Webster v Alfonzo

• Jurisdiction: Trinidad & Tobago
• Judge: Hassanali, J.A.,Hyatali, C.J.,Corbin, J.A.
• Judgment Date: 11 December 1980
• Neutral Citation: TT 1980 CA 46
• Docket Number: 96 of 1978
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 11 December 1980

Court of Appeal

Hyatali, C.J.; Corbin, J.A.; Hassanali, J.A.

96 of 1978

Webster

and

Alfonzo

Appearances:

R. Benjamin — for the appellant.

A. Alexander — for the respondent.

Real Property - Recovery of possession

Hassanali, J.A.

1 By specially endorsed writ filed on the 14th February, 1978 the respondent claimed against the appellant recovery of possession of a plot of land measuring approximately 4,500 square feet situate in the ward of Arima (hereinafter referred to as “the land”). The respondent pleaded as follows:–

1

By two deeds dated the 17th January, 1963 and 24th May, 1963 and registered respectively as No. 624 and 6472 of 1963, Alberto Diaz Gonzales and Gertrude Zoila Patty John Gerald Fleming and Neva Fleming conveyed [the land] to the [respondent] in fee simple in possession. 2. Francis Wellington Subero, by deed dated 29th March, 1949 registered as No. 2708 of 1949 and by deed dated 7th January, 1953 registered as No. 5625 of 1953, conveyed [the land] in fee simple in possession to the said “Alberto Diaz Gonzales and the said Gertrude Patty, John Gerald Fleming and Neva Fleming; 3. By deed dated the 29th March, 1946 registered as No. 2399 of 1946, the said Francis Wellington Subero became seised and possessed in fee simple of [the land]. 4. The defendant is in unlawful occupation of the land and has refused to deliver up possession of the same.”

2 The appellant failed to deliver a defence, and on the 1 ^st March, 1978 the respondent made application under Order 14 of R. S. C. 1975 for leave to enter final judgment. The appellant thereupon applied for leave to defend the action, relying substantially on the following allegations in paragraphs 5 and 6 respectively of her affidavit:

5

In or about the year 1952 I entered upon and took possession of [the land] the subject matter of this action thereby dispossessing the plaintiff's predecessor in title and since then I have been and still am in exclusive possession of the said land; and. 6. By reason of the foregoing the plaintiff's claim herein is barred and the plaintiffs title (if any, which is denied) was, prior to the beginning of this action, extinguished by virtue of the provisions of the Real Property Limitation Ordinance Chapter 5 No. 7. “

3 The respondent filed an affidavit in reply alleging:

“(i) it is not true as deposed to in paragraph 5 of the [defendant's] affidavit that the defendant entered upon and took possession of the land in the year 1952. I am informed by one Euston Courtney Manning who worked with Dominion Oil Limited as a Liaison Officer between the years 1952 and 1956 when seismic survey were being made thereon and I verily believe that the defendant first occupied the land in the year 1959. After giving the defendant notice I, in the year 1972 brought proceedings against the defendant for possession of the land in the petty civil Court at Arima. This action is still pending since the defendant applied for an obtained an order to have the proceedings transferred to the high Court. The said order was made on or about the 2 ^nd November, 1972, but the defendant to date has taken no steps to have the matter concluded on the merits. Accordingly, the defence of prescription is not available to the defendant.

(ii) Alternatively, by an oral agreement made between the defendant and me sometime in the month of September, 1976, and confirmed in writing on the 13 ^th January 1977, the defendant, in consideration of my bulldozing another parcel of land which she owns near to the land and erecting a house for her thereon, agreed to give up to me possession of the land. A true copy of the said agreement is hereto annexed and marked “A”. At the time of the said agreement the defendant knew that I required the land to sell it to a third party.

(iii) In pursuance of the said agreement I bulldozed that other parcel of lend and erected the said house for the defendant. I am informed by my caretaker, Felix Villaroel, and verily believe that during the course of these works the defendant paid regular visits and suggested to him the manner in which she wished the works to be done. These suggestions were carried out.

(iv) In branch of the said agreement the defendant, despite the fact that she knew of the sale hereinafter referred to has failed and refused to quit the land or to give me possession of it.

