Mizpah Pintard Munroe v Franklyn Williams
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 17 March 2023 |
| Docket Number | 2018/CLE/gen/01484 |
| Court | Supreme Court (Bahamas) |
As Executor of the Estate of John Egbert Tertullian
AND Administrator in the Estate of Mizpah Tertullian
The Hon. Madam Justice G. Diane Stewart
2018/CLE/gen/01484
IN THE SUPREME COURT
COMMON LAW AND EQUITY DIVISION
Mrs. Kelphene Cunningham KC for the Plaintiff
Mr. Lessiah Rolle for the Defendant
By a Re-Re Amended Originating Summons filed 24 th March 2022, the Plaintiff sought the following relief:
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i. A Declaration that the Plaintiff is owed the sum of approximately Sixty-Four Thousand and Nineteen Dollars and Twenty-Two Cents ($64,919.22) being a sum invested in of all that piece of parcel or lot of land described as Lot Number 31, Block 6, Broiling Brook Road situate in the Subdivision of Blue Hill Heights in the Southern District of the Island of New Providence aforesaid (“the said property”).
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ii. An injunction to restrain the Defendant whether by himself, his servants and/or agents from eviting the Plaintiff from the said property unless and until the said sum of Sixty-Four Thousand and Nineteen Dollars and Twenty-Two Cents ($64,919.22) or so much thereof as this Court determines to be the actual sum actually due as can be proven by the production of receipts produced.
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iii. Damages: Special and General damages suffered as a result of the Defendant's eviction in the amount of Forty-Four Thousand Nine Hundred and Ninety Dollars Bahamian ($44,990.00)
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iv. That the Defendant be condemned in the costs of this application.
The Plaintiff alleged that she renovated the said property based on the Defendant's verbal agreement in 2013 to sell the property to her at a fair market value less the amount spent on the renovations, however, the Defendant reneged on the agreement. The Defendant on the other hand claimed that by the verbal agreement, the property was to be rented to the Plaintiff and was not for sale.
The Plaintiff contended that the issues for the Court's consideration were:-
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i. Whether the monies expended by the Plaintiff on repairs to the property were on reliance from the Defendant that she could purchase the property and the monies she spent would be deducted from the purchase price.
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ii. Whether she is entitled to compensation for monies spent improving the Defendant's property?
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iii. Whether her equitable interest can be satisfied?
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iv. Whether the Defendant should be awarded the rent arrears of Thirty Thousand Five Hundred Dollars and paid to have the property cleaned?
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v. Whether she is entitled to damages when the Defendant turned off the electricity prior to obtaining the judgement in the Supreme Court on Appeal from the order of the Magistrates Court.
The Defendant contended that the issues for the Court's consideration were:-
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i. Whether there was a verbal agreement to rent or sell?
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ii. Whether the Plaintiff is entitled to a refund for repairs done without the Defendant's knowledge and consent?
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iii. Whether the Plaintiff is entitled to damages for property left in the Home after the Court Eviction Order of 16 !h March 2018.
The facts which are not disputed are:
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i. The Plaintiff moved into the property in 2013.
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ii. The Defendant is the Executor and Administrator of the Estate of the late John Egbert Tertullian and Mizpah Tertullian respectively.
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iii. The property is described as:-
“All that piece or lot of land situate in the Subdivision known and cailed Baillou Hill Estates in the Central District in the island of New Providence, The Bahamas and comprising approximately 8,480 sq. feet and bounded on the North partly by Lot Nos. 1B and 2 running thereon Eighty Feet, on the East by Lot No. 30 and running thereon One Hundred and Six (106) Feet, on the South by a Thirty Feet Wide Road and running thereon Eighty (80) Feet, on the West by Lot No. 32 and running thereon One Hundred and Six (106) Feet back to the point of commencement.”
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iv. A Grant of Probate in the Estate of John E. Tertullian was issued to the Defendant in 2011 as Executor.
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v. The Defendant allowed the Plaintiff to occupy the property.
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vi. There was no written agreement executed to sell the property or any signed lease agreement between the parties.
Numerous affidavits were filed by both sides in support of their separate positions.
