IN THE HIGH COURT OF JUSTICE IN THE MATTER OF AN APPLICATION UNDER THE REAL PROPERTY ACT CHAPTER 56:02

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No CV IN THE MATTER OF AN APPLICATION UNDER THE REAL PROPERTY ACT CHAPTER 56:02 AND IN THE MATTER OF AN APPLICATION UNDER THE WILLS AND PROBATE ACT CHAPTER 9:03 BETWEEN RAMONA ANNE STOBBART- OWENS Applicant/Claimant (BY HER ATTORNEY GARY GEORGE STOBBART WHICH POWER OF ATTORNEY WAS REGISTERED AS DE ) AND TASMA CHARMAINE SILK Respondent/Defendant BEFORE THE HONOURABLE MADAM JUSTICE ELEANOR DONALDSON- HONEYWELL APPEARANCES: Mr. Gregory Armorer instructed by Ms. Everlene Khan, Attorneys-at-Law for the Claimant Ms. Sushma Gopeesingh, Attorney-at-Law (amicus) for the Defendant. Defendant in person Delivered on: 13 th January, 2016 JUDGMENT Page 1 of 22

2 1. The Claimant and the Defendant are sisters and at the time of the filing of this claim they were joint executors of their mother s Will. They have been embroiled for many years in a dispute over the property bequeathed to them and their three siblings [ the beneficiaries ] by their mother Indra Lall-Clayton who died in The property is situated in the Ward of Diego Martin at Savory Bay on Gaspar Grande Island [ the Property ]. 2. There can be no disagreement that of the five beneficiaries, it is the Defendant who has spent the most time and effort managing the property. She says she took charge of this responsibility prior to her mother s death and the Claimant admits that since at least 2001 the Defendant has looked after the property. She has also resided there since 2006 whilst the Claimant at all material times resides in Canada. The Claimant, by way of the Fixed Date Claim filed herein on April 26, 2013 initially sought more extensive relief; however, in the course of case management there was resolution of some of the matters in contention. Among the matters agreed to was an opportunity for the Claimant to visit the property and the joint engagement of a valuator who has valued the property at Seven Million Dollars (7,000,000.00) as at May 14, 2014 inclusive of the buildings and site improvements thereon which are valued at Five Hundred Thousand Dollars (500,000.00). Relief Claimed: 3. The relief sought by the Claimant evolved over the course of the proceedings and the final position was articulated by her Attorney in closing submissions. A number of the ten sub-heads of relief initially claimed were abandoned by the Claimant as having either been rendered unnecessary during the case management stage or due to lack of evidence. A significant area of relief that was dropped in closing submissions was the claim for damages for physical damage to the property. The remaining relief that the Claimant seeks is as follows: a. An order that the property be sold by public auction with the beneficiaries having the first option to bid and that the Defendant produce the Certificate of Title Volume 4737 Folio 63 for purposes of the conveyance of the property. b. A declaration that the lease agreement made between the Defendant and Peter Grongvist on May 1 st, 2011 is illegal. c. An injunction that the Defendant forthwith cease and desist from excluding the Claimant and the other beneficiaries from the property and that the Claimant be allowed access to the property. d. Damages for loss of rental income from the property. Page 2 of 22

3 e. Costs of the claim calculated based on the quantum of damages awarded, if any, and costs of the Counter-Claim at Fourteen Thousand Dollars (14,000.00) based on prescribed costs applicable to a claim treated as one for Fifty Thousand Dollars (50,000.00) in accordance with Part 67.5(2)(b)(iii) of the Civil Procedure Rules, 1998 [CPR]. 4. The Defendant also seeks relief from the Court as set out in her Amended Defence and Counterclaim filed herein on September 23, She seeks: a. An order that the property be partitioned into five parts or as is just and equitable in lieu of sale. b. A declaration that the Defendant is entitled to an equitable interest in the dwelling-house situated on the property and/or the sum of One Million, Three Hundred and One Thousand, Six Hundred and Eighty-Four Dollars and Forty- Eight Cents (1,301,684.48) based on alleged expenditure reasonably incurred in what she refers to as her lawful duty as Executrix towards maintenance and upkeep of the property. As it relates to the quantum claimed as compensation for her alleged equitable interest the Defendant initially also claimed in the alternative that the value of the parcel of land on which the dwelling house stands and which is occupied by her be set-off against such sums spent by the Defendant as the Court may find. c. In the alternative to receipt of compensation for the equitable interest claimed the Defendant seeks to have that specific part of the property namely, the parcel of land on which the dwelling house stands and which she presently occupies conveyed to her in fee simple and that she also be given credit for the value of her share in the entire property. d. The Defendant seeks an order that she be paid the costs of her counter-claim and of the Claimant s claim. Factual background and evidence: 5. Indra Laetitia Lall-Clayton otherwise Indra Lall-Clayton otherwise Indra Laelita Stobbart, [ Indra or the parties mother ] died on October 17, She resided in Canada at the time and had executed a Will a few months before her death bequeathing the property to her five children who had also moved at various times to Canada [ the Beneficiaries ]. These Beneficiaries included the Claimant and the Defendant. 6. The Executor/Trustee named in the Will was a Mr. Bruce Robinson and there was provision that if he died before Indra, the Claimant and Defendant would be joint Executors. Bruce Robinson survived Indra but he too resided in Canada. The Defendant Page 3 of 22

