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TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE H.C.A. No. 145 of 2001
BETWEEN
HUBERT JOB Plaintiff
AND
MAUD BABB SKERRET MC DONALD GREENE Defendants
Before the Honourable Mr. Justice Ventour Appearances: Mr. C. Pope for the Plaintiff Mrs. D. Gouveia for the 2nd Defendant The 1st Defendant was not served with the proceedings
DECISION On September 26, 2001 the Plaintiff issued a Writ of Summons seeking against
the Defendants, inter alia, damages for breach of the covenant of quiet
enjoyment with respect to the tenancy of premises situate at No. 40 Wilson
Street, Scarborough, Tobago. The Statement of Claim filed on 18th October,
2001 alleges that the written tenancy agreement made between the Plaintiff on
the one hand and the 1st named Defendant on the other contained an implied
term that the Plaintiff would peaceably hold, use and occupy the said premises
without molestation from the 1st named Defendant.
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The Plaintiff further alleges that in breach of the said implied term of the tenancy
the Defendants, their servants and/or agents, cut off the water and electricity
supply to the said premises, blocked the entrance leading to the said remises
and served the Plaintiff with an illegal notice to quit the said premises and
initiated ejectment proceedings in the Scarborough Magistrate Court against the
Plaintiff.
The 1st named Defendant was never served with the Writ of Summons and the
Statement of Claim. On 6th June, 2002 an appearance was nevertheless entered
on behalf of both Defendants. No defence having been filed by the Defendants,
an application was made by the Plaintiff, by Notice of Motion filed on 7th October,
2002, for judgment in default.
On the hearing of the Motion leave was given to the Plaintiff to withdraw the said
Motion. In spite of the fact that no defence had been filed by the Defendants a
summons for direction was issued by the Plaintiff and heard by the Assistant
Registrar on 27th November, 2003. It is difficult to understand why the Summons
was entertained when in fact the records confirmed that pleadings were not
closed in accordance with Order 25 Rule 1 of the Rules of the Supreme Court.
Nevertheless the matter came before this Court for trial on 15th April, 2005 and
because the Court was otherwise engaged, hearing was adjourned to 13th June,
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2005 for the trial to begin. On the adjourned date, Counsel for the 2nd Defendant
indicated to the Court that the 1st Defendant was never served with the
proceedings (I took that to mean that the appearance entered on her behalf as
indicated earlier was an error) and, as a consequence, the Plaintiff could not
proceed against her. So far as the 2nd named Defendant was concerned
Counsel apologised for the failure to file the defence within the time provided by
the Rules of the Supreme Court and indicated that the defence was ready and
sought leave to file same. There was some opposition to the application, but in
the interest of justice, the Court ordered that the defence be filed on or before 12
noon on 13th June, 2005. The trial was then adjourned to 24th June, 2005.
The defence of the 2nd named Defendant was in fact filed on 13th June, 2005. In
his defence, the 2nd Defendant admitted that the Plaintiff was a monthly tenant
He also admitted the implied term of the tenancy as pleaded by the Plaintiff. This
Defendant however denied that he cut off the water supply or the electricity
supply to the said premises. He further alleges that the Plaintiff was kept
appraised of all the repairs that was necessary to the premises by written
communication and that at no time did he (the 2nd Defendant) cause the entrance
of the said premises to be blocked by the rocks as alleged.
The Plaintiff’s evidence
On 24th June, 2005 the trial began as directed. The only witness called for the
Plaintiff was the Plaintiff himself. Mr. Job testified that on or around October 15,
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1993 he orally entered into an agreement with the 1st named Defendant for the
rental of the downstairs apartment of the premises situate at No.40 Wilson
Street, Scarborough, Tobago. After one year the tenancy was renewed in
writing for a further year and similar renewals continued until 15th April, 1999
when the tenancy was renewed for a period of two years, that is, until 15th April,
2001.
