Ross v Ramsay
| Jurisdiction | Guyana |
| Judge | Bishop, J. |
| Judgment Date | 14 April 1980 |
| Neutral Citation | GY 1980 HC 15 |
| Docket Number | No. 1092 of 1976 |
| Court | High Court (Guyana) |
| Date | 14 April 1980 |
High Court
Bishop, J.
No. 1092 of 1976
C.M.L. John for the plaintiff
B.E. Gibson for the defendant
Tort - Negligence — Plaintiff's claim for a mandatory injunction compelling the defendant to erect a step to enable her to move freely in and out of her dwelling house of which she is a tenant and damages in the sum of $500 for breach of obligation of tenancy committed by the defendant by removing the step of the dwelling house — Action for negligence, plaintiff must prove (i) defendant owed him a duty of care (ii) breach of that duty (iii) loss or damage as a consequence — Mandatory injunction denied as step has already been restored.
The plaintiff ‘s claim against the defendant is for:
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(a) A mandatory injunction compelling the defendant to erect a step to enable her to move freely in and out of a dwelling house occupied by her at 6 Water Street, Agricola and of which she is a tenant.
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(b) Additionally and alternatively a sum of $500.00 as damages and pecuniary compensation for breach of obligations of tenancy and negligence committed by the plaintiff during the period May 1974 to the present time by removing the step of the dwelling house at 6 Water Street, Agricola out of its proper position to enable the plaintiff to move in and out of the said dwelling house.
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(c) Such further and other relief as may be just.
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(d) Costs.
The defendant pleaded, on the other hand:
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(a) that the plaintiff had been rendered a statutory tenant by virtue of a Notice to Quit;
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(b) that on the 13th day of May, 1974, the plaintiff agreed to continue in occupation of the premises during the period repairs thereto were to be effected;
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(c) that the plaintiff suffered no damage, was not entitled to the relief sought and that her claim was speculative and ought to be dismissed with costs.
The agreement, to which reference has been made, reads as follows:
“13th May, 1974.
This is an agreement made between Mr. R.B. Ramsay, owner and builder and Mrs. Jane Ross tenant of a building at lot 6 Centenary Road, Agricola Village, East Bank, Demerara. The tenant Mrs. Jane Ross agrees to occupy the building during the time when Mr. Ramsay (owner and builder) will undertake the building work as to plan.
The tenant father undertakes that she will not ask for no damage, of any sort, if any mishap take place during the time the building is going on.
Sgd. Jane Ross.
At the commencement of the hearing, counsel for the plaintiff stated that his client admitted signing the document dated the 13th May, 1974, and was aware of its contents. But, said counsel, the landlord had not yet restored the step and had refused to do so. I awaited the evidence.
Only the plaintiff gave evidence. She said that she was, at the commencement of her tenancy, the occupant of a one-flat building which stood 5 feet off the ground and was served by front and back stairways. She also said that, in May, 1974, the defendant showed her a building plan and said that he wished to raise the said building. Said she:
“He told me I need not remove because he considered me a good tenant. He also said that if he did not start to work immediately and allowed a year to pass, the plan would stand and allowed a year to pass, the plan would stand cancelled. Later on defendant brought a typed paper to me. He told me to sign it and that he would repair the place with me still occupying it. Before signing it, I showed the paper to my husband, and George Primo, a carpenter.”
The plaintiff deposed that she signed the document in the presence of Primo, her husband and the defendant; that after the signing, the defendant informed her that he would raise the house and make a room for her downstairs and one week later he would erect a stairway for her use.
It was never given in evidence whether the room downstairs was to be substitution for, or additional to, her original occupation, or whether it was to be a temporary re-arrangement of her habitation but, on the 28th January, 1977, two (2) weeks after the case commenced, the following consent order was made by me:
- That the plaintiff shall remain in occupation of the section of the upper flat at present occupied by her, but that on the 21st February, 1977 she should remove to the ground floor to occupy the apartment now under construction and to remain there as its lawful tenant. Reasonable rental to be negotiated, failing which the premises are to be assessed by the Rent Assessor. 2. That there be liberty to apply for a variation of the aforesaid order.
