IN THE HIGH COURT OF JUSTICE BETWEEN ESAU RALPH BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR. Reasons for decision

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV No BETWEEN MALYN BERNARD CLAIMANT AND NESTER PATRICIA RALPH ESAU RALPH DEFENDANTS BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES: Mr. Gerard Raphael for the Claimant. Mr. Samuel Saunders for the Defendants. Reasons for decision The Claim 1. The claimant s claim is for a declaration that she is the owner and entitled to possession of a dwelling house and the parcel of land on which it stands situate and known as No.464 Cocorico Page 1 of 15

2 Avenue, Lisas Gardens, Couva (hereinafter called the said premises ), as well as an injunction restraining the Defendants from evicting her or attempting to evict her from the same. 2. She claims to be entitled to the said premises by virtue of a. proprietary estoppel, and b. the extinguishment of the first defendant s legal title as the result of possession adverse to the first named defendant for more than 16 years. Background 3. The claimant is the common law wife of Michael Ralph, Deceased (hereinafter called the deceased ). The first defendant was initially married to the deceased and, while married became the tenant, together with the deceased, of a parcel of land situated at Couva, pursuant to an agreement dated the 4 th day of November, Michael Ralph died on the 13 th day of June, He was a mason. He was the husband of the 1 st Defendant and the father of the Second Defendant. The Claimant and the deceased lived in a common law relationship, from 1991 until the death of the deceased in 2006, in the said premises. The Claimant s children Avanel and Christal, who were not the children of the deceased, also lived with the Claimant and the deceased in the said premises. 5. The Defendants are now legal owners of the said premises by virtue of Deed of Lease registered as No DE D001. The deceased, the Claimant and her children initially lived in 1 bedroom of the said premises. The deceased and the Claimant borrowed $ from Republic Bank in The Second Defendant constructed his own home in 2003/4 at the rear of the said premises and in which he now resides with his wife. The claimant claims this was Page 2 of 15

3 without the deceased s permission. The second defendant contends that it was with the permission of the deceased and the first defendant. The Claimant and her children live in the said premises. The defendants, the wife and son of the deceased, claim possession of the said premises. 6. The Defendants contend that a. There is no evidence of contribution by the claimant, b. There is no evidence as to when assurances were made by the deceased and therefore no evidence that the claimant relied upon such assurances, c. The claimant could not rely on adverse possession as no intention to possess was possible since she occupied as licensee with the permission of the deceased. Issues Whether the Claimant is the owner of and entitled to possession of the dwelling house and parcel of land on which it stands (the said premises), by adverse possession? 2. Whether the Claimant acquired an equitable interest in the said premises by virtue of promises and assurances made to her by the deceased? 3. Whether the Claimant acquired an equitable interest in the said premises by virtue of contributions made by her toward construction of the said dwelling house and/or reliance to her detriment upon such assurances by the deceased? 4. If the Claimant is the owner of the said premises or entitled to an equitable interest in the same was there an effective partition of the land on which the said premises stand? Conclusion The claimant is not the owner of the said premises by adverse possession. Page 3 of 15

4 2. The Claimant acquired an equitable interest in the said premises by virtue of promises and assurances made to her by the deceased. 3. The Claimant acquired an equitable interest in the said premises by virtue of contributions made by her toward construction of the said dwelling house and/or reliance to her detriment upon such assurances. Disposition 9. A declaration is granted that the Claimant is the owner and entitled to possession of the dwelling house in which she resides comprising a three (3) bedroom dwelling house and the parcel of land on which it stands, save for the portion of the said property occupied by the Second Defendant to the back of the said property, to the back of the three (3) bedroom dwelling house occupied by the Claimant. IT IS HEREBY ORDERED that:- 1. An injunction is granted restraining the Defendants whether by themselves, their servants and/or agents from evicting or attempting to evict the Claimant, her servants or agents from the said dwelling house and the parcel of land on which it stands. 2. The Defendants do pay Claimant s costs on the basis prescribed by the Civil Proceedings Rules 1998 in the sum of Fourteen Thousand Dollars ($14,000.00). Page 4 of 15

