IN THE COURT OF APPEAL MARY GOMEZ SHAIRA MOHAMMED DAVID SAMMY. And ASHMEED MOHAMMED

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL CA No. S 153 of 2015 Between MARY GOMEZ SHAIRA MOHAMMED DAVID SAMMY And ASHMEED MOHAMMED Appellants Respondent PANEL: PETER JAMADAR J.A. GREGORY SMITH J.A. PETER A. RAJKUMAR J.A. APPEARANCES: Mr. R. L Maharaj SC, Ms. V. Maharaj, Mr. A.D. Ramroop appeared on behalf of the Appellants. Mrs. D. Peake SC, Mr. R. Heffes-Doon appeared on behalf of the Respondent Date Delivered: April 26th 2017 I have read the judgment of Rajkumar J.A. and I agree with it. Peter Jamadar Justice of Appeal I also agree. Gregory Smith Justice of Appeal Page 1 of 42

2 Delivered by P. Rajkumar J.A. Background 1. The first, second, and third appellants are occupiers of land situate at Maracas Valley. They claim that in 1966, 1958, and 1963 respectively they were each the beneficiary of separate agreements with Aziz and Elvina Andrews, (hereinafter referred to as the Andrews). The Andrews were predecessors in title of the respondent with respect to the land that each appellant occupies. 2. The appellants contend that under those agreements, each in identical terms it was agreed: a. They would at their own expense clear a parcel of land, prepare it and build their home on it, b. They would be responsible for all the physical infrastructure necessary for them to build their homes and to maintain the land; c. They would pay a small land rent and that in the future they would have the right to purchase the occupied parcel of land at its open market value as undeveloped lands without the value of their homes and improvements. It was agreed that the open market value of the land would be assessed as at the date of the entry into occupation. 1 This latter term is disputed and is referred to as the disputed term. These terms, allegedly agreed between the appellants and the Andrews, are collectively referred to as the Andrews agreement. 1 (Paragraph 39 of the judgment).at paragraph 8 of the Statement of Case this date is actually claimed to be the date of the agreement for them to enter and occupy the land, but nothing ultimately turns on this. Page 2 of 42

3 Undisputed facts 3. Pursuant to the Andrews agreement:- i. They each were let into possession of a portion of undeveloped land in hilly and forested terrain, ii. They agreed to pay rent in respect of the land they selected and occupied, which was paid annually, iii. They prepared the sites for building at their own expense and constructed permanent dwelling houses on them. iv. The appellants entered into occupation of portions of land, (the disputed portions of land) comprising respectively 5000, 9248, and 5000 square feet. v. The appellants paid rent to the Andrews. vi. On July 4 th 1969 the Andrews sold, to the respondent s father Haniff, the entire parcel of land comprising 10 acres, (the entire parcel), (of which the land occupied by the appellants formed part). vii. Haniff continued to collect rent from 1969 until his death in viii. The Respondent lives on a parcel of land adjacent to the First named appellant. ix. The parties were not strangers to each other. The first named appellant was related in various ways to the Second named and Third named Appellants 2. Haniff was the uncle of the first named appellant and the half brother of the Second Appellant s husband 3. Elvina Andrews was the cousin of the Second Appellant s husband. 2 Paragraph 4 of her witness statement 3 See for example - Paragraph 10 of her witness statement and page 268 Core Bundle Page 3 of 42

4 Other relevant facts 4. The appellants contend that the Andrews, Haniff, and the respondent himself, were all aware that they had constructed permanent concrete dwellings, and that over the years the Andrews and Haniff had actually encouraged them to expand and renovate those concrete structures. Whether or not that were so it is undisputed on the evidence that the Andrews, the Respondent, and even Haniff before him, on his visits to his daughter, were in a position to observe these improvements and extensions. 5. Haniff s daughter, the Respondent s sister, lived on the larger parcel in proximity to the appellants. The Respondent used to visit her even before he went to live on the larger parcel in The Respondent used to collect the rent since The land on which the respondent s house stands adjoins that of the first appellant, and is in proximity to that of the other appellants. In fact he admitted seeing extensions during the lifetime of his father. His sister also admitted seeing these extensions, additions and renovations. Haniff visited her from time to time. The respondent could see the houses of the appellants, either from his yard, or when driving to his own house. 7. It is not disputed that rent was paid by, and collected from, the Appellants continuously until It was collected by the respondent on behalf of Haniff, and then on his own behalf, with no objection being taken to these extensions, investments, and renovations. While the extent and cost of those renovations were disputed, the fact that there were such renovations and improvements was not. Page 4 of 42

