IN THE HIGH COURT OF JUSTICE TELLELAU CONSTANTINE JUDY CHARLERIE-CLARKE AND SHARMIN SUBHAR TREVOR CHARLERIE

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN TELLELAU CONSTANTINE JUDY CHARLERIE-CLARKE First Claimant Second Claimant AND SHARMIN SUBHAR TREVOR CHARLERIE First Defendant Second Defendant BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER APPEARANCES Mr. Sallian Holdip-Francis, Attorney-at-law on behalf of both the First and Second Claimants Ms. Janette James-Sebastien, Attorney-at-law on behalf of both the First and Second Defendants JUDGMENT Introduction 1. Tellelau Constantine, the first Claimant in these proceedings, is the father of Judy Charlerie- Clarke, the second Claimant and of Trevor Charlerie, the second Defendant. Sharmin Subhar, the first Defendant, is the common law wife of Trevor Charlerie. Page 1 of 9

2 2. On the 11 th October, 2012, the Claimants instituted proceedings against the Defendants, seeking an order for possession as well as for damages for trespass to a chattel house standing on lands at Arima On the 15 th April, 2015, the Defendants filed their defence and counterclaim. They canvassed the defence of propriety estoppel and asked the Court to declare that they hold a legal or equitable interest in the premises and are entitled to possession thereof. 4. In the course of this judgment, I have relied on documentary evidence in the resolution of issues of fact and have applied thereto, the well-established principles of proprietary estoppel. Facts 5. The Claimants are co-tenants of lands standing on property, consisting of five thousand and sixty square feet (5,060 sq. ft.), which form part of a larger parcel of land in Arima. These premises are owned by Gerald Julian, sole executor to the estate of the late Leila Julien. 6. Tenancy rights to the property were originally held by the late Emile De Leon, the matrimonial uncle of the first Claimant. Emile De Leon died on the 14 th January, Following the death of Emile De Leon, the tenancy rights were passed to the Claimant, who has paid rent since that time. In the year 2010, the first Claimant added his daughter, the second Claimant as a co-tenant. She has paid taxes since ALL AND SINGULAR that certain parcel of land and hereditaments situate at ARIMA, comprising FIVE TEN ACRES TWO ROODS AND TWENTY-TWO PERCHES and abutting the North upon the Arima Old Road on the South upon lands of the heirs of Cleaver on the North upon the Arima Old Road on the South upon lands of the heirs of Cleaver on the East upon lands formerly of Walrop but now heirs of Cleaver on the West upon lands formerly of the heirs of Cleaver now of A.L. Owen and coloured white and marked B on the plan annexed and marked C of the Deed of Conveyance No of 1937, sometimes erroneously described as comprising TWELVE ACRES more or less bounded on the North by the Arima Old Road on the south by lands now of Sefontes on the East by lands of C. Matthew now Tota and on the West by lands of C. Cleaver now S. Capildeo and others (hereinafter referred to as the said premises. Page 2 of 9

3 7. The second Defendant is the son of the first Claimant and the brother of the second Claimant. It is not disputed that the Defendants have been in a common law relationship for many years, and that they have one daughter, Sue Lyn, who was born in October, It is also not disputed that the Defendants have occupied a chattel house on the subject premises for many years and that they have done so with the permission of the first Claimant. Accordingly, it is not disputed that the Defendants occupy the land as bare licensees. The Defendants Case 9. It was the Defendants case that the first Claimant, Mr. Tellaleau Constantine encouraged them to leave an apartment, which they occupied on Olton Road, Arima to clean and clear the premises and to construct a chattel house thereon, so that they would become owners of the chattel house. 10. According to the Defendants, this promise was made on the condition that they look after Suitbert Martinez, who was the mentally-ill brother of the Claimant. 11. The Defendants contended that they relied on the promise of the first Claimant. They cleared the premises and constructed a ply board chattel house in the year They contended, as well, that they looked after Suitbert until his death on the 24 th July, The Claimants Case 12. The Claimants contended that in the year 2000, the first Claimant gave permission to the second Defendant, to stay at the subject premises. The first Claimant allowed the second Defendant, his son, to enter into occupation, pending the latter s application for a home from the National Housing Authority. Page 3 of 9

