THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV 2010 - 00176

BETWEEN

NIXON GUMBS First Claimant

ALVIN GUMBS Second Claimant

CURTIS GUMBS Third Claimant

NIGEL GUMBS Fourth Claimant

AND

LYNETTE PETERS also called

BERNADETTE PETERS Defendant

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES

Mr. Rennie Gosine, Attorney-at-Law for the Claimants.

Mr. Haresh Ramnath and Ms. Lauren Ramtahal, Attorneys-at-Law for the Defendant.

JUDGMENT

Introduction

1. In these proceedings, the claimants seek to recover vacant possession of a building

located at #31 George Street, La Romaine. In so doing, they rely on a Bill of Sale, by

which they purported to purchase the building from the late owner, Doris Gumbs. The

defendant resists this action on the ground that she is entitled to possession and

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occupation of the land together with the building by virtue of an agreement for sale dated

the 16th

December, 2002.

2. In the course of this judgment, the Court considered the law regarding Bills of Sale and

the consequences which follow a failure to comply with the Bills of Sale Act, “the Act”

Ch. 82:32.

History of Proceedings

3. The claimants initiated these proceedings by filing their claim form and statement of case

on the 19th

January, 2010. An amended claim form and an amended statement of case

were later filed on the 14th

January, 2011.

4. The claimants sought these orders:

“i. A declaration that the claimants are the owners and entitled to possession

of that building located at 31 George Street, La Romaine in the Ward of

Arima, comprising of a split level house constructed partly of wood and

concrete comprising three bedrooms, a dining room, living room, two

kitchens, one toilet and bathroom and standing on tenanted land

hereinafter referred to as the subject premises.

ii. Damages for trespass to the subject premises;

iii. A declaration that the Bill of Sale dated the 19th

September, 2002 was

registered before the Agreement dated the 16th

December, 2002 and

consequently the Bill of Sale is null and void and of no effect.

iv. A (sic) Order hat (sic) the defendant do vacate the subject premises.

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v. Costs.

vi. Such further and/or as the Court deems fit.”

5. The defendant filed a defence and counterclaim on the 16th

February, 2011. By her

counterclaim, the defendant seeks these orders:

“1. Damages for trespass.

2. An order that the bill of sale dated the 19th

September, 2002,

registered on the 3rd

October, 2002 as number BS 2002 017999

09D001 be set aside and the Registrar to be directed to cancel the

registration of the said Bill of Sale.

3. Alternatively, a declaration that the claimants are entitled to a bare

legal estate in the dwelling house located at 31 George Street, La

Romaine which they hold in [sic] trust for the defendant who is

entitled to possession and occupation of the said dwelling house

located at 31 George Street, La Romaine and the lands upon which it

stands together with the beneficial interest in the said lands as

tenants.

4. Interest.

5. Costs.

6. Such further and/or other relief as the nature of the case may

require.”

6. Two witness statements were filed in these proceedings. The witness statement of Mr.

Nixon Gumbs which was filed on the 25th

November, 2011in support of the claim and the

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witness statement of the defendant filed on 27th

January, 2012, in support of the defence

and counterclaim.

7. The trial in this matter began on the 6th

May, 2014. The Court heard the evidence of one

of the claimants, namely Nixon Gumbs. On the said date, the court also heard the

evidence of the defendant, Bernadette Peters.

8. The claimants have put forward a certified copy of a Bill of Sale dated the 19th

September, 2002 in support of their claim for ownership of the said property. On the

other hand, the defendant has also produced a copy of an agreement for sale dated the

16th

December, 2002 in support of her defence and counterclaim.

Facts

9. The first claimant, Nixon Gumbs is the father of the second, third and fourth named

claimants. Nixon Gumbs has alleged, without contradiction that Doris Gumbs was his

aunt and adoptive mother and that he lived with her at her home in D’Abadie until the

mid-90’s.

