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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2012-02187

Between

FREDERICK GARBO

Claimant

and

(1) LINCOLN JOBE

(as administrator ad litem of the estate of Shalma

Mohammed, the deceased first defendant)

(2) WENDY LAKHAN

(3) CRYSTAL JOBE

(4) CHRISTOPHER MOHAMMED

(5) ANTHONY JOBE

(6) LINCOLN JOBE

Defendants

Before the Honourable Mr Justice James C Aboud

Appearances:

Mr Kirk Bengochea instructed by Ms Shalini Khan for the claimant

Mrs Sasha Farrah Franklin for the defendants

Date of delivery: 22 June 2017

JUDGMENT

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Introduction

[1] This claim concerns a dispute over property located at No. 19 Clifford Street, Curepe,

Trinidad (‘the property’). The claimant is relying on his legal title to the property in order

to obtain possession. The defendants are relying on the shield of proprietary estoppel in

order to remain in possession.

[2] By a deed of lease dated 19 June 1947, the property was vested in the defendants’

grandfather, Zeah Mohammed (‘Zeah’), and his sister Ameena Mohammed (‘Ameena’)

as joint tenants for the residue of the unexpired residue of a term of 999 years granted by

a lease on 2 July 1929. In 1978, Zeah became the sole owner of the leasehold property

when Ameena died without severing the joint tenancy.

[3] By deed of assignment dated 22 April 1997, Zeah assigned his leasehold interest in the

property to his daughter, Pamela Salick, and her companion, Michael David (‘Pamela’

and ‘Michael’). By deed of assignment dated 18 September 2009, Pamela and Michael

then assigned the residue of the unexpired term of years in the lease, together with the

buildings thereon, to the claimant, Frederick Garbo (‘Garbo). The defendants, who are

Zeah’s daughter Shalma Mohammed (‘Shalma’) (now deceased), and her children, lived

with Zeah at the property all their lives and at the time of the assignment to Garbo.

[4] Shalma died during the course of these proceedings, shortly after her witness statement

was filed. She was the first defendant and is now represented in these proceedings by her

son, the sixth defendant. According to the defendants, the property initially consisted of

a two-room dirt house, which was occupied by Zeah and his four (4) children: Shalma,

Pamela, Asraph and Fareed Mohammed. All of the siblings eventually left the house,

except for Shalma who remained there with her father Zeah.

[5] The defendants say that around 1976 or 1977, Shalma and her common-law husband,

George Jobe (‘George’) approached Zeah and discussed with him their plans to buy land

and to build their dwelling house elsewhere. It is alleged that when Shalma and George

disclosed their plans to Zeah, he encouraged them to build their dwelling house on the

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property. Zeah is also said to have promised that they would be allowed to reside on the

property for as long as they desired.

The property

[6] At the trial, the parties agreed that the current layout of the structures on the property

were correctly shown on a hand-drawn sketch, which was approved by the parties during

the trial and subsequently tendered into evidence. A copy of this sketch is attached as an

appendix to this judgment. The property is bounded by Evans Street on the north and

Clifford Street on the south. On the sketch, there are three structures. At the south of the

property is a concrete two-bedroom structure built by Pamela and Michael, which is

accessed from Clifford Street. Adjoining that structure is what is described as “Shalma’s

house”, which is predominately concrete with one wooden bedroom. This was described

as the main structure on the property. The sketch also reflects a recently built foundation

that exists to the north of the property, closer to Evans Street.

The claim and the counterclaim

[7] By his pleadings the claimant is seeking possession of the property. By their Amended

Counterclaim the defendants are seeking, inter alia, a declaration that Shalma is entitled

to a share and/or interest in the property and, in the alternative, a declaration that Shalma

is entitled to possession of the dwelling house erected on the property. I shall comment

later in this judgment on the nature of these reliefs.

The claimant’s case

[8] The claimant’s case was set out in his affidavit filed on 31 May 2012 in support of his

Fixed Date Claim; his supplemental affidavit filed 19 September 2012; the Statement of

Case filed 1 May 2013; the Reply and Defence to Counterclaim filed 6 June 2013; his

witness statement filed 10 April 2015; and his viva voce evidence at the trial.

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[9] Garbo owns a floral business located at 59 Eastern Main Road, Curepe. From his

business place, Garbo could see the property. On finding out that the property was for

sale, Garbo made arrangements with Pamela and Michael to view the property. Pamela

and Michael were then living in the concrete house on the property. While viewing the

property, Garbo observed that there were other persons, besides Pamela and Michael,

who occupied the main structure on the premises. According to Garbo, Shalma and her

son, Anthony were the only persons living in the wooden structure when he was in the

process of purchasing the property. By his observations, Lincoln appeared to “come and

go” from the wooden structure. I formed the view that these observations were made

from the vantage point of his business place, or maybe when he visited during the pre-

contract stage. Pamela and Michael informed Garbo that Shalma was living in the main

structure with their permission and that they had agreed with her that they were paid

$50,000 she and all of her children would vacate the property prior to completion.

[10] On 15 May 2009, Garbo entered into an agreement for sale with Pamela and Michael to

purchase the property for $600,000. Clause 5(b) of the agreement required Pamela and

Michael to “deliver up vacant possession of the premises”. If vacant possession could

not be given, clause 7 of the agreement provided that Garbo “shall…be entitled to an

immediate refund of the deposit”.

[11] Garbo orally testified that he knew about the term for vacant possession in the sale

agreement and that vacant possession must be provided at the time of completion. He was

also aware that the failure of the vendors to deliver up vacant possession of the premises

gave him the right to rescind the sale agreement and that he would be entitled to the

return of his deposit.

[12] Garbo also testified during the trial that he spoke to Shalma about vacating the main

house before the deed of “conveyance” was signed. However, this was not mentioned in

his witness statement. Garbo further orally testified that before the deed of assignment

was completed, he made an oral agreement with Shalma to pay her $50,000 for her to

vacate the main house. However, he said that he did not instruct his attorney to prepare a

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written agreement reflecting that oral agreement. When the agreement for sale was

completed Shalma was still in possession and the defendants were living in the main

structure on the property. Pamela and Michael had already vacated. Garbo therefore

never obtained vacant possession of the property.

[13] Instead of exercising his right to repayment of the deposit, Garbo testified under cross-

examination that he paid the balance of the purchase price because he relied on Shalma’s

word that she would vacate once he paid her the sum of $50,000 for the main structure.

Garbo obtained the legal interest in the property by deed of assignment on 18 September

2009.

[14] Around December 2009, Garbo went to the property. According to his evidence, he had

keys to the front door of Pamela and Michael’s concrete structure. He said that he saw

the second defendant, Wendy Lakhan (‘Wendy’) and informed her that he was the person

who had purchased the property. He entered the concrete structure and the fifth

defendant, Lincoln Jobe (‘Lincoln’) approached him and demanded proof that he had

purchased the property. Lincoln also allegedly told Garbo that he had spent money on the

property and wanted compensation. Garbo stated that he would compensate him and that

he had always agreed to pay compensation to Shalma. He says that Shalma then

allegedly asked him for time to move and he agreed. Garbo agreed to bring his deed for

the property to show them.

