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. CV2016-01126

BETWEEN

SUDESH PARDOOMAN

Claimant

AND

AL’S PLAZA LIMITED

Defendant

Before the Honourable Mr. Justice Frank Seepersad

Appearances:

1. Mr. Y. Ahmed and Ms. C. Le Gall instructed by Ms. T. Lutchman for the Claimant

2. Ms. N. Lowman and Mr. F. Scoon for the Defendant

Date of Delivery: April 10, 2017

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DECISION

1. The matter for the Court’s determination involves a dispute surround the rental of

commercial premises situate at Corner Broadway and Queen Streets, Arima in the island

of Trinidad (hereinafter referred to as the Tenanted Premises”).

2. By Claim Form and Statement of Case filed on April 12, 2016, the Claimant claimed,

inter alia, an order for specific performance of a tenancy agreement that commenced on

or about January, 2016, (hereinafter referred to as “the Agreement”); and an order

directing the Defendant to submit the necessary application (s) to the Town and Country

Planning Division (TCPD) and the Arima Borough Corporation for approval of the use of

the tenanted premises as a food establishment/restaurant.

3. The issues that fell to be determined by court were as follows:

i. Whether there was an express or implied term of the Agreement between the

parties that the Defendant had obtained all the requisite approvals for the rental of

the tenanted premises as a food establishment?

ii. Whether the Defendant misrepresented to the Claimant that it had obtained all the

necessary approvals for rental of the tenanted premises as a food establishment

and/or restaurant?

iii. Whether the Defendant had, without the relevant Town and Country Planning

approval removed a partition wall separating (what was formerly) two

commercial spaces in order to create the tenanted premises and whether this act

caused the Arima Borough Corporation to close down the Claimant’s operation.

iv. Whether the Claimant remained liable for payment of rent during the period of

closure of the business?

v. Whether the action of the Defendant to recover the arrears of rent was lawful in

the circumstances?

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Resolution of the Issue

Whether there was an express term or implied term of the agreement that the Defendant

had obtained all necessary approvals for the use of the tenanted premises as a food

establishment.

4. The Claimant did not outline either in his Statement of Case or in his witness statement

any circumstance which gave rise to an express term of agreement as between himself

and the Defendant, whereby it was expressly agreed that the tenancy was contingent upon

the Defendant having obtained all the requisite approvals for the operation of a food

establishment at the tenanted premises..

5. In cross examination, the Claimant in fact confirmed that there was no express agreement

that the Defendant had obtained all necessary approvals. His evidence was that in or

around December, 2015 he approached a representative of the Defendant and told him

that he wanted to rent a commercial space to open a second branch of his food business in

the Arima area. There was a discussion between them with respect to renting one

commercial space and during same he learnt that Burger King had rented the space but

this operation however never commenced. He further stated that he was told that it was

“okay” for him to do works on the premises. This witness confirmed that his tenancy

agreement was oral and was premised upon the conversation which he outlined at

paragraph 11 of his witness statement. He testified that he and the Defendant’s

representative Mr. Hanif discussed the monthly rent, the security deposit and the

subsequent grant of a written lease. The Claimant further confirmed under cross

examination that the matters set out at paragraph 17 of his witness statement contained

the full terms and conditions of the agreement made between himself and the Defendant

Company and he stated that no other terms and agreements were entered into.

6. The Court next considered whether it was an implied term of the agreement that the

Defendant had obtained the requisite approvals to enable the operation of a restaurant

business at the tenanted premises and considered as well the law in relation to suitability

of purpose.

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7. The law recognises that suitability for a particular purpose will not be implied even

though a landlord knows of the particular purpose for which the premises are being

leased, unless the parties specifically agree that it is a term of the rental that the premises

are fit for that particular purpose. In the case of Edler v. Auerbach [1950] 1 KB 359

Devlin, J. (as he then was), stated at page 374 that:

“It is the business of the tenant, if he does not protect himself by an

express warranty, to satisfy himself that the premises are fit for the

purposes for which he wants to use them, whether that fitness depends on

the state of their structure or the state of the law or any other relevant

circumstances.”

