Ward v Foster

• Jurisdiction: Barbados
• Judge: Chase, J.
• Judgment Date: 28 December 1992
• Court: Divisional Court (Barbados)
• Docket Number: No. 79 of 1990
• Date: 28 December 1992

Divisional Court (Civil Jurisdiction)

Belgrave, J.; Chase, J.

No. 79 of 1990

Ward

and

Foster

Appearances:

Mr. Rudolph Greenidge for the appellant.

Mr. Ralph Thorne for the respondent.

Real property - Landlord and tenant — Non-payment of rent for four years — Service of notice to quit and notice of intention to apply to magistrate to recover possession — Notice of intention to purchase land under Tenantries Freehold Purchase Act — Meaning of qualified tenant — Tenantries Freehold Purchase Act, Cap. 239A, s. 4(2).

Chase, J.

1 This is an appeal from the decision given by the magistrate for District “A” on February 27, 1989 ordering the appellant to deliver up possession of a house spot occupied by him under a contract of tenancy.

2 The appellant's grounds of appeal contained in the notice dated February 28, 1989 are:

• (a) that the learned trial magistrate erred in law and

• (b) that the decision is against the weight of the evidence.

3 The evidence adduced before the magistrate discloses that the appellant was in occupation of a parcel of land situated at Grazettes, St. Michael and that he paid to the respondent the sum of $12 per month for its use and occupation.

4 The evidence further discloses that the appellant was in occupation of the land from 1976, and according to the appellant, that he paid rent to the respondent during 1986 or 1987.

5 The relevant part of the appellant's testimony in chief is in these terms:

“I rented land from Maureen Foster's husband. I was paying rent to Larry Foster. There are two lots that I rent. I did not rent the two lots around the same time. One lot was rented in the Barker's time, the second lot from Maureen Foster. I paid the rent to Maureen Foster for both lots. Her father-in-law told me to pay her. She did not show me any documents to show she owns the property.

I pay six dollars from the time I been on the land. When Mrs. Foster took over, she was paid six dollars each. I paid her rent the last time in October, 1986 or 1987.

Mrs. Foster gave me an address where she was living in Chancery Lane and a phone number. I used it many times but I did not get anyone. I couldn't find her. I came to the conclusion to go to her solicitor's office. I took the rent to her by way of giving it to the secretary of the solicitor.

I signed a copy of the form under the Tenantry Freehold Purchase Act, Cap. 239A telling her I intended to purchase the land, this was November 29. 1988.

I was served on 6th, 7th or 8th February, 1988 with a summons. I had three notices to quit from Mrs. Foster, one for 7 days, one for four weeks and one was for six months. I was living on the land from 1976.”

6 In his evidence under cross-examination the appellant states as follows:

“I owe rent for the land. Rent was paid beyond 1984. I last paid between 1986 and 1987. Mrs. Foster asked me to leave the land. I received the notices but I can't tell you the date. I had more than six months to leave. I went to purchase the land. I sent the notice on November 29, 1988. I gave the notice after I received the notices from her. I still owe some rent. I rent two separate lots. There is one building now. I did not divide the land. I rent two spots. My house is in the centre. The house was demolished.

Mrs. Foster refused the money that was paid to the solicitors.”

7 The respondent's case was that the appellant having failed to pay rent from 1984, she served him with a notice to quit on August 28, 1987, and on May 26, 1988 with a notice of her intention to apply to the magistrate to recover possession of the house-spot.

8 In his reasons for decision, the magistrate states as follows:

“The court decided in favour of the plaintiff because the defendant failed to pay his rent from 1984. It rejected the defendant's evidence that he paid rent in 1986 or 1987. It concluded that the notice to quit was properly served and that the defendant signed the option form after he was served with the notice to quit. The court considered that that was a tenantry, but that the defendant was not a qualified tenant since he did not possess the land for the required period.”

9 At the date of the notice to quit on August 28, 1987, the state of the law under the Tenantries Freehold Purchase Act, Cap. 239A, section 4(1) was in these terms:

“Notwithstanding any other law or any term or condition of any lease, contract or licence relating to a tenancy, it is a term or condition of every tenancy within a plantation tenantry or other tenantry that the tenant as of right and at his option may, if he is a qualified tenant, purchase the freehold of the lot of which he is a tenant at a price to be determined….”

10 A qualified tenant is described by section 4(2) of the Act in these terms:

“A qualified tenant of a lot is a tenant

• (a) who, at 1st November, 1980 is residing on the lot and has been so residing

  • (i) for 5 consecutive years immediately preceding that day, or

  • (ii) for 5 years out of the 7 years immediately preceding that day; or

• (b) who, at any particular time after 1st November, 1980 is a tenant who has, at that particular time,

  • (i) been residing on the lot for 5 consecutive years;

  • (ii) been residing on the lot for 5 out of immediately preceding 7 years.”

11 The Act further provided that a tenant resided on a lot if he used it as his own habitation or as a habitation for his spouse, child, brother, sister or parent whether or not the tenant used it as his habitation at the same time.

12 It was contended by counsel for the appellant that when the decision was given by the learned trial magistrate, two houses on an area of land constituted a tenantry. He submitted that the magistrate properly found that the area of land in question was a tenantry, but contended that the reasons given by the magistrate for finding that the appellant was not a qualified tenant were either due to a mistake of fact or to an oversight on the part of the magistrate in that the appellant was in occupation of the land from 1976.

13 Counsel's further submissions in support of his contentions that the appellant was a qualified tenant for the purposes of the Act may be summarised as follows:

• (i) there must be occupation by the tenant;

• (ii) arrears of rent cannot be used as a bar to defeat the right of a qualified tenant to...