4 had by then returned to Trinidad to live, so Bruce Robinson gave her authority by way of a Power of Attorney to administer Indra s estate on his behalf. The Defendant duly applied for a grant of letters of administration with the Will annexed and obtained the grant on August 11, The Will provided for recovery of the expenditure incurred on administering the estate at clause 4(c) which states: IN ORDER TO carry out the provisions of my Will, I give to my Trustee the following powers to be used in his sole discretion at any time: (c) To Make advances or payments out of my estate generally or to do any other act for the insurance, protection, improvement, development, realization, repair or rebuilding of any assets thereof, and to set up depreciation reserves; it being my intention to provide the same powers in these respects as I would have had if I were alive for the administration of these assets but not to alter the benefits otherwise provided by this will At the time of Indra s death the property at Gaspar Grande was occupied by a Randal Harford who was hired as a caretaker. He continued in that capacity after her death and was responsible for maintaining the property, collecting rental income and keeping it accessible to all the beneficiaries. After obtaining the grant to administer the estate, the Defendant removed Randal Harford from the property and he was replaced by Kenneth Peterkin as caretaker. 8. Bruce Robinson died on April 5, 2003 and by law this meant that the Defendant no longer had authority to serve as administrator of Indra s estate. Instead both she and the Claimant were jointly entitled to be executors of the estate. There was however a lengthy delay in applying for a grant and in practical effect the Defendant remained in charge of the estate in the belief that she still had residual authority. The Claimant did not reside in Trinidad and there is no evidence of her having taken steps to take charge of the property in or around The Claimant alleges that up to 2004 the property was earning rental income but that in that year the Defendant intervened and income earning ceased. At around this time as well, the Claimant alleges that the new caretaker was allowing the property to fall into disrepair. She says Peterkin allowed visitors to stay at the premises without collecting rental from them. She complains further that the Defendant never brought legal action against Peterkin within the statutory limitation period. In 2006 the Defendant removed Peterkin as caretaker and moved into the property herself. 10. It was also in 2006 that on the evidence, the Defendant commenced repairs to the property. This is admitted at paragraph 11 of the Claimant s Defence to her Counterclaim. There was an unusually strong storm in early 2006 that damaged the Page 4 of 22

5 property and Government assistance was sought by the Defendant for repairs. All that was provided however was a tarpaulin to cover the roof. The Defendant undertook some storm damage repairs herself, as well as other maintenance work. 11. The Claimant says however that the repair work done by the Defendant was done without permission of the other beneficiaries. There was written proof, by way of a letter from the beneficiaries then Attorney to the Defendant that they did not agree to be financially accountable for repairs undertaken by the Defendant without their agreement. The letter dated August 18, 2006 stipulated that all repairs reasonably necessary for the Defendant s occupation of the premises could be done but only at her sole expense. Furthermore, the letter warned that if the Defendant wished to do extensive repairs or renovation works she would be required to send detailed drawings and cost estimates to the Claimant and her brother and seek their consent. 12. The Defendant supported her claim for an equitable interest by receipts or invoices showing repair expenses and other costs she had incurred. However, the majority of the receipts post-dated the letter from the Claimant s Attorney warning her that all repairs had to be agreed. Under cross-examination the Defendant admitted that she had not obtained approval from the Claimant for any repairs. The Defendant however included in her amended Defence and Counterclaim a compilation of receipts for repairs and other work done in relation to the property. Included among the receipts were: a. Proof of payment of land and building taxes for 2001 to 2006 totalling approximately One Thousand Three Hundred and Twenty Dollars (1,320.00). b. An invoice dated August 22, 2000 from her Attorneys setting out the fees for various services mainly connected with the Estate totalling One Hundred and Thirty-Three Thousand, Two Hundred and Nine Dollars and Forty-Eight Cents (133,209.48). c. An invoice from Two Star Construction Company dated September 30, 2006 for the period May 2006 to September 2007 which included costs for post tornado strike repairs totalling Two Hundred and Sixty-Eight Thousand, Five Hundred Dollars (268,500.00). d. Invoices and receipts for repair work done prior to the August, 2006, letter from the Attorneys including an invoice from Robert Auerbach dated August 1, 2000 for repairs and renovations at Three Hundred and Sixty-One Thousand, Five Hundred Dollars (361,500.00) and miscellaneous receipts for household appliances, hardware supplies, estate house repairs, transport of materials by dinghy and boat repairs dated February to August, 2006 totalling approximately Two Hundred and Twenty-Two Thousand, Six Dollars and Sixty-Nine Cents (222,006.69). Page 5 of 22