The Plaintiff further testified that on Friday 24, 2000 he received a notice issued
by the 2nd named Defendant that he (the Plaintiff) quit the said premises. The
Plaintiff testified that he subsequently learnt that on March 3, 2000 the 2nd
Defendant had been given a Power of Attorney to act on behalf of the 1st
Defendant. The Notice to Quit demanded that the Plaintiff vacate the premises
within three (3) months from the date of service of the said notice. Mr. Job
further testified that he did not vacate the premises as requested, because he
had a written agreement authorising him to remain in possession until 15th April,
2001.
Following the expiration of the three (3) months, the 2nd Defendant issued an
eviction summons for the Plaintiff to appear before the Magistrate’s Court. He
appeared on 8th August, 2000 when the 2nd Defendant indicated to the Presiding
Magistrate that he needed time to secure the services of a lawyer and the matter
was adjourned to 20th September, 2000 and on that day, hearing was further
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adjourned to September 28, 2000 on which date, the 2nd Defendant failed to
appear and the matter was dismissed by the Magistrate.
This witness also testified that on 1st August, 2000, that is, prior to receiving the
eviction summons, the 2nd Defendant caused the water supply to the apartment
to be disconnected. As a consequence, he had to walk to the public standpipe to
get water for his family’s use. He said that that state of affairs continued until 7th
September, 2000.
Further, on or about 6th August, 2000 at about 4:45 a.m. and without warning, the
Plaintiff said that there was an interruption in the electricity supply. He recalled
seeing a gentleman by the name of Junior Marcelle, whom he knew worked for
the 2nd Defendant, standing on the staircase directly in front of the splitter box.
He said he immediately contacted the 2nd Defendant’s sister one Urla Greene
who was able to secure the reconnection of the electricity supply by 6:15 a.m.
that very morning. The Plaintiff further testified that on 6th September, 2000 the
Trinidad and Tobago Electricity formerly disconnected the entire supply of
electricity to the apartment.
Mr. Job tells the Court that his problems did not end there because sometime in
August 2000 the 2nd Defendant caused to be deposited three (3) truck loads of
rotten rocks in the walkway blocking his access to and from the apartment. He
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said the rocks remained in the walkway up until the end of November 2000, when
he vacated the said premises.
This witness recalled that on or about 25th June, 2000 the landlady (the 1st
named Defendant) was taken away from the premises, leaving the upstairs
apartment vacant. In September of the same year, the 2nd Defendant began
repair works on the upper floor of the apartment. The noise emanating from the
pounding of the upper flooring during the day affected the Plaintiff considerably to
the extent that he could not sleep after returning home from work. With no
running water in the apartment, no electricity, access to and from the apartment
obstructed and the continuous noise resulting from the repair work being
undertaken by the 2nd Defendant, the Plaintiff testified that he was forced to send
his entire family to the USA on the 23rd September, 2000. Mr. Job further
testified that he continued to endure the inconveniences until he decided to
vacate the premises in November 2000 and caused his Attorney at Law to initiate
legal proceedings against the Defendants for damages for breach of contract.
The Defendant’s evidence
Three witness were called on behalf of the defence. The 1st witness was the 2nd
Defendant himself. Mr. Greene testified that he was given a Power of Attorney
by the 1st named Defendant on 3rd March, 2000 to look after her affairs. As a
consequence, he said that on or about 24th October, 2000 he served the Plaintiff
with Notice to Quit the premises. This witness said that he knew that the Plaintiff
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had entered into a written tenancy agreement with his Aunt (the 1st named
Defendant herein) and that the tenancy was to continue until the 15th April, 2001.
Notwithstanding, he nevertheless, issued the notice to quit because he wanted
the Plaintiff to vacate the said premises.