5 8. The trial judge accepted that, as pleaded by the appellants, the value of the house of the first claimant in 2013 was $920,000.00, that of the second claimant was $295,000.00, and that of the third claimant was $1,425, The Appellants contend that Haniff was aware or should have been aware of the Andrews agreement, and that his purchase of the entire parcel, on which their houses stood, was with express knowledge of their occupation, and at least constructive notice of their rights under the Andrews agreement. 10. In 2004 Haniff died and the Respondent became his successor in title. In March 2012 the Respondent became the owner of the entire 10 acre parcel. After May 2011 he stopped accepting rent. In 2013 the Respondent wrote to the Appellants claiming possession, and in 2014 he instituted proceedings seeking possession against the Appellants. He claimed that they had been statutory tenants under the Land Tenants (Security of Tenure) Act. 11. The consequences of that would be, (i) that having failed to serve a notice on or before May 31 st 2011 to extend their statutory tenancies, they had lost the benefit of a right to renew such tenancies for a further 30 year term, and, (ii) having reverted to the status of annual tenants, and having been served with 6 months notice to quit, each appellant was now in the position of a trespasser. 4 Paragraph 1 of the judgment Page 5 of 42

6 12. The trial judge did not accept that the appellants had established the existence of the Andrews agreement, particularly in relation to the disputed term. Accordingly she rejected any contention that the appellants had established rights under proprietary estoppel on the basis of the Andrews agreement which, having predated the passage of the Land Tenants (Security of Tenure) Act, might have survived beyond 2011, (when any statutory tenancy would have come to an end). 13. The trial judge found that the appellants, having failed to serve any notice of renewal of statutory tenancies under the Land Tenants (Security of Tenure) Act, would have not been entitled any longer to the protection of that Act. An order of possession was therefore made in favour of the respondent in respect of the parcels of land occupied by the appellants. The appellants appeal that decision. Issues 14. i. Whether this court can revisit and reverse the findings of the trial judge in relation to the Andrews agreement; ii. Whether the appellants have raised, or if they have not, whether they can now raise, arguments in relation to proprietary estoppel by acquiescence, separate and apart from the alleged terms of the Andrews agreement; iii. Whether the findings the findings of the trial judge should yet stand or whether on the undisputed facts there is a basis for examining whether proprietary estoppel by acquiescence existed; Page 6 of 42

7 iv. If the answers to issues i. and ii. are in the affirmative whether the appellants have established that they are entitled to any equitable interest in their respective parcels; v. If they have, what is the nature of any such interest; vi. Whether the third named appellant has established title by adverse possession in relation to a smaller portion of land that he claims comprising 2500 square feet. Conclusion 15. i. As to the first issue, the findings made and inferences drawn by the trial judge on the undisputed evidence in relation to the Andrews agreement can be revisited. ii. As to the second issue, the appellants can raise, and in fact had raised at trial, arguments in relation to proprietary estoppel by acquiescence, separate and apart from the alleged terms of the Andrews agreement; iii. As to the third issue, on the undisputed facts there is a basis for examining whether proprietary estoppel by acquiescence existed; iv. As to the fourth issue the appellants have established that they are entitled to an equitable interest in their respective parcels; v. As to the fifth issue the interest that the appellants have established is a continuing tenancy which we have assessed as one of 15 further years from May 31 st 2011, with an option to purchase, as reflected in our order; vi. As to the sixth issue we decline to reverse the finding of fact of the trial judge that the third named appellant has not established title by adverse possession in relation to a smaller portion of land that he claims comprising 2500 square feet. Page 7 of 42

8 16. The findings made and inferences drawn by the trial judge on the undisputed evidence in relation to the Andrews agreement can be revisited, in so far as they were based on an assumption that the appellants were protected by the Rent Restriction Act, which protection influenced their choice to erect permanent structures on the land they rented. This was based on a misapprehension of law, as that Act had been excluded in its application to dwelling houses constructed after 1954 by virtue of the Rent Restriction (Exclusion of Premises) Order. 17. This misapprehension in relation to the appellants alleged security of tenure under the Rent Restriction Act was a material factor in the court s assessment of: i. the significance of the permanent nature of the structures that the appellants proceeded to erect, and ii. the likelihood that erection of and investment in such structures would be based on a belief in entitlement to some security of tenure, arising out of an agreement with the Andrews, and the subsequent conduct of the Andrews and Haniff. 18. In fact the appellants belief in or actual security of tenure, further to that then associated with annual tenancies, could only arise from agreement with, or representation, by the Andrews, as there was no alternative statutory protection at that time. As such security of tenure could not have arisen at the time of their respective entries through legislation, the likelihood, on a balance of probabilities, of agreement with the Andrews on an option to purchase as contended, must be reassessed. Page 8 of 42

