Page 1 of 42

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CA No. S 153 of 2015

Between

MARY GOMEZ

SHAIRA MOHAMMED

DAVID SAMMY

Appellants

And

ASHMEED MOHAMMED

Respondent

PANEL: PETER JAMADAR J.A.

GREGORY SMITH J.A.

PETER A. RAJKUMAR J.A.

APPEARANCES:

Mr. R. L Maharaj SC, Ms. V. Maharaj, Mr. A.D. Ramroop appeared on

behalf of the Appellants.

Mrs. D. Peake SC, Mr. R. Heffes-Doon appeared on behalf of the Respondent

Date Delivered: April 26th 2017

I have read the judgment of Rajkumar J.A. and I agree with it.

Peter Jamadar

Justice of Appeal

I also agree.

Gregory Smith

Justice of Appeal

Page 2 of 42

Delivered by P. Rajkumar J.A.

Background

1. The first, second, and third appellants are occupiers of land situate at Maracas Valley.

They claim that in 1966, 1958, and 1963 respectively they were each the beneficiary of separate

agreements with Aziz and Elvina Andrews, (hereinafter referred to as the Andrews). The

Andrews were predecessors in title of the respondent with respect to the land that each appellant

occupies.

2. The appellants contend that under those agreements, each in identical “terms” it was

agreed:

a. They would at their own expense clear a parcel of land, prepare it and build their

home on it,

b. They would be responsible for all the physical infrastructure necessary for them to

build their homes and to maintain the land;

c. They would pay a small land rent and that in the future they would have the right to

purchase the occupied parcel of land at its open market value as undeveloped lands

without the value of their homes and improvements. It was agreed that the open

market value of the land would be assessed as at the date of the entry into

occupation.1 This latter term is disputed – and is referred to as the disputed term.

These terms, allegedly agreed between the appellants and the Andrews, are collectively referred

to as the Andrews agreement.

1(Paragraph 39 of the judgment).At paragraph 8 of the Statement of Case this date is actually claimed to be the date of the agreement for them to

enter and occupy the land, but nothing ultimately turns on this.

Page 3 of 42

Undisputed facts

3. Pursuant to the Andrews agreement:-

i. They each were let into possession of a portion of undeveloped land in hilly and forested

terrain,

ii. They agreed to pay rent in respect of the land they selected and occupied, which was paid

annually,

iii. They prepared the sites for building at their own expense and constructed permanent

dwelling houses on them.

iv. The appellants entered into occupation of portions of land, (the disputed portions of land)

comprising respectively 5000, 9248, and 5000 square feet.

v. The appellants paid rent to the Andrews.

vi. On July 4th 1969 the Andrews sold, to the respondent’s father Haniff, the entire parcel of land

comprising 10 acres, (the entire parcel), (of which the land occupied by the appellants formed

part).

vii. Haniff continued to collect rent from 1969 until his death in 2004.

viii. The Respondent lives on a parcel of land adjacent to the First named appellant.

ix. The parties were not strangers to each other. The first named appellant was related in various

ways to the Second named and Third named Appellants2. Haniff was the uncle of the first

named appellant and the half brother of the Second Appellant’s husband3. Elvina Andrews

was the cousin of the Second Appellant’s husband.

2 Paragraph 4 of her witness statement 3 See for example - Paragraph 10 of her witness statement and page 268 – Core Bundle

Page 4 of 42

Other relevant facts

4. The appellants contend that the Andrews, Haniff, and the respondent himself, were all

aware that they had constructed permanent concrete dwellings, and that over the years the

Andrews and Haniff had actually encouraged them to expand and renovate those concrete

structures. Whether or not that were so it is undisputed on the evidence that the Andrews, the

Respondent, and even Haniff before him, on his visits to his daughter, were in a position to

observe these improvements and extensions.

5. Haniff’s daughter, the Respondent’s sister, lived on the larger parcel in proximity to the

appellants. The Respondent used to visit her even before he went to live on the larger parcel in

1979. The Respondent used to collect the rent since 1972.

6. The land on which the respondent’s house stands adjoins that of the first appellant, and is

in proximity to that of the other appellants. In fact he admitted seeing extensions during the

lifetime of his father. His sister also admitted seeing these extensions, additions and renovations.