[15] He said that several days after he had this discussion with Lincoln and Shalma, he

returned to the property to clean out Pamela’s rooms in the concrete structure. He said did

so, locked the door, and left the property.

[16] Less than three days later, Garbo said he returned to the property and was unable to enter

the Clifford Street gate as it was chained. However, he was able to enter through the

Evans Street gate. He approached the concrete structure and attempted to unlock the front

door, but it had been nailed shut. He tried to enter through another door near the kitchen,

but that door was locked with a padlock.

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[17] A few days later he returned to the property. He went to the Clifford Street gate. He said

that he saw that it was still chained. He saw Christopher Mohammed, the fourth

defendant, (‘Christopher’) and Shalma, and asked them about the chains on the Clifford

Street gate. They told him that he was not allowed to enter the property.

[18] On 12 October 2010, Garbo went onto the property with a property valuator. Shalma was

there when they arrived. The valuator, according to his evidence, went through the

property except for the inside of the main structure. Garbo walked through the concrete

structure with the valuator. From his observations, he said that it did not appear that

anyone was living in it at that time. According to the valuation report, the main structure

was valued at $20,000.00. Garbo said that he continued to make efforts to come to some

arrangement with Shalma but his efforts proved futile.

[19] Two months later, in December 2010, Garbo observed that Wendy started to occupy the

concrete structure, described by the defendants as Pamela’s structure (‘Pamela’s

structure’). The main structure was occupied by Shalma, Lincoln and Anthony. To date,

Garbo has not been able to gain possession of the property that he purchased.

[20] Eight months later, Garbo’s Attorney-at-Law prepared a notice to quit dated 29 August

2011, which was served on the defendants on 10 November 2011. The notice to quit gave

the defendants one month to vacate the property, failing which legal steps would be taken

to have them removed.

[21] The defendants have refused to quit and deliver up possession and Garbo has not been

able to obtain vacant possession of the property.

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The defendants’ case

[22] The defendants’ case was set out in Shalma’s affidavit filed on 31 January 2013; the

Amended Defence and Counterclaim filed on 17 May 2013; and the witness statements

of Lincoln, Christopher Mohammed and Shalma, all of which were filed 10 April 2015;

and the defendants’ viva voce evidence at the trial.

[23] As stated earlier, Shalma died during the course of these proceedings, and so her witness

statement was tendered into evidence by way of a hearsay notice.

[24] In their Amended Defence and Counterclaim the defendants set out the main grounds of

their defence:

(a) Zeah expressly represented to Shalma and George that they would be permitted to

reside on the property for as long as they wanted;

(b) Shalma, together with her common-law spouse, George, relied on this

representation and invested in the construction of the main structure to their

detriment, and, further, over the course of many years, Shalma and George

maintained the main structure for the benefit of herself, her children (the

remaining defendants in this action), and her father Zeah;

[25] By their Counterclaim, the defendants are seeking a declaration that Shalma is entitled to

a share and/or interest in the property. Alternatively, they seek a declaration that Shalma

is entitled to possession of the main structure erected on the subject property. They also

ask for an injunction restraining the claimant, his servants and/or agents from removing

them from the subject property; and such further orders or relief as the court may deem

just.

[26] It is worth noting that after Shalma’s pre-trial death, no amendment was made to seek

declarations in favour of the remaining defendants. They are still in possession. Shalma’s

estate would therefore be the beneficiary of any ruling, subject to any right of amendment

that may be sought when this judgment is delivered. It is important to note that the reliefs

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sought in the Amended Counterclaim did not contemplate what would happen if Shalma

passed away before the trial or seek equitable rights for her children (the other

defendants) independent from whatever rights Shalma was claiming.

[27] What follows now is a more detailed examination of the defendants’ case. Since Garbo is

a stranger to most of these events a closer examination is needed.

[28] After Shalma and George built and maintained the main structure the defendants lived

there all their lives. Unknown to all of them (including Shalma), Zeah assigned the

property to Pamela and Michael in 1997. It was the defendants’ initial case that Pamela

and Michael did not hold any interest in the property and were not legally entitled to the

subject property and therefore could not assign any interest in it to Garbo.

[29] In her sworn affidavit Shalma gave a brief history of the property:

(i) From 1953 to 1977 the property consisted of one structure, a two-room dirt house,

in which Shalma resided together with her father, Zeah, and her siblings Asraph,

Fareed and Pamela. By the seventies, her siblings were all residing away from the

property. Shalma remained with her father, Zeah in the dirt house to care for him

by cooking and washing his clothes.

(ii) Shalma, who was in a common-law relationship with George, the father of the

defendants, approached Zeah and informed him of their plans to move out and

build their own dwelling house on another parcel of land. Zeah encouraged

Shalma and George to build their dwelling house on the property and assured

them that they could stay there for as long as they desired.

(iii) Shalma and her family have lived continuously in the main structure since the

1980s. George constructed the main structure.

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The defendants’ witnesses

Shalma Mohammed

[30] Shalma’s witness statement, it will be recalled, was adduced via a hearsay notice. There

was no cross examination on it. Accordingly, the weight to be attached to it is limited. I

will deal with the issue of weight later in the judgment. The witness statement set out the

circumstances of this meeting with Zeah in greater detail:

“George wanted to build a house for me and the children to reside.

Together, George and I approached my father and informed him that we

were going to look for property on which to construct our own home.

My father did not want us to move as he enjoyed his grandchildren and

will have no one to cook and care for him. He told us that we could build

on the subject property and continue to reside there for as long as we

wanted. He encouraged George to build whatever structure he wanted

that would make us comfortable. My father repeatedly said to both

George and I that he wanted us and the children to be comfortable and

happy. I recall during our conversation with my father that George had

asked my father to sign a document. George was concerned that my

father would change his mind or that my siblings will oppose us building

on the property. My father assured George in my presence we had

nothing to worry about. He said no one will remove us from the property

and that he will not change his mind. I believed my father

wholeheartedly. Based on what my father said to George and me, I

encouraged George to build on the subject property.”

[31] Her witness statement went on to say that in reliance on Zeah’s assurances, George

demolished the dirt house and erected a temporary galvanized steel structure in which

they were to live until the dwelling house was complete.

[32] According to her, the dwelling house was constructed over a period of four years and was

completed sometime in the 1980s. It contained two bedrooms, a concrete toilet and bath,

a living room and a kitchen. The construction was financed entirely by George from his

income earned as a maintenance worker at Radio 610. While George worked on the

dwelling house, Shalma took care of their children and Zeah. After the construction of

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the dwelling house was completed, Shalma, George, their children and Zeah all resided in

it. George passed away around 1993 and Shalma continued to reside on the property with

Zeah and her children.

[33] In 1995, Shamla’s sister Pamela approached her seeking permission to live in the main

house as she had separated from her husband, one Junior Salick, and had nowhere to live.

Shalma welcomed Pamela into the main house and a short time after she began to reside

there, Pamela again approached her seeking permission for Michael, a gentleman with

whom she had formed a relationship, to also reside in the main house, to which Shalma

consented.