8. In Gibson’s Conveyancing 21st Edition, the learned authors outlined the responsibility of

a prospective purchaser or tenant of premises at pages 90-91 as follows:

“For example, among the questions the purchaser will need answered are:

(1) What was the user of the property at the [particular period] and what is its

present user?

(2) Whether the present user conforms with the present development plan;

whether any necessary planning permission was obtained and if so whether the

permission is temporary or permanent or subject to any conditions.

(3) Whether any application for planning permission has been made, the result of

any such application and whether it has been revoked or modified.

(4) Whether there are proposals in the development plan which suggests that the

property may be subject to compulsory purchase.

(5) Whether the local planning authority has taken, or is contemplating,

enforcement action.”

9. Under cross examination, the Claimant candidly and frankly confirmed that he did not

consult with an Attorney at Law prior to entering into the Agreement with the Defendant

and he did not address his mind to any planning, change of use or alteration of the

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building issues. He stated that he only consulted an Attorney at Law after the business

was shut down and he was asked to pay rent.

10. Based on the evidence and having considered the law as outlined in CV 2014-02286

Agricultural Development Bank v. 21st Century Insurance and Reinsurance Brokers

Ltd. this Court cannot hold that the agreement was subject to an implied term that the

Defendant had obtained all the requisite approvals so as to enable the operation of a food

establishment of the tenanted premises.

Whether the Defendant misrepresented to the Claimant that the premises were approved

for use as a food business or restaurant?

11. It is the Defendant’s case that there was no representation that it had obtained all

necessary approvals for rental of the tenanted premises as a food establishment and/or

restaurant.

12. The Claimant pleaded at paragraph 21 of the statement of case that the Defendant

negligently represented and/or misrepresented to him that the tenanted premises was

approved for a food business and that he acted upon same to his detriment.

13. A misrepresentation can be defined as an unambiguous, false statement of fact or law

which is addressed to the party misled and which is material and induces the contract.

14. By virtue of the provisions of the Misrepresentation Act, Chap 32:35, a party who entered

into contractual relations that were premised upon representations that were inaccurate,

can rescind the contract and may be entitled to damages. The Act does not define the

term ‘misrepresentation’ but under the common law, to be actionable, a misrepresentation

must normally be a positive statement of fact, as opposed to opinion which was made by

a party to a contract and was untrue. The statement may have been made fraudulently,

carelessly or innocently.

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15. In order to prove that the Defendant misrepresented to him that the premises were

approved for the use of a food business, the Claimant had to establish the following:

i. that the representations complained of were made by or on behalf

of the Defendant (representee);

ii. that these representations were false in fact;

iii. that the representor, when he made them, either knew they were

false or made them recklessly without knowing whether they were

false or true;

iv. that he the representee relied on the representation(s) and acting in

reliance of same he was actually induced into entering the contract;

v. that immediately on or at least within a reasonable time after the

discovery that the representations were false an election to avoid

the contract and repudiate same was made.

16. Representations can be expressed, implied or inferred and the law recognises that where

there are statements connected by an express or implied reference, it may form part of a

single representation. The combined effect must be considered when determining

whether the representation is false and a representation is deemed to be false if, at the

material date, the representation was false in substance and in fact. The issue of falsity is

fact dependent.

17. There is no allegation of fact in the statement of case and no evidence in Claimant’s

witness statements of any direct conversation or agreement between the Claimant and any

representative of the Defendant concerning the existence of approvals from the Town and

Country Planning Division and the Arima Borough Corporation which enabled the

operation of a food business at the tenanted premises. From paragraphs 1 through 18 of

his witness statement the Claimant, outlined the nature of his discussions with the

Defendant’s representative and their discussions involved the renovation works to be

performed, the monthly rental and the Claimant’s early entry into the premises to effect

repairs.

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18. At paragraph 18 of his witness statement, the Claimant stated that based on his previous

discussions with the Defendant’s representative, including the statement that there was a

previous arrangement for the tenanted premises to be rented by Burger King, he believed

that the Defendant had obtained all the necessary approvals for the use of the tenanted

premises as a food establishment.