9 19. The undisputed facts, namely a belief by the appellants in an entitlement to security of tenure by their ability to eventually purchase the land, giving rise to their erection of, and continued investment in, permanent structures in formerly undeveloped, hilly, and forested terrain, are consistent with an agreement with the Andrews on an option to purchase as contended. In fact, on a balance of probabilities, such an option to purchase is more likely than not. The substantial investments over the years in the houses such that they are now valued at $920,000.00, $295,000.00, and $1,425, respectively, can hardly be explained otherwise. 20. The trial judge cannot be faulted in dismissing as inherently incredible the embellishment on the price in that option to purchase alleged for the reasons that she did, including the alleged right to purchase the land at its value at the time of the alleged agreement with the Andrews. However, shorn of the disputed term, there was still sufficient material on the appellants pleaded case, and sufficient evidence, based on the undisputed facts and the actions of the appellants, to substantiate the allegation that an option to purchase had in fact been conferred on the appellants, unembellished by the details alleged as to its price. 21. The misapprehension of law identified above, coupled with the appellants focus and emphasis at trial on establishing the price at which it is alleged the option to purchase was to be exercised, led the trial judge to fail to fully appreciate the significance of the appellants willingness and readiness (i) to immediately construct permanent structures in that difficult terrain and (ii) thereafter to expand and renovate them with (iii) the acquiescence of both the Andrews and the respondent s father when he later became the owner. Page 9 of 42

10 22. While this may have been the situation of many tenants of land, who erected permanent structures on rented land in which they had a limited interest at best, in this case the parties were all related. 23. Their assertion that the appellants were the beneficiaries of an option to purchase, whatever its terms, was (a) consistent with the relationship among the parties, and (b) fortified by the actions of the appellants in constructing permanent homes, consistent with a belief in a security of tenure, which had not been conferred by statute at the time that they constructed their homes, and (c) consistent with the acquiescence of the Andrews, Haniff, and even to some extent the Respondent, in the expansions and renovations of the appellants houses. 24. The circumstances under which they went into occupation were not disputed save as to the specific terms of the Andrews agreement, and in particular the specific price alleged in the disputed term. However the acceptance of the specifically pleaded price at which the option to purchase was to be exercised (at historical values), was not a finding essential to the appellants nevertheless establishing a. an option to purchase simpliciter (unembellished by the allegation that the price at which that option was to be exercised was the historical value of the land as undeveloped land at the time of the agreement), and /or b. equitable rights which both predated and survived the Land Tenants (Security of Tenure) Act. 25. Further, and /or in the alternative, even in the absence of such an inference, on the undisputed facts there was sufficient to satisfy the evidential and legal requirements of Page 10 of 42

11 proprietary estoppel by acquiescence, such as to give rise on that basis also to equitable rights in the appellants. Order 26. It is declared that the appellants are each entitled to a tenancy for a 15 year term commencing May 31 st 2011 with an option to purchase the parcels of land on which their houses stand, (as described in paragraph 2 of the claim form filed on July 22 nd 2014), by themselves, or their heirs or assigns, at any time within that term at half of the market value of the land as at May 31 st 2011, as assessed by an independent valuator agreed by the parties, or in default, nominated by the Registrar of the Supreme Court. Analysis and Reasoning Issue 1-Whether this court can revisit and reverse the findings of the trial judge in relation to the Andrews agreement Revisiting findings of fact 27. In Beacon Insurance Company Limited v Maharaj Bookstore Limited Privy Council Appeal No. 102 of 2012 the Judicial Committee of the Privy Council reiterated that an appellate court should only exceptionally contemplate reversing a trial judge s findings of fact. One such exception however is where there has been a misdirection by the trial judge. The circumstances in which an appeal Court can interfere with findings of fact were discussed as follows:- Page 11 of 42

12 28. At paragraph 12 of the judgment Lord Hodge referred to the judgment in Thomas v Thomas [1947] AC 484, per Lord Thankerton, at pp At Paragraph 13 Lord Hodge referred to the case of In re B (A Child)(Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 in which Lord Neuberger (at para 53) indicated that a Court of Appeal will only rarely even contemplate reversing a trial judge s findings of primary fact At Paragraph 14 of the judgment Lord Hodge pointed out that the Judicial Committee had adopted a similar approach in a case from this jurisdiction, Harracksingh v Attorney General 5 Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge s conclusion; II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence; III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. Lord Hodge stated that it has often been said the appeal court must be satisfied that the Judge at first instance had gone plainly wrong and directs the appellate court to consider whether it was permissible for the judge at first instance to make findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed records of the evidence. The Court is required to identify a mistake in the Judge s evaluation of the evidence that is sufficiently material to undermine his conclusions. Occasions meriting appellate intervention would include when a trial judge failed to analyse properly the entirety of the evidence. Choo Kok Beng Kok Hoe (1984) 2 MLJ 165 at (Lord Roskill) 6 Lord Neuberger had stated: This is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it. Page 12 of 42

