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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No: CV 2011-003545

BETWEEN

KAMEEL KHAN

Claimant

AND

C.G.A.S. DEVELOPMENT COMPANY LIMITED

Defendant

Before the Honourable Madam Justice C. Pemberton

Appearances

For the Claimant: Mr R. Dass instructed by Ms J. Troja

For the Defendant: Ms S. Maharaj holding for Mr R. Montano

Ms D. A. Prowell and Ms C.A Prowell instructed by Mr R. Montano.

JUDGMENT

[1] This matter was born out of a physical re-entry onto premises by a Landlord and

demolition of a building on the property.

[2] FACTS

The Claimant Kameel Khan (KK) acquired a Leasehold interest in certain lands situate in

the town of Sangre Grande, East Trinidad. These lands were acquired in 1973 from his

relatives. Marlay and Company Limited were the Reversioners. On June 1st 1981, the

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LAND TENANTS (SECURITY OF TENURE) ACT1 (“the Act”) was passed. Lands which were

held by tenants under a residential chattel tenancy fell under its ambit and were

captured by certain statutory terms and conditions. It is therefore undisputed that as at

1st June 1981 KK was the statutory tenant of Marlay and Company.

[3] In 2002, Marlay and Company went into liquidation. The Receivers sold the entirety of

the property including KK’s parcel which was subject to the terms and conditions of the

Act to CGAS Development Company Limited. Since that transaction has not been called

into question, I shall express no view on that subject.

[4] As we move along we see the appearance of the following as uncontroverted facts:

(1) That during the period 1978 – 1985 the land was used in its entirety as

residential property.

(2) That there was an express covenant in the head lease speaking to user

and debarring expressly user for any other purpose “than as a single

private dwelling house”.

(3) There was another express covenant in the head lease speaking against

subletting without the prior written permission of the Landlord and

rental of the demised premises in excess of that paid to the Landlord. (The

latter was not part of the Defendant’s pleaded counterclaim and shall not

be treated with).

(4) The lease permits the Landlord to forfeit and re-enter for breach of any of

the covenants on the Tenant’s part.

(5) That KK had breached the covenant against single residential use.

(6) KK purportedly issued the Notice of Renewal which bore the date 19th

March 2010. Rent was tendered up to April 2010.

(7) As at the date that KK issued the Notice of Renewal to CGAS the premises

were in mixed use as partly residential and partly commercial.

1 Now Chap. 59:54 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO

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(8) The premises had been sublet. There is no evidence that they had been

sublet with CGAS’s consent.

(9) On 13th July 2011, CGAS served a notice of breach of the covenant against

single user and another breach expressed in the following terms that

“contrary to law, (KK) leased out the buildings standing on our client’s land

to three commercial enterprises…”. The letter called upon KK to “remove

and carry away from the said lands all the buildings and improvements

thereon which you have erected during your occupation”.

(10) KK purported to remedy the breach against use for residential purposes

only. Copies of the Notices to Quit to the pursuers of the commercial user

were attached for the Court’s perusal. He did not address the breach of the

other covenant with respect to subletting.

(11) On 12th September 2011, CGAS forfeited the lease and re-entered since KK

was in breach of the covenant against subletting without the landlord’s

consent first had and obtained.

(12) KK contends that the forfeiture and re-entry and demolition of the

structures on the land were unlawful and illegal and wishes damages for

his loss. In addition, KK wishes the court to declare that the statutory lease

was validly renewed and is subsisting; that the option to purchase had

been validly exercised and is enforceable against CGAS.

(13) CGAS resisted these claims in their entirety and counter claimed that it

was entitled to forfeit and re enter for breach of the term of statutory

lease dealing with subletting; that the tenants were being charged less

than the rental charged in the head lease and for the expenses incurred

consequent upon the demolition of KK’s buildings.2

2 See para 2 of the Defence and Counter claim filed 21 October 2011.

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[5] GENERAL OBSERVATIONS

For the removal of all doubt, I shall reproduce the terms of the Consent Order of 18th

March 2014 by which this trial on issue is to be determined.

ISSUE TO BE DETERMINED BY THE COURT

1.1 Whether the renewal notice was served by the Claimant to the

Defendant and whether the evidence as presented that is by way of

the hearsay notice is admissible;

1.2 At the date of renewal, could there have been one granted under the

Act having regard to the admitted breaches?

I shall not consider therefore any other issue in particular whether KK had validly

exercised his option to purchase. That did not form part of the bases for the matter

being dealt with in this way. In any event, KK’s indication of his option to renew as the

operative option at the time of the formulation of the issue of law to be tried will

supersede any other issues raised. Further it is clear and not disputed that at the time of

discussion for the exercise of the option to purchase, KK was in clear violation of the

covenant referring to user.