Haniff visited her from time to time. The respondent could see the houses of the appellants,

either from his yard, or when driving to his own house.

7. It is not disputed that rent was paid by, and collected from, the Appellants continuously

until 2011. It was collected by the respondent on behalf of Haniff, and then on his own behalf,

with no objection being taken to these extensions, investments, and renovations. While the extent

and cost of those renovations were disputed, the fact that there were such renovations and

improvements was not.

Page 5 of 42

8. The trial judge accepted that, as pleaded by the appellants, the value of the house of the

first claimant in 2013 was $920,000.00, that of the second claimant was $295,000.00, and that of

the third claimant was $1,425,000.004.

9. The Appellants contend that Haniff was aware or should have been aware of the Andrews

agreement, and that his purchase of the entire parcel, on which their houses stood, was with

express knowledge of their occupation, and at least constructive notice of their rights under the

Andrews agreement.

10. In 2004 Haniff died and the Respondent became his successor in title. In March 2012 the

Respondent became the owner of the entire 10 acre parcel. After May 2011 he stopped accepting

rent. In 2013 the Respondent wrote to the Appellants claiming possession, and in 2014 he

instituted proceedings seeking possession against the Appellants. He claimed that they had been

statutory tenants under the Land Tenants (Security of Tenure) Act.

11. The consequences of that would be, (i) that having failed to serve a notice on or before

May 31st 2011 to extend their statutory tenancies, they had lost the benefit of a right to renew

such tenancies for a further 30 year term, and, (ii) having reverted to the status of annual tenants,

and having been served with 6 months’ notice to quit, each appellant was now in the position of

a trespasser.

4 Paragraph 1 of the judgment

Page 6 of 42

12. The trial judge did not accept that the appellants had established the existence of the

Andrews agreement, particularly in relation to the disputed term. Accordingly she rejected any

contention that the appellants had established rights under proprietary estoppel on the basis of

the Andrews agreement which, having predated the passage of the Land Tenants (Security of

Tenure) Act, might have survived beyond 2011, (when any statutory tenancy would have come

to an end).

13. The trial judge found that the appellants, having failed to serve any notice of renewal of

statutory tenancies under the Land Tenants (Security of Tenure) Act, would have not been

entitled any longer to the protection of that Act. An order of possession was therefore made in

favour of the respondent in respect of the parcels of land occupied by the appellants. The

appellants appeal that decision.

Issues

14.

i. Whether this court can revisit and reverse the findings of the trial judge in relation to the

Andrews agreement;

ii. Whether the appellants have raised, or if they have not, whether they can now raise,

arguments in relation to proprietary estoppel by acquiescence, separate and apart from the

alleged terms of the Andrews agreement;

iii. Whether the findings the findings of the trial judge should yet stand or whether on the

undisputed facts there is a basis for examining whether proprietary estoppel by acquiescence

existed;

Page 7 of 42

iv. If the answers to issues i. and ii. are in the affirmative whether the appellants have

established that they are entitled to any equitable interest in their respective parcels;

v. If they have, what is the nature of any such interest;

vi. Whether the third named appellant has established title by adverse possession in relation to a

smaller portion of land that he claims comprising 2500 square feet.

Conclusion

15.

i. As to the first issue, the findings made and inferences drawn by the trial judge on

the undisputed evidence in relation to the Andrews agreement can be revisited.

ii. As to the second issue, the appellants can raise, and in fact had raised at trial,

arguments in relation to proprietary estoppel by acquiescence, separate and apart

from the alleged terms of the Andrews agreement;

iii. As to the third issue, on the undisputed facts there is a basis for examining

whether proprietary estoppel by acquiescence existed;

iv. As to the fourth issue the appellants have established that they are entitled to an

equitable interest in their respective parcels;

v. As to the fifth issue the interest that the appellants have established is a

continuing tenancy which we have assessed as one of 15 further years from May

31st 2011, with an option to purchase, as reflected in our order;

vi. As to the sixth issue we decline to reverse the finding of fact of the trial judge

that the third named appellant has not established title by adverse possession in

relation to a smaller portion of land that he claims comprising 2500 square feet.

