4th Edition Volume 27 page 130 paragraph 174

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November, 1985, that tenancy came to an end due to effluxion of time. When the tenancy

came to an end after 364 days, the Deceased and the Claimant remained on the property.

The State did not serve any Notice to Quit on the Deceased and/or Claimant in relation to

the property but the NHA continued to receive a monthly rent from the Deceased for the

property. In my opinion a monthly tenancy at will then existed between NHA/the First

Defendant and the Deceased after 17th November 1985.

26. During cross examination, the Claimant admitted that she left the said property in 1987 and

had nothing to do with it and/or NHA/the First Defendant until she was contacted by the

First Defendant’s letter dated 30th June, 201115. She also admitted during cross

examination that she did not pay any monies to NHA/the First Defendant while the

Deceased occupied the property. In my opinion based on the Claimant’s evidence she

could not be regarded as tenant of the NHA/ First Defendant subsequent to her departure

since she did not even pay rent which was one of the conditions of being a tenant.

Therefore I agree with the First Defendant that after the Claimant left the property in 1987

she ceased being a month to month tenant of the property.

27. For the aforesaid reasons I have found after the expiration of the 364 days the Claimant

and the Deceased did not jointly have a lease of the property. When the Claimant left the

property in 1987 she no longer had a landlord/tenant relationship with the NHA/ First

Defendant. At the time of the Deceased’s death the Claimant did not jointly own the

leasehold interest in property. Therefore the law of survivorship does not apply.

Was there a mortgage between the NHA and the Claimant and the Deceased for the

property?

28. It was not in dispute that there was no legal mortgage for the property since the Claimant

and the Deceased did not execute a deed of mortgage in favour of the NHA/First Defendant.

However the Claimant has asked the Court to find that even in the absence of a legal

mortgage that the Claimant had mortgaged the property to the NHA/First Defendant. The

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Claimant has grounded her contention in the letter dated 19th July 1984. The Claimant

argued that in the 19th July 1984 letter to the Claimant and the Deceased the NHA accepted

their application to purchase a mortgage house; the said letter required them to enter into a

lease for the property and to execute a mortgage deed but that the execution of the lease

and the mortgage deed were contingent upon when legislation was in place to do so. It was

her position that the said letter created a mortgage on the property but the deed of mortgage

could not have been executed nor prepared until such time as the property was vested in

the First Defendant which was not until the year 2000. To support the aforesaid position

the Claimant relied on section 3 of the Landlord and Tenant Ordinance16 which provides

that, “… any agreement in writing to let or surrender any land shall be valid and take effect

as an agreement to execute a lease or surrender …”.

29. The First Defendant argued that the letter dated 19th July1984 letter was not an agreement

for a legal mortgage. The said letter was a conditional offer because it clearly stated that

the granting of the mortgage were subject to verification/field investigation, the production

of tax clearances from the Board of Inland Revenue, the production of an Income Tax

Assessment Notice and entering into an Interim Agreement, and that irregularities may

result in the withdrawal of the offer. Therefore the failure by the Claimant and the Deceased

to meet all the conditions including to comply with Clauses 6 and 7 of the Interim

Agreement meant that the offer of the mortgage to the Claimant and the Deceased lapsed

and could not have been resuscitated by any subsequent payments made by the Claimant.

30. Halsbury’s Laws of England17 defines an equitable mortgage as:

“An equitable mortgage is a contract which creates a charge on the property but

does not convey any legal interest to the creditor; such a charge amounts to an

equitable interest. An equitable mortgage may be made either (1) by an agreement

to create a legal mortgage; (2) by a mortgage of an equitable interest; (3) by a

deposit of title deeds; or (4) by an equitable charge”.

16 Chapter 27 No 16 17 4th Edition Volume 32 page 189 paragraph 405

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31. The Claimant averred that the First Defendant recognized the Claimant as a mortgagor of

the property and the person beneficially entitled to it since this was the basis that it informed

her by letter dated 30th June 2011 of the amount owing on the property and for issuing the

Certificate of Indebtedness dated the 7th October 2011 to her. She also averred that the First

Defendant only pleaded that the said correspondence were done in error in order to excuse

it from its conduct.

32. To support her assertion the Claimant presented documents issued by the NHA/First

Defendant which referred to a mortgage account. According to the Claimant’s witness

statement the receipts she and the Deceased received from the NHA stated that the

payments were made as “Installment on Mortgage account number 180002190100”. She

exhibited as AJM 4 a bundle of receipts all dated in 1984 which made such a reference.