13 of Trinidad and Tobago [2004] UKPC 3 in which it referred (at para 10) to the dictum of Lord Sumner in SS Hontestroom (Owners) v SS Sagaporack (Owners) [1927] AC 37, 47 7 : Whether any material misdirection 31. In the instant case, as demonstrated hereunder, it was a material consideration, in the trial judge s assessment of the significance of the immediate construction of permanent dwelling houses by the appellants, that they enjoyed statutory security of tenure. In fact however at the time of their entry into occupation they enjoyed no such statutory security of tenure. That misapprehension of the existence of statutory security of tenure at the time of entry into occupation by the appellants and construction of their permanent dwelling houses, amounted to a misdirection. As appears from the judgment, it directly influenced the trial judge s analysis of the evidence and, in particular, the assessment of the significance of the fact that permanent houses were constructed upon the appellants entry into occupation of their respective parcels. That assessment in turn was a key element in her reasoning and conclusion that there had been no option granted to the appellants to purchase their respective parcels of land, on the terms alleged, or at all. 7 not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge s conclusions of fact should be let alone. Page 13 of 42

14 Statutory Protection the law 32. The Land Tenants (Security of Tenure) Act took effect on June 1 st Prior to that the Rent Restriction Act had been passed in October 1941.By progressive exclusions the protections of the Rent Restriction Act were reduced. The Rent Restriction (Exclusion of Premises) Order 33. One such exclusion was the Rent Restriction (Exclusion of Premises) Order 28 of 1954 made on the 12 th February, Schedule 1, Part 1 of that Order expressly excludes as from the 12 th February, 1954 all new buildings, the erection of which was completed on or after that date together with any land appurtenant thereto to be occupied therewith. 34. The Rent Restriction (Exclusion of Premises) Order (the Order) therefore removed from the ambit of the Rent Restriction Act Ch (the Act) all new buildings erected after February 12 th 1954 together with the land appurtenant thereto. Even assuming that the subject lands in Maracas Valley were ever subject to the rent restriction regime at any time, (and were encompassed in the schedule thereto as lands to which that Act applied), by 1954 the lands had been excluded from the application of that Act. 35. It is accepted that the appellants were tenants of land, not of buildings. They had constructed their own buildings and were not tenants in respect of their houses. Nevertheless their houses, erection of which was completed after 1954, were new buildings, and new buildings, together with the land appurtenant thereto, to be occupied therewith, were excluded by the Order from the application of the Act. Page 14 of 42

15 36. The land that the appellants were renting was land appurtenant to new buildings erected after 1954, and therefore was excluded by the Order from the application of the rent restriction regime that then existed. That part of the order makes no distinction between new buildings erected by the landlord or by the tenant. Lands rented by the appellants, appurtenant to the appellants buildings, were therefore excluded from the protection of the Rent Restriction Act. If it were not there would be no need for the words together with the land appurtenant thereto. The Analysis of the Evidence 37. The trial judge found that the agreements with the Andrews were described in the witness statements of the appellants as follows: a. That they would at their own expense clear a parcel of undeveloped land in hilly and undeveloped terrain, prepare it and build their home on it, b. That they would be responsible for all the physical infrastructure necessary for them to build their homes and to maintain the land; c. That they would pay a small land rent and; d. That in the future they would have the right to purchase the occupied parcel of land at its open market value as undeveloped lands without the value of their homes and improvements, and that the open market value of the land would be assessed as at the date of the entry into occupation. This term is disputed and is referred to as the disputed term. Whether misdirection 38. The trial judge rejected the inference that she was asked to draw from the permanence of the buildings erected on building land, and the money expended by them in this regard, on the Page 15 of 42