[6] WHETHER THE RENEWAL NOTICE WAS SERVED BY THE CLAIMANT ON THE DEFENDANT

AND WHETHER THE EVIDENCE AS PRESENTED THAT IS BY WAY OF THE HEARSAY

NOTICE IS ADMISSIBLE

Both parties submitted extensively on this issue. My only addition is that the provisions

of Part 30 of the CPR are clear and unambiguous. If a statement is admissible under

Section 37 of the EVIDENCE ACT3 as a statement made out of court by someone not

intended to be called as a witness, then if the statement is made in a document, the CPR

provides that certain conditions must exist before the statements made are admissible.

The other party has the option of filing a counter notice to require the production of the

author of the statement. My own view is that there is sufficient admissible evidence in

Mrs Radha Carrie Maharaj’s witness statement to convince the court that the notice was

3 Chap. 7:02 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO

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served by registered post. I do not think that this issue turns the case either towards or

against KK or CGAS.

[7] AT THE DATE OF RENEWAL, COULD THERE HAVE BEEN ONE GRANTED UNDER THE ACT

HAVING REGARD TO THE ADMITTED BREACHES?

To my mind, this is the more salient issue. As stated above, it is uncontroverted that as

at the date of the service of the notice of renewal, KK was in breach of the covenant

against user. Mr Dass spent a considerable amount of time in seeking to convince me

that CGAS was in violation of the provisions of Section 70 of the CONVEYANCING AND

LAW OF PROPERTY ACT4 (“the CLPA”). Ms Prowell declined to be drawn into any

discussion as she claimed that these issues were not contemplated at the time of the

Consent Order.

[8] LAW, ANAYSIS AND CONCLUSION

THE CLPA

RIGHTS OF LANDLORD OF FORFEITURE AND RE-ENTRY FOR BREACHES OF COVENANTS

AND TERMS OF THE LEASE.

I premise this discussion by observing that the terms of the CLPA and the Act must be

read jointly. Where they differ, if at all, the Act as the later in time will prevail. I must

make the point as well that the letter sent by CGAS on July 13th 2011 made mention of

two infractions, breach of the user covenant and breach of the covenant against

subletting without consent. However it was expressed, I am satisfied of this from the

letter. There has been no contradiction of this from KK.

[9] The CLPA at Section 70 clearly outlines when a Landlord can forfeit and re-enter. These

conditions for enforceability of the right by action or otherwise must be followed

strictly. Those conditions are:

4 Chap. 56:01 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO

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The existence in the lease of the right of re-entry or

forfeiture

That it must be stated to be exercisable for the breach of

any covenant or condition.

That before the right is enforced by action or otherwise,

that is before the right is actualized either by way of self

help or by court action, the Landlord MUST serve a

NOTICE on the tenant. The Act implies that the Notice

must be in writing.

The contents of the NOTICE must be:

(a) The nature of the breach;

(b) Whether the breach is capable of being remedied;

(c) That the tenant remedy the breach;

(d) In any case that the tenant pay to the Landlord any

compensation in money for the breach;

The tenant upon receipt of the notice must act within a

reasonable time frame; each time frame will be referenced

by the circumstances of the case;

If there is a failure to remedy the breach within that

reasonable time frame, (and to make the compensation

in money to the satisfaction of the lessor).

The right to re-enter or forfeit the lease materializes.

[10] Section 70 further provides then the Lessee may apply to the Court for relief from the

re-entry or forfeiture and the court, in its discretion may provide relief. I refer to this is

as the codification of the court’s equitable jurisdiction. This ability to apply by the

lessee can arise once the notice is served and is not dependent upon whether the lessor

has filed an action or not. The CLPA expressly provides that these provisions, that is,

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those of Section 70 do not apply to covenants against assigning, under-letting or parting

with possession or disposing of the land leased.

[11] ANALYSIS

The admitted breach is change of user. So far so good! There will therefore be obvious

need for the Section 70 Notice. That is KK’s case. However CGAS is saying you have

admitted that the change of user constituted a breach and you remedied it. To my

mind, to raise the issue of non compliance with the Section 70 requirements as a basis

for this case does not assist KK. What is more telling is how do we treat with the rising

specter that the breach of the covenant against subletting, not captured by the

strictures of Section 70, (which clearly states that a Notice is NOT required for breach of

the covenant against assigning and under-letting) is clearly established as a fact in this

matter.

[12] It is clear that the change of user is NOT the issue that is determinative of whether KK

succeeds or fails. The salient point is the covenant against assigning and under-letting

and whether as at the date of the alleged notice to purchase all was well between the

landlord and the tenant. I can say without hesitation that KK knew that he was in

breach. There was no need for any such notice to him either in fact or in law.

