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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2012-00463

BETWEEN

CYRIL RAVELLO First Claimant

NICHELE RAVELLO Second Claimant

AND

VISHNUDATH KEMCHAND Defendant

BEFORE THE HONOURABLE MADAM JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Horace Broomes and Mr. Ancil Moses, Attorneys-at-law for the Claimant.

Mr. Kemrajh Harrikissoon and Ms. Hynia Harrikissoon, Attorneys-at-law for the Defendant

JUDGMENT

Introduction

1. In these proceedings, the First Claimant was the brother of the Second Claimant. By the

date of the Trial of this matter, the First Claimant had died and the Claim was prosecuted by

the Second Claimant only. By their Claim, the Claimants alleged that the Defendant had

trespassed on their property and had unlawfully constructed a fence, which blocked the

Claimants’ access to their water tanks and toilet facilities.

2. The Claimants alleged further that they had entered into an agreement with the Defendant

through a series of correspondence passing between their respective attorneys-at-law and

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that the Defendant reneged on the agreement. The Claimants applied for an order for specific

performance.

3. In the course of this Judgment, the Court considered whether the Defendant had breached an

enforceable agreement and whether the Second Claimant was entitled to an order for Specific

Performance. The Court considered as well whether the Second Claimant was entitled to

recover damages.

Procedural History

4. The Claimants Cyril Ravello and Nichele Ravello by their Claim Form and Statement of

Case filed on the 3rd February, 2012 sought the following relief:

i. Specific performance of agreement made partly orally and partly in writing

during the period April to August 2011 for the conveyance (in exchange for the

surrender of certain tenanted lands situate at and known as No 573 Tabaquite

Road San Pedro (the subject lands)1.

ii. An injunction mandating the Defendant forthwith to demolish the wire

structure in which he has wrapped the Claimants house excluding from the said

1 More particularly described in the Claim Form as No. 573 Tabaquite Road San Pedro aforesaid together with the dwelling house standing thereon and the appurtenances thereto belonging to a portion of the lands described in Certificate of Title in Volume 1262 Folio 3 being ALL AND SINGULAR those two pieces of land situated in the Island of Trinidad: THE FIRST THEREOF situate in the ward of Monsterrat comprising FIVE ACRES TWO ROODS AND THIRTEEN PERCHES be the same more or less delineated and coloured pink the plan registered in Volume 573 Folio 97 being the remaining portion of the lands described in the4e [sic] Crown grant in Volume 21 Folio 489 and bounded on the North and West by lands of Mary Ramleane on the South by Tabaquite Mayaro Road and on the East by crown Land. AND THE SECOND THEREOF situated in the Ward of Charuma comprising SIXSTEEN ACRES TWO ROODS AND THIRTY SEVEN PERCHES [sic] be the same more or less portion of the lands described in the Crown grant in Volume 241 Folio 249 and described in the Certificate of Title in Volume 550 Folio 249 and bounded on the North by Crown land on the South by lands of Poon Top by the Tabaquite Mayaro Road and by the remaining portion of the said lands on the East by Crown lands and by the remaining portion of the lands on the West by Crown Land and by lands of Poon tip (the parent pieces)

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wrap the outdoor facilities belonging to the said house leaving only limited

access to the said dwelling house and to carry away the resulting rubble.

iii. An interim injunction mandating the Defendant forthwith to demolish the wire

structure in which he has wrapped the Claimants house excluding from the said

wrap the outdoor facilities belonging to the said house leaving only limited

access to the said dwelling house and to carry away the resulting rubble.

iv. An interim injunction restraining the Defendant from [sic] by himself his

servants or agents save for the purpose of demolition of the said wire fence and

removal of the resulting rubble entering or remaining up the subject land

pending the hearing or earlier determination of this cause

v. Damages for breach of agreement

vi. Damages for trespass on the footing of exemplary damages and aggravated

damages

vii. Interest

viii. Costs

ix. Such further and/or other relief as the court may deem just.

5. The Defendant, Vishnudath Kemchand filed an Appearance on the 13th February, 2012 and

later filed his Defence on the 21st March, 2012.

6. On the 24th April, 2012, the Court directed the parties to file a Statement of Agreed Facts on

or before the 17th September, 2012. Although the parties failed to meet the deadline, they

sought an extension of time by a Notice of Application filed on the 20th September, 2012.

Annexed to the Notice of Application was a duly signed Statement of Agreed Facts,

reflecting those items of fact upon which the parties had agreed.

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7. Two (2) Witness Statements were filed on behalf of the Defendant. They were signed by

Vishnudath Kemchand and Omawatee Kemchand.