6 The majority of the expenses itemised above were incurred before August, 2006 and the approximate total is Eight Hundred and Fifty-Three Thousand, Three Hundred and Twenty-Six Dollars and Sixty-Nine Cents ( 853,326.69). The original schedule and a modified version to reflect only pre-august, 2006 expenditure on repairs are attached as Appendices I and II to this Judgment. The Defendant also paid caretakers salaries from 2006 to 2008 totalling Nine-Two Thousand Dollars (92,000.00) bringing to Nine Hundred and Forty-Five Thousand, Three Hundred and Twenty-Six Dollars and Sixty- Nine Cents (945,326.69) the amount spent by the Defendant that was not affected by the Claimant s warning not to spend on un-agreed repairs. 13. The Defendant listed all these and other items of expenditure in a schedule to the amended Defence and Counterclaim. It was on this basis that she sought to support her claim for an equitable interest valued at One Million, Three Hundred and One Dollars, Six Hundred and Eighty-Four Dollars and Forty-Eight Cents (1,301,684.48). The Defendant was self-represented at the Trial as a result of a breakdown of her relationship with her Attorney-at-Law during settlement negotiations immediately preceding the Trial. Though she was represented prior to the Trial her witness statement was bereft of any documentary evidence of her expenditure. It appears that by inadvertence the documents attached to the amended Defence and Counterclaim were omitted from the Defendants sworn witness statement. This omission was a point underscored by the Claimant s Attorney in cross-examination of the Defendant and in his closing submissions to impress upon the Court that there was no evidence to support the quantum claimed by the Defendant as compensation for her alleged equitable interest. 14. Part 29.6 of the CPR provides that A witness statement must. (e) sufficiently identify any document to which the statement refers without repeating its contents unless this is necessary in order to identify the document. There is no express requirement that all documents referred to must be attached to the witness statement. The critical question therefore is whether, although the Defendant did not attach any documents to her witness statement the documents relied on to support her claim to an equitable interest were sufficiently identified therein. It is clear from paragraph 4 of the Defendant s witness statement that she has sufficiently identified these documents by reference to her Defence and Counterclaim and by pointing out that they are exhibited to her Defence and counterclaim. The defence contains a certificate of truth and may therefore be considered as evidence. Accordingly, there is no merit in the contention that the Defendant did not provide evidence of her expenditure. 15. The Claimant in her sworn witness statement sought to shed further doubt on the validity of the Defendant s claim to an equitable interest by pointing out that the receipts she relied upon were not addressed to her by name. Accordingly, the Claimant says she does not believe that the Defendant paid for the items or services in question. The Claimant also indicated that much of the expenditure, if she did actually pay, was for the Page 6 of 22

7 Defendant s personal use as occupant of the property. More specifically she said that any repairs done before the storm were for general upkeep and maintenance as the Defendant had decided on her own to reside on the property. The Defendant was also repairing and replacing things that went missing or were damaged during the time she allowed Mr. Peterkin (Chinee) to stay on the Property. 16. As it relates to the post storm repairs started in or around May, 2006 the Claimant contends that it was not necessary for the Defendant to have incurred expenditure because two of their brothers offered to do the repairs at no charge. The Claimant also contended that if any amount was spent by the Defendant on maintenance of the property it should have come from the rental income that ought to have been earned from the property. There was however no evidence of any actual rental income from the property prior to In 2009 the property was rented to Cassius Williams and Affie Duncan. The Defendant says the period of rental was for three months at One Thousand, Five Hundred Dollars (1,500.00) per month. After that the tenants maintained the grounds as caretakers in lieu of rental. The Claimant alleges that this rental arrangement was entered into without prior agreement of herself and the other beneficiaries. It is clear however from both her pleadings and her evidence that the Claimant had no objection to this arrangement. The sole supporting witness for her Claim was her brother Gary Stobbart and he admitted that he collected half the rent from the tenants for the three months in The tenants were removed from occupying the property by the Defendant in 2011 by way of High Court proceedings. 18. The former tenants having been evicted on February 22, 2011 the Defendant entered into a five year lease agreement with one Peter Grongvist commencing on May 1, The monthly rental was fixed at Four Thousand Dollars (4,000.00). Sometime thereafter the Defendant married Peter Grongvist. The Claimant alleges that this lease agreement was entered into without consent of herself and the other beneficiaries. The Defendant however, pleaded in her Amended Defence to Counterclaim that the beneficiaries were aware of and consented to the occupation by Peter Grongvist of the property. There is some indication of such awareness and consent in an from the parties brother Maurice addressed to Peter Grongvist dated June 7, 2011 a few days after the lease was executed. The is attached to the Defendant s amended Defence and Counterclaim as T.S.8. The indicated that after talking to Bobbi they were in agreement about Peter using (renting), our island home on Gasparee Island provided that our house is open to our immediate family (siblings). 19. In 2009 that there was a falling out between Gary and his sister, the Defendant, resulting in Gary leaving the property. Prior to that there is no evidence of any of the beneficiaries being made to feel unwelcomed in visiting the property. There is no evidence of the Page 7 of 22