19. Under cross examination on this issue the Claimant was specifically asked about his

discussions with the Defendant’s representative Mr. Hanif and his responses were as

follows:

“Q: Now based on your agreement you said at paragraph 18 that you formed a

certain belief in your mind, yes?

A: Yes

Q: As a matter of fact you say that you believed that he obtained the

necessary approvals, yes?

A: Yes

Q: For the use of the tenanted premises for a food establishment.

A: Yes

Q: But you didn’t know that for certain?

A: He assured me.

Q: You said you believed it

A: Yes

Q: But according to what you set out at paragraph 11, of what you discussed

after you did the outside inspection, there is nothing about approvals?

A: Yes

Q: And according to what you set out in paragraph 17, when you said you

actually made your agreement for the space, the $65,000.00 security deposit, the

waiver of the month, and when you were going to start to occupy you did not

discuss anything about approvals

A: Yes

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Q: In paragraph 18 you said believed that the Defendant had obtained the

necessary approvals for the use of the tenanted premises as a food establishment

from the relevant authorities including Town and Country and the Arima Borough

Corporation. Is that not right?

A: …

Q: Now, when you embarked on the renovations of the premises, you did not

cast your mind as to whether you needed any approvals or not?

A: Yes I did. I asked if I could put a food place here and he said yes it was set

up for food already as Burger King was coming.

Q: Say that again?

A: It was set up for food already, Burger King was coming. I did not ask why

Burger King did not come.”

20. Mr. Hanif was also cross examined about the said discussion and his evidence was as

follows:

Q: I should really clarify the question please My Lord. I am really asking in

relation to the first visit, Mr. Hanif, I am really asking about the first visit. Did he

tell you on his first visit you that he was looking for premise to open his

restaurant?

A: Yes

Q: And is not true that on that same first visit you told him that Burger King

had already made arrangements, had already arranged to rent those premises

before and that the premises were set up for food. Didn’t you tell him in that same

conversation, did you tell him that?

A: I told him that, that space was already, was also previously attempted to

be rented for that type of business of. And I informed him also further that and

that more specifically, listen a lot of infrastructure and work and all the piping and

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these kinds of things had already been done by a previous person who was not

able to come in (unintelligible)

Q: So Mr Hanif, there was in fact a discussion taking place concerning the

use of those premises before by another food enterprise, isn’t that so?

A: Yes I informed him, yes of course. I did that because I think it was even in

his interest to know of the benefits of doing the business there.”

21. The Claimant stated that he asked if he “could put a food place here” and that Mr. Hanif

said it was set up for food already because Burger King was coming. During cross

examination, Counsel for the Defendant put to the Claimant that in his witness statement

he did not say that he asked the Landlord about the necessary approvals and he answered

“not directly”.

22. At paragraph 21 (iv) of his statement of case, the Claimant also claimed that the

Defendant failed to disclose to him that the premises had only been approved for

retail/variety business and/or that fresh approvals were required in relation to the use of

the tenanted premises to conduct a food business. In relation to the issue of non-

disclosure. This Court at paragraph 42 of the Agricultural Development Bank judgment

(supra) applied the dicta from Watts v. Hobb (1878) 4 App cases 13 and stated as

follows:

“In Watts v. Hobb (1878) 4 App cases 13, the law recognized that mere non

closure does not constitute a misrepresentation unless there is evidence that there

is a breach of a duty to disclose known material facts. If the non-disclosure is

viewed as an express or implied representation, then it may be deemed a

misrepresentation if the representation was false. The law has also recognized that

in certain circumstances silence can amount to a misrepresentation where the

fiduciary relationship that existed warranted disclosure of the information for the

benefit of the other party.”

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23. The Claimant pleaded at paragraph 20 of his statement of case, that he was informed that

a reason for the closure of his restaurant business was that certain renovation works were

done by the Defendant company which were not approved and in particular that a

partition wall separating that formerly separated the space into two commercial spaces on

the ground floor had been removed in order to create the tenanted premises.