16 basis that the claimants/ appellants were simply tenants of building land under the Land Tenants (Security of Tenure Act) 1981 and its predecessor the Rent Restriction Act. See paragraph 65 of the judgment However the claimants as tenants of building land were not protected by the Land Tenants (Security of Tenure Act) 1981 at the time they entered into occupation, as that Act had not yet been passed. Neither were they tenants of building land under the Rent Restriction Act, as building land had been excluded from the ambit of that act by the time that the claimants built their permanent structures. The position at law therefore was that in 1958, 1963, and 1966, when the appellants erected their permanent homes, they were tenants of building land, but enjoyed no statutory protection. 40. In considering that the claimants were tenants of building land under the Rent Restriction Act, (paragraph 65 and further at paragraph 71, 72) rather than tenants of building land with no statutory protection, the court approached the issue of the inference that should be drawn from the permanent nature of the houses constructed from an erroneous foundation of law. 41. The reasoning continued at paragraph 72 further the Claimants, as tenants of building land under the Rent Restriction Act, would already have had some measure of security of The Claimants submit that the fact of the permanence of the buildings erected on the land and the money expended by them in this regard is evidence corroborative of the existence of the agreements. I do not agree. In my opinion the nature of the buildings on the land and the rent receipts are equally applicable to a finding that the Claimants were simply tenants of building land under the Act and its predecessor the Rent Restriction Act. Indeed the rationale for introducing the Act was for the protection of persons in a similar position to the Claimants: tenants of building land who owned large buildings that were incapable of being removed without being destroyed. Page 16 of 42

17 tenure. 9 But in fact they would not have had any measure of security of tenure under the Rent Restriction Act. 42. The facts that the tenants expended monies and built permanent structures and the inference that was to be drawn from those facts, on a balance of probabilities, given that they did so without the benefit of any statutory protection, was a matter that the court below should have considered in the appropriate legal context. Rejection of the Andrews Agreement 43. The trial judge rejected the Andrews agreement: (a) on the basis of the lack of credibility on the part of the Claimants; (b) on the basis that the only evidence of this agreement comes from them; (c) on the basis of the lack of support of their claim by any contemporaneous documents;(d) on the basis that the evidence in support of their claim is equally relevant to the position as contended by the Defendant and (e) on the basis of the inherent improbably (sic) of the story presented by the Claimants Under the Rent Restriction Act there was no requirement on a landlord to clear and develop building land before renting to tenants. This was land rented to the tenant specifically for the purpose of the erection of a chattel house used as a dwelling. For such a tenancy therefore the Claimants would have been required to clear and develop the lands themselves and build their houses at their own cost. 72. Why would the Andrews bind themselves to sell land to the Claimants at a price fixed at the value of the land as undeveloped in 1958 to What benefit would the Andrews have obtained from this agreement. There is no suggestion that the rent charged by the Andrews was more than the usual rentals obtained at the time. Indeed if Gomez is to be believed this was a cheap rent. Further the Claimants, as tenants of building land under the Rent Restriction Act, would already have had some measure of security of tenure. Why would this agreement have been necessary. Page 17 of 42

18 Credibility 44. While the judge found that the testimony of the appellants was not credible, with respect to the appellant Gomez she found that she was not really shaken in cross examination. Although the witness statement was not her language, and the action by her was not prompted by a desire to purchase the land, but rather was prompted by the demand made by the Respondent for possession, the real problem with her evidence was considered to be the inherent improbability of the evidence as it related to the agreement. 45. In particular it should be noted that in turn a significant aspect of that improbability relates to the Andrews allegedly binding themselves to sell to the appellants at the value of the land as undeveloped in 1958 to (See paragraph 72 footnote 6 ) as the other aspects of the Andrews agreement as found by the trial judge are uncontroversial and in fact undisputed. Those other aspects (the undisputed aspects) were:- a. That they would each at their own expense clear a parcel of undeveloped land in hilly and undeveloped terrain, prepare it, and build their home on it, b. That they would be responsible for all the physical infrastructure necessary for them to build their homes and to maintain the land; c. That they would pay a small land rent. 46. It was the remaining terms therefore that were found to be inherently improbable, namely that:-(i) in the future they would each have the right to purchase the occupied parcel of land at its open market value as undeveloped lands without the value of their homes and improvements, Page 18 of 42

19 and (ii) that the open market value of the land would be assessed as at the date of the entry into occupation. (See paragraph 39 of the judgment) 47. As to the other reasons given by the trial judge for rejecting the Andrews agreement, namely:- (b) that the only evidence of this agreement comes from them it would not be surprising that they were the only witnesses available to this agreement given the significant time that elapsed since their alleged arrangements with the Andrews, and the fact that the Andrews are now deceased. (c) the lack of support of their claim by any contemporaneous documents - it is correct that there was no contemporaneous documentation in support of their claim. Neither the rent receipts, nor the deed of conveyance from the Andrews to the respondent s father make reference to any such agreement. However these are not documents in which an option to purchase, or an understanding that one existed, would realistically be expected to be recorded. Further, the lack of contemporaneous documentation of an understanding that the appellants could purchase the land in the future would not be surprising given the relationship among these parties, as well as the fact that they would not realistically have been in a position to have their arrangements with the Andrews recorded in sale documentation to Haniff. Page 19 of 42

