LYONS v.

QUAMINA ET AL
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Citation # TT 1989 HC 89
Country Trinidad and Tobago
Court High Court
Judge Blackman, J.
Subject Real property
Date June 29, 1989
Suit No. 97 of 1986
Subsubject Landlord and tenant - Covenant for quiet enjoyment - Plaintiff claimed damages for breach of covenant of
quiet enjoyment and damages for trespass - Entrance to premises blocked - Apartments roof removed -
Water supply and electricity cut off - Removal of furniture from apartment - Whether claim statute barred -
Finding of court that in the case of a continuing breach time runs not from the time of the acts but from the
cessation of the acts - Finding of court that the breaches of the covenant for quiet enjoyment and the acts of
trespass were within the period of limitation and statute barred - Judgment for the plaintiff - Court awarded
special damages of $33,940, general damages of $2,000 and exemplary damages of $8,000.
Full Text Appearances:

Mr. Gaston Benjamin for plaintiff

Mr. Phillip for defendants


BLACKMAN, J.: This is an action for breach of the covenant for quiet enjoyment and trespass.

The plaintiff ("the tenant") rented an apartment at Arnos Vale Road, Plymouth, Tobago from the first
defendant ("the landlady"). The second defendant is the daughter of the landlady, and the third defendant is
the husband of the second defendant. (end of page 1)

At first the relationship between the landlady and the tenant was quite amicable. Later however difficulties
arose between them. The landlady testified that the good relationship between herself and the tenant
deteriorated because he was refusing to repay a loan of $3,000.00 made by her to him for the purpose of
purchasing a vehicle. According to the landlady this was the reason why she wanted him out of the
apartment.

Now, the tenant on the other hand said that it was when he refused to pay an increase of rent on the ground
that it was not permissible under the Rent Restriction (Dwelling Houses) Act. His evidence was that the
original rent in 1977 was $100.00 per month. That sum was later increased, he said, he said to $200.00, and
still later to $320.00. The defendants admitted both increases in rent on the pleadings. However, the landlady
took up a contrary position in her testimony.

The landlady is an old lady; I think however, that she is quite clever in spite of her age; in spite of her age her
mind in my view is still acute. She knows when to say she does not remember or that she does not know. In
answer to attorney for the tenant she stated that we are in the year 1996. This answer was given not because
she is in her dotage; she was just being either difficult or clever. She at first said when she rented the tenant
the apartment the rent was $100.00 per month. Later the answer on that was that she thought it was $100.00
per month. In other words, she could not remember. I believe that the landlady just came to deny everything
when she thought it would be damaging to her case or to say she did not remember when it suited her.

When Mr. Cordner visited the apartment on 13th June, 1982 he said the roof was off and also the celotex;
that is, the ceiling. The landlady lives in a building on the same premises. It is hardly likely that she would not
have known of this fact. Yet she said she did not know that the roof had been removed. It is difficult to believe
anything which the landlady had said in evidence because I think her credibility had been severely
compromised.

The defendant's, Russell Jack's attitude was quite similar to the landlady's. Now, he admitted that he and the
tenant knew each other. It is not (end of page 2) likely therefore that the tenant could have mistaken him for
someone else when the tenant said he saw him dismantling the roof of his apartment. He also stated that his
wife, the second defendant did not do the acts complained of. The second defendant did not give evidence
because it was said that she had been ill and could not attend Court.

The tenant in his testimony stated that on two occasions his entrance to the premises was blocked so that he
could not get in to park his car. He also said that it was on 12th June that the roof of his apartment was
removed by the third defendant. On 18th June, according to him both the outer and inner doors to his
apartment were removed by the third defendant. He stated too that the landlady had the water supply cut off
and also the electricity and that on 26th June 1982 the landlady and the other two defendants removed his
furniture from the apartment and put them outside where they remained in the rain for a few days when they
were taken away by someone. The tenant said that he re-entered the apartment and remained there with a
plastic over his head for a roof and that subsequently he bought sheets of galvanize with which he had the
roof repaired at a cost of some $2,000. The tenant also said that he had $8,150.00 in his apartment which
was missing after the roof was removed and his belongings ransacked in the apartment.

Mr. Cordner who is a valuator and bailiff visited the apartment in June as has already been observed. He
valued the items he saw there. He said they had been wetted by the rains. The value attached to the items
was their value at the time he had examined them. Therefore the tenant will only be entitled to recover the
cost given by Mr. Cordner of those items taken from his apartment and missing subsequently.

The tenant testified that the relationship between himself and the landlady became strained after he refused
to pay the increased rent. The landlady said it was when the tenant refused to repay a loan she had made to
him. Whatever was the reason it is clear that the landlady wanted to get the tenant out of the apartment at any
cost. I have come to the conclusion that this was the reason why the landlady assisted by her daughter and
son-in-law did what the tenant said they did. All the acts committed by the second and third defendants in an
effort to dislodge the tenant were, I am driven to infer, instigated by the landlady. (end of page 3)

But a landlady cannot take the law into her hands. If she wanted the tenant out it was open to her to take such
steps as the law allows to get him out. We have long gone past the era when might is right and self-help the
order of the day.