Under cross-examination he denied that he cut the water supply or disconnected
the water supply to the premises. He testified that the Plaintiff had complained to
the landlady about the water leaking into his apartment from the upper floor and
that he also complained that the lights in his apartment was flickering
intermittently. As a result, Mr. Greene said that he made every effort to rectify
those problems. Further, Mr. Greene admitted depositing four (4) truck load of
rocks in the walkway of the premises for the specific purpose of levelling the area
to prevent the water from the roadway running onto the premises.
Mr. Greene also testified that he undertook repair work to the flooring of the
upstairs apartment but before doing so he did inform the Plaintiff in writing.
Under cross-examination Mr. Greene acknowledged that the repair work would
have affected the Plaintiff’s quiet enjoyment of the said premises.
The evidence of the 2nd Defendant’s second witness, Urla Greene (she is the
sister of the 2nd Defendant) supported that of the 2nd named Defendant in many
respects.
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The final witness for the defence was Mr. Elrod Baynes, a retired Electrical
Inspector II of the Tobago House of Assembly. Mr. Baynes testified that
sometime in the year 2000 an application was made for the inspection of the
electrical installation of the premises described as No. 40 Wilson Street,
Scarborough. This witness said that he inspected the installation of both the
upstairs and downstairs apartment and found some major defects which he listed
and reported to the Applicant. Mr. Baynes said that the Applicant was given a
certain amount of time to have the defects corrected, failing which, he (Mr.
Baynes) had to provide all the necessary information to the Trinidad and Tobago
Electricity Commission (T&TEC) and recommend that the electrical supply to the
premises be disconnected. The witness testified that in the particular case the
defects were not corrected within the given time and he advised T & TEC
accordingly. The electricity supply was disconnected on the 9th day of
September, 2000.
The Nature to Quit
In assessing the evidence before the Court, I first wish to deal with the Notice to
Quit served on the Plaintiff in the month of March 2000. On 3rd March, 2000 Mr.
Greene had received the Power of Attorney from his Aunt, the 1st named
Defendant herein, and he wasted no time in issuing the Notice to Quit for the
Plaintiff and his family to vacate the said premises. Only the year before, the
landlady had, in writing, extended the tenancy of the Plaintiff to 15th April, 2001
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and according to the evidence of Mr. Greene, he was aware of that extension.
On what basis therefore, did Mr. Greene issue the Notice to Quit?
Not unexpectedly, the three month period given to the Plaintiff to vacate the
premises expired and not having acceded to Mr. Greene’s request, the latter
caused to be issued an eviction summons for the Plaintiff to appear before the
Scarborough Magistrate’s Court. The evidence disclosed that on the third
hearing the 2nd Defendant failed to appear and the Presiding Magistrate
dismissed the summons. Indeed, it would have been interesting to know on what
basis Mr. Greene was seeking to have the Plaintiff evicted from the premises in
light of the existence of a written contract the Plaintiff had with the landlady
allowing him to lawfully occupy the said premises until 15th April, 2001. No
evidence was adduced by the 2nd Defendant that the Plaintiff had committed any
breach of the terms of the tenancy agreement.
The water supply is disconnected
The evidence from the Defendant is that the Plaintiff complained to his sister (the
said Urla Greene) and his Aunt, the 1st named Defendant herein, about water
dripping from upstairs into his apartment downstairs. The Plaintiff however,
denied that he made any such complaint. Whether or not there was such a
complaint, if water is entering the Plaintiff’s apartment, from some leaking pipe
line from the upper floor it is the landlady’s responsibility to ensure that a plumber
is called in to remedy the problem. The 2nd Defendant did call in a plumber who
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prepared and submitted a report as to the cost of remedying the problem. But
there was no evidence that the problem was rectified.
During his examination in chief the 2nd Defendant said that “for some reason the
water from upstairs was cut off by persons unknown”. He also said that the
plumber visited the Plaintiff’s apartment “to check to see where the water was
coming through in order to ascertain the total cost to repair the work.” The
Plaintiff denied that the plumber visited the downstairs department. I must admit
that the 2nd Defendant’s testimony on this issue lacks credibility. If, according to
the evidence of the 2nd Defendant the plumber had determined what the problem
was after his examination of the upstairs apartment why would he need to visit
the downstairs apartment? The 2nd Defendant had in his possession a report of
the cost of remedying the plumbing problem as it affected the upstairs apartment.