She also stated that in July 201118 she received a letter from the First Defendant informing

her that she was required to liquidate the sum of $70,122.77 on the “mortgage account”

she had with them. On the 7th October 2011 she received a Certificate of Indebtedness from

the First Defendant confirming the sum she had to pay off on the 31st October 2011, 30th

November 2011 and 31st December 2011. According to the said letter she was referred to

as the “Mortgagor”. She stated that she was unable to raise $24,000.00 so she made

payments of $6,000.00 each on the 1st November 2011; the 29th November 2011; the 29th

December 2011 and the final payment of $6,618.89 on the 2nd February 2012. She also

exhibited the receipts where she made the said payments. According to her the last receipt

stated that the loan was paid off. During cross examination the Claimant stated that she

knew that the document she signed was for a mortgaged house.

33. It was not in dispute that the only document the Claimant and the Deceased signed was the

Interim Agreement and that the Claimant’s name remained on the First Defendant’s record.

The First Defendant has acknowledged that by letter dated 30th June, 201119 it requested

the Claimant to pay money after it had executed the Deed of Sublease in favour of the

Second Defendant and then it went on to accept the sum of $64,618.89 from the Claimant

18 “AJM 5” 19 Trial Bundle 1 page 48

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in relation to arrears on the account. It also acknowledged that by letter dated 20th March,

201220 it indicated to the Second Defendant that the Claimant was the sole surviving tenant

for the property and it was for that reason the property ought not have formed part of the

Deceased’s Estate. It further acknowledged that by letter dated 13th January, 201321 it stated

that the Claimant acquired the property by virtue of the right of survivorship.

34. Based on the receipts and correspondence issued by the NHA/the First Defendant, the

Claimant cannot be faulted in believing that she had a mortgage jointly with the Deceased

and after the Deceased died she was the sole mortgagor of the property. However in my

opinion these references were errors which were not enough to create any right for the

Claimant in the property and for the Court to find otherwise would mean that it would be

permitting the errors to be perpetuated which was incapable of granting any interest in the

property to the Claimant.

35. In my opinion, the 19th July 1984 letter was an offer by the State to the Claimant and the

Deceased to enter into occupation of the property which was accepted. However, the offer

was collateral with an offer to enter into a mortgage agreement which was not accepted by

the Deceased and/or the Claimant since they did not comply with Clauses 6 and 7 of the

Interim Agreement. Therefore the offer to enter into a mortgage lapsed as it was a time

sensitive offer (3 months prior to the expiration of the 364 days lease) and the continued

occupation of the property by the Deceased and the Claimant after the initial 364 days

period amounted to a month to month tenancy, for which arrears of rent accrued. At the

time of the Deceased’s death (19th March, 2008), the Claimant did not jointly hold any

interest with the Deceased in the property capable in law and/or equity to amount to an

equitable mortgage. The only interest was a monthly tenancy which, after the Claimant’s

departure was solely accessed by the Deceased. The payment of arrears on the account on

behalf of the Deceased did not create any interest in favour of the Claimant as there is no

evidence before the Court of any agreement to so do.

20 Trial Bundle 1 page 69 21Trial Bundle 1 page 77

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36. Therefore, even though the First Defendant accepted money from the Claimant after it

executed a Deed of Sublease in favour of the Second Defendant, these payments could not

create any subsequent rights for the Claimant in relation to the property.

37. I therefore find that there was no equitable mortgage since the Claimant and the Deceased

did not meet all the conditions in the 19th July 1984 letter and the Interim Agreement. I also

find that the subsequent payments made by the Claimant did not resuscitate and/or create

any rights in the property.

Did either party rescind the offer to purchase the property?

38. The Claimant submitted, “There was no rescission of the offer to purchase the subject

property by either party”22. I agree with the First Defendant’s submissions that the

Claimant did not raise the rescission of the option to purchase the property in her

pleadings23 but since it has been raised in the Claimant’s submissions it is necessary to

address it.

39. An agreement or contract is rescinded when it is brought to an end and its effect of its

existence are cancelled or terminated24. According to Halsbury’s Laws of England25:

“In every case of breach of contract a question may arise as to whether the breach

is of such a nature that the party not in default has the choice of treating the

contract as discharged. All the following formulae continue to have some

authority, though there is a considerable degree of overlap among them: failure of

condition precedent … and fundamental breach”.

22 Page 5 of her Submissions (last paragraph on that page) filed on the 17th October 2016 23 Trial Bundle 1 pages 230 to 235 24 Halsbury’s Laws of England 4th Edition Volume 9 page 369 paragraph 535 25 4th Edition Volume 9 page 371 paragraph 539

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40. Halsbury’s26 further state that “In considering whether there has been defective

performance such that the innocent party may treat the contract as discharged, it must be

ascertained whether, on the proper construction of the contract, the performance of the

promise of one party is a condition precedent to the liability of the other to perform his

part or is independent of it…

The terminology of “fundamental breach” and “breach of a fundamental term”, which

originally adopted to deal with problems created by wide exclusion clauses, has also been

brought into service to determine whether a breach of contract is sufficiently serious to

justify the innocent party in treating himself as discharged from further obligations under

the contract. It has been said that a fundamental term is no more than a condition that is

a term which the parties either expressly or impliedly which goes to the root of the contract,

so that any breach of that term, without reference to the facts and circumstances will allow

the innocent party to treat himself as discharged 27”.