It goes without saying that I believe that it was the landlady and her relatives who had the roof and also the
doors of the tenant's apartment removed thus exposing the tenant and his property to the elements; I believe
that in order to force the tenant out they also cut off the water and electricity to his apartment and put his
furniture out in the open whence they were disposed of.

Now, the tenant alleged in paragraph 8 of his statement of claim that in April, May and June 1982, his
entrance to the premises was barred so that his car could not be driven in. I am not quite sure that the parking
of a car on premises of an apartment is an implied covenant for quiet enjoyment. I suppose it depends on the
circumstances. For example if the premises are rented with garage facilities, this will be so. But this is not
situation here. Be that as it may, if the complaint were that barriers had been placed across the entrance so
that the car could not get in, those barriers were placed on 7th June in the first place and they were removed
on the day on which they were erected. Such an act if it were caught by the covenant would be barred by the
statute of limitation, the writ having been issued on 12th June, and because it would not have been a
continuing act. However, the blocking of the entrance on 9th June will not in my view be statute barred
because in his evidence the tenant did not say that the barrier across the entrance which had been placed
there on that date was removed. The barrier would therefore have been a continuing breach, if breach it were.

In Chittv on Contracts - General Principles 23rd Edn. at para. 1589 the law in relation to the period of
limitation is stated as follows: "The general rule in contract is that the cause of action accrues, not when the
damage is suffered, but when the breach takes place." (end of page 4)

But paragraph 1590 of Chitty supra reads inter alia as follows:


"But if there are a number of breaches which do not discharge the contract, either because they are not
sufficiently fundamental, or because the innocent party declines to accept them as having that effect, each will
give rise to a separate cause of action. Examples are failure to pay instalments or rent. The rule is the same if
the breach is a continuing one e.g. of a covenant to repair.


How I understand the principle is that in the case of a covenant to repair, so long as the failure to repair
continues the breach of covenant continues and the action may be brought at any time during such
continuance. The rule is not applicable where the acts constituting the breach of contract or covenant have
come to an end and the period in the statute of limitation has elapsed. In my view time begins to run not from
the time of the acts in the case of a continuing breach but from the cessation of the acts.

In my respectful view so long as the situation continues which constitutes the breach of the covenant for quiet
enjoyment, the breach of the covenant will subsist. In a situation, which is pertinent to the instant case, where
a landlord removes the roof and doors from an apartment the covenant for quiet enjoyment is breached and
will continue to be breached as long as the tenant holds fast. If however the tenant gives up the tenancy on
account of the breach or for whatever reason in my view that breach in such a case ceases because it comes
to an end with the departure of the tenant.

Based upon that principle I think that the placing of steel bars across the gateway on 9th June after which
they remained there assuming that such was the breach of covenant of quiet enjoyment would have been
such a breach of the covenant as it was a continuing breach and therefore would not have been statute
barred at the time of the issuance of the writ.

The removal of the roof falls into the same category as up to 26th June at least the roof was off the
apartment; the removal of the doors is also (end of page 5) not caught by the statute of limitation; the cutting
off of the water and electricity was also a continuing breach and therefore is not caught by the limitation
statute. All these acts in my view were breaches of the covenant for quiet enjoyment and I hold that they were
committed by the landlady aided by her relatives - the second and third defendants.

So far for the breaches of the covenant for quiet enjoyment in relation to the statute of limitation.


TRESPASS:

Now the act of removing the roof of the apartment and the doors to it, and the removal of the tenant's furniture
from the apartment are in my view, acts of trespass.

None of these acts were, however, continuing acts of trespass. If therefore they occurred more than four
years before the action was brought; it is my respectful view that the action based on trespass will be statute
barred. The removal of the roof of the apartment took place on 12th June, 1982. The doors to the apartment
were removed on 18th June 1982 and the furniture was taken away from the apartment on 26th June 1982.
The plaintiff's writ was issued on 12th June, 1986. The only event which poses any problem in respect of the
statute of limitation is the dismantling of the roof of the apartment which took place on 12th June. The rule is
that in computing the time for the expiry of the period of limitation the 12th June is not counted. Therefore one
must begin to compute time from 13th June. Even assuming that time ends on 12th June 1986. The writ
would still have been issued in due time, a fortiori if the period expired on 13th June, 1986, the writ would also
have been issued in due time. All the acts of trespass described are therefore within the period of limitation
and therefore are not statute barred.


SPECIAL DAMAGES:

No claim is made for the damaged car, which the tenant said was damaged by the landlady and none is
awarded. The cost of the missing furniture which had been removed by the defendants is the measure of
damages under this (end of page 6) head. Evidence was given of missing furniture. Foodstuff, shoes and
clothing cannot be included in this class. They were valued at $475.00, $800.00, $2,000.00 respectively.
Those sums are disallowed. So too is $100.00 claimed which was not proved. The tenant paid Mr. Cordner
$250.00 for his services. This sum has been proved. I am satisfied that the tenant did lose $8,150 as a result
of and during the dismantling of the roof of his apartment by the acts of the third defendant. It is quite clear
that the third defendant acted on behalf of the landlady.