Page 8 of 42

16. The findings made and inferences drawn by the trial judge on the undisputed

evidence in relation to the Andrews agreement can be revisited, in so far as they were based

on an assumption that the appellants were protected by the Rent Restriction Act, which

protection influenced their choice to erect permanent structures on the land they rented. This was

based on a misapprehension of law, as that Act had been excluded in its application to dwelling

houses constructed after 1954 by virtue of the Rent Restriction (Exclusion of Premises) Order.

17. This misapprehension in relation to the appellants alleged security of tenure under the

Rent Restriction Act was a material factor in the court’s assessment of:

i. the significance of the permanent nature of the structures that the appellants proceeded to

erect, and

ii. the likelihood that erection of and investment in such structures would be based on a belief

in entitlement to some security of tenure, arising out of an agreement with the Andrews, and

the subsequent conduct of the Andrews and Haniff.

18. In fact the appellants’ belief in or actual security of tenure, further to that then associated

with annual tenancies, could only arise from agreement with, or representation, by the Andrews,

as there was no alternative statutory protection at that time. As such security of tenure could

not have arisen at the time of their respective entries through legislation, the likelihood, on a

balance of probabilities, of agreement with the Andrews on an option to purchase as contended,

must be reassessed.

Page 9 of 42

19. The undisputed facts, namely a belief by the appellants in an entitlement to security of

tenure by their ability to eventually purchase the land, giving rise to their erection of, and

continued investment in, permanent structures in formerly undeveloped, hilly, and forested

terrain, are consistent with an agreement with the Andrews on an option to purchase as

contended. In fact, on a balance of probabilities, such an option to purchase is more likely than

not. The substantial investments over the years in the houses such that they are now valued at

$920,000.00, $295,000.00, and $1,425,000.00 respectively, can hardly be explained otherwise.

20. The trial judge cannot be faulted in dismissing as inherently incredible the embellishment

on the price in that option to purchase alleged for the reasons that she did, including the alleged

right to purchase the land at its value at the time of the alleged agreement with the Andrews.

However, shorn of the disputed term, there was still sufficient material on the appellants’ pleaded

case, and sufficient evidence, based on the undisputed facts and the actions of the appellants, to

substantiate the allegation that an option to purchase had in fact been conferred on the appellants,

unembellished by the details alleged as to its price.

21. The misapprehension of law identified above, coupled with the appellants’ focus and

emphasis at trial on establishing the price at which it is alleged the option to purchase was to be

exercised, led the trial judge to fail to fully appreciate the significance of the appellants’

willingness and readiness (i) to immediately construct permanent structures in that difficult

terrain and (ii) thereafter to expand and renovate them with (iii) the acquiescence of both the

Andrews and the respondent’s father when he later became the owner.

Page 10 of 42

22. While this may have been the situation of many tenants of land, who erected permanent

structures on rented land in which they had a limited interest at best, in this case the parties were

all related.

23. Their assertion that the appellants were the beneficiaries of an option to purchase,

whatever its terms, was (a) consistent with the relationship among the parties, and (b) fortified by

the actions of the appellants in constructing permanent homes, consistent with a belief in a

security of tenure, which had not been conferred by statute at the time that they constructed their

homes, and (c) consistent with the acquiescence of the Andrews, Haniff, and even to some extent

the Respondent, in the expansions and renovations of the appellants’ houses.

24. The circumstances under which they went into occupation were not disputed save as to

the specific terms of the Andrews agreement, and in particular the specific price alleged in the

disputed term. However the acceptance of the specifically pleaded price at which the option to

purchase was to be exercised (at historical values), was not a finding essential to the appellants

nevertheless establishing a. an option to purchase simpliciter (unembellished by the allegation

that the price at which that option was to be exercised was the historical value of the land as

undeveloped land at the time of the agreement), and /or b. equitable rights which both predated

and survived the Land Tenants (Security of Tenure) Act.

25. Further, and /or in the alternative, even in the absence of such an inference, on the

undisputed facts there was sufficient to satisfy the evidential and legal requirements of

Page 11 of 42

proprietary estoppel by acquiescence, such as to give rise on that basis also to equitable rights in

the appellants.

Order

26. It is declared that the appellants are each entitled to a tenancy for a 15 year term

commencing May 31st 2011 with an option to purchase the parcels of land on which their

houses stand, (as described in paragraph 2 of the claim form filed on July 22nd 2014), by

themselves, or their heirs or assigns, at any time within that term at half of the market value of

the land as at May 31st 2011, as assessed by an independent valuator agreed by the parties, or in

default, nominated by the Registrar of the Supreme Court.