8 Issues: Claimant being debarred access in 2009 or at any time thereafter. In fact during 2009 a joint application was made by the Claimant and the Defendant for a grant of administration of Indra s estate. 20. The Defendant was cross-examined as to whether she understood that she was not entitled to keep the Claimant and the other beneficiaries off the property. She maintained that apart from a falling out with Gary when he left the property she had never stopped any of the beneficiaries from coming to the property. She added however, that she could not keep them from coming to the property as long as it is not rented. 21. Counsel for the Claimant put to her that this meant that based on the rental agreement with Peter Grongvist the beneficiaries could not come to the property. She responded that that was so. In fact she admitted the other beneficiaries had asked to come for a vacation but Peter said no because he had all his private things there. The Defendant married her tenant Peter Grongvist sometime after renting the property to him. She therefore retains full access residing there as his wife. On the evidence, none of the beneficiaries visited the property thereafter until 2013 when a visit was agreed to and arranged during case management. 22. In 2012 the grant of an order for the administration of the estate was made in favour of the Claimant and the Defendant. Thereafter this Claim was filed on April 26, The main contention then was that the Defendant was not cooperating to have the property vested in all the beneficiaries. The Defendant counterclaimed for her alleged equitable interest on September 23, 2013 and then on October 7, 2013 she signed a Deed of Assent so the property could be vested in all five beneficiaries in accordance with Indra s Will. 23. It was only thereafter, in apparent retaliation to the claim for an equitable interest, that by amended Fixed Date Claim and Statement of Case filed on October 20, 2014 the Claimant added her claims for loss of use, loss of income and damages for physical damage to the property. On March 19, 2014 the Deed of Assent took effect upon being signed by the Registrar General. 24. By Order dated March, 2015 of the then presiding Judge Madam Justice Jones three issues were identified for determination at the Trial. Those issues to be determined, modified to take into account the fact that the claim for damage to the property was abandoned by the Claimant in closing submissions, are as follows: a. Is the Defendant entitled to an equitable interest in the property over and above her beneficial interest in the estate of her mother and if so what is the value of this equitable interest? Page 8 of 22

9 Submissions: b. Is the Defendant indebted to the estate of her mother for loss of rental income and/or mesne profits as a result of her actions and those of her servants and/or agents, tenants or licensees during the period 2001 to date and if so what is the extent of the indebtedness? And c. Is the lease agreement dated May 1 st, 2001 between the Defendant and Peter Grongvist valid? 25. In compliance with the Court s directions the Claimant filed Propositions of Law prior to the Trial. The document filed provided in sufficient detail the Claimant s legal arguments in relation to the three issues to be determined. After the hearing of the oral evidence at Trial, the Claimant s Counsel relied on the same arguments while orally amplifying them in closing submissions. There were no Propositions of Law filed on behalf of the Defendant although she was represented by Counsel for the duration of the proceedings up to the start of the Trial. At the end of the Trial during which she was assisted, at short notice and Pro Bono by Ms. Sushma Gopeesingh, Attorney-at-Law, the Defendant was afforded a postponement of her closing submissions which were to be submitted in writing. The time given was one month within which she was told she should make efforts to retain and pay for the services of an Attorney to prepare the written submissions. 26. On the issue of the equitable interest claimed by the Defendant the Claimant relied on the case of Wilmott v. Barber (1880)15 Ch. D 96 at pgs. 105 to 106 where Fry J. addressed how equitable relief can be awarded based on the doctrine of proprietary estoppel. He said: ''A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the Page 9 of 22