[34] Sometime in 2002 or later, Pamela and Michael constructed a two-bedroom concrete

annex against the southern wall of the main house. Pamela and Michael resided in

Pamela’s structure, but it is considerably smaller than the main house. This structure, in

my opinion, was in the nature of a self-contained annex to the main structure.

[35] In or around 2005 or 2006 Lincoln indicated to both Shalma and Zeah that he was going

to do certain renovations on the main house and add an additional room on the property

for himself. She recalls that her father encouraged Lincoln to do whatever work he

wanted on the property. Lincoln rebuilt all the rooms of the dwelling house in concrete

save for Shalma’s bedroom and constructed an additional bedroom for himself.

Importantly, at this time, Zeah had already divested himself of the leasehold interest by

the secret assignment to Pamela and Michael in 1997.

[36] As far as Shalma was aware, it was the understanding between herself, Zeah and George

that Shalma and her family would always reside on the property for as long as they

desired. George told her, and she believed, that had Zeah not granted them permission to

build a dwelling house on the property, he would have built a house for their family

elsewhere.

[37] In 2009, Pamela and Michael moved out of the property. Sometime after this, she says

Garbo visited the property and he spoke to Lincoln. Shalma said she was informed by

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Lincoln that there was a conversation which took place between Lincoln and Garbo

where Garbo informed Lincoln that he was now the owner of the property and that he

was willing to compensate Shalma and her family for the dwelling house. Garbo offered

Lincoln a sum of $20,000 or $30,000. Lincoln rejected Garbo’s proposal and indicated

that he would have to go to court to remove them from the premises.

[38] Shalma denied that there was an agreement between Garbo and herself with respect to

the purchase of the main structure. According to her, there was no oral agreement that he

would pay her or her children the sum of $50,000 as compensation for their house.

[39] She said that this was the first time that any of the defendants spoke to Garbo. Shalma

denied that Garbo was prevented from entering the subject property by all the defendants.

Garbo visited the property on more than one occasion subsequent to his first visit and on

each occasion, Wendy informed him that he had no right to come onto the property.

[40] It was admitted that Garbo provided one of Shalma’s children with a copy of his title

deed. On receipt of the deed she sought the advice of an attorney-at-law at the Legal Aid

Advisory Authority in Port of Spain.

[41] Garbo came about two or three times to speak to her and her children and they indicated

to him that he would have to take them to court. She further alleged that any valuation of

the property was done from the outside of the main house as Garbo was never permitted

access inside of it. She said that the valuation may be inaccurate as the valuator would

not have been aware that the main house is in fact concrete on the inside.

[42] It should be noted at this point, and to be faithful to the narrative set out above, that

according to the other defendants at the trial, sometime in 2009 Zeah told Shalma that he

allowed Pamela and Michael to borrow money on the property to build their home.

Pamela then approached Lincoln and Shalma requesting help “to pay a mortgage” taken

out on the property. Shalma was then unemployed and so she discussed the matter with

Wendy, Christopher and Lincoln, all of whom told her that they were not in a position to

help pay any mortgage. At that time, Shalma said she was unaware that Zeah had already

assigned the property to Pamela and Michael. Shalma, as well as her children, were

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under the impression that the property was still owned by Zeah. In December 2010

Wendy began to occupy Pamela’s structure, as Pamela and Michael had by then vacated.

By that time they had received the full purchase price from Garbo.

[43] The Defendants have not responded to the notice to quit and have refused to quit and

deliver up possession to Garbo.

[44] At no point were the defendants aware that Zeah transferred the property to Pamela and

Michael, who were the legal owners at the time Lincoln carried out the renovations on the

dwelling house. This information was only revealed to the defendants by their attorney at

law while preparing their defence. The work carried out by Lincoln was not clandestine.

Zeah, Pamela and Michael have never to date complained about his expenditure or

questioned the terms on which he was spending his money.

Christopher Mohammed

[45] Christopher is the first-born child of Shalma and George and he said that he resided at the

property for his entire life since 1972 save for the period 2000 to 2002. In 1983, George

began construction of the main structure on the property. While the main structure was

being constructed, Christopher, his grandfather, Zeah, his parents, his three younger

sisters Wendy, Joanne and Rosemary and his younger brother Lincoln all resided in the

temporary galvanised structure on the property, which was constructed by George.

[46] The galvanized steel structure contained two rooms. One room was occupied by

Christopher, Lincoln and Zeah, while the other was occupied by Shalma, George and his

three younger sisters.

[47] During the construction of the main house, vans and trucks delivered materials that were

used in the construction of the main structure. George paid for these materials. There

were times when Christopher accompanied George to the hardware store and he saw him

purchase supplies, which were used to aid in the construction of the main structure.

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[48] As far as Christopher can recall, George had regular employment with Radio 610. Early

each morning, George left for work and returned around 3 p.m. He observed that when

George came home, he always walked through the building site observing what the men

did for the day. On one occasion George was dissatisfied with certain work done on the

house and, he removed and repositioned planks of wood, which were already fixed to the

frame of the structure.

[49] Upon completion of the main structure, George transferred the furniture from the

temporary galvanized steel structure to the main structure. Shalma and Christopher’s

three sisters were the first to move in, while Christopher, Lincoln and Zeah stayed in the

galvanized steel structure until the flooring and partitioning of the main structure was

completed.

[50] He said that when the family moved into the main structure, George purchased several

additional pieces of furniture including a couch set and a 7-piece dining room set. After

the main structure was erected, the family continued to use an outside bathroom. Later

on, George bought blocks and other materials for the construction of a concrete

bathroom. Christopher recalls that George also built the bathroom since, during its

construction, George often sent him to the hardware to purchase materials for it.

[51] In his early twenties, (1990-1993) Christopher had an argument with George who

prohibited him from bringing any girlfriends to the house. Christopher spoke to Zeah

about his argument with George and told him that he wanted to construct a room for

himself at the back of the property. He says that Zeah told him to go ahead and construct

the room.

[52] Before George’s death in 1993, the family resided peacefully on the property with Zeah.

As far Christopher was aware, Zeah and George got along very well together and were

good friends.

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[53] Zeah died in 2008, and before his death he told Christopher to make himself happy

because he had done all he could to ensure that his children and grandchildren were all

happy.

[54] The court notes that during the cross-examination of this witness, he initially testified that

the contents of his witness statement were true and correct. When asked to read

paragraph 19 of the Amended Defence and Counterclaim he testified that the contents of

that paragraph are not true. That paragraph stated as follows:

“Pamela Salick did approach the First Defendant sometime in 2009

requesting help to pay a mortgage taken out on the subject property. The

First Defendant was then and still is unemployed and discussed the

matter with the Second, Fourth and Sixth Defendants, all of whom were

not in a position to help pay any mortgage.”

[55] Christopher was directed to the certificate of truth of the Amended Defence and

Counterclaim and confessed that although he signed the certificate of truth, he did not

read it before he signed. In light of this, the court is cautious of his evidence. Save for

this prevarication, his evidence was otherwise trustworthy and he was generally

consistent and believable in cross-examination.