Analysis and Reasoning

Issue 1-Whether this court can revisit and reverse the findings of the trial judge in relation

to the Andrews agreement

Revisiting findings of fact

27. In Beacon Insurance Company Limited v Maharaj Bookstore Limited Privy Council

Appeal No. 102 of 2012 the Judicial Committee of the Privy Council reiterated that an appellate

court should only exceptionally contemplate reversing a trial judge’s findings of fact. One such

exception however is where there has been a misdirection by the trial judge. The circumstances

in which an appeal Court can interfere with findings of fact were discussed as follows:-

Page 12 of 42

28. At paragraph 12 of the judgment Lord Hodge referred to the judgment in Thomas v

Thomas [1947] AC 484, per Lord Thankerton, at pp 487-4885

29. At Paragraph 13 Lord Hodge referred to the case of In re B (A Child)(Care Proceedings:

Threshold Criteria) [2013] 1 WLR 1911 in which Lord Neuberger (at para 53) indicated that a

Court of Appeal will only rarely even contemplate reversing a trial judge’s findings of primary

fact.6

30. At Paragraph 14 of the judgment Lord Hodge pointed out that the Judicial Committee had

adopted a similar approach in a case from this jurisdiction, Harracksingh v Attorney General

5 “Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an

appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any

advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial

judge’s conclusion; II The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to

any satisfactory conclusion on the printed evidence; III The appellate court, either because the reasons given by the trial judge are not

satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen

and heard the witnesses, and the matter will then become at large for the appellate court.”

Lord Hodge stated that “it has often been said the appeal court must be satisfied that the Judge at first instance had gone “plainly wrong” and

“directs the appellate court to consider whether it was permissible for the judge at first instance to make findings of fact which he did in the face

of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed records of the

evidence. The Court is required to identify a mistake in the Judge’s evaluation of the evidence that is sufficiently material to undermine his

conclusions. Occasions meriting appellate intervention would include when a trial judge failed to analyse properly the entirety of the evidence.

Choo Kok Beng Kok Hoe (1984) 2 MLJ 165 at 168-169 (Lord Roskill)”

6 Lord Neuberger had stated:

“This is traditionally and rightly explained by reference to good sense, namely that the trial judge has the benefit of assessing the witnesses and

actually hearing and considering their evidence as it emerges. Consequently, where a trial judge has reached a conclusion on the primary facts,

it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a

misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it….

Page 13 of 42

of Trinidad and Tobago [2004] UKPC 3 in which it referred (at para 10) to the dictum of Lord

Sumner in SS Hontestroom (Owners) v SS Sagaporack (Owners) [1927] AC 37, 477:

Whether any material misdirection

31. In the instant case, as demonstrated hereunder, it was a material consideration, in the trial

judge’s assessment of the significance of the immediate construction of permanent dwelling

houses by the appellants, that they enjoyed statutory security of tenure. In fact however at the

time of their entry into occupation they enjoyed no such statutory security of tenure. That

misapprehension of the existence of statutory security of tenure at the time of entry into

occupation by the appellants and construction of their permanent dwelling houses, amounted to a

misdirection. As appears from the judgment, it directly influenced the trial judge’s analysis of the

evidence and, in particular, the assessment of the significance of the fact that permanent houses

were constructed upon the appellants’ entry into occupation of their respective parcels. That

assessment in turn was a key element in her reasoning and conclusion that there had been no

option granted to the appellants to purchase their respective parcels of land, on the terms

alleged, or at all.

7 “… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can

be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing

conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the

probabilities of the case. … If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of

fact should … be let alone.”

Page 14 of 42

Statutory Protection – the law

32. The Land Tenants (Security of Tenure) Act took effect on June 1st 1981. Prior to that the

Rent Restriction Act had been passed in October 1941.By progressive exclusions the protections

of the Rent Restriction Act were reduced.

The Rent Restriction (Exclusion of Premises) Order

33. One such exclusion was the Rent Restriction (Exclusion of Premises) Order 28 of

1954 made on the 12th February, 1954. Schedule 1, Part 1 of that Order expressly excludes “as

from the 12th February, 1954 all new buildings, the erection of which was completed on or after

that date together with any land appurtenant thereto to be occupied therewith”.

