David Gopaul on behalf of HV Holdings Ltd v Vitra Imam Baksh on behalf of the Incorporated Trustees of the Presbyterian Church of Trinidad and Tobago

Heard on 6 December 2011

The issue in this appeal is how the Land Tenants (Security of Tenure) Act, Chapter 59:54 ("The Land Tenants Act") applies to a rather unusual set of facts: a Presbyterian church and an adjacent manse (or minister's house) comprised in a single tenancy.

The Land Tenants Act is itself an unusual statute. Its main effect was a once-for-all transfer of rights from landlords to tenants holding under a particular type of tenancy. Parliament recognised that its enactment in 1981 might arguably impinge on landlords' constitutional rights to the enjoyment of property under section 4(a) of the Constitution, and it was passed by a special majority in each House as required by section 13(2) of the Constitution.

The Board was provided with a good deal of material about the statute's origins and passage through Parliament. None of that material meets the stringent requirements of Pepper v Hart [1993] AC 593. It cannot therefore be determinative of the particular issue of statutory construction that the Board has to decide. But the material does help to explain the general background, and the mischief (referred to in Parliament as a crisis) which the Land Tenants Act was intended to remedy.

The social and economic background is described in Owusu, Commonwealth Caribbean Land Law, (2006) pp 46–47, explaining the origins of "the peculiar structure of the chattel house":

"It evolved as a result of the insecurity of land tenure which followed emancipation. While the workers attempted to escape from the hegemony of the plantation complex, the symbol of coercion and inferiority, they had difficulty in finding land and housing accommodation away from the plantation. The planters had a near monopoly of the land market. The plantations were the only institutions capable of meeting the workers' demand for accommodation. This helped the planters to secure labour. They then introduced a tenancy system where workers became tenants of land and houses on the several plantations under terms and conditions specific to the individual plantations. They were given the house and spot for which they rendered labour in part payment. They were tenants at will. They could be evicted at short notice. And on eviction they had to leave the plantation. What the worker needed was a moveable house, that is, something that the labourer could take with him if and when he was expelled from the dwelling land owned by the plantation owner.

This is the origin of the chattel house."

There is a similar account by Justice H A Fraser of the Supreme Court of Trinidad and Tobago in "The Civil Law and its Administration," BIICL (1966) pp 91–93.

The picture that emerges is that by the 1970's large numbers of citizens of Trinidad and Tobago were tenants occupying small houses which they had erected at their own expense, with the consent or acquiescence of their landlords. But security of tenure (originally granted by emergency wartime legislation, the Rent Restriction Act, Chapter 59:50) was progressively withdrawn from different categories of tenancies under powers conferred by section 4(1) of the Rent Restriction Act. This can be seen from the Rent Restriction (Exclusion of Premises) Order as from time to time amended and extended, culminating in the whole statute lapsing under a "sunset clause" in 2002.

Meanwhile, as tenants became rather more prosperous, their houses became less like chattels and more like habitations permanently affixed to the land. Solid concrete foundations, concrete walls and built-in drainage replaced wooden panels attached by bolts to low concrete footings. Increasingly a tenant's house could no longer be removed without damage both to the house itself and to its foundations. Its removal by the tenant was no longer possible, either physically or as a matter of law. All this was considered at length in the judgment of Fraser J in Mitchell v Forde (1963) 5 WIR 409 and (in less detail) by the Board in Ramdass v Bahaw-Nanan, 14 December 2009, [2009] UKPC 51. A tenant whose tenancy came to an end was therefore at risk of losing the home that he had erected at his own expense.

This was seen as a grave social problem, as appears from the debate in the House of Representatives on what was originally called the Chattel Buildings Bill. It was introduced by the Attorney General and Minister for Legal Affairs, Mr Richardson. The Board cites these passages not as Pepper v Hart material but as a general indication of the legislative purpose. Mr Richardson said (20 March 1981, cols 1808 and 1809):

"Everyone knows how widespread and deep-seated the practice of tenants building houses on the lands of their landlords has been in Trinidad and Tobago. It is as old as the abolition of slavery and the introduction of the indentured system in this country. With the progress of time, the movable one-room houses have given place to irremovable dwellings of steel and reinforced concrete, but the law has lagged behind, failing to catch up with and to reflect the realities of today.

Because of the affluence, instead of having chattel houses tenants started to build real solid houses, houses of concrete and steel and as such they continue to call them chattel houses. This problem is peculiar to Trinidad and Tobago, so peculiar so grave, that what we have to do today is literally to change the Constitution so that those tenants would benefit. To do this, we would have to pass this Bill by a three-fifths majority in both Houses of Parliament."

The Bill was passed unanimously by the House of Representatives but ran into technical difficulties in the Senate, where it was committed to a select committee. It emerged from the select committee with a new name, the Land Tenants (Security of Tenure) Bill, and was passed unanimously on 19 May 1981. It was enacted on 1 June 1981, which was the appointed day for its coming into operation.

The Land Tenants Act recites that it was passed under the procedure required by section 13(2) of the Constitution, and section 1(2) provides that it is to have effect even though inconsistent with sections 4 and 5 of the Constitution.

Section 2 contains a definition of "chattel house":

"'Chattel house' includes a building erected by a tenant upon land comprised in his tenancy with the consent or acquiescence of the landlord and affixed to the land in such a way as to be incapable of being removed from its site without destruction".

In this definition, the word "includes" is important. It is common ground that the definition extends to any building falling within the first part of the definition ("a building erected by a tenant upon land comprised in his tenancy with the consent or acquiescence of the landlord") whether or not it is capable of being removed without destruction. Section 2 also contains a wide definition of "tenant", and "tenancy" is to be construed accordingly.

Section 3(1) provides as follows:

"Subject to subsection (2), this Act applies to tenancies in respect of land in Trinidad and Tobago on which at the time specified in section 4(1) a chattel house used as a dwelling is erected or a chattel house intended to be used as a dwelling is in the actual process of being erected."

Section 3(2) contains five exceptions, including a tenancy of agricultural land, a tenancy of land owned by a local authority, and a tenancy for a term having more than thirty years unexpired on the appointed day. Section 3(3) provides that the Act does not bind the State, so that land owned by the State is another exception.

Section 4 provides as follows:

"(1) Notwithstanding any law or agreement to the contrary but subject to this Act, every tenancy to which this Act applies subsisting immediately before the appointed day shall as from the appointed day become a statutory lease for the purposes of this Act.

(2) A statutory lease shall be a lease for thirty years commencing from the appointed day and, subject to subsection (3), renewable by the tenant for a further period of thirty years."

Subsection (3) required the tenant to give at least six months written notice in order to exercise his right of renewal, but under the Land Tenants (Security of Tenure)(Amendment) Act 2010 (No 10 of 2010) it is sufficient to give notice on or before the expiration of the original term of the statutory lease. Subsection (5) provides:

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