Sassy Garcia v Arima Door Centre Holding Company Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: P. Rajkumar JA,M. Dean-Armorer JA,R. Boodoosingh JA
• Judgment Date: 12 April 2021
• Neutral Citation: TT 2021 CA 10
• Docket Number: CA P331 – 2016
• Court: Court of Appeal (Trinidad and Tobago)

IN THE HIGH COURT OF JUSTICE

Panel:

P. Rajkumar JA

M. Dean-Armorer JA

R. Boodoosingh JA

CA P331 – 2016

CV 2012 – 02005

Between

Sassy Garcia

Appellant / Defendant

and

Arima Door Centre Holding Company Limited

Respondent / Claimant

Appearances:

Mr Navindra Ramnanan and Mr David Hannays for the Appellant

Mr Michael Quamina and Ms Laurissa Pena for the Respondent

1 This appeal concerns a parcel of land with a house located at No. 10 Farfan Street, Arima. It was not in dispute that the respondent purchased it by Deed on 5 March 2012. The respondent initiated proceedings in the High Court for possession against the appellant. The case was tried before Rampersad J, who found for the respondent and made an order for possession.

2 The appellant's father was a statutory tenant of the property, having registered the tenancy on 24 February 1982, pursuant to the Rent Restriction (Dwelling Houses) Act, Chapter 59:55. Her father died on February 19, 1996. Her mother died on 27 March 2002.

3 The claim had been started by fixed date claim. The trial judge noted at paragraph 9 of his judgment that:

9. The Claimant noted that the Defendant's case, as originally pleaded by way of her defence filed on 20 September 2012 and amended defence filed on 08 February 2013, averred that:

9.1. She had an equitable interest in the subject premises based on an agreement between her father and Carmen de Lisle;

9.2. Her father's contractual and/or statutory tenancy was vested in her personally or by way of her title as administrator of his estate; and

9.3. The rent arising out of the contractual tenancy had been tendered to the previous owners but they refused to collect same and such rent was available and estimated to be in the sum of $14,400.00 as at June 2012 .

4 At the trial, the equitable interest aspect of the claim was not pursued. The appellant's case on the pleadings was ultimately based on adverse possession. The applicable principles of law in relation to adverse possession were set out by the trial judge at paragraph 35–46 inclusive of his judgment. He correctly identified the relevant provisions of the Real Property Limitation Act, Chapter 1 of the trial judge's judgment]. He

identified the principles applicable to the instant case as follows: These included

• i. The appellant had to prove possession of the premises for at least 16 years.

• ii. This possession had to be adverse to the interests of the paper title owner.

• iii. Both physical and (factual) possession and the intention to possess had to be established (Paragraph 39 of his judgment citing paragraph 72 of Toppland Estates Limited v Townley [2004] EWCA Civ 1369 per Parker LJ in turn citing paragraph 70 per Lord Hope of Pye (Oxford) Ltd v Graham.

• iv. Intention to possess must be to occupy the land and use it as one's own (citing Pye paragraph 71).

• v. An acknowledgement of title of the owner will start time afresh for the purposes of adverse possession. (Paragraph 44 of judgment below).

• vi. The payment of rent would therefore generally be inconsistent with adverse possession because it would be an acknowledgement of the landlord's title and because it would be inconsistent with an intention to possess the property as one's own, (as opposed to possessing it as a tenant). The relevant time for the purpose of starting the calculation of the period of adverse possession under the Real Property Limitation Act would therefore be the last date rent was received.

• vii. In this case, once 16 years had passed from the date of the last receipt of rent by a former tenant, the owner's title would be extinguished. (Paragraph 43 of the judgment).

5 The appellant contended at the appeal that the relevant time for consideration was the period for which rent was last paid. The relevance of the payment of rent is as to the acknowledgement of a relationship of landlord and tenant over the premises.

6 The critical issue as identified by the trial judge was the date when rent was last received by the owners for the purpose of section 9 of the Real Property Limitation Act. The trial judge went on to make certain clear findings of fact in relation to the material issues.