4 13. The Claimants contend that Defendants lived on the subject premises for nine (9) years, and that in the year 2009, the second Defendant was forcibly evicted pursuant to an application by the First Defendant. Thereafter, a restraining order prevented the second Defendant s reentry onto the premises. 14. The eviction of the second Defendant incensed the first Claimant, who asked the second Claimant to initiate proceedings in the Arima Magistrate s Court to have the Defendants ejected. Law 15. The central issue in this matter is, however, whether the circumstances in which the Defendants came into occupation entitle them to claim an interest in the chattel house, pursuant to the doctrine of proprietary estoppel. 16. The tenets of the doctrine of proprietary estoppel have received the consideration of the highest authorities throughout the Commonwealth and in my view, are well settled. 17. The classic statement on the doctrine may be found in Wilmot v. Barber [1880] 15 Ch. D 96, where Fry J. identified the following five probanda of proprietary estoppel: a) The claimant must have made a mistake as to his legal rights. b) The claimant must have expended some money or done some act on the faith of his mistaken belief. c) The defendant must know of the existence of his own right. d) The defendant must know of the claimant s mistaken belief Page 4 of 9

5 e) The defendant must have encouraged the claimant in the expenditure of money or in the other acts which he has done whether directly or by abstaining or asserting his legal right More recently, the requisite elements were listed in the case of Re. Basham 3, where Edward Nugee Q.C. sitting in the Chancery Division identified the following as the elements of a successful plea of proprietary estoppel: a belief held by the plaintiff that she was going to receive a benefit. the encouragement of the belief. the plaintiff acted to her detriment 19. Contemporary authorities have also alluded to the requirements of the promise and detrimental reliance, but have underscored the element of conscionability. See for example Gillett v. Holt [2001] Ch. 10 and Richard Uglow v. Peter Uglow and Others [2004] EWCA Civ 987. Decision and Resolution of Issues of Fact 20. This Claim will be resolved on the evidence and in particular, on the issue of whether the Defendants have succeeded on a balance of probabilities in establishing that they entered occupation of the land, with the encouragement of the first Claimant and that they acted to their detriment in reliance on promises made to them by the Claimants. 21. The issues of fact which arise are broadly: 2 Wilmot v. Barber [1880] Ch. D In re Basham [1986] 1 WLR 1498 at pages Page 5 of 9

6 (i) Whether the Defendants entered into occupation of the premises pursuant to a promise by the first Claimant that they would be entitled to ownership of the house, if they took care of Suitbert. (ii) Whether the Defendants relied on the promise of the first Claimant and detriment by clearing the premises, constructing a new ply board house and taking care of Suitbert. 22. The events in question have occurred almost two decades ago. In resolving the issues of fact, the Court was required firstly to remind itself that the burden of establishing the elements of proprietary estoppel was carried by the Defendants. 23. In resolving the issues of fact, the Court also placed great reliance on the documentary evidence which was furnished by the Defendants. 4 The Court also relied on the responses of witnesses under cross-examination. 24. In her witness statement, Ms. Subhar produced receipts for the purchase of materials and for the clearing of rubbish. These receipts are dated in 1996 and support the case for the Defendants that they entered the premises in 1995 and began carrying out construction works. The 1996 receipts are also contemporaneous documents which weaken the Claimant s case, by supporting the Defendants testimony that they entered the premises in 2000, with the First Claimant s permission 25. The Defendants produced documentary evidence in support of their contention that the second Defendant had been made a co-tenant of the premises and that he took steps to purchase the premises from the Landowner, Leila Julien. 4 See Privy Council Appeal No. 36 of 1987 Horace Reid v. Dowling Charles and Percival Bain at page 6 However, in such a situation, where the wrong impression can be gained by the most experienced of judges if he relies solely on the demeanor of witnesses, it is important for him to check that impression against contemporary documents, where they exist, against the pleaded case and against the inherent probability or improbability of the rival contentions,... Page 6 of 9