The Plaintiff maintained that she was permitted to occupy the property as a licensee with a verbal agreement to purchase the property at a fair market value
She saidt:-
“Dr. Williams told me that they had no funds in order to repair the building and if I was interested in purchasing the property, his brother, Franklyn the lawyer (the defendant) dealt with legal matters and I should speak with him. From the date the Defendant and I spoke in regard to me purchasing the property and any monies I spent on the repairs to the property would be taken into account when I purchase.”
The Defendant never asked her to pay any rent until two years after she had moved into the property.
She had approached several attorneys to draft the sales agreement but was not successful in getting any of them to prepare the agreement.
The Defendant has not produced any written lease agreement to support his statement that there was only an agreement to rent the property.
The claim for rental arrears from 2015 and not 2013 corroborates the Plaintiffs evidence that she entered the premises as a licensee and not under a rental agreement.
The property was not fit for occupation and had fallen into a state of disrepair after Mizpah Tertullian was placed in the Geriatrics Hospital. It had become a home for drug addicts and was a nuisance to the neighborhood.
Dr. Francis Williams the Defendant's brother called her in early 2013 and told her that a lady with a number of children had approached him about letting her live in the house in order to keep the house secure. She then told Dr. Williams that she as a family member could repair the house and move into the property.
They arranged a time to walk through the property and she told Dr. Williams that she would love to buy the property provided it was sold for a decent price in order to keep it in the family.
Dr. Williams told her that they had no funds to repair the property, but if she was interested in purchasing the home the Defendant was dealing with all legal matters and that she should speak with him.
She spoke with the Defendant and when she asked for a sales agreement he told her that they were family and did not need a sales agreement.
She was interested in a written agreement but it never materialized.
She cleaned up the property before moving in and commenced repairs and continued repairs once she moved in.
The repairs consisted of fixing leaks, windows, removal of bees, repairs to structural damage, plumbing and lights.
She was never asked for any rent for approximately two years.
The Defendant obtained an order for eviction and proceeded with the eviction without any legal right to the same.
The Defendant had the electricity in the house turned off in January of 2018 before he obtained the final eviction order, as a result, she suffered damage. She incurred expenses in having to buy a generator to obtain light and water. She also suffered damage to her appliances.
The execution of the eviction order did not comply with the court's directions which mandated that their belongings were to be protected. The Defendant used his position with the government to intimidate and harass her. He refused to allow her to take her belongings.
Mr. Kishan Munroe, the Plaintiff's son who lived on the property with his mother affirmed his mother's evidence as to the non-compliance by the Defendant of the court's directions to allowing them proper access to collect their belongings resulting in grave delays to collecting their clothing and personal effects.
He also confirmed the damage to the appliances and the incurring of expenses as a result off the Defendant turning off the electricity.
They were not allowed to collect all of their belongings and the Defendant's contractor nailed planks over the door.
Mr. Calsey Thompson was one of the contractors who made the repairs on behalf of the Plaintiff to the house. He listed the repairs and confirmed that he was paid $15,000.00 for the repairs.
Mr. James Sweeting also performed repairs to the house repairing cracks in the columns and comers, reshingling the roof, replace inter alia the boxing, fascia board and rafterss. His estimate was that the Plaintiff spent over $37,000.00 on the project inclusive of work done by other workmen.
Under cross-examination the Plaintiff admitted that she did not attempt to reach the Defendant's attorney and she had tried through two lawyers to contact the Defendant regarding the sales agreement without success.
She admitted to not showing up on two occasions herself to collect her belongings.
She admitted that there was no stay obtained against the eviction order. She denied that she disobeyed the eviction order obtained against her by not vacating in the time ordered.
No evidence was produced by her of her efforts to obtain permission from the Defendant to effect repairs to the property.
Mr. Calsey Thompson only produced a receipt for $10,000.00 and not $15,000.00 as he claimed.
Mr. Sweeting noted that when he was repairing the roof that the windows had been recently done.
There was no agreement with the Defendant for the Defendant's adult son to occupy the premises. The paintings were only 5–6 feet long and not 15 to 18 feet as the Plaintiff had stated.
Dr. Francis Williams, the brother of the Defendant averred that he never made any agreement with the Plaintiff to rent to own or sell the property.
The...
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