24. In relation to this issue, under cross examination Mr. Hanif testified there was one

commercial space available for rent in the mall and that he agreed to rent it to the

Claimant. This space, he said was originally two spaces but four or five years prior to

January 2016, the two spaces were converted into one space. He stated that he had not

approached the Town and Country Planning Division (TCPD) for approval for the said

conversion but that TCPD was aware that the spaces had been converted. He did not

however state how the TCPD became aware of this fact.

25. By letter dated June 21, 2016, the Arima Borough Corporation gave its reasons for the

closure of the Claimant’s business and these were that internal structural alterations were

done by Bar-be-Que Express and that there were no approvals for a restaurant at the

Plaza.

26. The letter further stated that in order for the business to be reopened the Claimant would

be required to have:

c. Approval from the Town and Country Planning Division (for change of use –

commercial rental to restaurant;

d. Approval from Chief Fire Officer;

e. Approval from the Public Health Department, Arima Borough Corporation.

27. The only evidence before the Court in relation to the reasons for closure of the

Claimant’s business came from the said letter and no evidence from the Borough

Corporation was adduced to establish that the reason for the closure of the premises was

due to the removal of a partition wall nor was there any evidence that any

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renovations/alterations were being undertaken by the Defendant at the time that the

Borough Corporation intervened and closed the premises.

28. The Defendant accepted that it did remove a wall but submitted that the removal of the

partition wall was not an action that required it to have approval from the TCPD.

29. Section 8 (2) (a) of the Town and Country Planning Act Chp. 35:01 (The Act) provides

that “(a) the carrying out of works for the maintenance, improvement or other alteration

of any building, if the works affect only the interior of the building or do not materially

affect the external appearance of the building”. The removal of a partition wall would

generally affect the interior of the premises and should not therefore required a grant of

permission from the TCPD.

30. The Court formed the view that even if the removal of the wall was deemed to be an act

of development which required approval of the TCPD in accordance with section 8 of the

Town and Country Act, it would have been necessary for the TCPD to take the required

action against the Defendant within four (4) years after the alleged act had been

undertaken.

31. In addition, the TCPD, would have been required, by virtue of the Act, to give Notice to

the Defendant in relation to any works performed on the Tenanted Premises that were not

approved and Section 16 (2) of the Act provides that:

“ 16(2) Any notice served under this section (hereinafter called an “enforcement

notice”) shall specify the development that is alleged to have been carried out

without the grant of the permission as mentioned above or, as the case may be, the

matters in respect of which it is alleged that any such conditions have not been

complied with, and may require such steps as may be specified in the notice to be

taken within such period as may be so specified for restoring the land to its

condition before the development took place, or for securing compliance with the

conditions, as the case may be; and in particular any such notice may, for the

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purpose mentioned above require the demolition or alteration of any buildings or

works, the discontinuance of any use of land, or the carrying out on land of any

building or other operations.”

32. The evidence adduced before this Court established that the Defendant removed the

dividing wall approximately four or five years prior to January, 2016 and there is no

evidence that the Defendant received any enforcement notice from the TCPD in relation

to the removal of the said partition wall.

33. On the evidence before it, the Court found that there were representations that Burger

King had rented the tenanted premises but there was no positive statement made that the

necessary applications for the requisite approvals had been obtained by or on behalf of

Burger King or that they were granted. The evidence suggests that the Claimant

unilaterally formed the view that the requisite approvals had been obtained. The Court

found as a fact that no representations that there existed the requisite approvals to operate

a food business were made by or on behalf of the Defendant and further found as a fact

that the Claimant was not induced to enter into the contract based on any false or

inaccurate representation that was made to him.

34. The bye-laws made by the Borough pursuant to Section 156 (1) are contained in the Sale

of Foodstuffs (Arima) Bye-Laws 1955 published in Government Notice No. 125 of 1955.

Section 3 of the bye-laws provides for the registration of shops that sell food and sections

7 and 8 deal with the registration of persons who are handlers of food that is sold to the

public.

35. The Court also considered the provisions of the Public Health Ordinance Chp. 12 No. 4

and the relevant Bye Laws and in particular Section 3 of the Bye Laws which states that:

“ (1) No person shall keep within the Borough any retail shop or place where any

article, whether solid or liquid, cooked or uncooked, intended for human

consumption, is prepared, sold, exposed or offered for sale or deposited for the

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purpose of sale or of preparation for the sale unless such retail shop or place is

registered for the purpose by the Local Authority in a Register to be kept by the

local authority for the registration of such retail shops or places as aforesaid.