10 other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do. 27. Counsel for the Claimant argued that the material allegations to satisfy each of the five requirements/elements listed by Fry, J. are neither pleaded in the Defendant s amended Defence and Counterclaim nor set out in her witness statement. In closing submissions Counsel for the Defendant raised a further point that by signing the Deed of Assent in October, 2013 the Defendant acted inconsistently with her claim in the Amended Defence and Counterclaim for an equitable interest. Counsel for the Claimant asked the Court to find that the signing of the Deed of Assent amounted to an admission by the Claimant that she was only entitled to one of the five equal shares in the property as tenants in common conveyed by the Deed of Assent. Accordingly, she could no longer claim more based on an equitable interest. 28. Another contention of counsel for the Claimant was that even if the Defendant had a valid claim for an equitable interest she ought to have made it by action against the estate of the deceased. He argued that she could no longer make that claim because she had allowed the legal title in the property to be conveyed from the estate to the beneficiaries. Thus during the course of the instant matter the Claimant and the other beneficiaries became the legal owners of the property and the Defendant could no longer claim for her equitable interest against the estate. 29. With regard to the quantum claimed as compensation for the equitable interest, Counsel for the Claimant reiterated that there was no documentation attached to the sworn witness statement of the Claimant to support a calculation of the quantum. In any event he said the instant trial was not an appropriate forum for assessing the minute details of the amounts claimed. Instead there ought to have been an application to surcharge and falsify the account of the Defendant s expenditure on the estate and such an application should have been made against the estate. 30. Counsel underscored that from the documentation attached to the Defendant s pleadings some of the expenditure was for her personal use. In any event counsel asked the Court to observe that the valuation obtained pursuant to the court s directions showed that the building and improvements on the property was only valued at Five Hundred Thousand Dollars (500,000.00) shedding further doubt on how the Defendant could have spent over One Million Dollars (1,000, for repairs on it. Accordingly he opined that the Defendant s claim to equitable relief was for an unsubstantiated figure which did not sound plausible and that there was no legal basis for the claim. Page 10 of 22

11 31. On the second issue for determination herein Counsel noted that initially the claim was that since 2001 the property was occupied by the Defendant to the exclusion of the other beneficiaries and that accordingly the Claimant and the four other beneficiaries are each entitled to a one-fifth share of the rent that could have been earned from the property over that period. In closing submissions the Claimant admitted that there was no evidence of rental income from the property prior to Accordingly the Claimant s submission was that she should be paid mesne profits based on her share of the rental income earned from Peter Grongvist from May 1, 2011 to date. The Lease agreement with Grongvist ends on May 30, In these circumstances a realistic calculation of the one-fifth share of rental income due to the Claimant based on a rate of Four Thousand Dollars (4,000.00) per month for five years would be Forty-Eight Thousand Dollars (48,000.00). 32. The submission of Counsel for the Claimant on the final issue was that the lease entered between the Defendant and Peter Grongvist was invalid. This argument was based on two statutory provisions. It is patent however that when both these provisions are examined in the context of the facts of this matter they are inapplicable to determine the invalidity of the lease. 33. The first reference on invalidity of the lease was to Section 3 of the Landlord and Tenant Ordinance Chapter 27 No. 16 which provides: No lease for a term exceeding three years.shall be valid as a lease., unless the same shall be made by deed duly registered; but any agreement in writing to let.. any land shall be valid and take effect as an Agreement to execute a lease., and the person who shall be in the possession of the land in pursuance of any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to year. [Emphasis added] 34. On a plain reading of this section it is clear that it provides for an agreement for a lease to be treated as enforceable even if it is not registered. An unregistered arrangement such as the one entered into by the Defendant and Peter Grongvist can still have effect as a tenancy from year to year. 35. The second reference is to Section 109(2) of the Real Property Ordinance Chapter 56:02. That section provides: 109. (1) Subject to the powers, rights, duties, and liabilities hereinafter mentioned, the personal representatives of a deceased person shall hold the land as trustees for the persons by law beneficially entitled thereto, and those persons shall have the same power of requiring a transfer thereof as they have of requiring a transfer of personal estate. (2) All enactments and rules of law relating to the effectof Probate or Letters of Administration as respects chattels Page 11 of 22

12 real, and as respects the dealings with chattels real before Probate or Administration, and as respects the costs of administration and other matters in relation to the administration of personal estate, and the powers, rights, duties, and liabilities of personal representatives in respect of personal estate, shall apply to land under this Act, so far as the same are applicable, as if that land were a chattel real vesting in them or him, save that it shall not be lawful for some or only one of several joint personal representatives, without the authority of the Court or a Judge, to transfer, lease, mortgage, or encumber such and. [Emphasis added] 36. It was based on this section that Counsel for the Claimant argued that the Lease with Peter Grongvist was also invalid because there was no signature on it by the Claimant as joint personal representative to show that the lease was not entered by the Defendant on her own. On the evidence herein however, it is clear that at the time in 2011 when the lease agreement was signed there were no properly appointed personal representatives of Indra s estate. The new grant of administration was not given until 2012 so on that basis alone Section 109(2) is inapplicable. 37. Furthermore, on the facts of this case the Defendant s evidence is that she obtained the consent of the beneficiaries to rent the premises to Peter and they had no objection to him residing there provided he allowed them to visit the property. The fact that the Claimant waited more than three years to challenge the Lease agreement sheds doubt on her current claim that she did not agree that Peter Grongvist could occupy the premises as a tenant. Accordingly, even if Section 109(2) were applicable there is no proof that the lease was in breach of its provisions since with the consent of the Claimant it could not be said that the property was leased by the Defendant alone. There is nothing in the section to mandate that for the lease to be valid it must actually be signed by both personal representatives even where there is other proof of their joint agreement to the lease. 38. The Defendant was unable to retain new counsel within the month afforded her. She filed her own written closing submission within the time directed by the Court. In her submission she made two main points. One of the points made by the Defendant was to urge the Court to take into account the fact that she did not have legal representation at the stage of the matter when she was preparing her submissions and that she was not represented during the trial. She said she was unable to do a substantial crossexamination of the Claimant and her witness. 39. The more substantive point made in the Defendant s closing submission was that her expenditure on the property should be taken into account by the Court as having resulted in an increase in the value of the estate. She underscored that the Claimant had not assisted in the improvements of the estate and accordingly she asked that she be Page 12 of 22