8. On the 31st January, 2013, the Witness Statement of Nichele Ravello was filed on behalf of

the Claimants.

9. The trial of this matter took place on the 4th July, 2014. Only Ms. Ravello and Mr. Kemchand

were cross-examined.

10. On the 17th September, 2014, Written Submissions were filed on behalf of the Defendant.

On the 20th January, 2015, Written Submissions were filed on behalf of the Claimants, and

on the 19th February, 2015, the Defendant filed Written Submissions in Reply to the

Claimants’ Submissions.

11. By Notice of Application and Affidavit sworn and filed on the 6th May, 2015, the Court

received further Submissions for the Claimants.

12. A Post Trial Review was conducted on the 2nd July, 2015 and Judgment was reserved to a

date to be fixed by Notice.

Facts

13. The land situate at No. 573 Tabquite Road, San Pedro, Rio Claro (hereinafter called the

‘subject lands’) had been occupied by the Claimants’ family and by extension, the Claimants

for several years. The parcel which had been occupied by the Claimants was a smaller

portion of a larger parcel of lands situate at No. 573 Tabaquite Road, San Pedro. At all

material times the larger parcel belonged to the Defendant, Vishnudath Kemchand. Mr.

Kemchand became seised in possession of these lands by virtue of Memorandum of Transfer

No. 63 dated the 6th June, 2007.

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14. Attorneys-at-law for the Claimants wrote to the Defendant, by letter dated the 19th September

2008, informing him that the Claimants were in lawful possession of the subject land by

virtue of a statutory lease. On behalf of the Claimants, learned attorney-at-law also made an

application to purchase the subject land under the Land Tenants (Security of Tenure) Act2.

Mr. Kemchand claimed that he had not received the letter.

15. By letter dated 27th May, 2010, the Defendant, by his attorney-at-law, made reference to

previous oral demands to the Claimants to vacate the subject property. By his letter,

attorney-at-law for the Defendant alleged that the Claimants were licensees and trespassers.

The Claimants were given twenty-eight (28) days to vacate the subject property.

16. In turn, the Claimants’ attorney-at-law replied by letter dated 14th June 2010, indicating that

their position remained the same as stated in the 2008 letter and reiterated that they were

statutory tenants in occupation of the subject property. The Defendant’s attorney-at-law

replied by letter dated 17th June, 2010 denying that the Claimants were statutory tenants and

requesting documentary proof in support of their claim.

17. On the 21st February, 2011, Mr. Kemchand instituted proceedings against the Claimants by

way of a High Court Action CV No. 2011-00683. He sought possession of the subject

property as well as an Interim Injunction restraining the Claimant from building a concrete

structure.

18. On the 1st March, 2011, the Honourable Justice Rajnauth-Lee (as she then was) heard the

Application for the Interim Injunction. At this hearing, the Claimants consented to the grant

of the Interim Injunction.

2 Land Tenants Security of Tenure Act Ch. 59:54

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19. Following the hearing of the Interim Injunction, Naveen Maraj, attorney-at-law for the

Defendant wrote to the Claimants by letter dated the 13th April, 2011, and made the following

proposals for settlement:

a) “Monetary compensation/payment to the Claimants to vacate and deliver up

possession of the subject lands or;

b) Provision of an alternative parcel of land at a corner of the larger parcel of

land as described in the Certificate of Title, which is bounded by the Claimants’

father’s-in-law lands and my assistance should this option be exercised, to

build a dwelling house at the new location as well as the execution of a Deed

for the said alternative parcel of land in the Claimants’ favour.”3

20. By letter dated the 14th April, 2011, Ancil Moses, attorney-at-law for the Claimants wrote

the attorneys-at-law for the Defendant and indicated the willingness of the Claimants “to

settle on the basis of the second proposal…”

21. The hearing of the Claim was listed for Case Management before the Honourable Justice

Rajnauth-Lee on the 29th June, 2011. On this occasion, Mr. Vishnudath Kemchand, in the

capacity of claimant, sought the Court’s permission to have the claim withdrawn. It was

further ordered by consent that Mr. Kemchand pay to the Ravellos costs of the claim in the

amount of six thousand dollars ($6,000.00).

22. Following the case management conference on the 29th June, 2011, Mr. Kemchand requested

that the parties meet as soon as possible at the Chambers of the claimant’s attorney-at-law

to finalise the logistics of the agreement.

3 Letter dated 13th April, 2011 from attorneys-at-law of the Defendant, exhibited to the Witness Statement of Nichele Ravello and marked C.