41. Clause 6 of the Interim Agreement expressly stated that if the Deceased and the Claimant

wanted a lease to be executed in their favour for the property, then three (3) months prior

to the expiration of the 364 days lease, they ought to have sent written notice of their

intention to the NHA’s Executive Director. In my opinion this was a fundamental term

which was also a condition precedent for the execution of a Deed of Lease in favour of the

Deceased and/or Claimant. By failing to comply with Clause 6, the NHA/ the First

Defendant was under no obligation to execute any Deed of Lease in favour of the Deceased

and/or the Claimant. Therefore, they held over as monthly tenants, up until the Claimant

abandoned the property, and thereafter the Deceased solely.

42. In my opinion the omission by the Claimant and/ Deceased to comply with Clause 6 of the

Interim Agreement effectively meant the offer to purchase the property was rescinded by

them.

26 Halsbury’s Laws of England 4th Edition Volume 9 page 371 paragraph 540 27 4th Edition Volume 9 pages 374 and 375 paragraph 545

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Did the First Defendant owe a duty of care to the Claimant?

43. The Claimant pleaded that the First Defendant breached its duty of care to the Claimant

when advising the Second Defendant while there was a relationship of lessor/lessee

between the First Defendant and the Claimant; by causing the Second Defendant to sign

an indemnity form without the benefit of independent legal advice; by vesting the property

in the Second Defendant; by causing the property to be encumbered in the sum of

$50,228.76; by failing to take adequate steps to have the Second Defendant execute a Deed

of Surrender and to deliver up possession of the property; and by failing to take any or any

adequate steps to have the Second Defendant satisfy the mortgage debt on the property.

The Claimant also averred that the First Defendant breached its statutory duty when it

failed to take any or any adequate steps to vest the property in the Claimant’s name pursuant

to section 26 of the Housing Act28 or to provide the Claimant with suitable alternative

accommodation.

44. It was submitted on behalf of the Claimant that the First Defendant had an implied duty of

care to inform the Claimant and the Deceased at the earliest opportunity when they could

enter into a lease and execute a mortgage deed for the property. In support the Claimant,

quoted the preamble of the National Housing Authority (Vesting) Act 200429 which

recognized that the NHA was prevented from providing evidence of title to occupiers of

houses and apartments and that this caused great hardship and anxiety to them.

45. It was also submitted on behalf of the Claimant that the First Defendant was aware that the

property was erroneously listed as an asset of the Deceased and it informed the Second

Defendant of same yet it granted a sublease of the property for 199 years to the Second

Defendant. The First Defendant relied solely on information from the Second Defendant

without carrying out its own investigation to verify the validity of the information from the

Second Defendant. In support the Claimant relied on section 13(1)(c) of the Trinidad and

28 Chapter 33:01 29 Chapter 33:06

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Tobago Housing Development Act30. As a consequence, it was argued that the First

Defendant breached the duty of care it owed to the Claimant when it transferred to and

further encumbered the property in the sum of $50,000.00 to the Second Defendant which

the Claimant was beneficially entitled to.

46. In my opinion the Claimant has failed to prove that the First Defendant owed any duty of

care to her for the following reasons.

47. Firstly, the National Housing Authority (Vesting) Act did not empower the NHA/ First

Defendant to grant documents of title to tenants who did not inform its Executive Director

by way of written notice that they wanted a lease executed in their favour, which the

Claimant admitted that she failed to do and was unaware whether the Deceased did so.

There was no implied duty for the NHA/First Defendant to contact the Deceased and/or

the Claimant to execute a mortgage deed because as far they were concerned the Deceased

and/or the Claimant did not want a mortgage deed executed in their favour because they

failed to comply with all the requisite terms for approval of the application for a mortgage,

in particular, to give the NHA’s Executive Director written notice at least three (3) months

prior to the expiration of the 364 days lease in compliance with Clause 6 of the Interim

Agreement. As such, the Deceased remained as a monthly tenant. There was no annual

tenancy at any time which was capable of holding over as the initial tenancy was for a

period of 364 days.

48. Secondly, there was no mandatory duty bestowed on the First Defendant to conduct

investigations and surveys necessary for the performance of its functions and duties under

section 13 of the Trinidad and Tobago Housing Development Corporation Act. Section

13(1)(c) of the Trinidad and Tobago Housing Development Corporation Act, permits

it to “implement the board policy of the government in relation to housing as may be

directed by the Minister from time to time” and under Section 13(2) (c) the First Defendant

30 Chapter 33:03

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may carry out investigations and the surveys necessary for the performance of its functions

and duties.