(2) Every person keeping or intending to keep within the Borough a retail shop or

place as set forth in paragraph (1) of this bye-law shall forthwith make an

application to the Local Authority for the registration of such shop or place.

(3) The application for registration shall be according to the form in Schedule 1 to

these bye-laws and shall be accompanied by a Medical Officer of Health stating

that the premises are suitable for the purpose. The certificate of registration under

this paragraph shall be according to the form in Schedule II to these bye-laws.

(4) Every person who offends against this provision of paragraph (1) of paragraph

(2) of this bye-law shall be guilty of an offence.

36. The Bye Laws clearly outline that the person responsible for completing the Form is the

person who is applying to be registered as a food shop owner and so no obligation can be

imposed upon the owner of the building to register a food shop located within a building.

37. The Claimant did not initially make any such application for registration and he only

made his application on June 2, 2016, to the Arima Borough Corporation after he was

confronted by the Coproration.

38. The Court also considered Section 8 of the TCPD Act which provides as follows:

“8. (1) Subject to the provisions of this section and to the following provisions of

this Act permission shall be required under this Part for any development of land

that is carried out after the commencement of this Act.

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(2) In this Act, except where the context otherwise requires, the expression

“development” means the carrying out of building, engineering, mining or other

operations in, on, over or under any land, the making of any material change in

the use of any buildings or other land, or the subdivision of any land, except that

the following operations or uses of land shall not be deemed for the purposes of

this Act to involve development of the land, that is to say—

(a) the carrying out of works for the maintenance, improvement or other alteration

of any building, if the works affect only the interior of the building or do not

materially affect the external appearance of the building;

…

(f) in the case of buildings or other land that are used for a purpose of any class

specified in an Order made by the Minister under this section, the use thereof for

any other purpose of the same class.”

39. The classes referred to in subsection (f) above are outlined in the Schedule of the Town

and Country Planning (use classes) Order and Section 2 defines “shop” as meaning

“ a building used for the carrying on of any retail trade or retail business wherein

the primary purpose is the selling of goods by retail, and includes a building used

for the purposes of a hairdresser, travel agency or for the reception of goods to be

washed, cleaned or repaired but does not include a building used for the purposes

of a funeral undertaker, garage, petrol filling station, service station, office, bank,

grocery, betting office, restaurant or other place for the sale of prepared food,

hotel or premises for the sale of intoxicating liquors for consumption on the

premises, a lumber yard or premises for the sale of builders’ materials or motor

vehicle parts or accessories.”.

40. Having reviewed the aforesaid legislation the Court is of the view that the tenanted

premises which were handed over to the Claimant was a shop with the meaning of

Section 2 of the Act.

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41. An application for approval is required where there is a change in the use or change of

use of land or a building, as outlined in section 8(2) of the Town and Country Planning

Act. The steps taken by the Claimant to convert the Tenanted Premises into a restaurant

would have involved work that would have amounted to a material change in the use of

the premises as outlined under Section 8 (2) of the Act. Page 14 of the Guide to

Developers and Applicants for Planning Permission prepared by the Town and Country

Planning Division provides that:

“Any person can make an application to the Minister in respect of any form for

development of any land in Trinidad and Tobago. It is not necessary that the

applicant should be the owner or the occupier of the land but the applicant should

state his interest in the land.”

42. According to Section 9 of the TCPD Act, permission for development may be granted by

a Development Order made by the Minister or pursuant to an application made by the

Minister.

43. The Municipal Corporations Act Chp. 25:04 imposes an obligation to obtain approvals

before any addition or alteration is performed on a building within a particular

Municipality.

44. Section 158 of the Municipal Corporations Act states:

“(1) Every addition to or alteration of any building within a Municipality, and any

other work made or done for any purpose in or upon any such building, shall, so

far as regards such alterations or additions, or such other work, be subject to the

provisions of the Town and Country Planning Act, to the provisions of this Part

and of the Building Regulations and of any other written law applicable to such

Municipality.