20 (d) that the evidence in support of their claim is equally relevant to the position as contended by the Defendant This amounts to a recognition that the undisputed aspects of the Andrews agreement, as recorded at paragraph 39 of the judgment, are common to all parties uncontroversial and do not carry the matter any further. (e) The inherent improbability of the story presented by the Claimants We are of the view that while it was open to the trial judge to reject the agreement in the exact terms alleged by the appellants, it did not automatically follow that their claim to each be a beneficiary of a proprietary estoppel in their favour with respect to the land occupied by them must fail. While the alleged agreement was an important aspect of the appellants case, it was not the entirety of their case. (See paragraph 75 of the judgment) The improbability of the Appellants story emanated from their insistence on the disputed term in its entirety, which included an alleged agreement on price at which the alleged option to purchase was to be exercisable. 49. It was entirely open to the trial judge to find that the term as to price was inherently implausible and the evidence in support of it lacking in credibility. But having rejected the disputed term the court was required to consider the remaining objective and undisputed evidence in the context of the then existing legal framework, and to consider in particular, the 10 Taking all these facts into consideration that is: (a) the lack of credibility on the part of the Claimants; (b) that the only evidence of this agreement comes from them; (c) the lack of support of their claim by any contemporaneous documents;(d) that the evidence in support of their claim is equally relevant to the position as contended by the Defendant and (e) the inherent improbably (sic) of the story presented by the Claimants. I do not accept the evidence of the Claimants as to the agreement made between them and the Andrews. In those circumstances the Claimants claim to each be a beneficiary of a proprietary estoppel in their favor with respect to the land occupied by them fails. Page 20 of 42

21 significance of the erection of permanent structures and the continuing investments therein by the appellants upon their entry into the disputed parcels, together with the acquiescence therein by the Andrews and Haniff. 50. There was undisputed evidence, independent of the Andrews agreement in its entirety that needed to be considered and assessed, once this could be done in conformity with the pleadings. We are of the view that the learned trial Judge ought to have disaggregated the disputed terms from the undisputed terms and assessed the evidence in that context. Issue 2 Whether the appellants have raised, or if they have not, can they now raise arguments in relation to proprietary estoppel by acquiescence arising separate and apart from the Andrews agreements 51. As indicated previously, the trial judge held at paragraph 32 (all emphasis added) that: 32. With respect to the claim in estoppel and adverse possession the burden of proof is on the Claimants. With respect to the estoppel claimed the case stands or falls on whether the Claimants have proved the existence of the agreement relied upon by them 52. However the case would not stand or fall on this basis. Although the appellants based the majority of their efforts on the frontally pleaded case that the Andrews agreement gave rise to equitable rights based on proprietary estoppel based on the alleged agreement with the Andrews, inclusive of the disputed term, an alternative case was sufficiently raised on the pleadings, and moreso in the evidence, namely, that the Respondent s father and the Respondent himself acquiesced in the belief by the appellants, (howsoever derived), in the permanence of, and Page 21 of 42

22 security of their tenure. That argument was telegraphed at page 64 of the transcript in the submissions of Mr. Maharaj on December 10 th 2014, and appears from the pleadings at Paragraph 10.3, 10.9, 11.21, 12.5 and 17 of the statement of case. (By for example, references to inducement by conduct and pleading that the appellants were led to believe ). Issue 3- Whether the findings the findings of the trial judge should yet stand or whether on the undisputed facts there is a basis for examining whether proprietary estoppel by acquiescence existed Option to purchase 53. We are of the view that the trial judge misapprehended the extent of statutory protection that was available to the appellants at the time they each constructed their permanent homes. In turn this informed the conclusion that the permanence of the houses that they constructed could not be based on an option to purchase or the belief in an option to purchase the land. The appropriate inference 54. Given that the appellants did not have any measure of protection under the Rent Restriction Act, we are therefore constrained to revisit the issue in light of the actual legal position. We therefore need to consider what would have been the appropriate inference to draw from the permanence of the buildings erected on the land and the subsequent improvements thereto, acquiesced in by the Respondent and his predecessors. Any such inference of course must be on the undisputed evidence and consistent with the case as pleaded. Page 22 of 42