The tenant also claimed for the galvanized sheets which he had to purchase to repair the roof of his
apartment. He said he had to pay some $2,000.00. He is therefore entitled to this sum only.

For loss of furniture, damages amount to $27,065 - $3,375.00, that is, $23,790.00 . Loss of cash amounts to
$8,150.00. The cost of the galvanised sheets and other materials amount to $2,000.00. Special damages
therefore amount $33,940.00.


GENERAL DAMAGES:

There can be no exemplary or punitive damages merely for breach of the covenant for quiet enjoyment such
damages only being awarded in certain cases of tort. Breach of covenant is a matter of contract. However in
Lavender v. Betts 1942 2 All E.R. 72 where the facts were that the landlord is order to get rid of the tenant
removed the doors and windows of the flat making it habitable only at great discomfort to the tenant. Atkinson,
J. awarded the tenant exemplary damages.

At page 73 H the learned judge said: "The plaintiff says this was a trespass upon their tenancy and wrongful
interference with their quiet enjoyment of the premises, and in my view, they have proved their case." (end of
page 7)

In Perera v. Vandiyar 1953 3 All E.R. 1169 at page 1112 Romer, L.J. explained the decision to award punitive
damages in Lavender's case as follows:"The intention of the landlord in the present case was precisely the
same as the intention of the landlord in Lavender v. Betts but in that case the landlord resorted to trespass for
the purpose of getting his own way and so was guilty of a tort."

The landlady's attitude was clearly coloured by a burning desire to get rid of the tenant. She said it was on
account of the fact that he did not honour his obligations under a loan agreement with her. He said it was
because he did not pay her the increased rent basing his refusal to do so under the Rent Restriction (Dwelling
Houses) Act 1981. As has been mentioned before the landlady whatever her reasons was motivated by the
desire to get the tenant out of the apartment. In the pleadings all the defendants admitted the attempted
increase in rent. The landlady in her evidence denied that there was any increase in rent and testified that it
was the fact that the tenant did not repay the loan why she wanted him to leave. Now the landlady cannot
blow hot and cold. Her evidence cuts right across the pleadings.

I am inclined to believe the tenant that there were attempts to increase the rent of his apartment and that it
was because he refused to pay the increased rent that the landlady pursued the course of getting him out. I
believe the tenant when he said that the landlady had said that the government could not tell her how to rent
her premises. She was prepared to take the risk of employing unlawful acts to get rid of the tenant because
she thought should and could receive a higher rent for the apartment. But parties cannot take the law into
their hands. The landlady and the other defendants embarked on a most regrettable course.

In Broome v. Cassell & Company 1972 A.C. 1027 at page 1136 Lord Diplock said:


"I have no similar doubts about the retention of the second category. It too may be a blunt instrument to
prevent unjust enrichment by unlawful acts. But to restrict the damages (end of page 8) recoverable to the
actual gain made by the defendant if it exceeded the loss caused to the plaintiff, would leave a defendant
contemplating as unlawful act with the certainty that he had nothing to lose to balance against the change that
the plaintiff might never sue him or, if he did, might fail in the hazards of litigation. It is only if there is a
prospect that the damages may exceed the defendant's gain that the social purpose of this category is
achieved - to teach a wrong doer that tort does not pay. To bring a case within this category it must be proved
that the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting it to
be unlawful deliberately refrained from taking obvious steps which if taken, would have turned suspicion into
certainty. While, of course, it is not necessary to prove that the defendant made an arithmetical calculation of
the pecuniary profit he would make from the tortious act and of the compensatory damages and costs to
which he would render himself liable, with appropriate discount for the chances that he might get away with it
without being sued or might settle the action for some lower figure, it must be a reasonable inference from the
evidence that he did direct his mind to the material advantages to be gained by committing the tort and came
to the conclusion that they were worth the risk of having to compensate the plaintiff if he should bring an
action."


It is a reasonable inference from the evidence in my respectful view, that the landlady calculated the financial
or material advantages to be gained by her taking the law into her hand to force the tenant out, and so
achieve the goal of an increased rent.

The Court cannot allow such outrageous conduct to go without meting out to it the treatment it deserves. I
think this is a case for exemplary damages against the landlady. I am satisfied that the third defendant acted
on the authority of the landlady in removing the roof of the tenant's apartment and the doors of the tenant's
apartment.

General damages are awarded in the sum of $2,000.00.

And by way of exemplary damages, I award the plaintiff the sum of eight thousand dollars ($8,000.00) against
the landlady, the first defendant. (end of page 9)

The special damages will bear at interest at the rate of 3% per annum from the date of issue of the grit to the
date of judgment.

The defendants must pay the plaintiff his costs of the action.

There will be a stay of six (6) weeks.


Dated this 29th day of June, 1989.


Ivol Blackman,

Judge