Herman Ramdass v Marilyn Bahaw-Nanan
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER |
| Judgment Date | 14 December 2009 |
| Neutral Citation | [2009] UKPC 51 |
| Court | Privy Council |
| Docket Number | Appeal No 0038 of 2009 |
| Date | 14 December 2009 |
[2009] UKPC 51
Lord Rodger
Lord Walker
Lord Collins
Lord Kerr
Sir Christopher Rose
Privy Council
Appellant
Anand Beharrylal
(Instructed by Lee & Kan)
Respondent
Thomas Roe
(Instructed by Southfields)
The facts and the course of the litigation
On 1 April 1996 Mrs Marilyn Bahaw-Nanan (the respondent before the Board) issued a writ against Mr Herman Ramdass (the appellant before the Board) claiming possession of a plot of land at New Colonial Company Road, Barrackpore and mesne profits from 2 December (an error for 22 December) 1984. Her statement of claim pleaded that Mrs Bahaw-Nanan was the owner of the land (with particulars of her title); that the land had been let to Mr Herman Ramdass's father, Mr Bhim Ramdass, by an oral agreement on an annual tenancy at a yearly rent of $16; that the tenancy had been determined by one or other of two notices to quit served on 30 December 1986 (agreed to be an error for 1976) and 30 December 1979, but that Mr Bhim Ramdass had remained in possession until his death on 21 December 1984; and that Mr Herman Ramdass was in unlawful possession as a trespasser. The statement of claim also pleaded that the plaintiff's right to possession was not subject to any statutory restrictions. Mr Ramdass's defence denied the validity of the notices to quit and counterclaimed for a declaration that he was the lawful tenant. It made no positive case as to any statutory protection. The pleadings on both sides were drafted and signed by attorneys.
Apart from the statement in the defence that Mr Herman Ramdass was born in 1960 and had lived on the land all his life, neither pleading made any reference to the fact (which is now common ground) that on the land there was a house which had been constructed by Mr Bhim Ramdass. The Board was shown some photographs of the house. It is a substantial wooden house raised off the ground by steel joists, with concrete foundations and outside stairs. It is by no means the sort of prefabricated cabin that could be lifted with a crane and put on a lorry. There was no evidence as to exactly when it was built, but on Mr Ramdass's evidence it would have been before 1960.
The case took a long time to come to trial. It was heard by Ventour J on 11 June 2004. He heard evidence from the parties and from two other witnesses called on behalf of Mrs Bahaw-Nanan. The judge made his order shortly afterwards, on 5 July 2004. He made an order for possession and awarded mesne profits from 1978 until judgment. He awarded Mr Ramdass $30,000 as compensation for the value of the house. He made no order as to costs.
The judge's reasons for his order were given in writing on 3 January 2007. On the pleaded issue he accepted the evidence that a notice to quit had been served by Mrs Bahaw-Nanan's mother (who owned the property from 1976 until 1981) and that the tenancy was lawfully terminated with effect from 1978.
In his written reasons the judge also considered two issues which had not been raised in the pleadings, but had been raised in counsel's oral submissions. These were as to the effect of the Rent Restriction Act (Ch 59: 50) and the Land Tenants (Security of Tenure) Act (Ch 59: 54). It is accepted that the judge was right to consider these matters, since it is the court's duty to see whether a tenant is entitled to statutory protection, even if the point is not pleaded or raised by the tenant ( Smith v Poulter [1947] KB 339, 341). The judge's conclusions on the issues as to statutory protection, in brief summary, were that Mr Ramdass continued in occupation of the land as a statutory tenant under the Rent Restriction Act, but that as a statutory tenant he did not have a tenancy entitling him to a statutory lease under the Land Tenants (Security of Tenure) Act. These statutes are summarised and considered below.
Mr Ramdass appealed and on 11 January 2008 the Court of Appeal (John, Archie and Weekes JJA) dismissed the appeal without calling on the respondent's counsel. John JA is reported as having said that the appeal had no merit, and that the Court would put its reasons in writing if necessary. The Board was told that the Court of Appeal has not given even brief written reasons, despite requests. That is regrettable but the Court must be taken to have seen no reason to disturb the judge's decision on any issue of law or fact. Mrs Bahaw-Nanan did not cross-appeal against the award of $30,000 compensation which she was ordered to pay to Mr Ramdass.
The Court of Appeal also refused Mr Ramdass leave to appeal to the Board. That has been another matter of complaint but it is now academic since the Board gave leave. The Board has not however permitted Mr Ramdass's counsel to raise an entirely new point, not so much as hinted at below (and inconsistent with the whole thrust of his case below) as to Mr Ramdass having acquired a title by adverse possession.
The Rent Restriction Act
The Rent Restriction Act was enacted (as the Rent Restriction Ordinance) in 1941 at a time when there was an acute shortage of accommodation in Trinidad and Tobago. It was modelled on the British rent restriction legislation. Its purpose was to restrict rents, and to provide a degree of security of tenure, for tenanted property in various categories. Its provisions applied (section 3(1)) to building land, dwelling-houses and public and commercial buildings (those three expressions being defined in section 2(1)) in specified reas of Trinidad and Tobago, subject to various exceptions in section 3(2). "Building land" was defined as
"land let to a tenant for the purpose of the erection thereon by the tenant of a building used, or to be used, as a dwelling or for the public service or for business, trade or professional purposes, or for any combination of such purposes, or land on which the tenant has lawfully erected such a building, but does not include any such land when let with agricultural land."
"Tenant" was defined as including –
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(a) a sub-tenant and any person deriving title from the original tenant or sub-tenant, as the case may be;
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(b) the widow of a tenant who was residing with him at the time of his death, or, where a tenant leaves no widow or is a woman, such member of the tenant's family as was residing with the tenant for not less than six months immediately before the death of the tenant as may be decided in default of agreement by a court or by a [Rent Assessment] Board."
Under section 4 the President had power, by Order subject to affirmative resolution of Parliament, to extend the provisions of the Act, to give directions as to the ascertainment of rents, to exclude areas from the operation of the Act and (section 4(1)(d)):
"exclude from the operation of this Act any specified premises, or any specified classes or descriptions of premises, or any specified classes or descriptions of premises in a specified area."
Sections 5 to 13 dealt with the control of rents, including restrictions on premiums and penalties for contraventions.
Sections 14 and 15 (whose derivation from the British legislation is easy to see) were concerned with restricting a landlord's right to possession. By section 14(1) there was to be no possession order in respect of premises to which the Act applied unless the case fell within one or more of paragraphs (a) to (r) of the subsection. These included arrears of rent and other breaches of the tenant's obligations; the premises being required for a variety of other purposes; termination of an employment to which the tenancy is linked; and so on. Section 14(1) further provided that the court was to make the possession order only if it was reasonable to do so, and (in some cases) that less hardship would be caused by making the order than by refusing it. Section 15(1) (with the side-note "Conditions of statutory tenancy") provided:
"A tenant who, under this Act, retains possession of any premises shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with this Act, and shall be entitled to give up possession of the premises only on giving such notice as would have been required under the original contract of tenancy; but, notwithstanding anything in the contract of tenancy, a landlord who obtains an order for the recovery of possession of premises or for the ejectment of a tenant retaining possession as aforesaid shall not be required to give any notice to quit to the tenant."
One of the most curious features of the Rent Restriction Act was section 1(2), which (in its original form) provided:
"This Act shall continue in force until 23 February 1981 and may be continued in force...
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