13 compensated for all the expenses incurred over the years from 2006 to 2013 since it would be just and fair. 40. The Defendant relied on Section 144 of the Real Property Act Chapter 56:02 in support of her claim. That section provides that a person against whom another is seeking to recover property may, if they are claiming to have made improvements on the property plead the fact of such improvements made or the value thereon and the Court may assess the value. That assessed value must then be paid by the party claiming to recover the property before they can be granted a writ of possession. 41. When read in context however the section is not applicable as it expressly refers only to cases within an exceptional category at Section 143(c) and (d) neither of which is relevant in this case. The full text of the sections is as follows: 143.No action of ejectment or other action for the recovery of any land shall lie or be sustained against the person registered as proprietor thereof under the provisions of this Act, except in any of the following cases: (a) The case of a mortgagee or an annuitant or a lessor as against a mortgagor or a grantor or a lessee in default; (b) The case of a person deprived of any land by fraud, as against the person registered as proprietor of such land through fraud; or as against a person deriving, otherwise than as a transferee bona fide for value, from or through a person so registered through fraud;\ (c) The case of a person deprived of or claiming any land included in any grant or certificate of title of other land by misdescription of such other land or of its boundaries, as against the proprietor of such other land not being a transferee thereof bona fide for value; (d) The case of a proprietor claiming under the instrument of title prior in date of registration under the provisions of this Act, where two or more grants or two or more certificates of title, or a grant and a certificate of title, may be registered under the provisions of this Act in respect of the same land: And in any case other than as aforesaid, the production of the original grant, certificate of title, or other instrument shall be held, both at law and in equity, to be an absolute bar and estoppel to any such action against the person named in such instrument as the proprietor of the land therein described, any rule of law or equity to the contrary notwithstanding: Provided that nothing herein contained shall prevent a plaintiff from obtaining in an action judgment for specific Page 13 of 22

14 performance of a contract for the sale or lease of land under this Act, nor prevent a beneficiary entitled to call for a transfer from a trustee from obtaining a decree for such transfer or such vesting order as hereinbefore mentioned. (e) 144. Whenever an action shall be brought against a proprietor or person holding a grant or certificate of title in either of the two cases excepted in the last preceding section at paragraphs (c) and (d), if the defendant or any person through whom he claims shall have made improvements on the land since obtaining a grant or certificate of title thereto, then, whether he admit or deny the plaintiff s title, he may plead the fact of such improvements being made, and may set a value thereon and also on the land as distinct therefrom, and give evidence thereof at the trial, and if judgment be given for the plaintiff, or his title be admitted, the Court or a Judge may, if he thinks the justice of the case so requires, assess the value of the alleged improvements, and may also separately assess the value which the land would have possessed if the said improvements had not been made. And no writ of possession shall issue in such case unless the plaintiff shall first pay into Court, for the use of the defendant, the value of the improvements so assessed, deducting only the costs, if any, to which he shall be entitled in the action; and if the plaintiff shall fail to make such payment within three months after judgment, the amount to which he is entitled shall thereafter be limited to the sum separately assessed as the value of the land together with costs of suit; and the defendant shall, upon satisfaction thereof, be entitled to retain the land and improvements, and in either case the Registrar General shall be entitled, under the power hereinbefore conferred, to require to be delivered up any grant or certificate of title which shall be held by the party whose right to the land shall have determined: Provided that in every case in which the defendant shall be entitled to indemnity from the Assurance Fund, the Registrar General shall be made a co-defendant, and may defend the action either severally or jointly or may leave the defence wholly to his co-defendant, as he shall see fit; and in no case shall the Assurance Fund be liable to the principal defendant for any greater damages than he shall actually sustain as the result of such action, after using all reasonable diligence in the defence thereof. 42. From the foregoing it can be seen that Section 144 of the Real Property Act in fact deals with instances where there has been a wrong description of the land in a certificate of title or where two or more certificates of title have been issued for the same piece of land. These circumstances are not present in the instant case. Page 14 of 22