Lincoln Jobe

[56] Lincoln is the third child of Shalma and George and has resided at the property for the

last 39 years. His earliest memories of residing at the property was when he was 5 or 6

years of age. He lived in the temporary galvanized steel structure with Zeah, his mother

Shalma, his father George, and his three other siblings. Whilst they were still residing in

the galvanized steel structure George began construction of a wooden house which, on

completion, became their family home. He saw George working on the house himself

together with other labourers he hired, and friends of his who regularly assisted him.

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[57] The house was completed sometime in the 1980s. He remembers this because he was still

attending primary school. The house initially contained two bedrooms, a living room and

a kitchen. The toilet and bath were not yet constructed. His parents stayed in one

bedroom with the girls while he and Christopher occupied the other bedroom. Within a

year of the house being completed his father reduced the size of the living room to

increase the size of the second bedroom in order to accommodate Zeah who now stayed

permanently with them. With the bigger room, Zeah and Christopher occupied one end of

the room whilst he, Lincoln occupied the other end of the room.

[58] Sometime in or around 1990, the toilet and bath were constructed of concrete. At that

time, he was attending secondary school. George informed him that he had obtained a

loan and that he intended to construct a concrete toilet and bath as well as reconstruct

some other rooms in concrete. George did in fact construct the toilet and bath as he had

intended and also small concrete rooms next to the bathroom.

[59] By the time the bathroom was constructed Shalma had given birth to two other children-

Joanne, who is now deceased and Anthony, the fifth defendant, who was born with

Down’s Syndrome. His sister, Wendy, got married around 1991 and moved out of the

house upon marriage. Wendy returned in or around 1994 with her husband and son. She

was given the second bedroom to occupy and Lincoln had to relocate to the small

concrete room George had constructed earlier in 1990. A wooden partition was erected

to divide the second bedroom into two rooms to permit Wendy and her family additional

space. At that time Zeah and Christopher were occupying a wooden two room structure

that Christopher had erected on the northern side of the property. Wendy and her family

left the main structure after a year.

[60] Before George died in 1993, this witness promised him that he would work and take care

of Shalma and his younger siblings, in particular, the mentally challenged fifth defendant,

Anthony.

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[61] In the latter part of the 1990s his aunt Pamela began residing in the main house. He was

in his early twenties at that time and he recalled having a conversation with his mother as

to the reason for Pamela residing with them. He was a bit upset at the time because it was

not only Pamela residing with them but also her male companion. Pamela and her

companion occupied the two rooms that Wendy and her family occupied. Lincoln was

unhappy with the gentleman staying in their house and discussed the situation with

Shalma on more than one occasion. Shalma informed him that his aunt had left her

husband and she had nowhere else to reside.

[62] After this conversation with his mother, he observed his aunt Pamela and her male

companion, Michael constructing a concrete structure to the south end of the subject

property. He learnt from Shalma that Zeah had given Pamela permission to build on the

property.

[63] On initial completion around 2002, Pamela’s structure contained two bedrooms and a

living room. As years passed, his aunt together with Michael extended the house by

constructing a porch area and a kitchen. Today, his aunt’s structure is still on the

property. Their house is separate from Pamela’s house at all points save for the kitchen

area, which shares a concrete wall with Pamela’s house.

[64] Early in 2000, Lincoln observed that the wood which formed the flooring for their house

was rotting. He informed Zeah as well as Shalma that he would be casting a concrete

floor to replace the wooden floorboards and that he intended to erect an additional

concrete room to the house. This witness testified that Zeah encouraged him to carry out

repair works on the property. It must again be remembered that the leasehold interest had

by this time already passed to Pamela and Michael in 1997. By relying on Zeah’s

representations he proceeded to carry out these works in or around 2005 to 2006. From

his savings, he was not only able to replace the floor but, in addition, construct concrete

walls in the living room. This work was done within the frame of their original wooden

house. He testified that throughout the progress of the works, and at all times, Zeah

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supported his plan and gave him encouragement to complete the work. Lincoln also

testified that he was not aware that Zeah had transferred his interest in the subject

property to Pamela and Michael in 1997. An explanation for this assignment remains

shrouded in speculation. It may have been done in order to provide a security for the loan

granted to Pamela and Michael. At no time did Pamela or Michael inform Lincoln that

the property was owned by them or bar him from carrying out the construction works.

They seem to me to have acquiesced or treated Zeah as the head of the household, despite

their acquisition of the leasehold title.

[65] In 2009, Pamela approached Lincoln and showed him a letter concerning “repayment of a

mortgage from Scotiabank”. On reading the letter, he informed his aunt that he was not

in a position to help her repay any mortgage. Later that evening he told his mother

Shalma about his conversation with Pamela and that it was his belief based on what

Pamela said and the contents of the letter that Pamela was in default of a loan she had

with Scotiabank and that the bank intended to seize the property if the loan was unpaid. I

did not form the impression that he understood the technicality that a bank could only

grant a loan on the security of a mortgage to someone with a title to property. He did not

seem to be a man familiar with these matters.

[66] After that conversation with Pamela, he had no other communication with her concerning

the property or her loan with Scotiabank. He noticed that his aunt, her companion

Michael, as well as one of his uncles, Asraph, who at that time was residing with Pamela,

moved out of her house in 2009. Pamela did not inform him that she was moving. There

was a party over at her house one Friday night and when he awoke Saturday morning the

house was quiet. His uncle Asraph stayed in the property for some time but eventually

left and never returned.

[67] Nothing significant occurred on the property for the rest of 2009 or in 2010. In 2011, he

observed a gentleman cleaning Pamela’s rooms. He recognised the gentleman as an

employee of the flower shop located on the other side of the Priority Bus Route. On that

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same day, Garbo came to the property and informed him that he was now the new owner

of the property. Lincoln said that he disagreed with him on his right of ownership. He

said that Garbo waved a document in the air and said that according to it he was the new

owner. Shalma joined the conversation and, in her presence, Lincoln informed Garbo

that he would have to take them to court for the property. The information from Garbo

came as a surprise to him.

[68] It was Lincoln’s intention to gradually complete reconstruction of their home in order to

make it safer and more comfortable for his mother and his mentally challenged brother,

Anthony. In his witness statement, Lincoln said that the house is in need of certain repair

work however since this action started he only carried out that which had to be done to

ensure his family’s safety. The home is modest and small, but it is all that his family

owns, and they have nowhere else to live.

[69] This witness withstood cross-examination and I formed the impressed that he was truthful

and forthright.

Issues

[70] The facts, although straightforward, raise a number of somewhat complex legal issues.

Naturally, if Shalma has an equitable interest it will have to be defined (monetary, life, or

leasehold interest) and the question will arise, as a matter of law, whether that interest,

howsoever defined, can devolve to her children, the other defendants, upon her death.

Additionally, the question arises whether Zeah’s representations to the defendants after

he had vested his legal title in the leasehold to Pamela and Michael, and they, his

successors in title, thereafter acquiesced in the other defendants’ works of improvement,

is sufficient to create any independent equity in them, apart from any equity, howsoever

defined, that may have devolved to them from their deceased mother. I have condensed

these concerns and I pose the following as issues to be decided:

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(a) Whether Shalma and her family received assurances from Zeah, which they

relied upon and acted to their detriment so as to create a proprietary estoppel

against Zeah’s successors in title.