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23. Parties met in early August, 2011. Thereafter, Mr. Kemchand through his attorney-at-law

by letter dated the 3rd August, 2011, indicated that he was “satisfied with the agreed

terms…”4

24. On the 10th September, 2011, learned attorney-at-law for the Defendant again wrote to

attorney-at-law for the Claimant. On this occasion, it was expressed on behalf of the

Defendant that the proposed settlement was too costly and that the Defendant was no longer

willing to settle.

25. The Defendant subsequently entered the Claimants’ premises and constructed a wire fence

in close proximity to the Claimants’ home. The wire fence effectively deprived the

Claimants of access to their toilet and water facilities.

Law and Submissions

26. The parties relied on the Written Submissions of their respective attorneys-at-law. Set out

hereunder are the authorities upon which the parties placed greatest reliance.

27. Land Tenants (Security of Tenure) Act Chap 59:54 Sections 4(1) to 4(3) are set out below:

4. (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.

4 See Letter dated the 3rd August, 2011 from Naveen Maraj to Ancil Moses exhibited to the Witness Statement of Nichele Ravello and marked E.

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(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.

(3) In order to exercise the right of renewal conferred by subsection (2), the tenant

shall serve on the landlord a written notice of renewal on or before the

expiration of the original term of the statutory lease.”

Claimant’s Authorities

28. In Rotiv Enterprises Ltd. and Mittal Steel Point Lisas Ltd (Formerly Caribbean ISPAT

Ltd) CV2006-00106, Justice Tiwary-Reddy considered the proper construction of a written

agreement.

The learned Judge cited Hvalfangerselkaper Polaris AIS v. Unilever Ltd [1993] 46

Lloyd’s Reports in which Lord Russel had this to say:

“Before a Court begins to construe a written Agreement, it must know all the

relevant circumstances which exist and are within the knowledge of the

contracting parties at the time when they make their...”

Justice Tiwary-Reddy relied as well on a, Halsbury’s Laws of England, (4th Edition)

which states:

“A party who makes an absolute promise accepts the risk of performance

being or becoming impossible, and is not free of liability if he fails to perform

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even though this is not due to any fault on his part. The true principle seems

to be that some contracts are absolute in their nature, and in these the

promisor warrants the possibility of performance.5”

Ultimately, the learned Judge held that representations had been made by the Defendant

upon which the Defendant expected the claimant to act/rely and upon which any

reasonable person in the claimant’s position would have acted/relied.

29. West Indies Cricket Board Inc. v The West Indies Players’ Association CV 2012-00046,

was a decision of Justice Des Vignes who identified the relevant principles of contractual

interpretation. Justice Des Vignes relied on the principles expounded by Lord Hoffman in

Investors Compensation Scheme Ltd. v. West Bromich Building Society [1998] 1 AER 98

as well as those cited in Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd.

[1997] 3 All ER 352 where Lord Hoffman said:

“…It is of course true that the law is not concerned with the speaker’s subjective

intentions.6”

Defendant’s Authorities

30. First Citizens Bank Limited v. Mc Leod Helmet Crested Hummingbird Limited and

Another CV 2008-04578. This case concerned the construction of a consent order and

5 Halsbury’s Laws of England, 4th Edition. Volume 9 at paragraph 445 6 Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd. 3 All ER 352 at page 367

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whether the claimant’s application was misconceived. In resolving the issue, Justice

Seepersad quoted Plowman J in the case of General Accident Fire and Life Assurance Ltd.

v. Inland Revenue Commissioner [1963] 1 All ER 618 at page 627

“A consent order must, in my judgment, be construed in the light of any admissible

evidence of surrounding circumstances, but without direct evidence of the parties’

intention…

Evidence of surrounding circumstances, in my opinion, include evidence as to the

nature of the dispute which was compromised by the order, and so much is, I think,

common ground.”7

Seepersad J then went on to say

“The Court in construing the terms of the consent order must give effect to

the plain clear meaning of the words of the consent order, in light of the

pleadings and other documents executed in relation to the said dispute which

formed the basis of the consent order”8

The court expressed the view that the words “execute full releases of all

mortgages/securities” held by the claimant did not govern or direct the claimant to

discharge the mortgage.

31. Hassim Mohammed v. Safferan Balkaransingh CV 2007-02370, this case also concerned

the interpretation and construction of a consent order. It was argued by the claimant that the

7 General Accident Fire and Life Assurance Ltd. v. Inland Revenue Commissioner [1963] 1 All ER 618 at page 627 at paragraph 18 8 First Citizens Bank Limited v. Mc Leod Helmet Crested Hummingbird Limited and Another CV 2008-04578 at paragraph 19

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parties were not ad idem on the terms of a second consent order and further, that the

Defendant had unilaterally changed the terms of the second consent order. The grounds on

which a consent order may be set aside were also examined.