49. Thirdly, according to the evidence of Jeremy Campbell prior to the execution of the Deed

of Sublease, diligent efforts were made by the Second Defendant to ascertain the

Claimant’s whereabouts by placing at least eight (8) advertisements in the Trinidad Express

Newspaper31. Therefore the First Defendant did not only rely on the statements made by

the Second Defendants since diligent attempts were made to ascertain the whereabouts of

the Claimant prior to any execution of a Deed of Sublease in favour of the Second

Defendant.

Has the Claimant suffered any loss and if so has she proven it?

50. The Claimant pleaded that a claim for damages for use and occupancy of the property for

the period 27th July 20101 to date and damages for loss of saving for rental payments from

1st October 2014 to date in the sum of $3,000.00 per month.

51. Having found that the Claimant has failed to prove that the Defendants were liable for any

loss she suffered it follows that she is not entitled to recover any damages against them.

52. In any event, it is settled law that special damages must be pleaded and proven. In Bonham

v Hyde Park Hotel32 which was adopted in Grant v Motilal Moonan33 Bernard CJ said

“Plaintiffs must understand that if they bring actions for damages, it is for them to prove

their damage. It is not enough to write down the particulars, so to speak, throw them at the

head of the Court saying ‘this is what I have lost; I ask you to give me these damages.’

They have to prove it”. It therefore follows that the court is restrained from compensating

a Claimant for any item of special damage if it is not proven by way of proper

documentation or compelling corroborating evidence.

31 Paragraph 16 of the Witness statement of Jeremy Campbell 32 (1948) 64 TLR 178 33 (1988) 43 WIR 372

Page 19 of 20

53. The Claimant did not plead any particulars in support of her claim for damages for use and

occupancy from 27th July, 2010 to 18th February, 2015. There is also no document in

support of such claim. The Claimant did not plead any particulars in support of her claim

for damages for loss of savings for rental payments from 1st October, 2014 to 18th February,

2015 at $3,000.00 per month.

54. Therefore even if the Claimant had succeeded on liability she would have still fallen short

in proving any loss of special damages as pleaded.

Conclusion

55. The Claimant’s claim is dismissed. The Court finds that the relationship between the NHA/

First Defendant and the Claimant and the Deceased was one of landlord and tenant initially

for a period of 364 days which was terminated due to effluxion of time on 17th November,

1985. The landlord/tenant relationship thereafter continued on a month to month basis.

There no agreement to grant any lease. When the title for the property became vested in

the First Defendant on 23rd March, 2000 the relationship of landlord and tenant continued

with the Deceased as tenant since the Claimant abandoned the property in 1987. Upon the

death of the Deceased in 2008, the monthly tenancy came to an end.

56. At the time of the Deceased’s death in 2008, the Claimant did not jointly hold any interest

with the Deceased in the property under any lease, agreement for a lease or any mortgage.

As such, at the time of the Deceased’s death, there was no right of survivorship to operate

in favour of the Claimant in relation to the property.

57. No equitable mortgage existed between the NHA/ the First Defendant and the Deceased

and/or Claimant since they failed to send written notice to the NHA’s Executive Director

within 3 months prior to the expiration of the 364 days lease in compliance with Clause 6

of the Interim Agreement. The Claimant’s payment of money to the First Defendant

Page 20 of 20

subsequent to 2011 did not create any subsequent rights for the Claimant in the property

and/or entitlement to alternative accommodation.

58. The First Defendant did not owe the Claimant any duty of care to the Claimant since there

was no lease, no agreement for a lease and no mortgage of the property. There was no

implied duty for NHA/First Defendant to contact the Deceased and/or the Claimant to

execute a mortgage deed because as far as NHA was concerned, the Deceased and/or the

Claimant did not want a mortgage deed executed in their favour since they failed to comply

with all the requisite terms for approval of the application for a mortgage, namely, to give

NHA’s Executive Director written notice at least three (3) months prior to the expiration

of the 364 days lease in compliance with Clause 6 of the Interim Agreement.

59. The omission by the Claimant and/or Deceased to comply with Clause 6 of the interim

Agreement effectively meant the offer to purchase the property was rescinded by them.

The Claimant has failed to prove that the Defendants are liable to her for any loss.

60. The Claimant did not ask for the sum of $64,618.89 which she paid to the First Defendant

subsequent to 2011 to be repaid to her. However, the First Defendant averred in its Defence

that it is willing to reimburse the Claimant the said sum which she has refused. The Court

hopes that the First Defendant will make good on this offer to reimburse the Claimant with

the said sum.

ORDER

61. The Claimant’s action is dismissed.

62. The Claimant to pay the First and Second Defendants costs of the action to be assessed in

default of agreement.

Margaret Y Mohammed

Judge