10. Doris Gumbs was the owner of a split level house, which stood on premises situate at

George Street, La Romaine. These premises were tenanted lands, and rent was paid to

Peter Chandoor Enterprises.

11. In 2002, the house was occupied by the defendant, and had been so occupied since 1998.

On the 19th

September, 2002 Doris Gumbs executed a Bill of Sale transferring her rights

in the house to herself and the claimants. The Bill of Sale was registered on the 3rd

October, 2002.

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12. The substance of the Bill of Sale is set out below:

“THIS DEED is made this 19th

day of September, in the Year of Our Lord

Two Thousand and Two Between DORIS GUMBS of No. 53 Ponderosa

Crescent, La Resource, D’Abadie, retired nurse, in the Republic of Trinidad

and Tobago, (hereinafter called “the Vendor” of the one part and DORIS

GUMBS, aforesaid, NIXON GUMBS, ALVIN GUMBS, CURTIS GUMBS

AND NIGEL GUMBS all of No. 26, Ibis Drive, Pleasantville, in the Republic

of Trinidad and Tobago (hereinafter called “the Purchasers”) of the other

part.

WHEREAS the Vendor is the owner of the chattel and effects specified in the

Schedule hereto.

WHEREAS the Vendor has agreed with the Purchasers for the absolute sale

of the same to them of the said chattel and effects mentioned and described in

the said Schedule for the price or sum of TWENTY THOUSAND DOLLARS

($20,000.00)

NOW THIS DEED WITNESSTH that in pursuance of the said agreement and

in consideration of the sum of TWENTY THOUSAND DOLLARS

($20,000.00) paid to the Vendor by the Purchasers on or before the execution

of these presents (the receipt whereof the Vendor hereby acknowledges) the

Vendor hereby conveys and assigns unto the Purchasers ALL AND

SINGULAR the said chattel and effects mentioned and described hereto in

the said Schedule TO HOLD the same unto and to the use of the Purchasers

in fee simple as joint tenants.

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IN WITNESS WHEREOF the Vendor hereto have (sic) hereunto set her

hands the day and year first hereinabove written.

THE SCHEDULE HEREINABOVE REFERRED TO

ALL AND SINGULAR that split level house, constructed partly of wood and

concrete comprising three bedrooms, dining room, living room, two kitchens,

1 toilet and bath, porch and located at No. 31 George Street, La Romaine

and standing on tenanted lands of Chandoor.”

13. Later in 2002, the defendant and the late Doris Gumbs entered an Agreement for the Sale

of the house. This Agreement was purportedly signed by the defendant and by the late

Doris Gumbs.

14. An issue arose as to whether the late Doris Gumbs in fact signed the Agreement for Sale.

It was the contention of the claimants that by the year 2002, Ms. Gumbs had lost the

ability to sign her name.

15. This issue was explored by both counsel in cross-examination. In the course of cross-

examination, learned counsel, Ms. Ramtahal asked Mr. Nixon Gumbs whether he had

seen the receipts which had been attached to the witness statement of the defendant. Mr.

Gumbs answered in the affirmative and indicated that he accepted that Ms. Gumbs used

to write on the receipts.

16. Mr. Gumbs stated under cross-examination that the late Doris Gumbs had stopped

writing in early 2002 because she had a stroke. Mr. Gumbs was unable to recall the

month, when the deceased stopped writing. When confronted with a copy of a receipt

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dated the 1st June, 2002

1, Mr. Gumbs accepted that the late Doris Gumbs was still writing

in June, 2002.

17. Under cross-examination, the defendant was emphatic that she saw the deceased sign the

Agreement for Sale. The defendant alleged further that, as agreed, that she paid thirty-

five thousand dollars ($35,000.00) to the claimant when the Agreement was signed and

another five thousand dollars ($5,000.00) on the 10th

January, 2003.