(b) Whether the promise that Zeah made to Shalma and George created a life

interest or an interest in the unexpired residue of the 999-year leasehold interest.

(c) Whether an estoppel or an equity could arise in favour of the surviving

defendants if the successors in title to the person who made the representations

borrows or adopts the original assurance or acquiesces when the assurance is

acted upon.

Law and analysis

(a) Whether Shalma and her family received assurances from Zeah, which they

relied upon and acted upon to their detriment so as to create a proprietary

estoppel against Zeah’s successors in title.

[71] The Law of Real Property, Megarry and Wade (7th ed., 2008) at pages 698–699

summarises the essential elements of proprietary estoppel like this:

(i) An equity arises where:

(a) The owner of land (O) induces, encourages or allows the

claimant (C) to believe that he has or will enjoy some right or

benefit over O’s property;

(b) In reliance upon this belief, C acts to his detriment to the

knowledge of O; and

(c) O then seeks to take unconscionable advantage of C by

denying him the right or benefit which he expected to receive.

(ii) This equity gives C the right to go to court to seek relief. C’s

claim is an equitable one and subject to the normal principles

governing equitable remedies.

(iii) The court has a wide discretion as to the manner in which it will

satisfy the equity in order to avoid an unconscionable result,

having regard to all the circumstances of the case and in

particular to both the expectations and conduct of the parties.

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[72] In Davies v. Davies [2016] EWCA Civ 463 at para 38, Lewison LJ recognized that each

case is fact-sensitive. He helpfully reviewed the authorities and set out the following

general propositions, all of which I accept:

(a) Deciding whether an equity has been raised and, if so, how to

satisfy it is a retrospective exercise looking backwards from the

moment when the promise falls due to be performed and asking

whether, in the circumstances which have actually happened, it

would be unconscionable for a promise not to be kept either

wholly or in part: Thorner v. Major [2009] UKHL 18, [2009] 1

WLR 776 at [57] and [101].

(b) The ingredients necessary to raise an equity are (a) an assurance

of sufficient clarity (b) reliance by the claimant on that assurance

and (c) detriment to the claimant in consequence of his reasonable

reliance: Thorner v. Major at [29].

(c) However, no claim based on proprietary estoppel can be divided

into watertight compartments. The quality of the relevant

assurances may influence the issue of reliance; reliance and

detriment are often intertwined, and whether there is a distinct

need for a "mutual understanding" may depend on how the other

elements are formulated and understood: Gillett v. Holt [2001] Ch

210 at 225; Henry v. Henry [2010] UKPC 3; [2010] 1 All ER 988

at [37].

(d) Detriment need not consist of the expenditure of money or other

quantifiable financial detriment, so long as it is something

substantial. The requirement must be approached as part of a

broad inquiry as to whether repudiation of an assurance is or is

not unconscionable in all the circumstances: Gillett v. Holt at 232;

Henry v. Henry at [38].

(e) There must be a sufficient causal link between the assurance

relied on and the detriment asserted. The issue of detriment must

be judged at the moment when the person who has given the

assurance seeks to go back on it. The question is whether (and if

so to what extent) it would be unjust or inequitable to allow the

person who has given the assurance to go back on it. The essential

test is that of unconscionability: Gillett v. Holt at 232.

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(f) Thus, the essence of the doctrine of proprietary estoppel is to do

what is necessary to avoid an unconscionable result: Jennings v.

Rice [2002] EWCA Civ 159; [2003] 1 P & CR 8 at [56].

(g) In deciding how to satisfy any equity the court must weigh the

detriment suffered by the claimant in reliance on the defendant's

assurances against any countervailing benefits he enjoyed in

consequence of that reliance: Henry v. Henry at [51] and [53].

(h) Proportionality lies at the heart of the doctrine of proprietary

estoppel and permeates its every application: Henry v. Henry at

[65]. In particular, there must be a proportionality between the

remedy and the detriment which is its purpose to avoid: Jennings

v. Rice at [28] (citing from earlier cases) and [56]. This does not

mean that the court should abandon expectations and seek only to

compensate detrimental reliance, but if the expectation is

disproportionate to the detriment, the court should satisfy the

equity in a more limited way: Jennings v. Rice at [50] and [51].

(i) In deciding how to satisfy the equity the court has to exercise a

broad judgmental discretion: Jennings v. Rice at [51]. However,

the discretion is not unfettered. It must be exercised on a

principled basis and does not entail what HH Judge Weekes QC

memorably called a "portable palm tree": Taylor v. Dickens

[1998] 1 FLR 806 (a decision criticised for other reasons in

Gillett v. Holt).”

[73] In the recent Court of Appeal decision in Mills v Roberts, Civ. App. No. T 243 of 2012,

judgment of 16 December 2016 (unreported) Jamadar J.A. said this:

“19. In respect of the law of proprietary estoppel we are more troubled

about the correctness of the application of the law. Whereas in

promissory estoppel there must be a clear and unequivocal promise or

assurance intended to effect legal relations or reasonably capable of

being understood to have that effect, see Snell’s Principles of Equity,

31st Edition, 2005, paragraph 10-08., in the law of proprietary estoppel

there is no absolute requirement for any findings of a promise or of any

intentionality.

…

22. In proprietary estoppel therefore, the focus shifts somewhat from

the search for a clear and unequivocal promise and for intentionality, to

whether the party claiming the benefit of the estoppel had a reasonable

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expectation induced, created or encouraged by another, and in those

circumstances acted detrimentally to the knowledge of the other (see

Snell’s Principles of Equity, paragraphs 10-16 to 10-17). For proprietary

estoppel to operate, the inducement, encouragement and detriment must

be both real and substantial and ultimately the court must act to avoid

objectively unconscionable outcomes.”

[74] The defendants in this matter are relying on both of the following statements in Shalma’s

witness statement, and also basically contained in her sworn affidavit, that a clear

unequivocal promise or assurance was made by Zeah to their parents, Shalma and

George:

(a) “My father repeatedly said to George and me that he wanted us and the children to be

comfortable and happy.”

(b) “George was concerned that my father would change his mind, or my siblings may

oppose us building on the subject property. My father assured George in my presence

that we had nothing to worry about. He said no one will remove us from the property

and that he will not change his mind. I believed my father wholeheartedly. Based on

what my father said to George and me, I encouraged George to build on the subject

property.”

[75] These assurances were made by Zeah to both Shalma and George after they informed him

of their intention to find land to build their own family home. Therefore, it is my finding

that upon being informed by Shalma and George that they wanted to leave the property,

Zeah, who at the time was the legal owner, encouraged both Shamla and George to stay

on the property and to construct their family home there, and to remain there for as long

as they wanted.

[76] Shalma’s witness statement was not tested in cross examination, and its value is of course

limited. However, I feel that—though cautious—I am sufficiently justified in relying on

its basic narrative. Firstly, her sworn affidavit essentially narrates the same events

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surrounding the assurance. An affidavit, containing a formal oath taken before a

Commissioner of Affidavits, has more weight than a signed, unsworn witness statement.

