IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER REASONS

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV BETWEEN RUDOLPH SYDNEY CLAIMANT AND JOSEPH THOMAS DEFENDANT BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Mr. Robert Boodoosingh, Attorney-at-Law for the Claimant. Mr. Colvin Blaize, Attorney-at-Law for the Defendant. REASONS Introduction 1. On the 19 th December, 2013, I delivered an ex-tempore decision in favour of the claimant. My reasons for so doing are set out below. 2. The claimant, Rudolph Sydney, commenced these proceedings by way of statement of case and fixed date claim form both filed on the 24 th March, The claimant sought the following relief: Page 1 of 8

2 Vacant possession of All and Singular that piece or parcel of land situate at No. 24 San Pedro Extension, Valencia, in the island of Trinidad, together with the 2 storey concrete dwelling house comprising 3 bedrooms standing thereon The defendant, Joseph Thomas, filed a defence and counterclaim on the 26 th February, 2010 and on the 3 rd March, 2010, the claimant filed a reply and defence to the defendant s counterclaim. 4. The Court heard the evidence of two (2) witnesses: the claimant and the defendant, each on his own behalf. Facts 5. The claimant inherited a parcel of land known as No. 24 San Pedro Extension, Valencia, from his deceased wife, Petra Sydney, who died intestate on the 17 th February, The late, Ms. Petra Sydney had been the owner of the parcel of land together with the tenancy rights in the lands. On the land, there stood a two (2) storey, three (3) bedroom dwelling house. The claimant inherited the property together with statutory rights. He later purchased the freehold interest in the land. However the legal title was never transferred to his name. 7. In July, 2004, the claimant signed a document, which he believed to be a tenancy agreement. In fact, the document which the claimant signed was a bill of sale, by which the defendant purported to purchase the dwelling house from the claimant for the sum of one hundred and seventy-five thousand dollars ($175,000.00). 1 The rights which the 1 A copy of the Bill of Sale was annexed to the Witness Statement of the claimant Page 2 of 8

3 defendant purchased included the tenancy and other rights in the land on which the dwelling house stood. 8. The claimant contended that the defendant represented to him that the document which he was about to sign was a tenancy agreement in respect of the dwelling house at a monthly rent of two thousand dollars ($2,000.00). According to the claimant, this was a misrepresentation. The claimant alleged that he signed the bill of sale under the mistaken belief that he was entering into a tenancy agreement with the defendant. The claimant alleges that he was illiterate. 9. The claimant contended that he never intended to sell the property to the defendant. He alleged that he had communicated to the defendant that his sole intention was to rent the property to him at a cost of two thousand dollars ($ 2,000.00) per month. 10. The bill of sale was signed by both parties. It was however never registered as required by Section 9 of the Registration of Bill of Sale Act On the 2 nd December, 2005, the defendant wrote a letter to the claimant expressing his intention to pay make full payment of the $175, after deed papers are completed by the National Land Tenants & Rate Payers Association On the 26 th November, 2007, the claimant served a notice to quit on the defendant requiring the defendant to deliver up the premises on or before the 9 th December, By this time, the defendant had been in arrears of rental payments since April, Notwithstanding the notice to quit, the defendant continued in occupation of the claimant s land and dwelling house. He also failed to pay the monthly rent of two thousand ($2,000.00) as agreed under the purported tenancy agreement. The defendant also 2 Registration of Bill of Sale Act, Chapter 82:32 3 See letter attached to the claimant s bundle to documents marked at D.1 Page 3 of 8

4 defaulted on payment of the electricity bill which up to the 9 th October, 2011, stood at a balance of ten thousand, one hundred and eighty-three dollars and twenty-one cents ($10,183.21). 14. The defendant, for his part denied that he misrepresented the nature of the document which was signed by the claimant and maintained that the claimant signed the document with full knowledge of its contents. 15. He filed a counterclaim, seeking possession of the lands on the ground that he was placed in possession of the premises on the basis that the property would be sold to him. According to the defendant, the house was in a dilapidated condition and that he incurred expenses in order to carry out repairs on the house. These repairs included plumbing, painting, fixing of faucets, kitchen and ceiling repairs and casting under the house. The defendant failed however to provide any documentary proof of his outlay on renovations and repairs. 16. The defendant also sought to establish an interest in the property on the principle of proprietary estoppel. The sole issue of fact which arose for my determination was whether the claimant knowingly executed the bill of sale dated the 14 th July, 2000, or whether he had been led to believe that he was signing a tenancy agreement. Law 17. Registration of Bill of Sale Act 4, Chapter 82:32 Section 9 provides: 9. Every bill of sale and every transfer or assignment thereof shall be duly attested and shall be registered within seven clear days after the execution 4 Registration of Bill of Sale Act, Chapter 82:32 Page 4 of 8

