Espirit Agent for Moses Espirit v Meade
| Jurisdiction | Dominica |
| Judge | Rawlins, J. |
| Judgment Date | 27 September 2002 |
| Neutral Citation | DM 2002 HC 18 |
| Court | High Court (Dominica) |
| Date | 27 September 2002 |
| Docket Number | 99 of 2000 |
High Court
Rawlins, J.
99 of 2000
Ms. Ellise Darwton for the claimant.
Mrs. Zena Dyer for the defendant.
Real property - Landlord and tenant — Action for damages for trespass — Defendant not a trespass but a tenant — Rent to be paid had not been stipulated — Defendant had used his funds to repay house and pay outstanding bills — Claim for damages for trespass dismissed.
The claimant in this case is the brother and agent of Moses Esprit who lives in the United States of America. The claimant lives in Gleau Gommier, Dominica. Moses Esprit owns or owned a two bedroom wooden house at Curry Rest Road in Mahaut, Dominica, which is the subject of this case. Gleau Gommier is some 20 miles from Mahaut. The defendant in this case is also known as “Tony”. He went into possession of the house in or about the month of August 1998.
The claimant instituted the action herein by way of a Writ of Summons, generally indorsed, dated and filed 20th March 2000. By that Writ, he claims possession of the house that is the subject of this case. He also claims damages for trespass at $250.00 per month from the month of August 1998 until the delivery of possession, interest and costs. During the course of the trial, however, it was revealed that the defendant had in fact given up possession of the house in November 2002. Possession was therefore no longer a live issue. It is noteworthy that the claimant has not claimed mense profits. The issue for decision, therefore, is whether the defendant was a bona fide tenant or whether he was a trespasser. In this latter case, the claimant will be entitled to damages.
In the Statement of Claim, the claimant claims that in or about August 1998, he gave the keys to the dwelling house to the defendant in order to permit the defendant to view the house. The defendant, however, thereupon entered upon the property, took possession of the house and continued in possession of it, notwithstanding the protests of the claimant. He asserts that the acts of the defendant amount to a trespass, and that the claimant has thereby suffered loss and damage. He states that the fair letting value of the property is $250.00 per month.
In the defence, which was filed on 20th April 2001, the defendant denies that he had entered the house as claimed by the claimant. He asserts that he was the tenant of the claimant. He states that he entered the property, which is registered under the Tenancies and Rent Control Act Chapter 54:72 of the Revised Laws of Dominica, (hereinafter “the Act”) with the knowledge and approval of the claimant.
The defendant also states that he paid outstanding electricity and water bills, and did work in respect to the premises prior to the commencement of the tenancy, expending sums amounting to $1,898.83 in this regard. He asserts that alternatively, he paid the electricity bills in accordance with the provisions of the Act. The defendant denies that the fair letting value of the house is $250.00. He states that the premises are registered under the Act at a rental of $150.00 per month with Registration number PL/04777. He asserts, therefore, that the claimant is in contravention of section 14 of the Act. The defendant further states that the claimant is not entitled to the reliefs for which he prays, since he has not satisfied the Notice requirements of the Act.
The case came for Case Management Conference on 16th May 2001. The Master made an order for the disclosure of documents and for the conduct of the Pre-trial Hearing. The claimant filed a Pre-trial Memorandum on 25th July 2001. On 17th December 2001, Solicitors for the defendant filed an amended Pre-trial Memorandum agreed upon by the Parties. On 21st December 2001, Tyrone Chong, J. (Ag.), adjourned the case to 1st February 2002 for trial.
The matter came before me for trial on 1st February 2002. A Consent Order was issued. By the terms of that Order, the Parties were to serve any document upon which they would rely in the case during the course of that same day. They were also ordered to file and serve Affidavits that were to be accepted as evidence in chief in the trial. They reserved the right to cross-examine on the Affidavits. They were to file and serve written submissions on or before Tuesday the 5th day of February 2002. Further hearing was adjourned to 5th February 2002.
