Barrow and Barrow-scantlebury v Sheppard and Samuel

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Narine, J.A.
• Judgment Date: 01 April 2015
• Neutral Citation: TT 2015 CA 12
• Docket Number: Civ. App 36 of 2014; CV 2008-04220
• Date: 01 April 2015

Court of Appeal

Mendonca, J.A.; Narine, J.A.; Smith, J.A.

Civ. App 36 of 2014; CV 2008-04220

Barrow and Barrow-scantlebury

and

Sheppard and Samuel

Appearances:

Mr. Yaseen Ahmed and Mr. E. John for the appellants

Mr. K. Ramcharan instructed by Mr. J. Bhagan for the respondents.

Real Property - Proprietary estoppel — Beneficial owner — Trust — Appeal — Assessment of facts — Whether essential elements of proprietary estoppel was established — Whether trial judge properly exercised discretion by transferring entire interest to beneficial owner.

I have read the judgment of Narine J.A. and agree with it.

A. Mendonca,

Justice of Appeal.

I too, agree.

G. Smith,

Justice of Appeal.

THE FACTS:

Narine, J.A.

1 R. By a claim form and statement of case filed on the 24th October, 2008, Marva Barrow, the first appellant, instituted proceedings on her own behalf and on behalf of her son Randolph Barrow-Scantlebury, the second appellant, for whom she held a Power of Attorney. Proceedings were originally instituted only against Vanessa Sheppard, the first respondent.

2 Marva and Randolph claimed against Vanessa, inter alia, a declaration that the property situated at No. 30 Balthazar Street, Tunapuna comprising a parcel of land together with the buildings thereon, (hereinafter referred to as the disputed property) was lawfully owned by Randolph and held by Marva as statutory guardian of Randolph for his use and benefit.

3 The disputed property comprises a piece of land measuring approximately 40 feet on the frontage by 200 feet in depth. On the disputed property there is a two storey dwelling house. The upper floor consists of three bedrooms, a living room, a dining room, kitchen and a toilet and bath. The lower floor is a separate living unit and comprises three bedrooms, living room, toilet and bath. Adjacent to the two storey building is a flat concrete dwelling house.

4 The disputed property was originally owned by Miriam Scantlebury. Miriam lived on the disputed property with her son Calvin and Vanessa who was adopted by Miriam at the age of five. It is not in dispute that both the flat house and the ground floor of the two storey house were rented throughout the years.

5 Marva and Calvin developed a relationship from which Randolph was born in 1987.

6 Miriam died in 1990. Calvin obtained Letters of Administration and by Deed of Assent he obtained ownership of the disputed property and collected all rental payments in respect thereof.

7 Vanessa and Hilton Samuel, the second respondent, shared a cohabitational relationship and lived together at the disputed property with Calvin.

8 Calvin died intestate in 1999. Marva obtained Letters of Administration on behalf of Randolph in February 2002 in relation to Calvin's estate. By Deed of Assent the disputed property was assented unto Marva as statutory guardian of Randolph for his use and benefit.

9 When Calvin died, all rental payments in relation to the disputed property were collected by his cousin Selwyn Clarke from 1999-2002. Between 2002 and 2006 rental payments were collected by Max Senhouse on behalf of Marva and Randolph.

10 Following Calvin's death, Vanessa and Hilton continued to live at the disputed property. In January 2007 Vanessa was served with a notice to quit by 31st March, 2007.

11 After receiving the notice to quit, Vanessa continued to live at the disputed property and began collecting the rental payments. This resulted in Claim No. CV2008-04220 being filed against her, seeking inter alia, a declaration that Randolph was the lawful owner of the disputed property and an injunction to prevent Vanessa and her servants or agents from remaining or occupying it.

12 Vanessa failed to file a defence to the claim against her which led to Marva filing an application for summary judgment. Hilton thereafter applied to be joined as a party to the proceedings.

13 By consent order dated 23rd November, 2009 before the Honourable Madam Justice Tiwary-Reddy, Vanessa consented to judgment being entered against her whereby a declaration was made that Randolph was the lawful owner of the disputed property and that it was being held by Marva for Randolph's use and benefit. Possession was also granted to Marva and Randolph with mesne profits to be quantified. Hilton was also joined as a party to the proceedings pursuant to his application and a stay of execution of the order was granted pending the determination of the proceedings against him.