Immediately after the order was re-read to the parties, the plaintiff announced that discussions concerning the appropriate rent for the upper flat had commenced and that she was willing to pay some additional rent for the lower flat, when it was completed.
Then, on the 23rd March, 1977, counsel of the plaintiff, after consulting his client stated that the agreement reached on the 29th January, 1977 was still in force, and that his client wished to remain a tenant of the defendant on those terms.
Counsel for the defendant stated his client's preparedness to observe the terms of the consent order by stressed that the delay had been due to a misunderstanding, brought about as follows:
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(a) that Mr. P. Mahadeo, Barrister-at-law- who held the papers of Mr. C.M.L. John on the 10th February, 1977 had indicated to counsel for the defendant that the plaintiff did not wish to be bound by the order of the 28th January, 1977:
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(b) that, in any event, the plaintiff had been unable to obtain 20 bags of cement necessary to complete the apartment, even though he was, for sometime, in possession of a permit from the External Trade Bureau to obtain the said bags of cement.
I should say, too, that on the 21st January, 1977 i.e., one (1) week before the consent order was made, the defendant reported to me, and the plaintiff supported him, that the stairway had been erected to her satisfaction.
This case is therefore unusual in that, after its opening, there were several discussions and developments but, as will be seen, were indulged in without prejudice to the rights of either party to the suit.
In her evidence-in-chief, the plaintiff said that the building was raised from 5 feet to 10 feet and that the defendant provided her with a ladder, instead of a stairway; that the ladder was affixed to her back door, at first, and one year later removed to the front door. As gleaned from her pleadings, the plaintiff's complaint focused on the removal of “the step.” On this subject she said, in her evidence-in-chief, on the 14th January, 1977:
“The ladder had rails. I found using it strenuous. It is inconvenient. I still have to use the ladder. My abdomen pains me. Earlier I had taken an operation and using the ladder causes me discomfort. I have had to be using tablets to assist me. I have never checked the amount of money I have spent on tablets. The doctor gives me tablets whenever I go to him. I would say I spent approximately $80.00 on tablets.”
The plaintiff, in concluding her evidence-in-chief said:
“Defendant has always been worrying me about my not leaving the building. He has not sued me for possession. I am asking the court for five hundred dollars ($500.00) damages for the period to the present time.”
Cross-examination of the plaintiff was relatively short. During that exercise, the plaintiff conceded that on to February, 1975 she was on very good terms with the defendant. The question eliciting that answer was, I find, successfully addressed to the plaintiff to negative her earlier suggestion that the plaintiff's act, in providing her with what she described as a ladder, was willful and malicious, and aimed at forcing her ultimately to remove.
The plaintiff admitted that the building plan, which she said she could not really read, indicated improvements to the building. In fact, she had witnessed an extension to the back of the building, and the installation of a toilet and a bath. She stated, however, that the ablution facilities had not been made available to her, on to the time she gave evidence. Then followed this denial:
“It is not true [defendant] told me that he could not do the front portion of the house with me inside; but it is true that he asked me to ‘go and stop somewhere’ for one (1) week. He made this request around October, 1974. It is not true that I refused to go.”
I need hardly say that the last sentence of the foregoing passage is not maintainable for the reason that, in her evidence-in-chief, the plaintiff had said:
“I had been living at the very premises on to the time the repairs started. I continued to live there after the repairs started.”
There is no evidence that she ever removed. Instead, she entered into a new arrangement on the 28th January, 1977 to be transferred to another part of the building and for adjustments of the rental to be made. It follows, therefore, that she never vacated the
The defendant did not give evidence: his counsel closed his case and relied on legal submissions. His point was that it was permissible for the tenant to release the landlord from liability for disturbing her in her user and peaceful enjoyment of her premises; that the provision of a “ladder”, albeit for months, in place of a conventional stairway was within the contemplation of the parties at the time the agreement was executed. Counsel referred to section 60 of the Landlord and Tenant Act, Chapter 61:01, particularly subsections 1 and 3. The section reads:
“60(1) No landlord or agent shall, during the subsistence of any tenancy, remove the roof, window, door, or any other part of a tenement without the consent of the tenant or otherwise than in the execution of any duty to repair the buildings, and every landlord or agent who violates the provisions of this section shall be...
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