[13] THE ACT

As I stated earlier, the tenancy, the subject matter of this action falls within the

provisions of the Act.5 Section 4 of the Act speaks to the tenant’s right to seek renewal

of the lease provided that the tenant serves a written notice of renewal on the landlord

at least six months before the expiration of the original term of the statutory lease. The

Act is silent as to whether there must be a valid and subsisting lease at the time of

renewal, but there is nothing in the Act to suggest that there is to be any departure

5 See Section 4 of the Act which speaks to the conversion of existing tenancies to statutory leases.

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from the established common law that this condition precedent must exist in order for

the tenant’s right to exercise the option to renew to arise.

[14] The issue therefore is one as framed for deliberation and which will be determinative of

the matters at dispute between the parties. To answer that question, one must look at

the breaches complained of by the landlord. One of them is a breach of the covenant

with respect to user. The other is a breach of the covenant against subletting. In the

original lease, breaches of both of these covenants vest in the landlord a right to forfeit

and re-enter the demised premises.

[15] The question is, does this right survive in the face of the provisions of Section 5 of the

Act? Section 5(1) mandates that “The terms and conditions of an existing tenancy

converted into a statutory lease by section 4 shall, subject to this section be

incorporated in the statutory lease as terms and conditions in such lease”. Subsection

(2) provides that upon such conversion, “any term or condition of such tenancy

inconsistent with the terms and conditions of a statutory lease set out in this section …

shall be void to the extent of the inconsistency”.

[16] With respect to the alleged breach under consideration, assigning and or subletting,

Subsection (8) provides that “A tenant has the right to assign or sublet with the

consent of the landlord whose consent shall not be unreasonably withheld, but the

rent payable by any subtenant shall not exceed the rent payable by the tenant to the

landlord under this Act.” Let me state quite clearly that the proviso to this subsection,

concerning whether the rents received by the tenant exceed those levied under the

head lease arose on the pleaded case put forward as part of CGAS’s Defence and

Counter Claim6.

6 Para. 2.16. The Defendant puts the Claimant to strict proof that the commercial tenants…were being charged less

than $120.00 per month charged by the Statutory Lease.

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[17] In the Reply and Defence to Counter Claim the Claimant makes a positive admission as

to the contents of paragraph 2.16 but gave no further details.7 All I can say is that this

part of Subsection 8 has been violated.

[18] My interpretation of Section 5(8) is that it creates a positive right exercisable by the

tenant, to inter alia sublet, which is different from the prohibition contained in the head

lease. In the head lease, the tenant covenants not to assign or sublet without first

obtaining the landlord’s consent. The landlord’s consent contains no strictures as to its

grant. By the operation of section 5(2), it is therefore clear that the provisions which are

applicable are those contained by incorporation of section 5(8).

[19] Two issues emerge from this, one these facts and one on the law. The factual issue is did

KK seek CGAS’s or its predecessor in title’s permission for subletting the premises?

There is no evidence that there was such. That was to his detriment. The right to sublet

is predicated upon obtaining the landlord’s consent in the first instance, which must be

sought before it can be given. In fact, Section 108 of the Act outlines the procedure for

the exercise of the tenant’s right to assign or in this case sublet. KK has provided not

factual basis or evidence that this procedure was followed. A subletting otherwise than

in accordance with the Section 5(8) Act disallows the enforcement of the statutory right

and constitutes a breach of the statutory provisions surrounding the exercise of the

right.

[20] My learned sister Jones J had almost similar circumstances arising for her consideration

in the MACKAY CASE9. Should I be allowed, I categorically state that I agree with the

analysis and conclusions arrived at in that case and wish to associate myself

unreservedly with them. According to the learned judge, in converting an existing

tenancy into a statutory lease for a fixed period, Parliament could not have intended to

7 Paragraph 7 of the Reply admits paragraphs 2.1 to 2.9 of the Defence. 8 Section 10 (1) A tenant who wishes to exercise his right pursuant to section 5(8) shall serve on the landlord an

application in writing for the landlord’s consent. 9 CV 2009-01602 MACKAY & ORS v JESSE HENDERSON COMPANY LIMITED.

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disable the landlord from determining the lease within the fixed period or that the right

of the landlord to terminate the lease was exercisable only in situations where there

was a non-payment of rent.10 Similarly there is no legislative bar or conditions to be

satisfied under the Act to curtail the exercise the landlord’s right to forfeit and re enter

the premises. In fact according to Jones J at paragraphs 33 and 34 state:

… it would seem to me that with respect to tenancies under the Act by

expressly incorporating the terms and conditions of the existing

tenancy into the statutory lease, but not, save with respect to arrears

of rent, limiting the landlord’s right to possession, the intention of

Parliament could only have been to provide for security of tenure for

those tenancies subject to the Act only insofar as it relates to the

length of the tenancy, remedies available to the landlord for the non-

payment of rent and affording the tenant the opportunity of

purchasing the land at a reduced price. Save as to these aspects it

would seem that Parliament intended that all the terms and

conditions of the contractual tenancy to continue once not

inconsistent with the Act.