Secondly, although the children were young, they testified that the main house was built

by George in the plain view of Zeah, and that Zeah enjoyed the improved amenities

throughout his lifetime. There was no point in the written or oral evidence of the children

that I felt that they did not corroborate their mother’s witness statement or her sworn

affidavit. Their evidence, under cross examination, was not delinked in any way from

their mother’s version of the events. I must assume, having regard solely to the

children’s testimony, that Zeah’s acquiescence was deliberate and born out of some

private arrangement between Zeah and their parents. I am therefore satisfied on a

balance of probabilities that Zeah gave an assurance to Shalma and George in the terms

contended by the defendants.

[77] With the inducement from Zeah being established, the court now needs to ascertain

whether there was detrimental reliance. I pay particular attention to the following facts,

drawn variously from the evidence adduced by all the witnesses of the defendants, which

I now hold:

(a) Prior to the construction of the main structure, Shalma, George, their children, and

her father Zeah were all residing in Zeah’s mud house on the property.

(b) Shalma and George desired to acquire alternative comfortable accommodation for

their family. They wanted to construct a suitable house for their family on a

separate parcel of land.

(c) On informing Zeah that they intended to acquire their own property and construct

a home, Zeah told Shalma and George to build their home on the property.

(d) Shalma believed her father when he indicated that she and George will be able to

reside on the property for as long as they desired. At the time of this

representation, Shalma and George had three children and I find it exceedingly

difficult to doubt that Zeah’s assurances extended to them as part of Shalma and

George’s family.

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(e) George demolished the mud house and erected a temporary galvanize structure

which the family lived in until the dwelling house was completed over a period of

four years.

(f) George used his income and expended other savings in constructing the family

home on the property in the 1980s.

(g) George later secured loans to further construct a toilet and bath in the 1990s.

(h) In 2005/2006, Lincoln Jobe, with the encouragement of Zeah and the concurrence

or acquiescence of Pamela and Michael, rebuilt the initial main house in concrete

and annexed a separate structure.

[78] In light of these findings of fact it is now necessary to take a closer look at the term

‘detrimental reliance’. Snell’s Principles of Equity, Op. Cit., para 12-043, explains the

term in proprietary estoppel cases like this:

“A proprietary estoppel can arise only if B shows that as a result of a course

of conduct adopted on A’s acquiescence, representation or promise, B

would now suffer a detriment if A were wholly free to assert A’s right

against B, Fisher v. Brooker [2009] UKHL 41. The issue of detriment must

be judged at the moment when the person who has given the assurance

seeks to go back on it, Gillett v Holt [2001] Ch. 210 (CA) at 232 per Robert

Walker L.J. It has been emphasised that detriment is not a narrow or

technical concept. The detriment need not consist of the expenditure of

money or other quantifiable financial detriment, so long as it is something

substantial, Gillett v Holt [2001] Ch. 210 (CA).”

[79] The greater the detriment and the longer the passage of time during which the expectation

was reasonably held, the greater would be the weight that should be given to the

expectation: Davies v Davies (supra) para [41].

[80] Would it be unconscionable for the court to order that the defendants leave the property?

[81] In looking at the issue of unconscionability, Jamadar J.A. said this in Mills v Roberts

(supra) at paragraph 24:

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“24. It is self-evident that to satisfy the equity created by a proprietary

estoppel (as in this case), a court must act equitably. In determining how

best to satisfy the equity regard must be had to all the circumstances of the

case with an eye on avoiding unconscionable results. However, it would

appear that the real and practical directive is for courts to discover and

satisfy “the minimum equity to do justice to” the party claiming the benefit

of the estoppel, see Snell’s Principles of Equity, 32nd Edition, paragraph 12-

025. In this task a wide discretion is conferred on the courts to discover and

apply the fair and just remedy: Theresa Henry and Anor v Calixtus Henry,

Privy Council Appeal No. 24 of 2009, at paragraphs 54 to 61.

The Privy Council in Theresa Henry has carefully explained that in cases of

proprietary estoppel, when it comes to determining how the equity is to be

satisfied, the following are relevant guidelines. See paragraphs 51 to 55,

where Sir Johnathan Parker stated:

(a) The court should adopt a cautious approach.

(b) The court must consider all of the circumstances in order to

discover the minimum equity to do justice to the claimant.

(c) The court however enjoys a wide discretion in satisfying an

equity arising from proprietary estoppel.

(d) Critical to the discovery of the minimum equity to do justice,

is the carrying out of a weighing process; weighing any

disadvantages suffered by the claimant by reason of reliance

on the defendant’s inducements or encouragements against

any countervailing advantages enjoyed by the claimant as a

consequence of that reliance.

(e) In determining the balance in the relationship between

reliance and detriment: just as the inquiry as to reliance falls

to be made in the context of the nature and quality of the

particular assurances, inducements and encouragements

which are said to form the basis of the estoppel, so also the

inquiry as to detriment falls to be made in the context of the

nature and quality of the particular conduct or course of

conduct adopted by the claimant in reliance on the

assurances, inducements and encouragements.

(f) Though in the abstract reliance and detriment may be

regarded as different concepts, in applying the principles of

proprietary estoppel they are often intertwined.”

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[82] In this case, Shalma and George, both now deceased, lived in the property since the

1970s. Their children, who are the living defendants in this action, occupied the main

structure since its completion in the 1980s. The defendants, including Shalma,

represented by her administrator ad litem, maintained the property and did renovations

for the benefit of themselves and their family. Lincoln renovated the main structure in

2006 while Pamela and Michael, unknown to them, were the legal owners of the

property. There is no evidence before me to show that either Pamela or Michael

attempted to stop Lincoln from improving the family home. They seem to have

acquiesced. It seems to me, looking at the evidence as a whole, that they adopted or

honoured the “free hand” that Zeah gave to Shalma and her family.

[83] In my opinion, Shalma and George changed their position for the worse by reason of the

acquiescence and encouragement of the legal owner. By relying on Zeah’s assurances,

Shalma and George denied themselves the opportunity of acquiring their own property.

They could have secured for themselves a house and land elsewhere. The evidence was

that George had stable employment with Radio 610 and was concerned about the comfort

and security of his family. The money expended on the main structure by George could

well have been expended on their own property, which on their demise would have been

their children’s inheritance. I am satisfied that there was detrimental reliance on the

assurance made by Zeah to Shalma and George in the 1970s. The benefit of living on the

property on a rent-free basis must be balanced against their expenditure in improving it

and the belief, after so many decades of living there, that this was their permanent home.

This is not a case of an expectation built up over a few years. The span of years is an

important factor.

[84] If the court makes an order for possession in favour of Garbo, the defendants will suffer

detrimental loss, as the main structure which is called Shalma’s house, is all that the

defendants own. I believe them when they say that they have no other place to go. They

lost the opportunity at the time that the promise was made for Shalma and George to

build their own home on another parcel. I must also bear in mind the position of Anthony,

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who is mentally challenged. In my view, an order for their eviction will be an

unconscionable order.

(b) Whether the promise that Zeah made to Shalma and George created a life

interest or an interest in the unexpired residue of the 999-year leasehold interest.

[85] It is the claimant’s submission that upon Shalma’s death, the defendants ought to have

left the property as the promise made by Zeah created a life interest and the interest of the

defendants would have been terminated upon her death.

