Lewis v Sookdeo
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendonça, J.A. |
| Judgment Date | 21 June 2016 |
| Neutral Citation | TT 2016 CA 42 |
| Docket Number | Civil Appeal No. 236 of 2012 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 21 June 2016 |
High Court
Mendonca, J.A.; Moosai, J.A.; Jones, J.A.
Civil Appeal No. 236 of 2012
Mr. G. Peterson, S.C. and Ms. D Palackdharry Singh for the appellant
Ms. N. Sharma and Ms. J. Troja for the respondent
Property Law - Possession of land — Whether the appellant was entitled to possession of the lands occupied by the respondent — Whether a person who claimed an equitable interest in lands under the Real Property Act can take priority over the registered proprietor — Equitable title — Whether the appellant was a bona fide purchaser without notice — Unregistered lease — In personam exception — Indefeasibility of proprietor's title — Sections 45 and 141 of the Real Property Act.
On May 23rd 2016 we allowed this appeal, set aside the order of the trial Judge, dismissed the respondent's counterclaim and declared that the appellant is the owner of and entitled to possession of the lands described in certificate of tile registered in volume 4436 folio 65 then occupied by the respondent. We also made an order that the respondent deliver up possession of the lands and provided for the costs in the Court below and here. At the time we gave brief oral reasons for so doing but we take this opportunity now to provide formal written reasons for our decision.
This appeal relates to lands held under the Real Property Act (the RPA) and raises the issue whether someone who claims an equitable interest in lands under the RPA can defeat or take priority over the title of the registered proprietor.
By claim form and statement of case issued on June 24th 2011, the appellant, Mr. Lewis, claimed a declaration that he is the owner of and entitled to possession of a parcel of land comprising a little over 6 acres (the lands) described in the certificate of title above mentioned. He claims, and there is no dispute as to this, that the lands were purchased by him for the sum of $1,000,000.00 from Hugh Sampath, the prior registered proprietor, and transferred to him by memorandum of transfer dated November 28th 2003. He also claimed other relief including possession of the lands. In his statement of case Mr. Lewis alleged that the respondent, Mr. Sookdeo, was currently occupying a lot and a half (the occupied parcel of land) of the lands, which despite demands for him to vacate he refused to do.
Mr. Sookdeo filed a defence and counterclaim. He claimed he is in possession of the occupied parcel of land pursuant to an unregistered assignment of an unregistered lease from Nazim and Fareeda Ali who had obtained the lease of the occupied parcel of land from previous owners of the said lands. He stated that Mr. Lewis had notice of his occupation prior to the execution of the memorandum of transfer of the lands in his favour and so too did Mr. Lewis' immediate predecessor in title, Mr. Sampath. Mr. Sookdeo, in those circumstances, claimed that he has an equitable title to the occupied parcel of land and on January 20th 2004 filed a caveat giving notice of his unregistered title. It should be noted that this caveat was lodged after the execution of the memorandum of transfer of the said lands to Mr. Lewis and was later withdrawn.
Mr. Sookdeo further claimed that Mr. Lewis was estopped from denying his right and title to the occupied parcel of land since by the words and conduct of his predecessor in title he was led to believe that his right and title to the occupied parcel of land was lawful and legitimate. He averred that he acted to his detriment by the construction of a building and the establishment of his business on the occupied parcel of land. In those circumstances Mr. Sookdeo claimed that it would be inequitable and unconscionable for the claimant to insist upon his strict legal title to the occupied parcel of land. He counterclaimed that he be granted a declaration that he is the owner of the occupied parcel of land and for an order directing the Registrar to register the lease and assignment of the occupied parcel of land and to endorse his interest on the certificate of title relating to the lands.
Mr. Lewis in his evidence stated that he went to see the lands prior to his purchase of them. He did not meet Mr. Sampath who was then the owner of the lands. He however met Mr. Sookdeo and another person. No one showed him the boundaries of the lands and he was not aware that anyone was in occupation of the lands. He therefore agreed to purchase the lands and paid a deposit. He then commissioned a survey of the lands and it was as a consequence of the survey that he discovered Mr. Sookdeo was in occupation of a portion of the lands he had agreed to buy. By letter dated November 4th 2003 Mr. Lewis' attorneys wrote to Mr. Sookdeo stating that Mr. Lewis owned the lands, that Mr. Sookdeo was trespassing on a portion thereof and constructing a house without any lawful authority. They called on Mr. Sookdeo to stop the construction and vacate the lands.
