Nakeisha Wiltshire v National Housing Corporation
| Jurisdiction | Barbados |
| Judge | Madam Justice Shona O. Griffith |
| Judgment Date | 16 August 2021 |
| Neutral Citation | BB 2021 HC 25 |
| Docket Number | Civil Suit No: 705 of 2016 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Hon. Madam Justice Shona O. Griffith, Judge of the High Court
Civil Suit No: 705 of 2016
Mr. Rudolph Greenidge for the Claimant
Ms. Nicole Gibson for the First Defendant and Ms. Vonda Pile for the Second Defendant.
Civil practice and procedure — Striking out of case — CPR Rules 26.3(1) & 26.3(3)(b) — Failure to Comply with Order of Court and No reasonable ground for bringing claim — Tenantries Freehold Purchase Act, Cap. 239B, section 2 — Qualification as Tenant
This Court delivered an oral decision in this matter (ex tempore) on the 18 th March, 2021 whereby the Claimant's case was struck out for want of reasonable ground for bringing the claim, as well as for failure to comply with case management orders. At the conclusion of the proceedings, Counsel for the Claimant indicated his intention to appeal and a notice of appeal was indeed filed on the 21 st April, 2021. As a consequence the Court now reduces its reasons into writing.
This matter concerns a parcel of land described as Lot 20 Campion Land, Martindale's Road, St. Michael, (‘Lot 20’) which was conveyed by the 1 st Defendant, the National Housing Corporation (NHC), to the 2 nd Defendant Marcia Wiltshire in March, 2014, in accordance with the provisions of the Tenantries Freehold Purchase Act, Cap. 239B (‘the Act’). The Claimant Nakeisha Wiltshire, by way of Fixed Date Claim (FDC) on the 19 th May, 2016, filed a claim asserting a right to purchase Lot 20, as a qualified tenant under the Act. The proceedings were initially brought against the NHC only, but by amended FDC filed on the 27 th May, 2016, the claim was constituted against both Defendants. The Statement of Claim (SOC) as amended, pleaded that along with her brother, the Claimant was and had been the occupier of Lot 20, since the death of the previous occupant, some 25 years prior (to May, 2016).
The Claimant's occupation of Lot 20, (in respect of which no specified dates have been specified), is alleged to have been a fact known by the 1 st Defendant, by reason of the Claimant having informed the 1 st Defendant of this fact for many years. The SOC alleged that the Claimant visited the 1 st Defendant's premises on many occasions and received from its officers, ‘ positive and encouraging comments’. The nature or content of such comments was not specified, but the SOC continues, and alleges that the Claimant ‘ acted on the assurances of the officers and agents of the 1 st Defendant and spent substantial sums on renovating the old structure on the premises…’ The Claimant also alleged that by affidavit, she'd informed the 1 st Defendant ‘that she was willing to pay the rent for the property and also signed the Form I form under the Tenantries Freehold Purchase Act.’ The Claimant pleaded that in spite of 1 st Defendant's knowledge of her occupation and presumably the assurances that were given to her, the 1 st Defendant proceeded to convey Lot 20 to the 2 nd Defendant (the 2 nd Defendant is the Claimant's mother).
With respect to the 2 nd Defendant, the Claimant alleges that the 2 nd Defendant had already been conveyed the adjacent Lot 19 and as such ought never to have been permitted to receive conveyance of a further lot. Additionally, that the 2 nd Defendant had never resided on Lot 20 and as such could never have been the qualified tenant and so receive conveyance of same. Even further, that the 2 nd Defendant received the conveyance with knowledge that (i) she never occupied Lot 20; (ii) that the Claimant was in occupation of Lot 20, and (iii) the 2 nd Defendant and her Attorney were under a duty to inform the NHC of the Claimant's occupation of Lot 20 and to requisition on the Claimant's right to occupation. Lastly, the Claimant pleaded that ‘any confusion, error, mistake or omission in this matter was caused by the negligence of the 1st Defendant in failing to carry out its due diligence to ascertain the name of the tenant or person actually residing on Lot 20.’