[86] In terms of the promise made by Zeah to Shalma and George, the question to be asked is

whether the estoppel is restricted to a life interest in Shalma alone when the defendants

were living with Shalma and George at the time that the promise was made. Can the

estoppel protect the children? This question can only be answered by examining the

assurances given by Zeah prior to his leasehold assignment, and the acquiescence of

Pamela and Michael to the post-assignment expenditure. The absence of any evidence of

complaint or permission suggests that this construction was carried out as of right. Either

that, or Pamela and Michael did not assert their title and adopted or honoured the family

arrangements created by Zeah.

[87] In deciding whether the promise amounted to a life interest or a leasehold interest, I have

regard to the case of Mills (supra), where the facts were set out at paragraph 35 as

follows:

“In this case, the appellant invested her monies in the building of the

dwelling house on the subject lands on the promises and assurances given to

her by the respondent’s mother Hannah. She expected that she would obtain

an interest in the fee simple (rather than a mere life interest). The appellant

could have invested her monies and/or constructed her home elsewhere,

instead of building the dwelling house on the subject lands. Additionally,

the appellant focused her energy on up keeping the property and running the

guest house, which not only benefitted her and her mother, but also

benefitted the respondent’s mother Hannah. Building her dwelling house on

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the subject lands and living there, facilitated both herself and Hannah. The

appellant can therefore be said to have suffered substantial detriment by

acting on the inducements and encouragements of Hannah”.

[88] In light of these facts, Jamadar JA had this to say at paragraphs 35 to 38:

“In considering all of the circumstances in this matter, consideration must

also be given to the family relationship between the appellant, her mother

(Marie) and Hannah. This relationship and the arrangements between the

parties existed for approximately 50 years, a half of a century. Indeed, even

after the appellant’s mother passed away, the appellant continued to operate

the guest house with dedication and devotion so as to make the guest house

a successful business, for the benefit of both herself and Hannah. This was

in fact also actively encouraged.

Having regard to the trial judge’s findings of fact…this court is hard pressed

to identify any sufficiently countervailing advantages to the appellant which

could have been balanced against the substantial detriment she suffered in

building her dwelling house on the premises, so as to justify her minimum

equitable interest in the property as being a mere life interest. To do so

would in our opinion be unfair and disproportionate, and also

unconscionable.

In our opinion, in all the circumstances of the case, we are of the view that

the appropriate relief in order to achieve the minimum equity required to do

justice to the appellant, is to grant to her the fee simple in the land on which

the dwelling house is situated.”

[89] Similar to the facts in Mills, Shalma and George, invested their family’s monies in

building the main structure based on Zeah’s promises and assurances. The evidence is

clear that Zeah made these promises partly for his own benefit, as Shalma took care of

him and continued to take care of him. He ended up in a much more comfortable home,

enjoying the company of his grandchildren and the care of his daughter until his death.

[90] The children have lived continuously in Shalma’s house since its completion in the

1980s, a period of 28 years. Some of them were living on the property in the 1970s,

before the mud house was demolished and at the same time that the assurance was given.

This is almost 40 years of continuous occupation. There was no interruption in their

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occupation or their works of improvement. In arriving at the minimum equitable interest,

they might have in the property, it would be unfair, disproportionate and unconscionable

to say that Shalma and George only had a life interest in it. It seems to me that such a

finding would defeat the family arrangement that Zeah created for Shalma and George.

The children, it seems to me, must by their infancy, have been within Zeah’s

contemplation. Moreover, Zeah actively encouraged the further improvements

undertaken by the children when they reached adulthood, fortifying my view that his

original assurances must have been intended to benefit his grandchildren as well. As

such, the minimum equity that ought to be granted to Shalma’s estate and George (during

his life time) would be the unexpired residue of the 999-year leasehold interest in

Shalma’s house on the property.

(c) Whether an estoppel or an equity could be created when a successor in title

honours or adopts the original assurance.

[91] It is clear that a successor in title may, in certain cases of proprietary estoppel, be bound

by the assurances of his or her predecessors. In the foundational case of Inwards v Baker

[1965] 2 QB 29 a father gave assurances to his son that instead of building his bungalow

on other lands he should build it on a portion of his 6-acre parcel and live there for as

long as he wished. The son built the bungalow and his father visited him there after it

was completed. He died 20 years later, leaving a will that pre-dated the assurance: it

made no provision for the son. The trustees of the will sought to evict the son. The

English Court of Appeal prevented them from doing so and held that the son could live

there for as long as he wanted. The trustees were, in the circumstances of that case,

bound by the equity. Lord Denning went further. He said, at page 37f, that such an

equity (which he famously described as ‘an equity coupled with an interest’) would be

binding on any purchaser of the land with notice, including the trustees themselves.

[92] Firstly, on the question of whether Pamela and Michael had notice of Shalma and her

family’s interest, no evidence has been led to suggest that Pamela and Michael were

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unaware of Zeah’s assurances at the time they first came to live at the property with

Shalma and her family. In fact, according to the evidence, before moving there Pamela

first sought Shalma’s permission. There is likewise no evidence to suggest that they were

without notice of this interest after they acquired the leasehold title in 1997. Instead it

seems to me that they honoured or adopted Zeah’s arrangements with Shalma and her

children. The children—all adults—were, after all, carrying out their own improvements

with Zeah’s encouragement both before and after 1997. There is no evidence that Pamela

and Michael altered or attempted to alter this status quo. It cannot rightfully be said on

the evidence before me that they had no notice of Zeah’s assurances or his acquiescence

in these arrangements.

[93] Secondly, Pamela naturally had the option of showing her deed to Shalma and her

children and informing them that she was now the legal owner of the property. Pamela

could have legitimately seized this opportunity to inform Shalma, her by-now grown

children and even Zeah, that she no longer wanted them on the property. It was open to

her and Michael as paper title owners to give these occupants a term of months or years.

There was no assertion of control over which structures were built on the property and on

what terms the construction was permitted. Beyond encumbering the property with a

mortgage, Pamela and Michael did not act like owners of property are normally expected

to act.

[94] I note in particular the following examples of behaviour that does not indicate ownership

or control of the property. At the time of the 1997 assignment Pamela and Michael were

living in the main structure with Shalma’s permission. In 2006, when Pamela and

Michael were the legal owners of the property, they allowed or did not object to

Lincoln’s construction of an additional concrete room in the main structure, as well as his

replacement of the wooden flooring with concrete and constructing concrete walls in the

living room. These works cannot be described as insubstantial. In 2008, the year that

Zeah died, and subsequently, she allowed Shalma and her children to remain in

possession of the property and to carry out sporadic improvements.

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[95] The court can only presume that Pamela was aware of Shalma’s equity in the property or

her father’s assurances to her and her children. Further, by Pamela’s conduct, it is clear

that she acquiesced or concurred in the children’s continued belief that they had rights in

respect of the property and treated it as their home.

[96] The absence of any witness statement from Pamela, filed by the claimant or the

defendants, I mark as a failing more on the claimant’s part. Pamela would have been in

an excellent position to contradict the defendants’ evidence as to their alleged agreement

with her to vacate the premises and to explain how and on what terms she decided to sell

the property to Garbo. Her evidence would have been supportive of Garbo’s case. She

might also have explained the circumstances of Zeah’s assignment to them.