The claimant gave evidence on his own behalf. His evidence in chief is contained in his Affidavit that was deposed and filed on 4th February 2002. He was subject to cross-examination. The defendant gave evidence on his own behalf. Thomas Joseph, a.k.a. “Bumbay” and “Brother”, a maternal cousin of the claimant, also gave evidence on behalf of the defendant. Their evidence is contained in Affidavits that were deposed and filed on 4th February 2002. They were subject to cross-examination.
In his evidence, the claimant agrees that the property is registered with the Rent Control Tribunal at the monthly rent of $150.00. He states that sometime in or about August 1998, he met the defendant on the road in Mahaut. He denied that he had met him or made any arrangement to meet him at Ma Polly's shop. He said that the defendant told him that he was interested in renting the house. He told the claimant that he would have to speak with his brother and would show him (the defendant) the house on the following day. The defendant told him that that he wanted to see the house immediately, and promised that if he gave the keys to him he would look at the house and return the keys to him (the claimant) the following day. During the course of cross-examination, however, he said that he had given the keys to the defendant to give him a chance in the house for a month. He said that he gave the keys to the defendant and authorized him to view the house, because he (the claimant) was going home to Gleau Gommier. He did this because it was already late, and he did not want to go back to the house.
He contacted his brother, Moses Esprit, by telephone. As a result, he told the defendant that his brother preferred to sell the house rather than to have it rented. He agreed to give the defendant the first option to purchase the property at the request of the defendant. They agreed that the defendant would have procured a valuation of the property. The defendant got a valuation from a contractor for $60,000.00. However, the defendant offered to purchase it for $8,000.00. He did not accept the offer. He asked the defendant to give the keys for the house back to him. The defendant refused, even when he sought the assistance of the Police, and after Solicitors wrote to the defendant, on his behalf, demanding him to vacate the premises. The defendant finally delivered the keys to the premises in November 2000, some 8 months after the Writ was filed.
According to the claimant, the keys that the defendant delivered were not the keys that he had given to him. When he (the claimant) visited the house subsequently, he found that the locks on the doors had been broken. He caused a valuation of the damage to be made. The damage was valued in the sum of $342.62. The claimant stated that he also went to the office of DOWASCO and was advised that as at November 2000, the amount of $387.17 was outstanding for the water bill. He also visited the offices of DOMLEC where he discovered that there was an outstanding balance of $35.70 on the electricity bill as at that month.
The claimant insists that he had not negotiated or entered into a tenancy agreement with the defendant. He had not made any agreement with the defendant in relation to the payment of utilities, and he (the claimant) paid the water bill in respect of the said premises even as the defendant occupied it. He says that he did not authorize the defendant to undertake any repairs to the premises.
Under cross-examination by Mrs. Dyer, the claimant indicated that the date on which he gave the keys to the house to the defendant was 26th August 1998. He also said that he sprayed inside and outside the house for wood ants while the defendant occupied it. He denied that he got his cousin, Joseph Thomas to construct a septic tank for the house while the defendant occupied it. He said that the defendant procured the services of Thomas for the purpose, but admitted that he (the claimant) gave $1,200.00 to the defendant to defray the costs for the construction of the tank. He also said that his brother, Harris Esprit, and one Pearson did the concrete work for the septic tank.
The claimant admitted that during the occupation of the house by the defendant, he had a concrete addition to the house by which toilet and bathroom facilities were added. He further said that his brother Harris and Pearson also put tarrish on the track that led to the house. He has not seen that the outside of the house was painted brown and white when the defendant occupied it. He did not give the defendant permission to paint it and to deduct the cost from the rent.
In cross-examination, the claimant also said that during the time that the defendant occupied the house, he never claimed or received any money by way of rent from him. He had never agreed or discussed a rental price with the defendant. He had never agreed that the defendant was to perform any work on the property in exchange for rent.
The evidence of the defendant is that the claimant became his landlord under a tenancy agreement between them, which commenced on 15th August 1998. Before they entered into that agreement, he had met the claimant at Ma Polly's shop at Mahaut. They had both walked to the premises. He inspected the house and agreed to rent it from the claimant at $150.00 per month....
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