(2) A person who without the required consent makes such alterations to a

building with the result that the building is not in conformity with the

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requirements of the Town and Country Planning Act or this Act or the Building

Regulations is, in addition to any other liability he incurs, guilty of an offence and

liable to a fine of one thousand five hundred dollars and to a further fine of one

hundred and fifty dollars for each day that the offence continues after written

notice thereof.

45. Section 168 states:

“ Any person who in any Municipality—

(a) erects or alters any building without having the plans thereof approved by the

Council;

(b) erects or alters any building or alters any building in any wise contrary to the

plans and sections which have been approved by the Council; or

(c) otherwise offends against any of the provisions of this Part or of any

Regulations made hereunder if no penalty is elsewhere prescribed,

is liable for each offence to a fine of one thousand dollars and, in the case of a

continuing offence, to a further fine of one hundred dollars for every day during

which such offence continues after notice thereof from the Council.”

46. Additional requirements in relation to the alterations of buildings within the Borough of

Arima are found in the Fifth and Seventh Schedules of the Arima Borough Corporation

Ordinance, Chap 39 of No. 11 preserved by the Eighth Schedule of the Municipal

Corporations Act.

47. After the Claimant’s operation of his restaurant was halted by the Borough Corporation

on the 16th February, 2016, he continued in occupation of the tenanted premises and the

Court therefore had to determine whether he remained liable for the payment of rent to

the Defendant.

48. There was an express covenant between the parties that the Claimant had to pay a

monthly rent in advance of each month in the amount of $65,000.00. There is no

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evidence that the Claimant gave notice to the Defendant to determine the tenancy or that

the relationship of landlord and tenant was terminated.

49. Neither the Claimant, nor the Defendant adduced any evidence that the agreement

between them was varied so as to incorporate any term that the payment of rent by the

Claimant would be suspended until the necessary approvals were obtained.

50. Under cross examination, the Defendant confirmed that he demanded rent in the month of

March 2016 and he stated that as long as the space was occupied, the rent had to be paid.

51. In CV2016- 03282 Frank Martineau, Spektakula Promotions International Limited

v. Jean Harper, Kevin Lewis, Caribbean Finance Company Limited at paragraph 34,

Rajkumar J (as he then was) stated that “the unilateral intention of a tenant not to be

bound by the obligation to pay rent could not by itself absolve him of that obligation.”

52. From the 16th February 2016 the Claimant did in fact retain possession of the premises

and is therefore liable for the rental sums which were contractually agreed. Although

demands for rent had been made the Claimant failed to pay to the Defendant the sums to

which the Defendant was contractually entitled.

53. The Court next had to consider whether the action undertaken by the Defendant to

recover the arrears of rent was lawful.

54. Section 8 of the Landlord and Tenant Ordinance, Ch.27 No. 16 provides that “Every

person having any rent in arrear and due to him upon any grant, lease, demise, or contract

whatsoever, shall have the same remedy by distress for the recovery of such rent as is

given by the law of England in the like case.”

55. The Court summarized the law in relation to distress in Frank Martineau case (supra)

at paragraph 26 as follows:

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According to Halsbury’s Laws of England 4th ed. Vol 13 para 207 page 110 - “In

order that the right to distrain for rent upon a demise may arise the relation of

landlord and tenant must exist, both when the rent becomes due and when the

distress is levied, and the rent must be in arrear”.

An actual existing demise is necessary; the common law right to distrain for rent

does not...continue after it has determined: Williams v Stiven (1846) 9 QB 14.

The general rule is that a distress can only be made of goods found upon some

part of the premises out of which the rent issues.