14 This order was never appealed and no attempts were made to have it set aside.

15 It is not in dispute that Marva held the legal title to the disputed property. However, there is a dispute in relation to whether Calvin made promises to Vanessa and Hilton that the disputed property would be theirs and encouraged them to remain on the premises, causing Hilton to act to his detriment in reliance on the promise.

FINDINGS OF TRIAL JUDGE:

16 The matter came up for trial on 13th May, 2013. An order was granted on 31st January, 2014 dismissing the claim against Hilton and declaring that he was the beneficial owner of the disputed property and that the legal title was held on trust for him. On 21st February, 2014, reasons for the decision were given. In her reasons the trial judge made the following findings:

• (i) Hilton entered into a cohabitational relationship with Vanessa in 1993 and took up residence at the disputed property from that year.

• (ii) Calvin promised on several occasions that the disputed property would belong to Vanessa and Hilton if they assisted him in renovating it.

• (iii) Calvin encouraged Vanessa and Hilton to stay with him at the disputed property which they did and in so doing they acted to their detriment not only in expending their resources in renovating the house but also in foregoing opportunities to acquire a place of their own.

ISSUES:

17 Having regard to the written and oral submissions of counsel the issues for determination in this appeal are:

• (i) Whether the trial judge conducted a proper assessment of the facts in determining whether all the essential elements of proprietary estoppel were established.

• (ii) If the answer to (i) above is in the affirmative whether it was a proper exercise of the judge's discretion that to give effect to the estoppel required the transfer of the entire interest in the disputed property to Hilton.

THE FIRST ISSUE:

Whether the trial judge conducted a proper assessment of the facts in determining whether all the essential elements of proprietary estoppel were established.

THE FIRST ISSUE:

18 The jurisdiction of the Court to overturn findings of fact of the trial judge was recently re-examined by the Privy Council in the matter of Maharai Bookstore Ltd. v. Beacon Insurance Co. Ltd [2014] UKPC 21. At paragraph 12 Lord Hodge stated that:

“It has often been said that the appeal Court must be satisfied that the judge at first instance has gone ‘plainly wrong’… This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts… Rather it directs the appellate Court to consider whether it was permissible for the judge at first instance to make the 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 record 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.” (emphasis added)

19 In Pan Trinbago Inc. v. Keith Simpson & Oris. Civ. App. S027 of 2013 at paragraph 38 Mohammed J.A. made it clear that it is only in rare cases that the Court of Appeal will interfere with the trial judge's findings of fact. Such cases include:

• (i) one in which there is no evidence to support the findings;

• (ii) where the decision is based on a misunderstanding of the evidence or

• (iii) where there is a decision which no reasonable judge could have reached.

20 In deciding whether the trial judge was plainly wrong in her findings of fact, the Court must examine the evidence presented by the parties in relation to the issue of proprietary estoppel. To be successful, Hilton was required to establish the existence of three essential elements, namely, that a promise or assurance was made to him, that he relied on that promise and that his reliance on the promise led him to act to his detriment: Taylor Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1981] 1 All ER 897.

21 According to the evidence Hilton moved into the disputed property with Vanessa in 1993. After he moved in, he undertook significant repairs and renovations to the disputed property which amounted to over $100,000.00. He contended that the promise was made to him from as early as 1994. He also claimed that because of the expenditure over a period of time, Calvin told him on several occasions that the disputed property was his. He claimed that he continued to expend his resources in the upkeep and maintenance of the disputed property even after Calvin died. He further contended that he took care of Calvin until his death and in reliance on the promise he never made any effort to obtain hi.; own property. In so, doing he acted to his detriment.

22 Vanessa testified on behalf of Hilton. She gave evidence that several promises had been made by Calvin that the property would be hers and Hilton's. She indicated that the promise had been made some 25-30 times on separate occasions.

23 Marva on the other hand asserted that no promises were made to Vanessa and Hilton and that Calvin always expressed to her his intention to leave all his property to his son Randolph. She further contended that...