5 Analysis and Reasoning The evidence of the witnesses The Claimant s Evidence 10. The claimant gave evidence under cross examination, some of which I accept and some of which I do not. She was not truthful with respect to questions put to her in relation to whether she knew one Chalkie Codrington. She emphatically denied knowing such a person but could not explain the reference to him in her own pleading, where in her reply, the Claimant indicated that she was not living with Chalkie Codrington and averred instead that he was a workman laying tiles. When cross examined on this point the Claimant denied knowing any Chalkie Codrington and went so far as to say that she never signed the Reply and Defence to Counterclaim. Eventually the Claimant admitted that the signature on the Reply and Defence to Counterclaim was hers but she couldn t recall the document though it had been signed by her. 11. I did not accept her evidence of the level of income that she and the deceased generated. It was inconsistent with the excessive delay in wiring the premises for electricity, the length of time it took to complete the construction of the premises, and the amount of the loan they had to take from Republic Bank- $ a minor amount compared to the level of monthly income, ($ ), and saving ($2,000.00) to which she attested. Avanel s Evidence 12. Avanel is the daughter of the claimant. She testified in a candid and truthful manner. Her testimony, which I accept, is that in effect the deceased treated her like his own daughter, guaranteeing a loan for her to start her own business at the premises, and giving her permission to use the premises for this purpose. An attempt was made to portray this business as being, in reality, that of the deceased, but I was satisfied at the end of her cross examination that that business was actually hers, supported and encouraged by the deceased. This witness held joint bank accounts with the deceased, illustrating the level of trust that the deceased placed in her. Page 5 of 15

6 The First Defendant 13. The first defendant had very little recollection of anything, and confirmed thereby that she had very little to do with this property over the years since she and the deceased had separated. I do not accept her evidence of its condition or state of completion at the time of their separation. Hyacinth Rodney 14. This witness was presented as an independent witness, but it was obvious that this witness had a close relationship with the second named defendant and this, despite her denial that this was the case, put a spin on her evidence in his favour. I do not accept her attempts to downplay the contribution by the claimant to the construction of the said premises. She testified that she provided roofing material and louvers for the premises, implying that the claimant s contributions were exaggerated or nonexistent. Her explanation that there existed a repository of unclaimed louvers at the police station where she worked strains credulity. I do not accept this witness as being a truly independent witness. The Second Defendant 15. The second named defendant clearly had an interest to serve, wanting to acquire possession of the entire property. His demeanour was aggressive and his evidence was self serving. Little if any weight could be placed on his evidence. The evidence of the undisputed facts was preferred. Findings 16. I find as follows: Contribution by the claimant to income generated 1. The claimant did make contributions to the extension of the rudimentary structure that was initially on the said parcel of land by virtue of inter alia, her earnings as a seamstress. Page 6 of 15

7 2. I do not accept the claimant s evidence with respect to the quantum of alleged income generation by a. rental of cars or b. cultivation of land. 17. The Claimant said that she and the deceased together earned about $ 8, per month in 1991 and they saved about $5, per month. Yet they had to borrow $1, in 1992 to improve the room they were living in. 18. According to the Claimant she and the deceased earned a total income of $8, a month yet after the house was completed in 1995 they failed to obtain an electricity supply until The Claimant said in cross-examination that she stopped sewing in 1996 when the deceased became ill and devoted more time to agriculture to make an average of $1, per month when she could have made $3, per month as a seamstress. 20. I do not accept her evidence of her earnings or the earnings of the deceased. I find that their earnings were exaggerated by this witness. Rental of cars 21. As to rental of cars, the arrangement, even as described, appeared to be barely profitable. I accept that the claimant and the deceased did hire out vehicles in some form as even the second named defendant testified that he knew his father used to give people to work his cars. It demonstrates that the deceased and the claimant were engaged in efforts to generate income to supplement their individual earnings. Page 7 of 15

8 Cultivation of land 22. With respect to cultivation the photograph tendered did not establish a. What was cultivated b. Where it was cultivated c. When it was cultivated d. With whom it was cultivated and e. How much was cultivated. 23. Nevertheless there is sufficient evidence apart from this that the claimant earned income and spent and /or contributed to the expenditure of some of this income in the completion of the dwelling house. 24. While the evidence does not demonstrate or support a significant level of income it does reflect a level of industry on the parts of both claimant and deceased, in which efforts the claimant participated. 25. It is reasonable to infer that her contributions would also have been indirect in meeting household expenditures and making available to the deceased income which could be and was utilized for its construction and expansion. Evidence of Avanel 26. The evidence, in the round, reflects that the deceased lived in a family arrangement with the claimant and her children until his death. Page 8 of 15