18. The defendant was cross-examined as to her allegations that payments were made. The

defendant told the Court that on the 16th

December, 2002, she gave thirty-five thousand

dollars ($35,000.00) to Doris Gumbs, by a certified cheque. The defendant stated further

that in the following year, she gave the deceased a further five thousand dollars

($5,000.00).

19. The defendant was also cross-examined as to an earlier agreement dated the 17th

July,

2000 pursuant to which the defendant allegedly paid forty thousand dollars ($40,000.00).

20. The defendant told the Court that she had paid a total of eighty-five thousand dollars

($85,000.00) for the house and the land; that she had taken a loan from TECU and that

the monies were paid directly to attorney-at-law, Mr. Carlton Alert.

21. Doris Gumbs died on the 13th

July, 2005. The defendant continued to occupy the house

and the claimants continued to reside in the United States of America (USA). The

claimants were initially unaware of the death of Ms. Gumbs. Mr. Nixon Gumbs became

aware of the death of his aunt in 2007. Upon learning of her death, the first named

claimant returned to Trinidad and Tobago from the USA in order to recover possession of

the chattel house.

1 A copy of this receipt is exhibited in a bundle marked “B.J.1” and attached to the Witness Statement of the

Defendant

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22. The claimants contended that since the death of Doris Gumbs, they have on several

occasions requested that the defendant vacate the premises. However, the defendant has

refused to do so.

23. On one such occasion, on or about the 22nd

January, 2009, the claimants alleged that they

entered the said property in an attempt to measure the building and were met with protest

by the defendant. They described the defendant as being uncooperative to them. The

defendant did not acknowledge the claimants as owners of the said property.

24. In or around the 13th

January, 2009, the claimants’ attorney at law wrote to the defendant

advising her that the claimants were the lawful owners of the said property and also

requested that the defendant immediately vacate the premises.

25. The defendant’s attorney responded by letter dated the 22nd

January, 2009 insisting that

the defendant was in fact the owner of the property by virtue of the Agreement for Sale

dated the 16th

December, 2002 made between the defendant and the deceased.

26. The claimants later responded by letter dated 4th

of March, 2009 calling on the defendant

to vacate the said property and to deliver up possession to the claimants. The defendant

has since not responded to this letter and to date, remains in occupation of the said

property.

Submissions and Law

27. Written submissions were filed by attorney at law for the claimants on the 4th

November,

2014. Submissions on behalf of the defendant were filed on the 10th

June, 2014. Counsel

for the claimants submitted that the building in question is a fixture and not a chattel and

that the provisions of the Bill of Sale Act should not apply. The claimant also submitted

that in construing the Bill of Sale, the court should look at the document as a whole and

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should lean towards the intention of the deceased which was, to convey the said property

to herself and the claimant in fee simple as joint tenants.

28. As to the effect of the Agreement for Sale, the claimants submitted that there was no

agreement since at the time of the execution of the Bill of Sale, the deceased was

incapable of signing her name and that the defendant has failed to comply with the terms

of the agreement requiring her to take out a TECU loan on or before the 30th

January,

2003.

29. Counsel for the defendant submitted that the property in question should be deemed a

chattel house even though it stands on concrete pillars and is incapable of being moved

without its demolition.

The Bill of Sale Act2

30. Section 3 of the Act defines a Bill of Sale as including:

“Bill of sale, assignments, transfers, declarations of trust without transfer,

inventories of goods with receipts thereto attached and other assurances of

personal chattels...”

31. Section 9 provides:

“Every bill of sale and every transfer and assignment... shall be duly attested

and shall be registered within seven clear days after the execution thereof...

and shall truly set forth the consideration for which it was given; otherwise

such bill of sale...shall be void in respect of personal chattels comprised

therein”

2 Bill of Sale Act Ch. 82:32

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32. Failure to comply with the time line stipulated at Section 9 results in the Bill of Sale

being treated as void. See Rajkumar v. John CV 2005-00439, a decision of Justice

Stollmeyer (as he then was) and Rampaul v. Seenath Khan and Others HCA#S0629

of 1996 a Judgment of Bereaux J (as he then was).