Mr. Sookdeo's attorneys responded to Mr. Lewis' attorneys by letter dated November 11th 2003. They denied that Mr. Sookdeo was trespassing on the lands and they enquired as to the basis of the allegation that he was a trespasser. According to Mr. Lewis after that letter was written he was told by Mr. Sookdeo that he had entered into possession of the occupied parcel of land pursuant to a lease agreement that another person had with the previous owner of the lands. Mr. Sookdeo, however, provided no proof of such an agreement nor did he give the name of any person from whom he purportedly leased the occupied parcel of land. Mr. Lewis made enquiries of Mr. Sampath but was unable to locate any lease in respect of the occupied parcel of land.
Mr. Lewis completed the sale of the parcel of land on November 28th 2003 when the memorandum of transfer was executed by Mr. Sampath in his favour.
By letter dated December 30th 2003 to Mr. Sookdeo, attorneys for Mr. Lewis informed Mr. Sookdeo that he had purchased the lands, that they had previously called on him to vacate the occupied parcel of land but to no avail and they again called on him to vacate the occupied parcel of land. They stated that “failure to do so will result in our client taking all necessary steps to make you vacate the said land and to remove your unfinished building.”
Mr. Lewis in his witness statement chronicled a number of interactions with Mr. Sookdeo that he alleged occurred after the letter of December 30th 2003, which for the purposes of this appeal I need not refer to in any detail. They however do illustrate that on the evidence of Mr. Lewis he did not acquiesce or encourage Mr. Sookdeo's occupation of the occupied parcel of land or any construction thereon.
Mr. Sookdeo gave evidence on his behalf and also called as a witness Mr. Anthony Walters. According to Mr. Sookdeo the occupied parcel of land was on October 24th, 1988 leased to Nazim and Fareeda Ali for a term of 999 years by Robert Sanowarand Kayso Rampersad. This lease, it is not disputed, was not registered. Mr. Sookdeo stated that by agreement dated June 1st 2001 Nazim and Fareeda Ali assigned the residue of the 999 year lease to him for the sum of $55,000.00. This assignment was also not registered. It was therefore Mr. Sookdeo's contention that he was in possession of the occupied parcel of land by virtue of the assignment of the lease. He said that when Mr. Lewis came to view the lands in 2003, Mr. Walters pointed out the boundaries of the land. Mr. Walters in his witness statement supported Mr. Sookdeo. It was their contention that by so doing Mr. Lewis ought to have been aware that a portion of the lands was occupied.
Several issues were raised before the trial Judge and were dealt with in his written judgment. These were:
- Whether the unregistered lease of October 24th 1988 to Fareeda and Nazim Ali and the assignment of the lease from the Alisto Mr. Sookdeo were invalid against Mr. Lewis for want of registration; 2. Whether Mr. Lewis was a bona fide purchaser for value without notice of Mr. Sookdeo's occupation and interest in the occupied parcel of land; 3. Whether Mr. Sookdeo had an equitable interest in the occupied parcel of land; and 4. Whether Mr. Lewis was estopped from denying Mr. Sookdeo's right and title to the unoccupied parcel of land.
As to the first issue the trial Judge stated that the law does not totally undermine unregistered interests if the circumstances of the unregistered interest fall within the exceptions set out in the RPA, for example fraud. He noted that Mr. Sookdeo had alleged fraud on the part of Mr. Lewis in that prior to the transfer of the lands to Mr. Lewis he knew that Mr. Sookdeo was in occupation under a lease arrangement and that he had expended money on the lands. The Judge, however, held that fraud had not been made out. He found that Mr. Sookdeo did not prove that Mr. Lewis knew that he had an unregistered interest, was in possession under an assignment of a lease or that he expended money pursuant to that assignment.
On the second and third issues, the Court held that the unregistered lease gave rise to an equitable interest in Mr. Sookdeo, which could be enforceable against Mr. Lewis unless he was a bona fide purchaser for value without notice. The Court found that the proper boundaries of the land were not pointed out to Mr. Lewis, and therefore he would not have known that Mr. Sookdeo was in occupation of any portion of the said lands which he was purchasing before he paid the deposit. The Court also noted that after payment of the deposit, although Mr. Lewis was informed by Mr. Sookdeo that he had a lease, he was never shown the lease by Mr. Sookdeo. Mr. Lewis in those circumstances had no notice of Mr. Sookdeo's lease even after payment of the deposit on the purchase price of the lands and before completion of the purchase. The Court, therefore,...
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