Why was the problem not attended to by the 2nd Defendant? Whether the water
was cut or the main pipe line to the premises was capped, the question that the
2nd Defendant failed to address was why was the Plaintiff and his family allowed
to remain without pipe borne water in their apartment from 1st August to 7th
September, 2000?
During cross-examination the Plaintiff said that on 1st August, 2000 the 2nd
Defendant brought two plumbers to the premises. He testified that, “on the
southern side of the kitchen the water was capped under the watchful eyes of Mr.
Greene. I have photographs of them”. I believe the testimony of the Plaintiff that
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the water supply to the premises was intentionally capped or disconnected by the
servants and/or agents of the 2nd Defendant.
The electricity supply
The evidence of the 2nd Defendant is that the tenant complained about the
flickering lights and that once the complaint was brought to his attention, he
immediately took steps to deal with it. Unfortunately the witness did not detail
what those steps were during his examination in chief. Neither did Counsel for
the Plaintiff seek to elicit what those steps were during cross examination of the
witness. It appears however, that an application was made to the relevant
authority for an inspection of the electrical installation of the premises. Why was
such an application made on the basis of an alleged complaint by the Plaintiff
that the lights in his apartment was flickering? The Plaintiff however, denied that
he made any such complaint. In addition, there was no evidence of any
complaint of electrical problem in the upstairs apartment.
According to the evidence of the Electrical Inspector II of the Tobago House of
Assembly (Mr. Baynes), he visited the premises and carried out a thorough
investigation of the installation and found several major defects which he
documented and submitted to the Applicant. Mr. Baynes did testify that the
Applicant was given a certain amount of time to correct the defects. It is indeed
surprising that Mr. Baynes could not recall during his cross-examination how
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much time the Applicant was given to correct the defects before approval of the
installation could be secured.
Mr. Baynes further testified that the defects were not remedied within the time
given and, as a result, he communicated with officials of the Trinidad and Tobago
Electricity Commission listing the name and address of the owner of the
premises, directing that the installation be disconnected. Disconnection was, in
fact, effected on 9th September, 2000.
On this particular issue two questions engaged the Court’s attention. The first is
why, given the nature of the alleged complaint, was an electrician not engaged to
remedy the problem of a flickering light. In other words why was it necessary to
apply to the relevant authority for an inspection of the electrical installation of the
premises? And more importantly, why were the defects identified by the
Inspector not remedied within the specific time allowed? It appears that
absolutely no attempt was made by the Applicant to remedy the defects identified
by the Inspector or to seek an extension of time to carry out the remedial work.
In the absence of this evidence, this Court can only assume that it was the 2nd
Defendant’s intention to have the electricity supply to the premises officially
disconnected with the ultimate goal of having the tenant vacate the said
premises. As indicated earlier, officials from the Trinidad and Tobago Electrical
Commission did, in fact, disconnect the electricity supply to the premises on
September 9, 2000.
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Truckload of rocks placed in the walkway
The 2nd Defendant admitted to depositing four (4) truckload of rocks sometime
during the month of August 2000 at the front of the premises for the specific
purpose of levelling a depressed area of the walkway. The Plaintiff testified that
the rocks obstructed his access and that of his family to and from the premises.
The 2nd Defendant denied that the Plaintiff was affected in any way from gaining
access to the premises.
While it is true that the pleaded case for the defence on this issue is that bags of
sand and rock were deposited against the boundary fence of the premises, Urla
Greene, the sister of the 2nd Defendant did testify that the rocks were placed at
the side of the fence and did not in any way block the passage way. But cross-
examination of the 2nd Defendant seem to have painted a different picture.