Mitchell v. Cowie3

33. This was an authority cited by both parties, as providing the test by which the Court

could determine whether or not a structure is a chattel house. In that case, the plaintiff

sought a declaration that she was the owner of a chattel house (measuring 16 ft by 28 ft

built of hollow clay blocks, plastered and standing on concrete pillars with galvanised

iron sheets, standing on a lot of land owned by one Lawrence Bayack,) and that she was

entitled to the tenancy of the lot of land upon which the chattel house now stood. She

also sought an injunction to restrain the defendant, Cowie, from selling or disposing of

the chattel house.

34. Wooding CJ in Mitchell v. Cowie4 identified these as the principles which should be

applied in determining whether a house is a fixture or chattel:

“1. A house may be a chattel or a fixture depending upon whether it was

intended to form part of the land on which it stands. But the intention

is to be determined objectively rather than subjectively, that is to say,

according to the circumstances as they appear and by the application

of rules such as are set out hereunder.

3 (1964) 7 WIR 118 at 122

4 Ibid

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2. To distinguish chattel from fixture, a primary consideration is

whether or not the house is affixed to the land.

3. If the house is not affixed to the land but simply rests by its own

weight thereon, it will generally be held to be a chattel unless it be

made to appear from the relevant facts and circumstances that it was

intended to form part of the land, the onus for so doing being upon

him who alleges that it is not a chattel.

4. If the house is affixed to the land, be it however slightly, it will

generally be held to form part of the land unless it be made to appear

from the relevant facts and circumstances that it was intended to be or

continue as a chattel, the onus for so doing being upon him who

alleges that it is a chattel.

5. Specifically as regards a house affixed to land by a tenant thereof, a

circumstance of primary importance is the object or purpose of the

annexation.

6. To ascertain the object or purpose of the annexation, regard must be

had to whether the affixation of the house to the land is temporary

and for use as a chattel or is permanent and intended to be for the

better enjoyment of the land. But for this purpose it must at all times

be borne in mind that the intention or right of the tenant to remove the

house from the land on the cesser of his interest as tenant with the

result that no improvement will accrue to the landlord's reversionary

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interest does not make the affixation (albeit that it is in one sense)

temporary. The critical consideration, therefore, is whether the tenant

in affixing his house to the land has manifested a purpose to attach it

thereto so that it becomes and remains a part thereof conterminously

with his interest as tenant”5

35. What constitutes sufficient annexation will depend on the facts of the particular case. In

Mitchell v. Cowie, Wooding CJ endorsed the statement made by Blackburn J in Holland

v Hodgson 6where the learned Judge stated:

“There is no doubt that the general maxim of the law is that what is annexed

to the land becomes part of the land; but it is very difficult, if not impossible,

to say with precision what constitutes an annexation sufficient for this

purpose. It is a question which must depend on the circumstances of each

case, and mainly on two circumstances, as indicating the intention viz, the

degree of the annexation and the object of the annexation.”7

Reasoning and Decision

36. In these proceedings, the claimants seek an order for vacant possession against the

defendant, who has been in occupation of the subject house since 1998.

37. The ground upon which the claimants seek to have the defendant removed from the

premises is that they are entitled to the subject house by virtue of a Bill of Sale executed

5 Per Wooding CJ in Mitchell v. Cowie (1964) 1 WIR 118 at 122

6 (1872) LR 7 CP 328

7 Per Blackburn J. in Holland v Hodgson (1872) LR 7 CP 328 statement endorsed by Wooding CJ in Mitchell v. Cowie

(1964) 1 WIR 118 at 120

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by the late Doris Gumbs, who had been the original owner of the house and who held

tenancy rights in respect of the land on which the house stood.

38. By virtue of the Bill of Sale which was executed on the 19th

September, 2002, Doris

Gumbs, as vendor had transferred her rights to herself and the claimants as joint tenants.

