REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 1 of 2002

BETWEEN

Seepersad Ramkalawan
Appellant

AND

Dhan Alexander
Respondent

PANEL: Sharma C. J.
Archie J.A.
Mendonca J.A.

APPEARANCES:
Mr. G. Armorer for the Appellant
Mrs. L. Seeberan-Suite for the Respondent

DATE DELIVERED: October 3, 2005

EXTEMPORE

Sharma C.J.: My Brother, Justice Mendonca will deliver a short judgment.

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 JUDGMENT

Delivered by A. Mendonca. J.A.

1. This is an appeal from the judgment of Bereaux J. Before him were two actions,
which were ordered by Tiwary J. to be tried together: one in which the Respondent was
the plaintiff and in which a declaration was sought that he and one Surajee Seebrath are
the owners of a freehold parcel of land known as 201 Caroni Farm Estate, and the other
in which the Appellant was the plaintiff and in which a declaration was sought that he is
beneficially entitled to occupy the lands. Bereaux J. made a declaration in favour of the
Respondent declaring that he and the said Surajee Seebrath are the owners of the freehold
title to the lands and dismissed the Appellant’s action.

2. In this matter the following facts are not in the dispute: Sookrajie Suraj
(Sookrajie) was the tenant of the parcel of land at the time of her death in December
1979. The freehold was then vested in the estate of Joaquim Ribeiro, deceased. On
November 5, 1979 the appellant purchased from Sookrajie the dwelling house standing
on the lands for the sum of $1,500. On March 18th, 1985, the trustee of the estate of the
deceased Ribeiro sold the lands to the Respondent and Surajie Seebrath, subject to the
tenancy in favour of the successor in title to Sookrajie.

3. At the trial the sole issue was whether the Appellant acquired the tenancy from
Sookrajie. It was common ground that if the answer to that question is yes, then the
Appellant would now have a lease vested in him by virtue of the provisions of the Land
Tenants (Security of Tenure) Act Chap. 59:54 and by virtue of that Act would have an
option to purchase the freehold at half the market value. He would therefore, be entitled
to occupy the lands and would be entitled to the declaration sought in his action. If the
answer is no, then his action failed.

4. The Judge found that the Appellant did not acquire the tenancy of Sookrajie and, as
I mentioned, dismissed the Appellant’s action. The sole issue in this appeal is whether

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the Judge was correct in coming to that conclusion.

5. The Appellant contends that the question, whether the Appellant acquired the
tenancy, is a question of mixed fact and law. He submits that where there has been a
transfer of ownership of a house standing on tenanted lands, such a transfer points
strongly to the ownership of the tenancy rights also being acquired. It is prima facie
evidence of the acquisition of the tenancy. The Appellant, therefore, contends that the
Judge erred when he did not treat the fact of the acquisition of the dwelling house by the
Appellant as prima facie evidence of the acquisition as well of tenancy of the land on
which the house stood.

6. To support the proposition that a transfer of ownership of a chattel house standing

on rented land is prima facie evidence of the assignment of the tenancy of the land , the
Appellant relies on three cases, Rampersad v. Phagoo (1960) 2 WIR 492, Mitchell v.
Cowie (1964) 7 W1R 118 and Petty Civil Appeal No. 50 of 1966 Victor v. Franklin.

7. I may say at the outset that none of the cases appear to us to support that
proposition.

8. In Rampersad there is no statement to be found to that effect, and the facts are
very different from this case. In that case the question arose as between the assignee,
who was the appellant, and the landlord- the respondent- whether there was an
assignment of Jaggernauth’s tenancy. In arriving at an answer to that question it was
important to ascertain the intention of the parties to the transaction and in so doing to
consider the acts and conduct of the parties. The Court summarized the material
evidence as follows (at p.496):

“The first thing to be observed is that there is no evidence that in

Jaggernauth’s tenancy there was a covenant against assignment. He had
therefore a right to assign it. The question is-did he assign it? In our view
the answer is that he did. Short of saying so in writing, he did everything

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 that points to the fact that he had done so. Having found a potential
purchaser of his business premises and his stock-in-trade, he first of all
entered into an agreement to sell and one of the terms of agreement was
that he would obtain the written consent of his landlord to the assignment
of his tenancy to that purchaser. He then sought that consent but, before it
was forthcoming, he sold his business lock stock and barrel, and the
purchaser entered occupation of the premises. About six months later the
new occupier, i.e. the appellant, tendered a year’s rent to the landlords but
they returned it because they declined to acknowledge him as their
tenant.”

9. The Court held on the evidence, which to me is very clear evidence, that there
was an assignment of the tenancy. What the case illustrates is that the answer to the
question, whether there is an assignment, depends on the evidence, and the conclusion
that there was an assignment was an irresistible conclusion on the evidence in that case.
It does not support the proposition advanced by the Appellant.

10. Mitchell v. Cowie has long been regarded as the leading authority in this
jurisdiction as to the factors to be taken into account in determining whether objects
annexed to the land are fixtures or chattels. It was in that context that Wooding C.J.
made the comments relied on by the Appellant (at p.122 (I). This is what he said:

“In like manner, in my view, if a house is affixed to land by

a tenant who took the tenancy for the purpose of building
or maintaining the house thereon and who intends to retain
the house there so long as the tenancy subsists, he does so
for the better enjoyment of the land of which he is the
tenant and of which while it remains thereto affixed the
house forms part; the house is so far permanent that it is
intended to remain on the land at least until the
determination of the tenancy; and its affixation thereto is

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 not for its better use as a chattel but rather for the
accommodation which the letting of the land was meant to
provide and which it would be impracticable for it to
provide if it remained bare.