34. The Rent Restriction (Exclusion of Premises) Order (the Order) therefore removed from

the ambit of the Rent Restriction Act Ch. 59.50 (the Act) all new buildings erected after February

12th 1954 together with the land appurtenant thereto. Even assuming that the subject lands in

Maracas Valley were ever subject to the rent restriction regime at any time, (and were

encompassed in the schedule thereto as lands to which that Act applied), by 1954 the lands had

been excluded from the application of that Act.

35. It is accepted that the appellants were tenants of land, not of buildings. They had

constructed their own buildings and were not tenants in respect of their houses. Nevertheless

their houses, erection of which was completed after 1954, were new buildings, and new

buildings, together with the land appurtenant thereto, to be occupied therewith, were excluded

by the Order from the application of the Act.

Page 15 of 42

36. The land that the appellants were renting was land appurtenant to new buildings erected

after 1954, and therefore was excluded by the Order from the application of the rent restriction

regime that then existed. That part of the order makes no distinction between new buildings

erected by the landlord or by the tenant. Lands rented by the appellants, appurtenant to the

appellants’ buildings, were therefore excluded from the protection of the Rent Restriction Act. If

it were not there would be no need for the words together with the land appurtenant thereto.

The Analysis of the Evidence

37. The trial judge found that the agreements with the Andrews were described in the witness

statements of the appellants as follows:

a. That they would at their own expense clear a parcel of undeveloped land in hilly and

undeveloped terrain, prepare it and build their home on it,

b. That they would be responsible for all the physical infrastructure necessary for them to build

their homes and to maintain the land;

c. That they would pay a small land rent and;

d. That in the future they would have the right to purchase the occupied parcel of land at its

open market value as undeveloped lands without the value of their homes and

improvements, and that the open market value of the land would be assessed as at the date

of the entry into occupation. This term is disputed – and is referred to as the disputed term.

Whether misdirection

38. The trial judge rejected the inference that she was asked to draw from the permanence of

the buildings erected on building land, and the money expended by them in this regard, on the

Page 16 of 42

basis that the claimants/ appellants were simply tenants of building land under the Land

Tenants (Security of Tenure Act) 1981 and its predecessor the Rent Restriction Act. See

paragraph 65 of the judgment8

39. However the claimants as tenants of building land were not protected by the Land

Tenants (Security of Tenure Act) 1981 at the time they entered into occupation, as that Act had

not yet been passed. Neither were they tenants of building land under the Rent Restriction Act, as

building land had been excluded from the ambit of that act by the time that the claimants built

their permanent structures. The position at law therefore was that in 1958, 1963, and 1966, when

the appellants erected their permanent homes, they were tenants of building land, but enjoyed no

statutory protection.

40. In considering that the claimants were tenants of building land under the Rent Restriction

Act, (paragraph 65 and further at paragraph 71, 72) rather than tenants of building land with

no statutory protection, the court approached the issue of the inference that should be drawn from

the permanent nature of the houses constructed from an erroneous foundation of law.

41. The reasoning continued at paragraph 72 “further the Claimants, as tenants of building

land under the Rent Restriction Act, would already have had some measure of security of

8 65. The Claimants submit that the fact of the permanence of the buildings erected on the land and the money expended by them in this regard is

evidence corroborative of the existence of the agreements. I do not agree. In my opinion the nature of the buildings on the land and the rent

receipts are equally applicable to a finding that the Claimants were simply tenants of building land under the Act and its predecessor the Rent

Restriction Act. Indeed the rationale for introducing the Act was for the protection of persons in a similar position to the Claimants: tenants of

building land who owned large buildings that were incapable of being removed without being destroyed.

Page 17 of 42

tenure.”9 But in fact they would not have had any measure of security of tenure under the Rent

Restriction Act.

42. The facts that the tenants expended monies and built permanent structures and the

inference that was to be drawn from those facts, on a balance of probabilities, given that they did

so without the benefit of any statutory protection, was a matter that the court below should have

considered in the appropriate legal context.