The Bill of Sale was not, however registered until the 3rd

October, 2002, and clearly

outside of the seven (7) stipulated by Section 9 of the Bill of Sale Act8. The clear effect

of Section 9 of the Bill of Sale Act is that failure to register the Bill of Sale within the

stipulated seven (7) day renders the Bill of Sale void in respect of personal chattel

comprised therein. Learned counsel for the defendant cited a host of authorities which

apply Section 9 of the Bill of Sale Act9. I accept therefore as a matter of principle that the

requirements of the section are strict and that failure to comply will render the instrument

void.10

39. Mr. Gosine, learned counsel for the claimants has countered that the Bill of Sale is in fact

void for another reason. According to Mr. Gosine, the subject structure is a fixture that

falls outside of the definition of a personal chattel. It was Mr. Gosine’s submission that

the Bill of Sale was erroneously so entitled and that it should be read as a Deed of

Conveyance.

40. It was the clear evidence of the defendant that the house was not movable and could not

be removed without being destroyed. The structure was therefore annexed to the land

and, without more, according to the test in Mitchell v. Cowie11

, the house should be

8 Ch. 82:32

9 See paragraph 9 Supra

10 Ibid

11 Mitchell v. Cowie (1964) 1 WIR 118 at 122

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regarded as a fixture. I therefore proceed to consider whether it is open to this Court to

treat the Bill of Sale as a Deed of Conveyance.

41. I considered therefore whether it would be correct for the Court to hold that the Bill of

Sale should be treated as a Deed of Conveyance. Indeed, Mr. Gosine’s arguments were

compelling that the Court ought to interpret a document to effectuate rather than to

invalidate.

42. It was to be observed however, that there was no allegation or supporting evidence that

there was any error in the drafting of the Bill of Sale. The document was prepared and

submitted for registration as a Bill of Sale. A certified copy was issued under the rubric

“Bill of Sale” and the document received a registration number as a Bill of Sale “B.S.

200201799909”.

43. The Bill of Sale was executed in 2002. Years passed. Yet neither parties nor attorneys

applied to have the instrument rectified. The claimants returned to their life in the USA.

Ms. Gumbs proceeded to execute another document namely the Agreement for Sale with

the defendant. Ms. Gumbs eventually died. The Bill of Sale remained unchallenged until

the parties stumbled on the provisions of Section 9 of the Bill of Sale Act and the reality

that they had registered out of time. Their belated contention that the document was

wrongly entitled a Bill of Sale bears the tone of an afterthought. It is my view that the

Court ought not to place a strained interpretation on the document in the absence of

evidence that parties so intended. Accordingly, it is my view and I hold that instrument

executed on the 19th

September, 2002 was and continued to be a Bill of Sale and is void

for two (2) reasons, that it is incapable of transferring ownership in a fixture and it was

registered outside of the seven (7) days stipulated by Section 9 of the Bill of Sale Act.

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44. It follows that the void Bill of Sale was incapable of investing any rights in the claimants.

Their claim is accordingly dismissed. I turn now to consider the effect of the Agreement

for Sale. Under cross-examination Mr. Gumbs accepted that the deceased was able to

write in June, 2002. There was no ground for suggesting that the signature was forged.

In my view, the defendant acquired an equitable interest in the property by virtue of the

Agreement for Sale and is entitled to continue in possession.

Orders

(i) The claim is dismissed.

(ii) There be judgment for the defendant on the counterclaim.

(iii) The Court declares that the defendant is entitled to possession and occupation of the said

dwelling house located at No. 31 George Street, La Romaine and the lands upon which it

stands together with the beneficial interest in the said lands as tenants.

(iv) It is further ordered that the claimant pay to the defendant the costs of the claim and the

counterclaim in the sum of fourteen thousand dollars ($14,000.00).

Dated this 2nd

day of October, 2015.

M. Dean-Armorer

Judge12

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Joezel Williams, Judicial Research Counsel (J.R.C.)

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