56. The Claimant’s evidence was that he paid a security deposit of $65,000.00 and purchased

the following items which were stored at the tenanted premises:

commercial stove - $30,000

2 chillers - $30,000

3 charbroiler - $8,000

4 stainless steel sink - $3,000

5 2 hand sink - $2,000

6 chill displays - $20,000

7 2 dry displays - $20,000

8 1 exhaust fan - $7,000

9 3 ring stove - $1,125

10 water pump - $1,125

11 3 small fryers - $1,500

12 4 work tables - $3,200

13 1 used fryer - $5,000

14 3 Chillers (Coca - $10,000

Cola, Fresh Always

Juice, Juice Rite

15 Used Chiller - $4,000

16 1 used freezer - $3,000

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17 Second freezer - $3,500

18 Cost of materials for - $5,300

4 work tables a chill

display, 2 food warmers

19 New face basin set - $2,500

20 2 air-condition unit - $12,000

21 1 exhaust fan - $4,000

22 6 tables/chairs combo - $4,800

23 Cash register - $6,000

24 Stereo system - $1,200

Total Value - $188,250.00

57. Receipts for all the aforementioned items were however not produced. In Civil Appeal

No. 169 of 2008 Ramnarine Singh and others v Johnson Ansola Mendonca JA said at

paragraph 97 of the Judgment as follows:-

“From these cases it seems clear that the absence of evidence to support a

plaintiff’s viva voce evidence of special damage is not necessarily conclusive

against him. While the absence of supporting evidence is a factor to be considered

by the trial Judge, he can support the plaintiff’s claim on the basis of viva voce

evidence only. This is particularly so where the evidence is unchallenged and

which, but for supporting evidence, the Judge was prepared to accept. Indeed in

such cases, the court should be slow to reject the unchallenged evidence simply

and only on the basis of the absence of supporting evidence. There should be

some other cogent reason.”

58. In the circumstances this Court had no rational basis upon which it could reject the

Claimant’s unchallenged evidence as to the value of the items that he purchased and

stored at the tenanted premises. The Court did however note that no evidence was

adduced in relation to the depreciated value of the said items. The Claimant did operate

his business from the tenanted premises and on a balance of probabilities, the items must

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have been used. The Claimant stated that he effected repairs to the premises and that he

paid for renovations in the sum of $165,000.00 and for plumbing works valued at

$35,000.00. The Claimant however unilaterally elected to engage the said work and the

Defendant had no control over same nor was the said work effected at the Defendant’s

direction. Ultimately the Court is of the view that the Claimant acted to his own

detriment when he decided to rent and repair the tenanted premises in circumstances

where he was unaware of the relevant statutory requirements that had to be complied with

so as to sanction the operation of his food establishment.

59. The Court was not satisfied with the evidence adduced by the Defendant in relation to

Bailiff Fees in the sum of $35,000.00. The Court was also not convinced that the goods

levied upon were sold for the best possible price and formed the view that the $42,518.00

which the Defendant said he received as of the 25th August, 2016 represented a gross

undervalue of the goods which were seized.

60. In the circumstances and for the reasons that have been outlined the Court found the

relevant fact to be as follows:

i. There was no express written term and/or no express oral term of the

agreement between the Claimant and the Defendant that the premises were

suitable for use as a food business of for any particular purpose.

ii. There was no implied term of the agreement that the Defendant had

obtained all approvals for the use of the premises as a food business or for

any particular purpose.

iii. On a balance of probabilities the Court did not conclude that the

Defendant misrepresented to the Claimant that the premises were suitable

for use as a food business.

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iv. Notwithstanding the closure of the business, the Claimant remained in

possession of the Defendant’s premises up to the date of the Levy in April,

2016.

61. Having found the facts to be as aforementioned the Claimant’s case is without merit and

must be and is hereby dismissed.

62. The Claimant would have been responsible for rent up to the date of the Levy in April,

2016 and after the Levy was executed, on the facts, the Court formed the view that the

Claimant no longer had possession of the tenanted premises. The Court finds that the

full value of the goods seized was not realised and further the deposit of $65,000.00

which had been paid by the Claimant had to be set off against the rent owed. In the

circumstances the Court is not able to make any award on the counter claim.

63. Accordingly the counterclaim is dismissed with no order as to costs. The Claimant shall

pay to the Defendant cost on the claim in the sum of $14,000.00 and there shall be a stay

of execution of 28days.

__________________________________

FRANK SEEPERSAD

JUDGE

the republic of trinidad and tobago in the high court...

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