…in so far as the …(original) lease allows for re-entry upon a breach of

a covenant … this term or condition is not inconsistent with the terms

and conditions of a statutory lease established by the Act…. the

ability of the landlord to re-enter the premises upon a breach or non

observance of lessee’s covenants … not being inconsistent with the

provisions of the Act, has been incorporated into the statutory lease.

[21] WHAT ARE THE REMEDIES AVAILABLE TO THE LANDLORD FOR BREACH OF THE

STATUTORY PROVISONS WITH RESPECT TO THE RIGHT TO SUBLET?

1010

See para. 31 op. cit.

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Interestingly enough, the only redress given under the Act to the landlord lies in the

area of non-payment of rent. Does this mean that in the face of the non observance of

any other terms, statutorily incorporated or otherwise valid by the tenant, that the

landlord is powerless to rely on the right to forfeit the lease and re-enter the premises?

[22] This issue confronted Jones J in the MACKAY CASE as well. Again, I share the learned

Judge’s view that “… by virtue of section 5 of the Act “ the right of forfeiture and re

entry for breaches or non observance of tenant’s covenants or in this case non

observance of the provisions of the Act has been incorporated into the statutory lease

and is available to the landlord. The effect of this therefore is that KK’s subletting

without CGAS’s or its predecessor in title’s consent to entitle CGAS to re-enter and take

possession of the demised premises.

[23] WAIVER OF THE BREACH

Mr Dass in his submissions raised the issue that Marlay and Company and by extension

CGAS waived the breach concerning subletting since they continued to accept rents.

Again, this was dealt with by Jones J. Relying on a passage from the noted text Hill and

Redman, I can safely say that this point is a non starter. The authors state as follows “…

where a breach of covenant (or in this case a non observance of the provisions of the

Act) which gives rise to the right of re-entry is a continuing breach there is a continually

recurring cause of forfeiture, and the receipt of rent … is only a waiver of the forfeiture

incurred up to the date when the rent was due… and the lessor is not precluded from

taking advantage of the continuing breach since that date…”. I do not think that I need

say more.

[24] THE OPTION TO RENEW AND WHEN EXERCISABLE

An option to renew can only be exercisable by a tenant in good standing. In other

words, there must be a valid lease in existence. This was clearly not the case here. The

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lease would have been voidable at the instance of the landlord who could choose to

terminate the relationship as CGAS did in this case.

[25] CONCLUSION

Whether CGAS received the notice of renewal from KK is therefore immaterial since at

that date, KK was in violation of section 5(8) of the Act giving rise to CGAS’s right to

forfeit the lease and re-enter the premises. Mr Dass made mention of section 5(4) of the

Act to limit the landlord’s right to demolish any structures on the land. This is not

applicable to the case at bar. The section specifically deals with non-payment or arrears

of rent and the role of the Land Commission.

[26] On the claim I find that KK’s lease could not have been validly renewed since he was in

violation of Section 5(8) of the Act. The lease was voidable at that time and the landlord

exercised his right to avoid it outright. The issue of the option to purchase is a non issue

in this matter. CGAS as landlord was within its right to forfeit and re-enter the demised

premises.

[27] THE COUNTER CLAIM

There was a specific plea in the Defence and Counter claim speaking to the fact that KK’s

subletting was in breach of the statutory lease as KK did so without CGAS’s or its

predecessor’s consent. This entitled CGAS to forfeit and re enter the demised premises.

In so doing, CGAS incurred and therefore claimed the expenses associated with securing

the premises after re-entry and the demolition of the buildings on the premises. I can

see no bar to recovering these expenses from KK once properly vouched and accounted

for. In addition on the basis of the admitted breach I find that KK charged the tenants

sums for rent in excess of that paid under the Statutory Lease. This would attract

liability in damages for breach of this part of Subsection 8.

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[28] In the premises, I can come to no other conclusion but to dismiss the claim as filed and

to find for the defendant on the counter claim with damages to be assessed by a Master

together with costs to be prescribed.

IT IS NOW ORDERED AS FOLLOWS:

A. THE CLAIM FILED 16TH SEPTEMBER 2011

1. That the claim filed by the Claimant on 16th September 2011 be and is hereby

dismissed.

2. That the Claimant do pay the Defendant’s costs prescribed in the sum of

$14,000.00.

B. THE COUNTER CLAIM FILED ON 21st OCTOBER 2011

3. That there be judgment for the Defendant on the Counterclaim.

4. That the damages be assessed by a Master in Chambers.

5. That the costs of the counterclaim be paid by the Claimant to the Defendant on

the prescribed basis upon the outcome of the assessment of damages.

Dated this 30th day of June 2014.

/s/ CHARMAINE PEMBERTON

HIGH COURT JUDGE