Rejection of the Andrews Agreement

43. The trial judge rejected the Andrews agreement:

(a) on the basis of the lack of credibility on the part of the Claimants; (b) on the basis

that the only evidence of this agreement comes from them; (c) on the basis of the lack of

support of their claim by any contemporaneous documents;(d) on the basis that the

evidence in support of their claim is equally relevant to the position as contended by the

Defendant and (e) on the basis of the inherent improbably (sic) of the story presented by

the Claimants.

9 71. Under the Rent Restriction Act there was no requirement on a landlord to clear and develop building land before renting to

tenants. This was land rented to the tenant specifically for the purpose of the erection of a chattel house used as a dwelling. For such

a tenancy therefore the Claimants would have been required to clear and develop the lands themselves and build their houses at their

own cost.

72. Why would the Andrews bind themselves to sell land to the Claimants at a price fixed at the value of the land as undeveloped in

1958 to 1963. What benefit would the Andrews have obtained from this agreement. There is no suggestion that the rent charged by the

Andrews was more than the usual rentals obtained at the time. Indeed if Gomez is to be believed this was a cheap rent. Further the

Claimants, as tenants of building land under the Rent Restriction Act, would already have had some measure of security of tenure.

Why would this agreement have been necessary.

Page 18 of 42

Credibility

44. While the judge found that the testimony of the appellants was not credible, with respect

to the appellant Gomez she found that she was not really shaken in cross examination.

Although the witness statement was not her language, and the action by her was not prompted by

a desire to purchase the land, but rather was prompted by the demand made by the Respondent

for possession, the real problem with her evidence was considered to be the inherent

improbability of the evidence as it related to the agreement.

45. In particular it should be noted that in turn a significant aspect of that improbability

relates to the Andrews allegedly binding themselves to sell to the appellants at the value of the

land as undeveloped in 1958 to 1963. (See paragraph 72 footnote 6) as the other aspects of the

Andrews agreement as found by the trial judge are uncontroversial and in fact undisputed. Those

other aspects (the undisputed aspects) were:-

a. That they would each at their own expense clear a parcel of undeveloped land in hilly

and undeveloped terrain, prepare it, and build their home on it,

b. That they would be responsible for all the physical infrastructure necessary for them

to build their homes and to maintain the land;

c. That they would pay a small land rent.

46. It was the remaining terms therefore that were found to be inherently improbable, namely

that:-(i) in the future they would each have the right to purchase the occupied parcel of land at its

open market value as undeveloped lands without the value of their homes and improvements,

Page 19 of 42

and (ii) that the open market value of the land would be assessed as at the date of the entry into

occupation. (See paragraph 39 of the judgment)

47. As to the other reasons given by the trial judge for rejecting the Andrews agreement,

namely:-

(b) that the only evidence of this agreement comes from them – it would not be surprising

that they were the only witnesses available to this agreement given the significant time that

elapsed since their alleged arrangements with the Andrews, and the fact that the Andrews are

now deceased.

(c) the lack of support of their claim by any contemporaneous documents - it is correct that

there was no contemporaneous documentation in support of their claim. Neither the rent

receipts, nor the deed of conveyance from the Andrews to the respondent’s father make

reference to any such agreement. However these are not documents in which an option to

purchase, or an understanding that one existed, would realistically be expected to be

recorded.

Further, the lack of contemporaneous documentation of an understanding that the appellants

could purchase the land in the future would not be surprising given the relationship among

these parties, as well as the fact that they would not realistically have been in a position to

have their arrangements with the Andrews recorded in sale documentation to Haniff.

Page 20 of 42

(d) that the evidence in support of their claim is equally relevant to the position as contended

by the Defendant

This amounts to a recognition that the undisputed aspects of the Andrews agreement, as

recorded at paragraph 39 of the judgment, are common to all parties uncontroversial and do

not carry the matter any further.

(e) The inherent improbability of the story presented by the Claimants

We are of the view that while it was open to the trial judge to reject the agreement in the

exact terms alleged by the appellants, it did not automatically follow that their claim to each

be a beneficiary of a proprietary estoppel in their favour with respect to the land occupied by

them must fail. While the alleged agreement was an important aspect of the appellants’ case,

it was not the entirety of their case. (See paragraph 75 of the judgment)10

48. The improbability of the Appellants’ story emanated from their insistence on the disputed

term in its entirety, which included an alleged agreement on price at which the alleged option to

purchase was to be exercisable.