Q: Was it placed on the grassy roadway.
W: No.
Q: Where was it placed.
W: On the depression of the roadway.
Q: Was it on the entrance?
W: No.
Q: Was it on Wilson Road?
W: No.
Q: On the walkway?
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W: Yes.
Q: Used by your Aunt and any other person coming to the premises.
W: Yes.
Q: It would necessarily obstruct access to the premises?
W: No.
Q: Which other access?
W: It was on the side, it would not completely block the access.
These questions and answers indicated to this Court that though not complete,
there would have been some obstruction to and from the premises. The walkway
which the 2nd Defendant said was about 5 to 6 feet wide may not have been
completely blocked by the rocks deposited by the 2nd Defendant. What appears
to be objectionable about the deposit of those rocks, is the fact that the Plaintiff
was not informed of the possible inconvenience that may and did in fact result
from the partial obstruction of the access road. I again note the evidence in this
regard:
Q: Job and his family would have been inconvenienced by the obstruction
placed on the roadway.
W: Temporarily, yes.
Q: Yet you went on without advising him of it.
A: I can’t remember if I did.
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This witness did not see it fit and proper to inform the tenant of his intention to
deposit the rocks where he did, even though he knew of the possible
inconvenience the tenant and his family would have suffered, albeit, temporarily.
Repairs to the premises
Under cross-examination the 2nd Defendant said that he had formed an intention
to repair the building as far back as February 1998 before the 1st Defendant had
served the Plaintiff with a Notice to Quit the said premises. In the meanwhile,
however the landlady continued to renew the Plaintiff’s tenancy of the Apartment.
In fact, the 2nd Defendant testified that he was aware and had seen the tenancy
agreement made between the Plaintiff and the 1st Defendant in which the
tenancy was extended from April 1999 to April 2001. He said that sometime in
2000 he had notified the Plaintiff in writing of his intention to commence repair
work to the building which he said was in a state of disrepair. Repair works to
the flooring of the upstairs apartment began in September 2000 and the noise
from the workmen was so intense that the Plaintiff said he could not sleep after
working the nightshift, that is, from midnight to 8 o’clock the following morning.
The Plaintiff was employed as an Estate Constable with the Tobago House of
Assembly.
The evidence is that the building was in a state of disrepair and, no doubt, the 1st
Defendant would have been aware of the condition of the premises before
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extending the Plaintiff’s tenancy agreement to April 2001. The 2nd Defendant
testified that he had formed the intention to effect repairs to the building as far
back as February 1998. Why then did he choose to undertake the repairs some
six (6) months before the expiration of the term of the tenancy. No explanation
was given to this Court by the 2nd Defendant as to why he was not prepared to
honour the terms of the Plaintiff’s tenancy agreement, in particular, the implied
term of quiet enjoyment.
As a result of all the inconveniences, the Plaintiff said that he was forced to send
his entire family to the USA on 23rd September, 2000 while he continued to
endure the hardships which had been created by the 2nd Defendant. He too,
ultimately vacated the said premises in November 2000 some six months before
the end of the tenancy agreement.
The Plaintiff did testify that prior to the end of March 2000 his occupation of the
premises was without any major interruption. Immediately after the 2nd
Defendant was given a Power of Attorney by his Aunt, the landlady, the Plaintiff’s
problems began. He first had to deal with the Notice to Quit and thereafter the
eviction summons served on him by the 2nd Defendant. This occurred even
though his occupation of the premises was lawful and there was no allegation of
any breach of the tenancy agreement made against the Plaintiff. Next the supply
of pipe borne water to the apartment was disconnected and sometime thereafter
four (4) truckload of rocks were placed in the walkway partially obstructing his
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free access too and from the premises. The electricity supply was then
disconnected by the Electricity Commission as a direct result of certain actions
taken by the 2nd Defendant. Finally, the Plaintiff had to endure the incessant
noise emanating from the repair works undertaken by the 2nd Defendant in the
month of September 2000. Despite the actions of the 2nd Defendant the Plaintiff
continued to pay the monthly rent in accordance with the terms of the tenancy
agreement.