23 55. Given that the appellants did not enjoy statutory security of tenure it must be considered what, on a balance of probabilities,could account for the fact that the appellants each constructed permanent structures upon their entry into occupation of the respective portions and proceeded thereafter to invest in renovations and improvements to the extent that the houses are now worth respectively $920,000.00, $295,000.00, and $1,425,000.00, observable by the Andrews and Haniff, and even the Respondent, without protest. 56. Such construction from inception, and subsequent development of, and expenditure upon the land and structures thereon was not compatible with a belief that the tenancy granted to them was subject to termination by 6 months notice as a simple yearly tenancy. The appellants and the Andrews were not strangers to each other as described previously. Their occupation in that context could not be considered to be a purely commercial relationship of landlord and tenant. 57. Such belief was either encouraged by the respondent s father and the Andrews, or at the very least, must have been acquiesced in by them, as they stayed silent and permitted, without protest, the expansions and renovations of the permanent structures that the appellants immediately proceeded to erect on the respective parcels. 58. The Appellants testified that they were each given by the Andrews an option to purchase the respective portions of land which they were allowed to occupy. Based on their belief in that option they deferred the actual purchase of the land, but invested instead in the development of the land and the construction of their respective permanent dwelling houses. They also invested Page 23 of 42

24 in the renovation and extension of those dwelling houses. Given the undisputed facts, and the actual statutory framework, the rejection of their evidence in this regard by the trial judge is not supportable. 59. The following are all matters that required consideration (a). in the context of the issue of whether, on a balance of probabilities, there could have yet been the offer of security of tenure by an option to purchase the rented land some day, whatever the price, and, if so (b). the issue of proprietary estoppel by acquiescence:- i. the fact that they were not strangers to the Andrews or to Haniff, or even the Respondent, ii. the fact that they immediately developed the land and invested in and constructed permanent and irremovable structures on the rented land, iii. the fact that their further expansions and renovation resulting in accrued value of those structures in the amounts of $920,000.00, $295,000.00, and $1,425,000.00, iv. without the objection of the Andrews, Haniff, or the Respondent. The disputed term The alleged option to purchase the land at the price prevailing at the time of their respective entries 60. The actual content of the alleged option to purchase was found to be not credible in particular the specific right to purchase at the value of the unimproved land at the time of the agreement to let the Appellants into occupation. We agree that that was a finding on the evidence open to the trial judge. There is no basis to interfere with the findings of fact of the trial judge in relation to her rejection of the price at which the alleged option to purchase the land was to be Page 24 of 42

25 exercised, namely, at the price prevailing at the time of their respective entries (or the time of agreement). 61. However even if that aspect of the disputed term of the Andrews agreement were not proved, the trial judge erred in a. misapprehending the statutory protection that applied to the appellants at the time of their respective entries, and b. in that statutory context failing to appreciate the significance of the permanent nature of the houses that were constructed immediately upon their entry into occupation, and c. acquiescence thereto. 62. Even without accepting all the alleged terms of the Andrews agreement we are of the view that on the undisputed aspects of that agreement, (leaving aside the disputed term as to the price at which the land was allegedly to be sold under the option to purchase), there was sufficient material to support a finding that there was in fact an option to purchase, whatever its specific content. 63. If that consideration had occurred in the correct statutory and family context it is unlikely that the trial judge would have made the findings at paragraph 66 of the judgment in relation to the significance of the permanent nature of the dwelling houses that were constructed. 64. It is common ground between the parties that: a. There was an agreement between the Andrews and the appellants that they enter into and occupy the parcels of land that they now occupy, (save for the additional strip occupied and claimed by the 3 rd named appellant); Page 25 of 42

26 b. The appellants were tenants of their respective portions and paid rent; c. The appellants did enter into possession and did construct permanent structures after the agreement with the Andrews; d. The respondent s father Haniff purchased the land with notice of their occupation as tenants and notice of the permanent nature of the structures that they had erected, and continued to expand.. e. The respondent s father accepted the occupation of the appellants and accepted rent from them. f. These parties were not strangers to each other and alleged agreements between them had to be considered in that context. The first named appellant was related in various ways to the Second named and Third named appellants. (Paragraph 4 of her witness statement). Haniff was the uncle of the first named appellant and the half brother of the Second Appellant s husband (See for example - Paragraph 10 of her witness statement and page 268 Core Bundle). Elvina Andrews was the cousin of the Second Appellant s husband. g. The permanent nature of the dwellings constructed, their extensions, and their renovations were never an issue among them. 65. If that consideration as to the significance of the permanent nature of those houses had occurred in the correct statutory context then it would have been necessary to consider the relevant factors, namely that:- a. the appellants immediately proceeded to construct permanent dwelling houses on the respective portions, Page 26 of 42