15 43. The Defendant also cited a Canadian case Cartwright v Cartwright, [1940] SCR 659 which would not be of relevance in the instant matter being based on different legislative provisions. Germane to the issues herein the Defendant contradicted the Claimant s contention that she could have had sufficient money from rental income to cover the expenditure incurred. She pointed out that the rental income from 2011 was only Four Thousand Dollars (4,000.00) and this was less than even the monthly amount she paid for a caretaker of the property. Accordingly, she made no personal gain at all from the rental and there was no income due and owing to any of the other beneficiaries. She contended that she has invested financially and non-financially in the property resulting in improvements. Therefore she submitted, I am entitled to the reimbursement of the monies and the partition of the said property, enabling me to have the east point of the said property. Law and analysis: Equitable Interest: 44. The Defendant in her submissions placed reliance on section 144 of the Real Property Act Chapter 56:02 ( RPA ) and upon the Canadian case of Cartwright v Cartwright to prove an equitable interest in the property. As aforementioned these authorities relied on are inapplicable. 45. Although the Defendant has not made submissions on any further points of law, there remains available to her the avenue of estoppel to establish a claim for equitable relief. The Claimant in her submissions has relied on Wilmot v Barber 1 which deals specifically with this area of equitable relief. The doctrine of proprietary estoppel was summarized as follows in the House of Lords decision of Thorner v Major 2 : [M]ost scholars agree that the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance. 46. In the landmark decision of Wilmot v. Barber, Fry J., considering the dicta of Lord Cranworth in Ramsden v. Dyson 3, formulated five probanda that have been applied in the local cases of De Four v Rahim 4 and Hughes v Francis 5. Succinctly put, the five main factors to be proven in the present case are: 1 (1880) 15 Ch. D 96 2 [2009] 3 All ER 945 [29] 3 [1866] LR I HL 12g 4 CV CV Page 15 of 22

16 i. Whether the defendant made a mistake as to her legal rights; ii. iii. iv. Whether the defendant has expended some money or done some act on the faith of her mistaken belief; Whether the claimant knew of the existence of her own right; Whether the claimant knew of the defendant s mistaken belief; and v. Whether the claimant encouraged the defendant in the expenditure of money or in the other acts which she has done whether directly or by abstaining from asserting her legal right. 47. With regard to the first factor, from the facts it is not clear that the defendant believed that she had a right to be in the property other than in her role as personal representative of the estate. This is supported by the Defendant s letter of 2011 contained in the Bundle of Agreed Documents, in which she refers to herself as the legal personal representative of the estate according to the Letters of Administration of However, she has proven her expenditure on the property for repairs and upkeep. The Claimant did know of her rights to the property and knew of the Defendant s expenditure out of her own pocket. On the evidence there was no overt encouragement by the Claimant of the Defendant s expenditure; however, there is evidence of indirect encouragement by acquiescence. 48. The concept of acquiescence was expounded upon in the case of Lester v Woodgate 6 : [26] The court has to determine whether the words used or acts done would reasonably convey to the other party an assurance which it was reasonable for that party to rely upon. In such cases it is not necessary to prove that the representor intended that his words or conduct would have that effect or was even subjectively aware that they did so: see Thorner v Major [2009] UKHL 18, [2009] 3 All ER 945, [2009] 1 WLR [27] Many of the earliest cases arose out of circumstances in which no express encouragement in the form of words was given by the landowner but where the other party built on or made improvements to the former's land in the mistaken belief that he owned or had rights over it. In such cases the landowner's passive and uncomplaining acquiescence in what is done may amount to an assurance that the other party will continue to enjoy rights over his land on which it would be reasonable for that party to rely... [28] Where the conduct relied on to found the estoppel is acquiescence by the landowner a number of different factual situations may exist. The work may well 6 (2010) EWCA Civ 199 Page 16 of 22

17 have commenced before the landowner was aware of it and therefore without his being given any opportunity to object. In some cases this state of affairs may continue until the work is complete. In other cases the landowner will become aware that the work is being carried out and will then have an opportunity to object to its continuation. [29] There is no doubt that if the landowner becomes aware of the work and knows that the other party is carrying it out in the belief that he owns the land in question or has rights over it but fails to object, his silence will be treated as a species of equitable fraud sufficient to found an estoppel. The same will apply a fortiori if he positively encourages that belief However, the UK Court of Appeal in the decision of E & L Berg Homes Ltd v Grey and Another 7, advised caution in interpreting what actions constitute acquiescence:... I think it is 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. 50. In the present case, the Claimant s silence prior to August, 2000 while the Defendant undertook the repairs and upkeep amounted to acquiescence. However, in these peculiar circumstances there is some uncertainty as to whether this acquiescence would give rise to an equitable interest based on proprietary estoppel as both parties were evidently under the impression that the works were being carried out in the Defendant s role as personal representative, without any intent or belief in a legal right beyond that to the property. 51. In Taylor Fashions Ltd. v. Liverpool Victoria Trustee Co. Ltd 8, however, Oliver, J warned against the rigidity of the rules outlined by Wilmot v Barber, stating: The inquiry which I have to make therefore, as it seems to me, is simply whether, in all the circumstances of this case, (emphasis mine) it was unconscionable for the defendants to seek to take advantage of the mistake which, at the material time, everybody shared, and, in approaching that, I must consider the cases of the two plaintiffs separately because it may be that quite different considerations apply to each. 7 (1980) 1 EGLR [1981] 1 All ER 914 Page 17 of 22