9 27. The arrangement with the claimant s daughter, Avanel, by which she was permitted to construct an annex for the sale of car parts, corroborates the fact that the deceased intended the claimant and her family to regard the property as being for their use and benefit, and not just for their temporary use and benefit. Avanel testified that the deceased had a joint account with her. 28. Whether the Second Defendant lived with them and the deceased from 1991 until the death of the deceased is the subject of conflicting evidence. However, in the final analysis I consider the evidence as to the treatment by the deceased of the claimant and her children as far more important in demonstrating the reality of the nature of their occupation. Adverse possession against co-owner 29. Myra Wills v Elma Wills Privy Council Appeal No. 50 of 2002 applied section 14 of the Jamaican Limitation of Actions Act (identical in material terms to s.14 of the Trinidad and Tobago Real Property Limitation Act, Chapter 56:03) 14. When any one or more of several persons entitled to any land or rent as coparceners, joint tenants or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their un- divided share or shares, of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same I and or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such lastmentioned person or persons or any of them. 30. That case (at paragraph 27(1)) clarified that Myra in that case was a licensee and not a tenant at will, suggesting that even after 17 years Myra could not assert dispossession of the first wife. 1. Myra obtained letters of administration as the legal personal representative of George. Her rights to the whole of the property derived entirely from George s dispossession of his ex wife. 2. The instant claimant was equally therefore not a tenant at will. Page 9 of 15

10 3. Further in this case the claimant is not entitled to letters of administration.any rights of the deceased in the said premises; arising from dispossession of his wife, the first named defendant, devolve on intestacy to his wife,the first named defendant and her children. 4. The claimant, as a licensee of the deceased, is therefore not entitled to assert adverse possession against the first named defendant unless the deceased were entitled to do so AND she were entitled, through him, to enforce any rights that he acquired by adverse possession herself. In fact, however, she is not one of those persons entitled to enforce such rights on behalf of the estate of the deceased. 5. Any right the claimant has to possession of the premises therefore has to be the result of the operation of estoppel. The Law 31. For the Defendant to succeed in her claim for trespass she must establish an equitable interest that entitles her to maintain that claim against the defendants. It is therefore necessary to examine the basis of the claimant's claim to ascertain whether any interest was created by virtue of: (a) (b) Proprietary estoppel Promissory estoppel. 32. Promissory Estoppel Where by his words or conduct one party to a transaction freely makes to the other a clear and unequivocal promise or assurance which is intended to affect legal relations between them ( whether contractual or otherwise ) or was reasonably understood by the Page 10 of 15

11 other party to have that effect, and, before it is withdrawn, the other party acts upon it, altering his or her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it emphasis mine Snell s Equity 31st ed Para I find that there is evidence that such promises or assurances were made in the context of the long relationship between the deceased and the claimant. The fact that Avanel was aware of such a promise to the claimant by the deceased, (which testimony I accept), and the fact that the deceased encouraged Avanel to herself establish a business on the premises, corroborate that the deceased intended the family arrangement that he enjoyed with the claimant and her children to be permanent, and that the joint contributions to the premises would be for their joint benefit. 34. Proprietary Estoppel If A under an expectation created or encouraged by B that shall have a certain interest in land thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a court of Equity will compel B to give effect to such expectation. Taylor Fashions Ltd. v Liverpool Victoria Trustee Co. Ltd. per Oliver J. cited in Snell s Principles of Equity 31st Ed. Para to Promise 35. The claimant must establish that the defendants or their predecessor in title, had represented that she will obtain an interest in property either by making an express promise...as where a mother assures her daughter that she will have the family home for life or by encouraging the claimant to believe that she will obtain such interest by words or conduct or by encouraging the claimant's belief passively by remaining silent. It is not necessary for the Page 11 of 15