49. It was entirely open to the trial judge to find that the term as to price was inherently

implausible and the evidence in support of it lacking in credibility. But having rejected the

disputed term the court was required to consider the remaining objective and undisputed

evidence in the context of the then existing legal framework, and to consider in particular, the 10 Taking all these facts into consideration that is: (a) the lack of credibility on the part of the Claimants; (b) that the only evidence of this

agreement comes from them; (c) the lack of support of their claim by any contemporaneous documents;(d) that the evidence in support of their

claim is equally relevant to the position as contended by the Defendant and (e) the inherent improbably (sic) of the story presented by the

Claimants. I do not accept the evidence of the Claimants’ as to the agreement made between them and the Andrews. In those circumstances the

Claimants’ claim to each be a beneficiary of a proprietary estoppel in their favor with respect to the land occupied by them fails.

Page 21 of 42

significance of the erection of permanent structures and the continuing investments therein by

the appellants upon their entry into the disputed parcels, together with the acquiescence therein

by the Andrews and Haniff.

50. There was undisputed evidence, independent of the Andrews agreement in its entirety

that needed to be considered and assessed, once this could be done in conformity with the

pleadings. We are of the view that the learned trial Judge ought to have disaggregated the

disputed terms from the undisputed terms and assessed the evidence in that context.

Issue 2

Whether the appellants have raised, or if they have not, can they now raise arguments in

relation to proprietary estoppel by acquiescence arising separate and apart from the

Andrews agreements

51. As indicated previously, the trial judge held at paragraph 32 (all emphasis added) that:

32. With respect to the claim in estoppel and adverse possession the burden of proof is on

the Claimants. With respect to the estoppel claimed the case stands or falls on whether

the Claimants have proved the existence of the agreement relied upon by them …

52. However the case would not stand or fall on this basis. Although the appellants based the

majority of their efforts on the frontally pleaded case that the Andrews agreement gave rise to

equitable rights based on proprietary estoppel based on the alleged agreement with the Andrews,

inclusive of the disputed term, an alternative case was sufficiently raised on the pleadings, and

moreso in the evidence, namely, that the Respondent’s father and the Respondent himself

acquiesced in the belief by the appellants, (howsoever derived), in the permanence of, and

Page 22 of 42

security of their tenure. That argument was telegraphed at page 64 of the transcript in the

submissions of Mr. Maharaj on December 10th 2014, and appears from the pleadings at

Paragraph 10.3, 10.9, 11.21, 12.5 and 17 of the statement of case. (By for example, references to

inducement by conduct and pleading that the appellants were “led to believe”).

Issue 3- Whether the findings the findings of the trial judge should yet stand or whether on

the undisputed facts there is a basis for examining whether proprietary estoppel by

acquiescence existed

Option to purchase

53. We are of the view that the trial judge misapprehended the extent of statutory protection

that was available to the appellants at the time they each constructed their permanent homes. In

turn this informed the conclusion that the permanence of the houses that they constructed could

not be based on an option to purchase or the belief in an option to purchase the land.

The appropriate inference

54. Given that the appellants did not have any measure of protection under the Rent

Restriction Act, we are therefore constrained to revisit the issue in light of the actual legal

position. We therefore need to consider what would have been the appropriate inference to draw

from the permanence of the buildings erected on the land and the subsequent improvements

thereto, acquiesced in by the Respondent and his predecessors. Any such inference of course

must be on the undisputed evidence and consistent with the case as pleaded.

Page 23 of 42

55. Given that the appellants did not enjoy statutory security of tenure it must be considered

what, on a balance of probabilities ,could account for the fact that the appellants each constructed

permanent structures upon their entry into occupation of the respective portions and proceeded

thereafter to invest in renovations and improvements to the extent that the houses are now worth

respectively $920,000.00, $295,000.00, and $1,425,000.00, observable by the Andrews and

Haniff, and even the Respondent, without protest.

56. Such construction from inception, and subsequent development of, and expenditure

upon the land and structures thereon was not compatible with a belief that the tenancy granted to

them was subject to termination by 6 months’ notice as a simple yearly tenancy. The appellants

and the Andrews were not strangers to each other as described previously. Their occupation in

that context could not be considered to be a purely commercial relationship of landlord and

tenant.