(v) Moreover, relying upon the agreement referred. to above, I, on the 9th October, 19'76, entered into a written agreement with Joseph Howard and Charmaine Farrell (the purchasers) to sell and, did sell them on the 3 ^rd March, 1977, a parcel of land of which the land forms part for the price or sum of $18,000.00. The purpose of purchasing the said parcel of land was to erect a dwelling house but due to the failure and refusal of the defendant to quit the land the purchasers have been unable to complete their dwelling house and as a consequence have sued me in High Court Action No. 1491 of 1978 for damages for breach of quiet enjoyment for which I may be liable.”

The alleged agreement (hereinafter referred to as “the agreement”) read:

“Rosie Webster,

Agree to allow Mr. Alfonso to allow his tractor to level off a lot of land at Louis Street, Cleaver Road for the purpose of he Mr. Alfonzo to erect a board house on same lot of land as an (agreement) agreement between both parties.

P. S

Agreement is as follows:–

The house is to be same size as the one in which she now lives in and when finish and satisfied she agree to remove and hand over sama land on which she now living.

Sgd. Rosie Webster

Sgd. Edwin Webster”

4 On the 29th November, 1978 the learned judge refused the appellant's application and granted the respondent's. He was of the opinion that on the facts as he found them including the agreement and the action taken thereon by the parties the appellant “did not have a bona fide defence”, and that she was “estopped from raising a plea of adverse possession”.

5 From that judgment the appellant appealed on the ground that:

“The learned erred in law in holding that the defence of Adverse Possession is not open to the appellant/defendant on the respondent's/plaintiff's claim as pleaded.”

Basically two questions were argued on appeal:

6 For the appellant it was submitted that the learned judge's findings of fact notwithstanding, the appellant's affidavit raised a good defence viz. that by virtue of the provisions of sections 3 and 22 of the Real Property Limitation Ordinance Chap. 5 No. 7, (hereinafter referred to as “the Ordinance”) the appellant had acquired a possessory title to the land and the respondent was precluded from bringing the instant action and therefore the appellant ought to have been given leave to deliver a defence. For the respondent it was submitted, in support of the learned Judge's decision, that the appellant had by the agreement “waived” the rights to which she was entitled under the Ordinance and she could not in the circumstances be allowed to invoke the Ordinance in her defence to the respondent's claim.

The relevant sections of the Ordinance are: 3, 4, 15 and 22.

Section 3 reads:

“3. No person shall make an entry or distress, or bring an notion to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such notion, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.”

7 Section 4 identifies the circumstances in which the right to make an entry or distress or bring an action to recover any land shall be deemed to have first accrued.

Section 15 ordains that:

“when any acknowledgement of the title of the person entitled to nay land has been given to him …. by the person in possession ….” the right of the former to … bring an action to recover such land shall be deemed to hive first accrued at and not before the time at which such acknowledgment …. was given.”

Section 22 reads:

“22. At the determination of the period limited by this Ordinance to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished.”

The reasons for the learned judge's decision appear in the following extracts from his judgment:

“It seems to be good law that if a party for valuable consideration forbears to pursue or insist upon a right which he enjoys, he cannot, if the other party has performed his side of the bargain and more particularly to his detriment, later renege upon his promise by going back on his word or insisting upon his original position. He will, I think be estopped because by his conduct he is said to have waived whatever legal rights he enjoyed. See in this connection Fenner v Blake [1900] 1 Q.B. 426. Central London Property Trust v High Trees House [1947] 1 K.B. 130; Combe v. Combe [1951] 1 All E.R. 676; Halsbury's Laws — 4th edit. Vol. 16 para. 1471 — pages 992 — 993.

“… I find from the facts deposed to that the defendant knowing of her rights against the plaintiff agreed with the latter to forego those rights; that there was valuable consideration therefor, that is to say the bulldozing of the land and the construction of a house thereon by the plaintiff for the benefit of the defendant in return for her promise; that the plaintiff acted on the defendant's promise; and that he has done so to his detriment and/or prejudice. “

8 It was not disputed that on the appellant's affidavit she acquired a possessory title to the land in 1968. Counsel for the respondent submitted, however, that ...