12 claimant to prove that the defendants agreed that the promise or assurance would be irrevocable since it is the claimant s detriment which makes the assurance binding and irrevocable provided that it was clearly intended to be acted upon. See Snell s Principles of Equity 31stEd. 36. I find that on a balance of probabilities the deceased may well have represented to the claimant, who lived with him and looked after him until his death, that she would obtain an interest in the said premises, and I accept the evidence of the claimant in this regard. 37. Her belief must have been encouraged by the titleholder or his agent or predecessor in title. This may be done actively or by passively looking on while the person spends money on one s land. See Snell s Principles of Equity 31st Ed. Ibid. 38. It is clear that the deceased lived with the claimant and her children in a family arrangement. The premises were treated as the family home. The first named defendant was not in the picture. Expenditures on the said premises were joint and there was no issue of the first named defendant maintaining any interest in the said premises. Expectation or Belief 39. She must have acted in the belief either that she already owned sufficient interest in the property to justify the expenditure or that she would obtain such interest. Para , Snell s Principles of Equity 31st Ed. ibid. Page 12 of 15

13 40. I find that the Claimant was granted the right to occupy the said premises rent free and no period was specified. Her expenditures on the premises were permitted by the deceased and not objected to, and in fact were joint expenditures. See Snell s Principles of Equity 31st Ed. ibid. 41. I find her expenditure was based on belief at the time of such expenditure that she already owned or would obtain an interest in the said premises. 42. She must have incurred expenditure or otherwise acted to her detriment. See Snell s Principles of Equity 31st Ed. ibid. 43. I take into account the Privy Council case of - Knowles v Knowles Privy Council Appeal No 28 of 2007 delivered the 9 th June 2008 where the Privy Council was mindful of depriving an owner of property who had done nothing at all to encourage any belief that the occupants could treat the property as belonging to them: "In Jennings v Rice [2002] EWCA Civ 159; [2003] 1 P & CR 100 Robert Walker LJ said at para 56 that the essence of the doctrine of proprietary estoppel is to do what is necessary to avoid an unconscionable result. In the opinion of their Lordships it would be unconscionable in this case to deprive George of his property when he had done nothing at all to encourage any belief that his brother and sister-in-law could treat the property as belonging to them. While recourse to the doctrine of estoppel provides a welcome means of effecting justice when the facts demand it, it is equally important that the courts do not penalise those who through acts of kindness simply allow other members of their family to inhabit their property rent free. In E & L Berg Homes Ltd v Grey (1979) 253 EG 473, [1980] 1 EGLR 103 Ormrod LJ said at p 108: Page 13 of 15

14 I think it important that this court should not do or say anything which creates the impression that people are liable to be penalised for not enforcing their strict legal rights. It is a very unfortunate state of affairs when people feel obliged to take steps which they do not wish to take, in order to preserve their legal rights, and prevent the other party acquiring rights against them. So the court in using its equitable jurisdiction must, in my judgment, approach these cases with extreme care. 44. The Privy Council's guidelines are clear. The courts must approach a case of this type with care. On a balance of probabilities however, even weighing the competing versions of evidence of each witness, and taking into account their exaggerations and distortions impacted by self interest and otherwise, I find that the Claimant's case is made out on the evidence. 45. I find that the claimant has established an equitable interest in the said premises by virtue of her contributions, though they are far less than she attempted to portray. They are to be assessed however, relative to the income of herself and the defendant, and in the context of their longstanding, and in fact permanent living relationship. 46. In that context, I find them to have been sufficient in law for her to have acquired an equitable interest in the said premises. Findings 47. I find on the evidence: (a) That the Claimant acquired an equitable interest in the said premises by virtue of promises and assurances made to her by the deceased and that in the circumstances she was led by the deceased to believe that she had acquired, or would acquire, such an interest. Page 14 of 15

15 (b) The Claimant acquired an equitable interest in the said premises by virtue of contributions made by her toward construction of extensions to the said dwelling house and/or reliance to her detriment upon such. (c) The claimant is not the owner of the said premises by adverse possession. Disposition 48. THIS COURT DECLARES that the Claimant is the owner and entitled to possession of the dwelling house in which she resides comprising a three (3) bedroom dwelling house and the parcel of land on which it stands, save for the portion of the said property occupied by the Second Defendant to the back of the said property, to the back of the three (3) bedroom dwelling house occupied by the Claimant. IT IS HEREBY ORDERED that:- 1. An injunction is granted restraining the Defendants whether by themselves, their agents and/or servants from evicting or attempting to evict the Claimant, her servants or agents from the said dwelling house and the parcel of land on which it stands. 2. The Defendants to pay Claimant s costs on the basis prescribed by the Civil Proceedings Rules 1998 in the sum of Fourteen Thousand Dollars ($14,000.00). Dated this 20 th day of October, Peter A. Rajkumar Judge. Page 15 of 15