Toomer (Renford) v Herbert Hamilton, et Al

• Jurisdiction: Jamaica
• Judge: BROWN J. (Ag):
• Judgment Date: 24 July 2009
• Judgment citation (vLex): [2009] 7 JJC 2401
• Court: Supreme Court (Jamaica)
• Date: 24 July 2009

IN THE SUPREME C6URT OF JUDICATURE OF JAMAICA

CLAIM NO. 2006 HCV 00955

BETWEEN

RENFORD TOOMER

CLAIMANT

AND

HERBERT HAMILTON

FIRST DEFENDANT

AND

RONALD SULLIVAN

SECOND DEFENDANT

Mrs. Angela Cousins-Robinson for the Claimant instructed by Robinson & Clarke Attorneys at Law.

Mr. Codner for the fiitst Defendant instructed by Lightbourne & Hamilton Attorneys at Law.

Raphael Codlin for the second Defendant instructed by Raphael Codlin & Co.

REAL PROPERTY - Tenancy agreement - Termination of tenancy - Purchaser acquiring land - Whether purchaser and vendor liable for trespassing

BROWN J. (Ag)

1 The Claimant brought ari action seeking damages for breach of contract, trespass to land, trespass to goods and malicious destruction of property. He described himself as a 'champion farmer' for the parish of St. Mary and the island of Jamaica.

2 The first Defendant is an attorney at law who had owned the land that is the subject matter of the dispute.

3 The second Defendant is a foreign citizen who along with his wife purchased the land from the first Defendant.

4 The Claimant alleged that he had leased lands known as 'Cow Pen' for nearly thirty (30) years. He cultivated crops such as: plantains, bananas, pumpkins, cabbages, yams, peppers and cocos. He paid rent to the first Defendant calculated at Seven Hundred dollars ($700.00) per acre amounting to Two Thousand One Hundred dollars ($2,100.00) per year.

5 In October 2004, the first Defendant served a notice terminating his tenancy with immediate effect. It is the Claimant's contention that the first Defendant wrongfully terminated his yearly tenancy as:

• (a) he was not in arrears with his rent and;

• (b) The requisite notice of six (6) months was not given, which is in breach of both the Rent Restriction Act and the Agricultural Small Holdings Act.

6 He suffered damages as he was unable to reap his crops which were subsequently destroyed.

7 The first Defendant denied that the Claimant was a yearly tenant but was instead a trespasser or a tenant at will. It was his contention that the Claimant had no crops to reap and, therefore, suffered no loss. He had' offered to sell or lease the land to the Claimant who rejected the offer on the premise that it was unsuitable for agricultural purposes.

8 The property was sold to the second Defendant and his wife. They took possession after the Claimant had quit. He contended that he was a bona fide purchaser for value without notice. He was the owner in fee simple and was entitled to any crops growing on the land and could not be held liable for any damage suffered by the Claimant. The second Defendant also contended that there were no crops growing on the land.

9 The law is settled that for a lease (a periodic tenancy) there must be exclusive possession, rent (consideration), certainty of duration and a certain commencement date. Whenever these factors are present there is a presumption of a tenancy:

"To constitute a tenancy the occupier must be granted exclusive possession for a fixed or periodic term certain in consideration of a premium or periodic payment." Per Lord Templeman in Street v Mountford [1985] 2 ALL ER 289, at page 293.

10 In this case, the Claimant said that the first Defendant had fixed the rent at Seven Hundred Dollars ($700.00) per acre to be paid yearly which he paid and was accepted. He relied on the receipts he received from the first Defendant or his servant to corroborate his case that a yearly tenancy existed.

11 The law is settled that if the rent is contractually assessed on a yearly basis and there is payment and acceptance of that rent then there is a presumption that the parties intended to establish a yearly tenancy. Chambre, J. in Richardson v Langride (1811), 4 Taunt. 128 said:

"If he accepts yearly rent, or rent measured by an aliquot part of a year, the courts have said that is evidence of a taking for a year."

12 The first Defendant sought to rebut the presumption that the parties had ever concluded an agreement. The first Defendant acquired 'Cow Pen' from his uncle Roderick Hamilton for Five Hundred Dollars ($500.00) as exhibited by the Instrument of Conveyance dated the 7 ^th February 1984. The land consisted of approximately three acres. The land was surveyed on the 10 ^th February 2000 and was brought under the Registration of Titles Act on 28 ^th October 2003.

13 He had purchased the property without inspecting or visiting it. He obtained information that the Claimant was occupying and renting several parcels of his land including 'Cow Pen' without his permission. As a result he dispatched a letter dated 25 ^th May 2000 to the Claimant. It reads:

Dear Mr. Toomer,

Re Rental of Property - Louisiana, Cow Pen

On my last visit to Louisiana I met a Mr. Wellesley Walker who told me that you rented out my property at Louisiana, and that you had been collecting rent from him since 1993 amounting to Two Thousand Two Hundred dollars ($2,200.00). Mr. Walker tells me that when he spoke to you after my visit, you said you would contact me.

You must be aware it is a criminal offence to collect money under false pretences and for that I assume that you would have made urgent attempts to contact me. Please regard this as a formal notice to pay over within fourteen (14) days from the receipt of his letter, all the sums collected as rent failing which the matter will be dealt with in another way.

I am advised that you also occupy five (5) lots including the yard building, and 'Cow Pen' for which you have not been paying any rent. Please pay the rent outstanding to Mr. Antonie Whyte without further delay or steps will be taken to terminate your tenancy.

Be further advised that if you wish to continue occupying 'Cow Pen', the rental commencing this year will be One Thousand dollars ($1,000.00) per acre.

Yours truly,

Herbert A Hamilton

14 The first Defendant had;not received any rent from the Claimant since...