7 It is well established that when a trial judge has made findings on the primary facts an appeal court will be justified in interfering with those findings in quite limited circumstances where it can be demonstrated that they were plainly wrong. The circumstances in which an appellate court would review essentially findings of fact by a trial court are by now too well known to require rehearsal: See Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21 2, Petroleum Company of Trinidad and Tobago v Stanley Ryan and Anor

[2017] UKPC 30 at paragraph 15 3 Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21, Harracksingh v Attorney General of Trinidad and Tobago [2004] UKPC 3, Bahamas Air Holdings Limited v Messier Dowty Inc [2018] UKPC 25 4

8 These would therefore include cases where:

• i. there was no evidence to support the finding; or

• ii. the conclusion was based on a misunderstanding of the evidence.

• iii. where credibility is in issue, and honesty is central to that, the trial judge is better placed than the appeal court to make that assessment.

9 Apart from the uncontested facts referred to by the trial judge at paragraph 5 of his judgment, the key findings of fact were:

i. Rent was received on 23 August 1996 (para 62 of the judgment). This was based on a letter found in the records of Mr Maundy, an attorney at law, who was then acting for the owner of the property. That letter dated 23 August 1996 was from Mr David Hannays, attorney for the appellant's parents, evidencing tender of a rent payment.

ii. Alternatively, he found as a matter of law that if a statutory tenancy of the appellant's mother had not been previously determined by a notice to quit, that tenancy would in any event have come to an end on 27 March 2002 on the death of her mother (paras 58 and 64). This was a conclusion of law based on the Rent Restriction (Dwelling Houses) Act, Chapter 59:55.

In either event, because the claim was instituted on 18 May 2012, this would have been prior to the expiration of a 16-year period from either date.

10 The appellant's submissions identified the main issue was one of fact as to when was the last time “rent was deemed to be paid for”. It was suggested this was April 1996. This respectfully was an incorrect framing of the issue. The trial judge considered the issue had to be framed as the last time “rent was received” as provided for in section 9 of the Real Property Limitation Act, Chap 56:03.

11 Section 9 of that Act states:

“When any person shall be in possession or in receipt of the profits of any land, or in respect of any rent, as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at the determination of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy shall have been received (which shall last happen).” (All emphasis added).

Inconsistencies

12 The findings of fact were based on the judge determining:

• i. The appellant was not an impressive witness and there had been material inconsistencies in her case. The appellant had initially deposed on affidavit filed on 25 June 2012: “ I have repeatedly attempted to pay the rent assessed as due to the landlord but since about the year 2000 the landlord has refused to take the rent. I have paid the rent into a separate account and I am ready and willing to turn over the rent found to be due to the landlord. I estimate that the rent due is the sum of $14,400.” (Paragraph 16 of judgment of trial judge, emphasis added by trial judge).

• ii. The appellant had stated on affidavit that $14,400.00 had been put aside for the payment of rent. At $100.00 per month, this would have represented rental payments for 12 years after 2000, which was the year from around which the landlord had refused to take the rent. This evidence meant both that rent had last been paid in 2000, and that she was prepared to pay rent, acknowledging the title of the landlord as a landlord, up to 2012. On either alternative, her possession would not have been adverse to the landlord's title for period of at least sixteen (16) years before the filing of the claim. This evidence, the judge found, may have been “manufactured” to reflect the time she had initially claimed. If it had not been manufactured then rent would have been paid within 16 years of the filing of the claim. If it had been manufactured then the evidence was that last date of payment of rent was August 1996 based on the letter from Mr. Hannays and the judge's construction of that evidence as demonstrating that rent had been received on that date.

• iii. When pleadings were ordered she first pleaded that rent was last paid in 2000. This was later changed to 1992. The pleadings were then amended again to state January 1996. This was later changed again in her witness statement to about March 1996, (para 53). The appellant was “caught out on her own evidence” and her credibility was “out of the door”, (para 54).

• iv. The evidence of the other witnesses adduced by the appellant was described by the trial judge as a “cut and paste” which in any event simply confirmed that the appellant occupied the premises, a matter which was not in dispute. In any event, the evidence that the appellant was putting aside rent amounting to $14,400.00 was an affirmation that the relationship was one of landlord and tenant and an acknowledgement of the landlord's title continuing over a period of 12 years...