Ralph et Al v Bernard

• Jurisdiction: Trinidad & Tobago
• Judge: Mendonça, J.A.
• Judgment Date: 09 March 2016
• Neutral Citation: TT 2016 CA 4
• Docket Number: Civil Appeal No.131 of 2011
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 09 March 2016

Court of Appeal

Mendonca, J.A.; Jamadar, J.A.; Mohammed, J.A.

Civil Appeal No.131 of 2011

Ralph et al

and

Bernard

Appearances:

Mr. S. Saunders for the appellants

Mr. G. Raphael for the respondent

Civil practice and procedure - Whether the judge erred in granting the declaration that the respondent was the owner and entitled to possession of the dwelling house and the parcel of land on which it stood except for a portion — Whether the judge was entitled to reject the respondent's claim based on adverse possession — Whether the respondent was in factual possession of the property in question — Whether the deceased was entitled to assert adverse possession against the appellants — Whether the respondent was entitled to enforce any rights acquired by the deceased — Proprietary estoppel — Whether the judge was entitled to accept the respondent's evidence that the deceased made assurances to her that the premises would be hers — Whether the respondent had established any sufficient detriment to raise an equity in her favour — Whether the judge disregarded the first appellant's interest in the property in making the declaration.

I agree with the judgment of Mendonça, J.A. and have nothing to add.

P. Jamadar

Justice of Appeal

I too agree.

M. Mohammed

Justice of Appeal

Mendonça, J.A.

1 The respondent in this appeal claimed against the appellants a declaration that she is the owner of and entitled to possession of a dwelling house and the parcel of land on which it stands in Couva (the dwelling house and the parcel of land on which it stands are together referred to as the premises) and an injunction restraining the appellants whether by themselves, their servants or agents from evicting or attempting to evict the respondent from the premises. The appellants disputed the respondent's claim and counterclaimed for possession of the premises.

2 The respondent based her claim on proprietary estoppel and alternatively the extinguishment of the title of the appellants to the premises as a result of adverse possession for more than sixteen years. The trial Judge granted the declaration sought by the respondent on the basis of promissory estoppel and alternatively proprietary estoppel. He however held that the claim based on adverse possession was not made out. The appellants and the respondent have appealed. The appellants contend that the Judge erred in granting the declaration. The respondent on her appeal contends that the Judge should not have rejected her claim based on adverse possession.

3 The background to this appeal is not a complex one. The first appellant was married to Michael Ralph in 1977. He died on June 13th 2006 and I shall hereinafter refer to him as the deceased. The deceased and the first appellant became tenants of the parcel of land pursuant to an agreement dated November 4th 1987. The agreement was made between the deceased and Malyn Bernard, the first appellant, and the National Housing Authority. According to the agreement “in consideration of the expense to be incurred by the tenants in the erection of a dwelling house on the lands and the sum of $1,058.00” by way of three year's rent in advance the State shall grant and the tenant shall accept a lease of the premises for a term of thirty years at the monthly rent of $44.11. The agreement contained an option on the part of the tenants to renew the lease for a further term of thirty years.

4 The first appellant and the deceased lived together on the parcel of land until 1990 when they separated. They however were never divorced. After the first appellant and the deceased separated, the deceased began a common-law relationship with the respondent. In August 1991 the respondent and the deceased began living on the premises to the exclusion of the first appellant. The respondent's two children, Avanel and Christal (who were not the children of the deceased) also lived with the respondent and the deceased on the premises.

5 The respondent and the deceased lived together on the premises until the death of the deceased. The respondent has continued to live on the premises.

6 At the time the respondent and the deceased began to live on the premises there was a structure on the parcel of land that had been built by the first appellant and the deceased. Both the respondent and the first appellant gave evidence at the trial as to the nature of the structure that existed at the time the respondent and the deceased began to live there. The evidence conflicted with each other but the Judge preferred the evidence of the respondent and that has not been challenged. According to the respondent's evidence, in 1991 the structure consisted of one bedroom and a concrete foundation. It was covered with old galvanize and was not blocked off entirely. There was an opening at the top which was covered with plastic to prevent the rains from coming in.