In her judgment, Madam Justice Charles quoted 3(1) Halsbury’s Laws of England, (4th

Edition), paragraph 521 in this way:

“a consent order or compromise may be set aside on a ground which would

invalidate any other agreement between the parties including mistake,

illegality, duress or misinterpretation”

In dismissing the claim, the learned judge had this to say:

“Both parties agreed to the terms of the consent order and both parties

agreed to the interpretation of the two consent orders…Both the claimant and

the Defendant were therefore ad idem to the terms of the Second Consent

Order9”

32. Chandragupta Maharaj & Another v. Nigel Joseph & Another CV2011-00647, this was a

decision of Justice Jones (as she then was) in which the learned Judge considered Section 4

of the Land Tenants (Security of Tenure) Act Ch. 59.54. Madam Justice Jones had this to

say:

“The Act provides [sic] service of the notice of renewal before the expiration of the

original lease10”.

9 Hassim Mohammed v Safferan Balkaransingh CV 2007-02370 at paragraph 67 10 Chandragupta Maharaj v. Nigel Joseph CV2011-00647, Paragraph 26 of the judgment

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Although a notice of renewal dated 31st May 2011 was served on the Claimants, there

was no evidence as to the time of the service.

The learned judge went on to say that

“For the notice to have effect therefore I will have to be satisfied that this

notice was served by the Administrator General by midnight on 31st May,

2011.11”

The learned judge ruled that there was no evidence before her that the statutory lease

was renewed in accordance with Section 4(3) of the Act.

33. Harrypersad Angad Lutchman v. Shukur Shakeer and others CV2006-00839, this was a

decision of Master Alexander, who considered the issue of aggravated damages where the

Defendant had destroyed the claimant’s property by causing damage to the frame of the

claimant’s house and by removing the roof, whilst the claimant was in occupation thereof

with his family. The Defendant also threw items from the upstairs window to the ground

below, destroying internal fixtures in the house.

In her decision, Master Alexander identified the relevant issue in this way:

“whether the motives and conduct of the Defendants aggravated the injury to

Harrypersad and ought to be taken into account in compensatory damages12”

An award of twenty-five thousand dollars ($25,000.00) was made for exemplary

damages.

11 Chandragupta Maharaj v. Nigel Joseph CV2011-00647 at paragraph 26 12 Harrypersad Angad Lutchman v. Shukur Shakeer and others CV2006-00839 at paragraph 27

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Reasoning and Decision

34. In these proceedings the Claimants (first claimant deceased), seek to enforce an agreement

purportedly made with the Defendant. The agreement was allegedly partly oral and partly

in writing.

35. It is not disputed that in 2008, the Claimants had been resident on the subject land situate at

No. 573, Tabaquite Road, San Pedro which was part of a larger parcel owned by the

Defendant. The Defendant, Vishnudath Kemchand sought to have them removed, by

instituting proceedings seeking vacant possession of the subject parcel.13 At an early stage

of the proceedings, the Mr. Kemchand, then in the capacity of the claimant, began talking

settlement and on the 29th June, 2011, the parties entered a consent order, whereby Mr.

Kemchand, who was then the claimant, agreed to pay costs in the sum of six thousand dollars

($6,000.00) and obtained the Court’s permission to withdraw the proceedings.

36. Prior to the entry of the consent order, parties began negotiations which are reflected in a

course of correspondence, the details of which are considered below.

37. By a letter dated the 13th April, 2011, the Defendant’s attorney-at-law wrote to the Claimants

making two (2) alternative proposals. The first proposal contemplated a payment of

monetary compensation in exchange for the Claimants vacating the subject property. By the

second proposal, the Defendant offered to relocate the Claimants and provide them with

assistance

13 Vishnudath Kemchand v. Cyril Ravello & Nichele Ravello CV2011-00683

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“ to build a dwelling house at the new location…”14

38. By a letter dated 14th April, 2011, attorney-at-law for the Claimants accepted the second

proposal.

39. Following the entry of the consent order on the 29th June, 2011, parties met on the 2nd August,

2011. The all-parties conference was followed by a letter dated the 3rd August, 2011,

whereby, on behalf of the Defendant, attorney-at-law, Naveen Maraj wrote:

“I am pleased to inform you that my client is indeed satisfied with the agreed terms.”15

40. This was however, followed by a letter dated the 10th September, 2011, and signed by

Naveen Maraj, attorney-at-law for the Defendant. By this letter, Mr. Naveen Maraj indicated

that the Defendant was no longer willing to settle the matter in respect of the rebuilding and

relocation proposal suggested.16

41. The question which arises for my consideration is whether a binding agreement had been

formed between the parties.