[97] I am entitled to, and I do make the adverse inference that the absence of Pamela or

Michael’s evidence strengthens the case of the defendants. Brooke LJ in Wisniewski v

Central Manchester Health Authority (1998) PIQR Vol 7, p 324 described the basic

principles. His reasoning was adopted by Rajnauth-Lee J (as she then was) in Sieunarine

v. Doc’s Engineering Works (1992) Limited, HCA No. 2387 of 2000. This is what

Brooke LJ said:

“(1) In certain circumstances, a court may be entitled to draw adverse

inferences from the absence or silence of a witness who might be expected

to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences, they may go to strengthen

the evidence adduced on that issue by the other party or to weaken the

evidence, if any, adduced by the party who might reasonably have been

expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced

by the former on the matter in question before the court is entitled to draw

the desired inference; in other words, there must be a case to answer on that

issue. If the reason for the witnesses’ absence or silence satisfies the court,

then no such adverse inference may be drawn. If, on the other hand, there is

such credible explanation given, even if it is not wholly satisfactory, the

potentially detrimental effect of his/her absence or silence may be reduced

or nullified.”

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[98] During his cross-examination, Garbo testified that Pamela and Michael are alive but that

he was unable to locate them. However, he further testified that he contacted one of

Michael’s co-workers and he was informed that Michael was employed with the police

service and that he lives in Sangre Grande, but he said that he did not obtain an exact

address. It seems to me that the police service administrators would have a list of their

personnel and that there was sufficient available information to allow Garbo to locate one

or both of these witnesses. I am not satisfied with the efforts made to locate or bring

these witnesses to court either voluntarily or involuntarily.

[99] In these circumstances, and for the other reasons that I set out earlier, I do not believe that

Pamela asked the defendants to leave the property when she made the sale contract with

Garbo in 2009. At that time the defendants were not infants: Christopher was 37, Wendy

was 33, Lincoln was 27, and Crystal was 16. These are adults, some of whom had openly

carried out works on the property, and Pamela would obviously—it must be presumed—

have been concerned about fulfilling her contractual obligations. She failed to do so in

relation to the main structure.

[100] Notably, there is there no documentary evidence before me of any notice to quit or legal

letter emanating from Pamela to terminate “the licence” granted by Zeah to Shalma, as

the assurance was described in Garbo’s witness statement. She was contractually

obligated to sell with vacant possession but made no attempt to challenge the occupation

of Shalma or any of her children. One possible explanation for this behaviour, and there

may be other reasons, is that she felt that Shalma and her children had rights to remain

there that she could not rightfully disturb. Another possible explanation might be that she

simply tricked Garbo into buying the property without vacant possession.

[101] The failure to provide vacant possession was a contractual breach by the vendors but

Garbo preferred to waive it, complete the contract by paying the full purchase price and

take his chances in removing the defendants post-completion. It seems like a risky

gamble to me, even if he believed that a prior arrangement was made for their removal.

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He was fully aware of their possession by his own admission because the property was

within eyesight of his business, and he visited it several times. He cannot claim to be

without notice of their occupation. He had the option, if Pamela and Michael lacked

resources, to join them as claimants to this action (or, as explained above, to call them as

witnesses). Once the Defence and Counterclaim was filed, he had the further option of

filing an Ancillary Claim against them to seek a return of the purchase price. He may

also have a right under the beneficial owner covenant in the deed of assignment to bring a

separate claim against Pamela and Michael. If the facts of his interactions with his

Attorney-at-Law allow him (I do not know these facts), he has the additional option of

considering a claim against him for professional negligence. Clearly, something went

terribly wrong with this transaction. All the classic conveyancing warning signs were

visible and yet he nonetheless completed the sale with the defendants still in possession.

In doing this, I cannot help thinking that he is the author of his own misfortune.

However, he is not without options. The defendants, however, have many less options

than he does.

[102] In all the circumstances I feel satisfied on a balance of probabilities that the defendants

have established a right to remain on the portions of the property that they occupy. Their

equitable interests do not however extend to Pamela’s structure and provision must be

made for their habitation in the main structure to be excised from the remainder of the

property, the legal title to which is vested in Garbo. Pamela and Michael, as successors

in title to Zeah, were and are estopped from going back on the assurances and

acquiescence of their predecessor in title, especially in light of their own acquiescence

and their behaviour as paper title owners. When they sold the property to Garbo he took

it subject to the defendants’ interests. They were estopped from denying them a right to

possession. Any attempt by them to dispossess the defendants prior to the sale would

have failed.

[103] The living defendants’ interests are primarily derived in law from the assurances made to

their mother. The assurances made by Zeah after 1997 cannot amount in law to valid

assurances—such as to give the children an independent equitable right to the protection

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of the shield of proprietary estoppel—as Zeah was not the legal owner after 1997. As

such, he was not in a lawful position to bind the leasehold property. Zeah’s

encouragements to the children to carry out works of improvement post-1997 provide

evidential proof or corroborate the assertion that an assurance was given to Shalma and

George for their benefit and the benefit of their children. This evidential proof, although

lacking efficacy for the erection of the shield of proprietary estoppel in the children

(independent from their mother’s shield), nonetheless informs the conscience of this court

in devising an appropriate order to uphold the estoppel in the ways reflected in the orders

I shall make.

[104] There is one final matter. The facts of this case support a finding that the children

obtained an equity in those portions that they inhabited by virtue of Pamela and

Michael’s acquiescence in their expenditure and upkeep after 1997. As indicated earlier,

although they did not act as owners are expected to act, they nonetheless were the paper

title owners. As such, they permitted or gave the children a free hand to expend monies

in the improvement of the property. I have formed the impression that they were not

meddling in the children’s activities because they regarded Shalma’s adult children as

fully entitled, on their own behalves, to develop and use the property as they wished.

Quite apart from any proprietary estoppel that would protect Shalma’s right to

possession, the post-1997 acquiescence of Pamela and Michael creates another avenue

for the independent protection of their rights. In terms of satisfying this equity it would

be fair and just in all of the circumstances to give them more than a life interest in the

portions that they occupy. Had the elements of proprietary estoppel not existed, and had

the case been differently pleaded (or amended after Shalma’s death), I would have had no

hesitation in recognizing their independent equitable rights, outside of Shalma’s right to

rely on the doctrine of proprietary estoppel.

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[105] I therefore make the following orders:

(a) The claimant’s claim is dismissed with costs.

(b) There shall be judgment for the defendants on their counterclaim.

(c) A declaration is granted to the first defendant (now represented by her Administrator

ad litem) that the estate of the first defendant is entitled to remain in possession of the

dwelling house known as "Shalma's house" together with the curtilage of land to the

north of Shalma's house and access to its western doorway as shown on the sketch

plan dated 24 May 2017 and appended to this order for the unexpired residue of the

leasehold interest in the lease dated 14 October 1929.

(d) The claimant shall pay the costs of the claim and counterclaim to the defendants in

the sum of $17,500.

(e) There shall be a stay of execution of 28 days.

James Christopher Aboud

Judge

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Appendix

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