5 thereof, or if it is executed in any place out of Trinidad and Tobago, then within seven clear days after the time at which it would in the ordinary course of post arrive in Trinidad and Tobago if posted immediately after the execution thereof; and shall truly set forth the consideration for which it was given; otherwise such bill of sale, transfer, or assignment shall be void in respect of the personal chattels comprised therein. 5 And Section 12 states: 12. Every bill of sale shall be executed, attested, and registered under this Act in the following manner: (a) such bill of sale shall be executed by the grantor in the presence of such persons and attested and subscribed in such manner as by the law for the time being in force is necessary to render it capable of registration as a Deed;.. 6 Proprietary Estoppel 18. In Taylor Fashions Ltd v Liverpool Victoria Trustee Co Ltd 7 Oliver J. (as he then was) provided the following statement on the doctrine of proprietary estoppel: If A, under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation. 5 Ibid, Section 9 6 Registration of Bill of Sale Act, Chapter 82:32 Section 12 7 See [1981] 1 All ER 897, 909 Page 5 of 8

6 19. Learned attorneys-at-law for the claimant and for the defendant both relied on the authority of Inwards v Baker 8. In that case a son had intended to build a bungalow on lands which he was minded to purchase. The father suggested that the son build the bungalow on the father s land. The son constructed the bungalow and lived there ever since. The father died in In 1963, the trustees of his father s will sought possession of the land. It was held that equity would not allow the son s expectation to be defeated since he had been induced by his father to build the bungalow in the expectation of being allowed to remain there in occupation for as long as he desired There are four elements upon which the principle of proprietary estoppel is founded. The litigant who relies on this principle is required to prove: a) that a representation or assurance had been made to him b) he relied on the assurance c) that he suffered detriment as a consequence of his/her (reasonable) reliance and d) there was no inequitable conduct on his part The court has a wide discretion as to the manner in which it will satisfy the equity in order to avoid an unconscionable result. The Court is required to have regard to all the circumstances of the case including but not limited to, the expectations and conduct of the parties [1965] 2 Q.B 29 9 Ibid at pages See Megarry and Wade, The Law of Real Property, 8 th Edition, at pages See Megarry and Wade, The Law of Real Property, 8 th Edition at pages Page 6 of 8

7 Reasoning and Decision 22. In this matter there was no dispute that the claimant was at all material times the paper title holder of the land. The defendant sought to resist the claim by producing a bill of sale which had allegedly been executed by the claimant. There was no dispute that the bill of sale was not registered as required by Section 9 of the Registration of Bill of Sale Act 12. The failure, on the part of the defendant, to have the document registered, rendered it ineffective null and void. It is therefore unnecessary to consider the issue of fraud. It was my view therefore that the defendant had no justification for his occupation of the land. 23. The defendant, as an afterthought, included a claim based on proprietary estoppel. He claimed that there had been a promise by way of the bill of sale and that in reliance on the promise he acted to his detriment by reconnecting the electricity and effecting repairs. 24. I considered whether an ineffective bill of sale could be treated as an assurance under the Inwards v. Baker 13 principle. The law is clear that any purported assurance or promise must be the basis for a claim in proprietary estoppel. 25. The bill of sale in these proceedings did not purport to be an assurance of any kind. Whether or not it is void for fraud, it did not purport to be an assurance, but a transfer by a legal instrument. It was my view that the defendant was under an obligation to accept the responsibility for the failure to have a bill of sale registered. The defendant could not, at the time of the trial, pretend that the bill of sale was anything more than it was. 26. Accordingly, it was my view and I held that the defendant had failed to establish that any promise or assurance had been made to him by the claimant. He had therefore failed to establish the existence of the first element of proprietary estoppel. 12 See paragraph 18 Supra 13 [1965] 2 Q.B 29 Page 7 of 8

8 27. The defendant, in my view, also failed to establish that he acted to his detriment. He had made bold assertions to expenditure, but supported none of them by documentary evidence. 28. Accordingly, it was my view that the defendant had failed on both limbs of his defence. I held the bill of sale was void for the omission of the defendant to have it registered. Secondly, the defendant had failed to establish the first and most critical aspect of proprietary estoppel which was that he had been the recipient of a promise or assurance which was made by the claimant. Orders 29. On the 19 th December, 2013, I made the following orders: 1) The claimant is entitled to vacant possession of the parcel of land situated at No. 24, San Pedro Extension, Valencia. 2) There be a stay of execution of six (6) months. 3) The defendant to pay to the claimant costs fixed in the sum of fourteen thousand dollars ($14,000.00). 4) There be a stay of execution on the order for costs of six (6) weeks, pending appeal. Dated this 17 th day of March, M. Dean-Armorer Judge Page 8 of 8