27 b. that at least the first and second named appellants were related or connected in some way to the Andrews and to Haniff, and c. that they were making extensions and improvements to the land and those structures such that they were now of substantial value, without protest by the Andrews or Haniff, or even the respondent. 66. The inference that arises from the correct statutory context, and the consideration of the relevant factual context, would not be as found at, inter alia, paragraph 66 of the judgment. 67. The inference that arises on a balance of probabilities from those factors would rather be:- a. The appellants enjoyed no statutory protection or statutory security of tenure at the time that they constructed their homes. b. These parties were not strangers to each other, and alleged agreements between them had to be considered in that context. c. The investment in permanent structures at the inception of their occupation would more likely than not, be based on a perception of security of tenure greater than that of a yearly tenant, expellable at 6 months notice. d. Such a perception of security of tenure would be consistent with an option to purchase given to them by the Andrews, even if not under the same terms as they sought to portray as to the price at which that option could to be exercised. e. The Andrews, and subsequently Haniff, did not ever attempt to serve them notice to quit despite seeing the structures erected, and the subsequent improvements. This fact is Page 27 of 42

28 independent of any consideration as to the specific improvements or expenditures alleged or proved as the trial judge found that the values of the houses were as set out above. f. The likelihood in this specific case of the alleged option to purchase giving rise to estoppel by acquiescence, when the Andrews, and then Haniff, stood by while relatively significant expenditures (given the appellants means), were incurred before 1981 on permanent structures. 68. Those being matters common to the parties the appellants occupations, in addition to pure tenancy rights, had in addition, the indicia of proprietary estoppel by acquiescence. This is so whether or not all the terms of the Andrews agreement are accepted. Law -Proprietary estoppel by acquiescence 69. Apart from proprietary estoppel based on a promise it is well established that proprietary estoppel can arise also from conduct and acquiescence. See for example Snell s Principles of Equity 33rd Ed. Para (all emphasis added) (a) An acquiescence-based principle In Fisher v Brooker, (2009 UKHL 4) Lord Neuberger stated that: The classic example of proprietary estoppel, standing by whilst one s neighbor builds on one s land believing it to be his property, can be characterized as acquiescence. The principle is certainly long-established: its operation can be seen, for example, in The Earl of Oxford s case. It applies where B adopts a particular course of conduct in reliance on a mistaken belief as to B s current rights and A, knowing both of B s belief Page 28 of 42

29 and of the existence of A s own, inconsistent right, fails to assert that right against B. If B would then suffer a detriment if A were free to enforce A s right, the principle applies. It therefore operates in a situation in which it would be unconscionable for A, as against B, to enjoy the benefit of a specific right. The application of the principle can be seen in Lord Carnworth L.C. s statement in Ramsden v Dyson that [i]f a stranger begins to build on my land supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. 71. In that example, the acquiescence principle operates so as to preclude A s assertion of a right and it can therefore sensibly be seen as an example of proprietary estoppel. Nonetheless, decisions such as Ramsden that developed the principle made no reference to estoppel and the principle can certainly apply even in the absence of any specific representation or communication made by A to B. It also seems, moreover, that it can operate not only so as to impose an equitable restraint on A s assertion of a right, but may also be capable of imposing a liability on A and thus lead, for example, to A s being ordered to grant B a particular right 72. Further, this applies even in relation to persons who entered into occupation as tenants, provided that there exists a foundation of fact to support a contention that they were not tenants simpliciter, but had been led to believe that their interest and security of tenure was in excess of that of yearly tenants. Page 29 of 42

30 73. The issue of estoppel by acquiescence is available on the pleadings and moreso on the evidence, and this is independent of the alleged and disputed option to purchase under the Andrews agreement to purchase the land at its historical market value. Further, this is so even though the appellants entered into occupation as tenants, as there exists a foundation of fact to support a contention that they were not tenants simpliciter, but had been led to believe that their interest and security of tenure was in excess of that of yearly tenants. 74. In Ramsden v Dyson (1866) LR HL 129 (1866) at page 170 Lord Kingsdown stated as follows: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. (Although this was a dissenting judgment it was adopted and approved by the Privy Council in Plimmer v. Wellington Corporation (1884) 9 A.C. 699 and applied in Inwards v Baker infra 11.) 11 That principle was applied even in relation to licensees in the case of Inwards v Baker [1965] 2 Q.B 229 at pages 36 to 37 where Lord Denning MR stated, in relation to a licencee (all emphasis added) : (footnote We have had the advantage of cases which were not cited to the county court judge - cases in the last century, notably Dillwyn v. Llewelyn and Plimmer v. Wellington Corporation. This latter was a decision of the Privy Council which expressly affirmed and approved the statement of the law made by Lord Kingsdown in Ramsden v. Dyson. It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity. So in this case, even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at the circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not Page 30 of 42