7 In August 1992 the deceased and the respondent borrowed the sum of $1,400.00 and used that to block up the room, put in louvers and purchase new galvanize to cover the room properly.

8 After the year 1992, the respondent and the deceased added two bedrooms, a living room and a kitchen to the one bedroom. According to the evidence of the respondent, which the Judge accepted, she assisted with the work and additions to the structure that she met there in 1991 both financially and with the provision of labour. She stated that the deceased, who was a mason, did the masonry and “when he could not afford to employ workers, she assisted him in doing work on the two bedrooms, living room and kitchen”. She “mixed mortar and put it in buckets and handed it to the deceased”. She also handed him blocks and any other material that he needed.

9 According to the respondent she was able to contribute financially because she was a seamstress earning $3,000.00 per month. She also gave evidence that after Mr. Ralph took ill in 1996, she and her two children cultivated a parcel of land. They planted and reaped melongene, peas

and pumpkin which they sold wholesale to make ends meet. They rented cars which they gave to drivers to work for them. The respondent stated that from her earnings and that of the deceased they were able to save up to $5,000.00 per month which they used to improve the structure.

10 The Judge, however, did not fully accept the respondent's evidence on the issue of her earnings and that of the deceased. He accepted the respondent did earn money as a seamstress but found that her evidence as to the amount earned was exaggerated. As to the cultivation of the lands the Judge was of the view that the evidence did not establish, inter alia, what and how much was cultivated and was not helpful in determining what income was derived from that endeavour. With respect to the rental of the vehicles the Judge accepted that the respondent and the deceased did earn income from that venture but it appeared to him to be barely profitable. The Judge in those circumstances concluded:

• “23. Nevertheless there is sufficient evidence apart from this that the [respondent] earned income and spent and/or contributed to the expenditure of some of this income in the completion of the dwelling house.

• 24. While the evidence does not demonstrate or support a significant level of income it does reflect a level of industry on the parts of both [respondent] and deceased, in which effort the [respondent] participated.

• 25. It is reasonable to infer that her contributions would have been indirect in meeting household expenses and making available to the deceased income which could be and was utilized for its construction and expansion.”

11 The respondent also gave evidence of assurances by the deceased that he wanted her to have the property when he died. In the respondent's witness statement she stated:

• “13 From the time I got involved with the Deceased he told me that the First [appellant] had told him that she was no longer interested in the property. The Deceased also told me and I verily believed that whenever he died he wanted me to have the property. The Deceased had in fact gone to the National Housing Authority in the year 2003 to have my name added to the property but the National Housing Authority advised that it could not be done with him married to the First [appellant].

• 18. The Deceased died on June 13th 2006. I have continued to reside at the said premises with my children to the present time. From the beginning of my relationship with the Deceased I have relied on the assurances given to me by the Deceased that he wanted me to have the property if anything should happen to him and I have assisted him in making the additions to the property based on his assurances and my daughter Avanel also relied on his assurances that I would be the owner of the property when she erected the structure to the front. I have been with the Deceased in undisturbed possession of the said dwelling house and the parcel of land on which it stands which measures three hundred and ninety-three point six square meters since the year 1991.”

12 The Judge accepted this evidence. After referring to Snell's Equity (31st ed.) at para 10-08 which states, inter alia, that a requirement for promissory estoppel is a clear and unequivocal promise or assurance, he concluded that:

• “33. I find that there is evidence that such promises or assurances were made in the context of the long relationship between the Deceased and the [respondent]”.

And later in his judgment he added:

• “36. I find that on a balance of probabilities the deceased may well have represented to the [respondent] who lived with him and looked after him until his death that she could obtain an interest in the said premises, and I accept the evidence of the [respondent]in this regard.”

13 The Judge further found that a) the respondent's expenditures on the premises were permitted by the...