11. The question whether the sale or transfer of a house standing on land carries with
it the rights to the tenancy of the land is not a question that arose in Mitchell v. Cowie.
The passage relied on by the Appellant does not pose that question nor seek to answer it
nor in any way touches on it. The passage quoted above is referring to a tenant who has
the tenancy of the land. This is clear from the words “ a tenant who took the tenancy”
and the last few lines of the quotation; “and its application thereto is not for its better use
as a chattel but rather for the accommodation which the letting of the land was meant to
provide and which it would be impracticable for it to provide if it remained bare”.
The Court there clearly had in mind a tenant of the land and was not contemplating
someone who might have purchased the house on the lands. Indeed by referring in the
passage to the purpose of the tenancy as building or maintaining the house, the Court was
not even considering a case where a house is necessarily in existence.

12. The Court in Mitchell v. Cowie laid down certain principles to determine whether
an object affixed to land is a fixture or a chattel. Among the principles is the object or
purpose of annexation. The Court stated that in the case of a house, to determine the
object or purpose of annexation, regard must be had to whether the affixation of the
house is temporary for use as a chattel or the better enjoyment of the land. In the
paragraph cited by the Appellant, the Court was elaborating on that principle and
applying it to circumstances in which the tenant took the tenancy of land for the purpose
of building or maintaining the house thereon so long as the tenancy subsists.

13. In Victor v. Franklin it seems the question before the court was which of the two
sales of a house on rented land and the tenancy of the land took priority. The tenant had
apparently sold the premises to both the appellant and the respondent. Here again, the
agreements in the case seemed clear in their terms that there was an agreement to assign

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the tenancy as well to sell the chattel house on the lands. The case does not lay down that
a sale of the chattel house carried with it a transfer of the tenancy of the land.

14. The submission was apparently pressed on the Judge and he concluded that by itself
the purchase of the chattel house standing on tenanted land does not give the purchaser
any interest in the land. That was a correct conclusion in law .

15. The question is whether there was an assignment of the tenancy is a mixed
question of fact and law. There must however be evidence to support the assignment.
The evidence in each case must be assessed before a finding can be made that there has
been an assignment of the tenancy of the lands on which the house stood. It is not
uncommon in this jurisdiction for a tenant of land to sell only the house on the lands.
That notwithstanding where the question is whether there has been an assignment of the
tenancy as well, it seems to me that it is a matter of common sense that the purchase of
the chattel house is a factor to be taken into account, but it is not prima-facie evidence
that the purchase of the chattel house carries with it the tenancy of the land. In this
matter the allegation of the Appellant is that in consideration of the said sum of $1,500
he purchased the tenancy from Sookrajie. She agreed to transfer all her rights, title and
interest in the ands to the Appellant. The onus was on the Appellant to establish that.

16. After a careful assessment of the evidence the judge found the Appellant’s
evidence unconvincing and rejected that allegation. He found it to be untenable and a
complete fabrication. The judge noted that the documentary evidence did not assist the
Appellant. The receipt which was issued by Sookrajie in November 1979 at the time of
the Appellant’s purchase of the house standing on the land did not mention anything of
the tenancy. It spoke only of the purchase of the house. The Judge noted that “it is more
than just odd that the purchase of so vital an interest in land as the tenancy is not
reflected on the receipt”. The Judge also referred to letters dated July 11, 1984 and July
19, 1984 written by Mr. Sanguinette, a solicitor acting for the Appellant. It appears that
the purpose of the letters was to set out that the Appelant was the tenant of the lands and
so was entitled to purchase the freehold. Mr. Sanguinette, however, made no mention of

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the Appellant having purchased the tenancy and the alleged agreement with Sookrajie for
the transfer of her interest in the lands . Instead he asserted that the Appellant’s right to
the tenancy arose by virtue of the purchase of the chattel house. The judge noted that
“Mr. Sangunette could only have been writing on instructions. His failure to assert any
actual purchase of the land tenancy was particularly damaging to the plaintiff’s (the
appellant’s) case.” I think that it was appropriate for the Judge to comment as he did.

17. There were also receipts for rent said to be paid by the Appellant after the death of
Sookrajie. These receipts are issued on behalf of the estate of Ribeiro,deceased. They
acknowledged receipt of money from Sookrajie as land rent. They do not therefore on
their face support the assignment of the tenancy to the Appellant.

18. Counsel for the Appellant however seemed to attach particular significance to
these receipts as well as to the fact that the landowner, the estate of Ribeiro, took no steps
to remove the Appellant from the premises. However the payment of rent in the name of
Sookrajie does not provide evidence of the Appellant having acquired the tenancy from
Sookrajie or of the appellant having held himself out as tenant. It does not assist the
appellant in establishing that there was an agreement between him and Sookrajie for the
purchase of the tenancy. Similarly the fact that the estate of Ribeiro took no step to eject
the Appellant from the land does not assist in this case. It certainly provides no evidence
that the estate regarded him as the tenant of the lands. Indeed the evidence in the matter
is to the contrary.

19. I think that Bereaux J. on the evidence was well entitled to conclude that there
was no agreement between the appellant and Sookrajie for the transfer of the tenancy of
the lands. In the circumstances I would dismiss the appeal with costs.

Allan Mendonca
Justice of Appeal

I agree with the judgment just delivered by my Brother Mendonca, and I do not have
anything to add.

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 Satnarine Sharma
Chief Justice

I also agree with the conclusion arrived at by my Brother Mendonca, and for the same
reasons, and I would also dismiss this appeal with costs.

Ivor Archie
Justice of Appeal

Dated this 3rd day of October, 2005

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