Against these allegations, the claim sought relief to (i) set aside the conveyance of Lot 20 between the NHC and the 2 nd Defendant, (ii) for the Claimant to retain possession of the property, and (iii) for the property to be conveyed by NHC to the Claimant instead. In its defence to the Claim, the 1 st Defendant pleaded that the Claimant communicated her occupancy of Lot 20 to them only on the 12 July, 2013 by way of an affidavit, (the said affidavit was attached to the Defence). The 1 st Defendant denied ever having received a signed Form 1 under Cap. 239B from the Claimant and averred that (i) the Claimant indeed never paid rent to the NHC; and (ii) there had never been a tenancy between the parties, by virtue of a lease, contract or licence, as required by the Act. As such, the Defence asserted that the Claimant had never been a qualified tenant in respect of Lot 20.
The 1 st Defendant also denied that its officers gave the Claimant any positive or encouraging comments as alleged; that the 2 nd Defendant's occupancy of Lot 20 had been communicated to it by its predecessor, the Urban Development Commission; and that the Claimant's occupancy of the property had been the subject of a requisition during the process of the sale, in respect of which the 2 nd Defendant answered that the Claimant occupied the property by virtue of the 2 nd Defendant's permission to do so. The 2 nd Defendant did not file a defence to the Claim, but filed an affidavit on the 8 th February, 2017. On the 10 th April, 2017, the Claimant filed a Reply to the 1 st Defendant's Defence in which she insisted that she had issued a Form 1 to the 1 st Defendant; acknowledged that she was never a rent paying tenant but maintained that she'd been in occupation of the property for a sufficiently long period of time to have been the sole person entitled to purchase the property in law or in equity.
The file's written record depicts that the case management conference was held on 22 nd November, 2018 before a Master, and case management orders made, however no physical order arising from the CMC was lodged or filed. According to Counsel for the 2 nd Defendant (in respect of which there was no disagreement), by that November, 2018 case management order, the parties' witness statements were to have been filed on or before the 15 th March, 2019. The Defendants more or less complied with the CMC Order having filed their standard disclosure, witness statements and statement of facts and issues between December, 2018 and May, 2019. It is noted that the 2 nd Defendant had filed no defence, but had answered the claim in her affidavit of February, 2017 1. When the matter first came before the Court as presently constituted on the 16 th July, 2020, there had been nothing filed by the Claimant in compliance with the case management orders or otherwise. The last document on file was the Claimant's Reply filed on the 10 th April 2017.
On the 16 th July, 2020, the Court directed the Claimant to file an application for permission to extend time for compliance with the case management orders. The Court also raised certain questions as to the sufficiency of the cause of action and afforded the Defendants liberty to apply and gave
directions for filing of responses and submissions to the applications when filed. The Claimant filed her application for extension of time for compliance with the order on case management and the 1 st Defendant filed an application to strike out the claim. The Claimant appended a draft witness statement to the affidavit filed in support of her application for time. The affidavit in support of the Claimant's application stated that the Claimant was in financial dire straits; had received information from relatives that her mother had agreed that they should no longer pursue the matter in the interest of harmony; having not heard anything negative from her mother she no longer regarded the witness statement as necessary; and that she'd made several efforts over the past 4 months (presumably prior to the swearing of the affidavit in July, 2020), to contact her Attorney, who she'd been informed because of health concerns, was rarely in officeThe draft witness statement repeated that the Claimant had paid no rent to the 1 st Defendant in relation to the property, but maintained a right to purchase in law or in equity, by virtue of her occupation. The 1 st Defendant's application to strike out the claim was supported by Counsel for the 2 nd Defendant. The application to strike was made on the basis of Rule 26.3(3)(b), that the SOC disclosed no reasonable ground for bringing the claim; and Rule 26.3(1), the Claimant's failure without good reason, to comply with the Case Management Order of 22 nd November, 2018. The 1 st Defendant's affidavit in support of its application to strike was filed by an officer of the 1 st Defendant, who deponed as to the history of the conveyance of Lot 20 to the 2 nd Defendant and asserted that according to its records (documentary evidence was attached), the Claimant had never been a tenant of the 1 st Defendant.
In support of the Claimant's application for further time to comply with the case management order, Counsel submitted (i) the case management order was interlocutory in nature and not final; (ii) there was no sanction for failure to comply; (iii) the Claimant remedied the default to the satisfaction of the Court within days of being told to do so; and (iv) there was a genuine issue for trial and the Claimant would suffer irreparable harm if not permitted to file her witness...
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