In the circumstances, I have found on the evidence, that the action and/or
conduct of the 2nd Defendant amounted to a breach of the term of quiet
enjoyment to which the Plaintiff was entitled by virtue of his tenancy agreement.
The Law
There is no dispute that there exists an implied term in the tenancy agreement
made between the Plaintiff on the one hand and the 1st Defendant on the other,
to the effect that the Plaintiff would peaceably hold, use and occupy the premises
without disturbance and/or molestation from the 1st Defendant or by any person
claiming through or under her. On the pleadings the 2nd Defendant has accepted
the existence of such a term in the agreement. Any interference by the landlady
and her servants and/or agents with the Plaintiff’s quiet enjoyment of the said
premises could therefore amount to a breach of contract.
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In the case of Kenny –vs- Preen (1963) 1 QB 499 at page 511 Pearson, L.J.
explains the principle this way:
“The implied covenant for quiet enjoyment is not
an absolute covenant protecting the tenant against
eviction or interference by anybody, but is a
qualified covenant protecting the tenant against
interference with the tenant’s quiet and peaceful
enjoyment of the premises by the landlord or
persons claiming through or under the landlord.
The basis of it is that the landlord by let
confers on the tenant the right of possession
during the term and impliedly promises not to
interfere with the tenant’s exercise and use of
the right of possession during the term.”
In the case of Budd-Scott –vs- Daniel (1902) 2 KB 351 at page 356, Lord
Alverstone, C.J. puts it this way:
“Therefore, unless there is some special meaning
attached to the word “demised” the good sense of
the thing would seem to be that, upon an agreement
to let, a covenant or contract was to be implied
that the landlord and those claiming under him
would not disturb the possession of the tenant.”
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On the evidence before this Court, I have found that the Plaintiff’s quiet
enjoyment of the premises was interfered with by the conduct and/or actions of
the 2nd Defendant who, by the authority conferred upon him by the Power of
Attorney, was acting for and on behalf of the 1st Defendant. It was only after
such authority was conferred upon him that the 2nd Defendant :
(i) instituted ejectment proceedings against the Plaintiff
in July 2000 even though the Plaintiff’s tenancy
agreement with the 1st Defendant was due to expire
in April 2001 and there was no evidence of any
breach of the terms of the tenancy agreement by the
tenant;
(ii) caused the water supply to the premises to be
capped or disconnected for a period of time;
(iii) caused the electricity supply to the premises to
be disconnected on 9th September, 2000;
(iv) caused four (4) truckload of rocks to be
deposited in the front of the premises partially
obstructing the Plaintiff’s free use of the
walkway to the said premises;
(v) commenced repair work to the upstairs
apartment giving rise to considerable
inconvenience to the Plaintiff and his family.
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On the evidence before the Court I am satisfied that very soon after the 2nd
Defendant obtained the Power of Attorney from his Aunt, the 1st Defendant
herein, he (the 2nd Defendant) immediately set about to have the Plaintiff and his
family vacate the said premises. His relationship with the Plaintiff can only be
described as one of harassment. He was determined to have the Plaintiff vacate
the said premises even though he knew according to his testimony, that the
Plaintiff’s tenancy agreement was due to expire in April 2001.
As a result of the conduct of the 2nd Defendant the Plaintiff had to vacate the
premises in November 2000, some six months before the expiration of the term
of the tenancy agreement.
Damages:
No special damages have been claimed by the Plaintiff. No evidence was led to
show what expenses he incurred, if any, in having to vacate the said premises or
what rent he had to pay to secure alternative accommodation, after vacating the
premises in November, 2000, some six months before the expiration of his
tenancy agreement.