42. The Defendant asserted that the Claimants never consented the terms of his offer. He was

cross-examined extensively on the meaning of the letters which were exchanged.

43. Under cross-examination, the Defendant accepted that by the letter dated the 14th April,

2011, and signed by their attorney-at-law, the Claimants had accepted the second alternative

offer which had been made on behalf of the Defendant, by way of his attorney’s letter of the

13th April, 2011.

14 See the letter dated 13th April, 2011 from attorney-at-law for the Defendant, exhibited to the Witness Statement of Nichele Ravello and marked D. 15 The Letter dated the 3rd August, 2011 from Naveen Maraj and Co. to Mr. Ancil Moses exhibited to the Witness Statement of Nichele Ravello and marked E. 16 The Letter dated the 10th September, 2011 exhibited to the Witness Statement of Nichele Ravello and marked F.

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44. The Defendant also accepted that the letter of the 3rd August, 2011 differed from the letter

of the 13th April, 2011, in that the earlier letter referred to “proposed terms”, while the

second letter referred to “agreed terms”. Thus by his letter dated the 3rd August, 2011,

Naveen Maraj attorney-at-law for the Defendant wrote:

“I am pleased to inform you that my client is indeed satisfied with the agreed terms

which are as follows...”17

45. Having regard to the evidence of the Defendant, it is clear, in my view, that an offer had

been made by the Defendant by letter of the 13th April, 2011 and this was accepted by the

Claimants by letter dated 14th April, 2011. In my view therefore there was an enforceable

agreement evidenced in writing.

46. The Defendant, through his attorney-at-law has attempted to argue that he could not properly

enter into the alleged agreement because he was co-owner with his wife and that the property

was subject to mortgage.

47. In my view, the Defendant purported to act on behalf of himself and his wife. He also gave

out that he had the requisite authority to relocate the claimant. It would be inequitable of

him now to assert otherwise.

48. Having decided that the Defendant breached the agreement, I turn to consider whether the

remedy of specific performance would be available to the claimant. The Court would not

order specific performance if the Defendant is not legally competent to complete the

agreement. See 37 Atkins Court Forms (1991 Issue) paragraph 5. The Defendant on his

own would not be capable of performing the agreement. My reason for so holding is that

17 Letter dated the 3rd August, 2011 from Naveen Maraj to Ancil Moses, exhibited to the Witness Statement of Nichelle Ravello and marked E.

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the Defendant held the property jointly with his wife. Moreover, the property was subject

to a mortgage and the Defendant would require the permission of the mortgagee, before

attempting to convey any parcel of the land to the Claimants. It is therefore my view and I

hold that an order for specific performance would not be appropriate in these circumstances.

49. I turn now to consider whether there should be an award of damages. Where there is breach

of an agreement, the basic loss to the victim of the breach is the market value of the benefit

of which he has been deprived through the breach. See Mc Gregor on Damages (16th

Edition) at paragraph 30. In support of a claim for damages, the Claimant ought to have

produced evidence of the market value of the alternative land which had been promised by

the Defendant. No such evidence was adduced. In any event, the First Claimant continues

to occupy the lands which she would have vacated had the agreement been performed.

50. I turn now to consider the issue of trespass. The Defendant has not by these proceedings

asserted that he has a superior right to possession of the subject lands. In fact, in earlier

proceedings, the Defendant abandoned his opportunity to assert a superior right. It is the

Second Claimant, as the person for the time being in possession who holds the right to sue

for trespass (see 39, Atkins Court Forms (1991 Issue) at page 227). In so far as the

Defendant has admitted that he constructed a fence encroaching on the Claimants’ land, it

follows in my view that he did so as a trespasser.

Orders

51. Accordingly, there will be judgment for the Claimant on the claim for trespass. The Claimant

is entitled to the second item of relief, which was claimed in her Claim Form, that is to say:

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“An injunction mandating the Defendant forthwith to demolish the wire structure in

which he has wrapped the Claimants’ house.”

52. Defendants are further ordered to pay to the second claimant, her costs in the sum of fourteen

thousand dollars ($14,000.00).

Dated this 7th day of April, 2016.

M. Dean-Armorer

Judge18

18 Ms. Aleema Ameerali, Judicial Research Counsel