18 52. All the circumstances of the present case must therefore be looked at to determine whether it was unconscionable for the Claimant to take advantage of the Defendant s mistake as to her rights. It does appear from the evidence that the Claimant knew and did not dissuade the Defendant from carrying out expenditure for repairs and upkeep up until August, However, such silence while the Defendant undertook the repairs did not amount to an encouragement that the property would belong to the Defendant. 53. There appears to have been a mistaken belief by all the parties that the Defendant acted as the personal representative. She was encouraged by the Claimant and the other beneficiaries to believe that in that assumed role and based on the terms of the Will she was entitled to recover her expenditure from the estate which in effect would have meant recovery from the property. The actions of the Claimant do not appear to be as unconscionable towards the Defendant as to give rise to an equitable interest in the property over and above the Defendant s equal share. There was however a belief that the Defendant was acting as representative for the estate. The Defendant is entitled to recover the money expended from the estate. Partition or Sale: 54. Section 3 of the Partition Ordinance, Chap. 27 No. 14 ( the Ordinance ) states: In a suit for partition, where, if this Ordinance had not been passed, a decree for partition might have been made, then if it appears to the Court that by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 55. Section 4 provides that where an applicant is entitled to a moiety or upwards then a sale should be ordered unless there is a good reason to the contrary. This is not the situation in the present case. There is no evidence of the consent of the other beneficiaries and therefore there is no basis on that ground for considering sale in lieu of partition. 56. Sections 3 & 4 of the UK Partition Act, 1868 are almost identical to the local provisions referenced. Jessel MR, considering the purpose of the UK provisions in the case of Drinkwater v Ratcliffe 9, stated as follows: 9 [1875] L R 20 Eq 528 Page 18 of 22

19 The 3rd section gives power to the court to sell for certain reasons. These reasons are specified in every case but one. The reasons specified are, the nature of the property, the number of the parties interested, the absence or disability of some of the parties. The reasons are unspecified in one case, viz., where, by reason of any other circumstance, a sale of the property and distribution of the proceeds would be more beneficial to the parties interested than a division of the property between or among them. Whenever that happens, and any party interested applies for a sale, the court may direct a sale. It is an absolute power of sale on the request of anybody, provided the court is satisfied that it would be more beneficial for the parties interested than a division. Then the 4th section provides that if the parties interested, to the extent of a moiety or upwards, request a sale, the court shall sell, unless it sees good reason to the contrary that is, irrespective of the nature of the property, irrespective of the number of persons, irrespective of absence or disability, irrespective of any special circumstances which make the court think it beneficial. The parties interested to the extent of one moiety are entitled to a sale as of right, unless there is some good reason to the contrary shown; they have not to shew any reason for the sale, but a reason to the contrary must be shewn. 57. In the Valuation Report to which both parties agreed to be bound, the property is described as irregular in shape, of moderately hilly terrain, and naturally well-drained. It states that apart from the head of the bay which has gently sloping land where the houses are built, the remainder of the land is steep slope. The cleared area where the two houses stand is approximately 35,000 square feet out of the total 348,687 square feet. The valuator inspected the condition of the main building and concluded that it was in fair structural and poor decorative repair and recommended several minor improvements that should be made to the building. Having considered all of the above, the value of the entire parcel was set at Seven Hundred Thousand Dollars (7,000,000.00) with the value of the Buildings and Site improvements valued at Five Hundred Thousand Dollars (500,000.00) out of that sum. The value of the building therefore appears to be less than one-fifth share of the entire property. 58. As expressed by Ventour, J in the local decision of Rambarran v Rambarran 10, the court should be guided by principles of fairness to all the parties. In the present case, although the Defendant s expenditure may not be considered sufficient to give rise to an equitable interest, there is no doubt that she did carry out the repairs to the property. It is fair in all the circumstances that the building be apportioned to the Defendant in the partitioning of the land. There is no evidence that the property is incapable of being partitioned. On the contrary the Defendant has presented evidence that it can be done. Neither is there any 10 HCA 1342 of 2005 [28] Page 19 of 22