The Plaintiff claims however, inter alia, a declaration that the Notice served on
the Plaintiff by the 2nd Defendant on the 24th day of March, 2000 was illegal and
of no effect. I do not think that such a declaration can be properly granted to the
Plaintiff having regard to the circumstances. The Court has the power to find that
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the said Notice had no effect, but even such a finding I hold to be unnecessary in
the circumstances.
The Plaintiff also claims damages on the footing of exemplary or aggravated
damages for breach of the covenant for quiet enjoyment of the said premises. I
consider the law in this area to be quite clear. Exemplary or aggravated
damages are never allowed in the Courts for breach of contract. In the case of
Kenny –vs- Preen (supra) the only wrongful act alleged by the Plaintiff was a
breach of the covenant of quiet enjoyment, that is, a breach of contract. The
Court of Appeal found that as the claim was only in contract and not in tort,
punitive or exemplary damages could not properly be awarded.
In the case of Perera –v- Vandiyar [1953] 1 AER 1109 the Landlord of a flat had
cut off the supply of gas and electricity to the flat with the object of inducing the
statutory tenant to leave. As a result the tenant was forced to move out of the flat
and to live elsewhere. The tenant brought an action against the Landlord for
damages for breach of the implied covenant for quiet enjoyment and for eviction.
The trial judge awarded the tenant a total of ₤53.105 in damages comprising the
sum of ₤25 for the inconvenience he suffered; another ₤25 as punitive damages
having regard to the conduct of the Landlord and the sum of ₤3 10s as special
damages. No damages were awarded for any injury or inconvenience his wife
and child may have suffered or in respect of any mental distress he may have felt
about his wife and child.
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On appeal by the Landlord the Court of Appeal found that as the Landlord’s
action did not constitute an interference with any part of the demised premises, it
could not be regarded as a trespass. The tenant was therefore entitled to
damages merely for the breach of covenant and in respect of special damage
which was proved, but he was not entitled to an additional sum as punitive on the
basis that the Landlord had committed a tort.
Commenting on the decision of Perera –v- Vandiyar (supra) Lord Denning MR.
in the more recent case of Mc Call –v- Abelesf [1976] 1 AER 727 at page 731
said:
“So, if the facts in Perera –v- Vandiyar were to occur
again today, the Plaintiff would recover not only the ₤25
for his own inconvenience, but also the additional ₤25
for the injury and inconvenience which his wife and child
suffered and the metal distress which he and they suffered.
Not as damages for tort, but as damages for breach of
contract.”
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In 1989 in the case of Alexander –v- Clarke H.C.A. No.1734 of 1986 Blackman,
J. awarded the tenant the sum of $1000.00 as damages for breach of the
covenant of quiet enjoyment.
There is little doubt in my mind that because of the conduct of the 2nd Defendant
the Plaintiff and his family suffered considerable inconvenience and of course
mental distress particularly having regard to the fact that they occupied the
premises pursuant to a lawful contract made between the Plaintiff and the 1st
Defendant. In the case of Jarvis –v- Swans Tours Ltd. [1973] 1 AER 71 the
Court of Appeal found that in a proper case damages for mental distress could
be recovered in an action for breach of contract. Also in the case of Jackson –v-
Horizon Holidays Ltd. [1975] 3 AER 92 the Court of Appeal approved of the
decision in Jarvis –v- Swans Tours case and held further that not only could
damages be awarded to the Plaintiff for the discomfort, vexation and
disappointment which the Plaintiff himself suffered by reason of the Defendant’s
breach of contract, but also for the discomfort, vexation and disappointment
suffered by his wife and children.
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In the circumstances I consider an award of $5000.00 as adequate
compensation for the Plaintiff, representing damages for breach of the implied
term of the covenant for quiet enjoyment. The Defendant will also pay the
Plaintiff’s cost of the action certified fit for Counsel.
Dated this 12th day of October, 2007
Sebastian Ventour, Judge.