7 26. In support, the Defendants produced a hand-written document dated the 28 th May, 2000, purportedly signed by Leila Julien. This document purports to indicate the agreement of Leila Julien to sell five thousand and sixty square feet (5460 sq. ft.) to the second Defendant. This document was exhibited to the witness statement of the second Defendant, Trevor Charlerie as T.C I agree with learned Counsel, Ms. Holdip that the handwritten document is not an agreement for sale. No evidential objection was made to its use, however and in my view, it is a contemporaneous document, which places the Defendants comfortably on the land and negotiating with the land owner in May, In my view, this document renders its unlikely that the Defendants entered into occupation prior to the year The Defendants relied as well on a Certificate of Assessment dated the 10 th August, This document was not relevant to the year 1995 to 2000, which is the time period relevant to this case. Accordingly, this document was not helpful to either party. 29. I considered the allegation that the Defendants took care of the late Suitbert. Ms. Subhar stated under cross-examination that she fed Suitbert. Although he was not bed ridden, the Defendants provided his meals and took care of his laundry. Ms. Subhar also stated that she assisted with cashing his cheques. 30. In support of their care for Suitbert, the Defendants produced documents pertinent to Suitbert s later years. Accordingly, at S.S.3, Mrs. Subhar produced a document signed by Suitbert in August, 2011, authorizing her to collect his disability grant. 31. I considered this evidence together with a bank statement, showing Ms. Subhar holding a joint account with the late Suitbert. It was my view that, regardless of the fact that those documents were dated 2012, it was unlikely that Suitbert would repose trust in the first Page 7 of 9

8 Defendant without the foundation of an earlier relationship of trust. In my view, the documentary evidence supports the defendants case that indeed they took care of Suitbert. This strengthens and lends support for their case that they took care of Suitbert in reliance on the promise which had been made by the first Claimant. 32. I considered the evidence which was adduced by the Claimants. Mr. Tellelau Constantine was unable to testify that he had signed his Witness Statement which was unconfirmed, was stuck out. 33. Ms. Judy Charlerie, however testified that Suitbert s internment and burial was handled by the Claimant. Ms. Charlerie was not however, unable to contradict the documents produced by Ms. Subhar, which tended to prove a diurnal care for Suitbert. Ms. Charlerie was also not able to contradict the Defendants allegation that a promise had been made by the first Claimant. 34. Having considered very sparse evidence which was adduced at trial, it is my view that the Defendants have established on a balance of probabilities that they indeed acted to their detriment in reliance on a promise which had been made by the first Claimant. I find as a fact that they expended funds on the purchase of materials in It is not clear whether the chattel house was actually constructed in It is however clear that Defendants paid for the clearing of rubbish from the premises on the 3 rd April, I also find as a fact that the Defendants assisted Suitbert and that they did so in reliance on the promise which had been made by the first Claimant. 36. The evidence suggests that the first Claimant, exhibited paternal compassion on his son, Trevor, while using the opportunity to provide assistance to his mentally afflicted brother. The relationship broke down when the first Claimant became enraged at the eviction of his Page 8 of 9

9 son, at the hands of the first defendant. The first Claimant then proceeded to take steps to have the Defendants removed from the chattel house. 37. Accordingly, it is my view that the Defendants have established the elements of proprietary estoppel and I proceed to consider, as the law requires, what is the minimum equity, to which the Defendants are entitled. 38. In my view, the minimum equity would require that the first Claimant transfer to the Defendants the tenancy rights in respect of the five thousand, four hundred and sixty square feet (5,460 sq. ft.) of land, on which their chattel house stands. Order 39. There be Judgment for the Defendants; 40. The first Defendant and second Defendant have a legal and/or equitable interest in the said premises and are entitled to possession of the said premises; 41. The Claim is dismissed. Dated this 22 nd day of September, M. Dean-Armorer Judge Page 9 of 9