57. Such belief was either encouraged by the respondent’s father and the Andrews, or at the

very least, must have been acquiesced in by them, as they stayed silent and permitted, without

protest, the expansions and renovations of the permanent structures that the appellants

immediately proceeded to erect on the respective parcels.

58. The Appellants testified that they were each given by the Andrews an option to purchase

the respective portions of land which they were allowed to occupy. Based on their belief in that

option they deferred the actual purchase of the land, but invested instead in the development of

the land and the construction of their respective permanent dwelling houses. They also invested

Page 24 of 42

in the renovation and extension of those dwelling houses. Given the undisputed facts, and the

actual statutory framework, the rejection of their evidence in this regard by the trial judge is not

supportable.

59. The following are all matters that required consideration (a). in the context of the issue of

whether, on a balance of probabilities, there could have yet been the offer of security of tenure

by an option to purchase the rented land some day, whatever the price, and, if so (b). the issue

of proprietary estoppel by acquiescence:-

i. the fact that they were not strangers to the Andrews or to Haniff, or even the Respondent,

ii. the fact that they immediately developed the land and invested in and constructed permanent

and irremovable structures on the rented land,

iii. the fact that their further expansions and renovation resulting in accrued value of those

structures in the amounts of $920,000.00, $295,000.00, and $1,425,000.00,

iv. without the objection of the Andrews, Haniff, or the Respondent.

The disputed term – The alleged option to purchase the land at the price prevailing at the time of

their respective entries

60. The actual content of the alleged option to purchase was found to be not credible – in

particular the specific right to purchase at the value of the unimproved land at the time of the

agreement to let the Appellants into occupation. We agree that that was a finding on the evidence

open to the trial judge. There is no basis to interfere with the findings of fact of the trial judge in

relation to her rejection of the price at which the alleged option to purchase the land was to be

Page 25 of 42

exercised, namely, at the price prevailing at the time of their respective entries (or the time of

agreement).

61. However even if that aspect of the disputed term of the Andrews agreement were not

proved, the trial judge erred in a. misapprehending the statutory protection that applied to the

appellants at the time of their respective entries, and b. in that statutory context failing to

appreciate the significance of the permanent nature of the houses that were constructed

immediately upon their entry into occupation, and c. acquiescence thereto.

62. Even without accepting all the alleged terms of the Andrews agreement we are of the

view that on the undisputed aspects of that agreement, (leaving aside the disputed term as to the

price at which the land was allegedly to be sold under the option to purchase), there was

sufficient material to support a finding that there was in fact an option to purchase, whatever its

specific content.

63. If that consideration had occurred in the correct statutory and family context it is unlikely

that the trial judge would have made the findings at paragraph 66 of the judgment in relation to

the significance of the permanent nature of the dwelling houses that were constructed.

64. It is common ground between the parties that:

a. There was an agreement between the Andrews and the appellants that they enter into and

occupy the parcels of land that they now occupy, (save for the additional strip occupied

and claimed by the 3rd named appellant);

Page 26 of 42

b. The appellants were tenants of their respective portions and paid rent;

c. The appellants did enter into possession and did construct permanent structures after the

agreement with the Andrews;

d. The respondent’s father Haniff purchased the land with notice of their occupation as

tenants and notice of the permanent nature of the structures that they had erected, and

continued to expand. .

e. The respondent’s father accepted the occupation of the appellants and accepted rent from

them.

f. These parties were not strangers to each other and alleged agreements between them had

to be considered in that context. The first named appellant was related in various ways to

the Second named and Third named appellants. (Paragraph 4 of her witness statement).

Haniff was the uncle of the first named appellant and the half brother of the Second

Appellant’s husband (See for example - Paragraph 10 of her witness statement and page

268 – Core Bundle). Elvina Andrews was the cousin of the Second Appellant’s husband.

g. The permanent nature of the dwellings constructed, their extensions, and their

renovations were never an issue among them.

65. If that consideration as to the significance of the permanent nature of those houses had

occurred in the correct statutory context then it would have been necessary to consider the

relevant factors, namely that:-

a. the appellants immediately proceeded to construct permanent dwelling houses on the

respective portions,

Page 27 of 42

b. that at least the first and second named appellants were related or connected in some way to

the Andrews and to Haniff, and

c. that they were making extensions and improvements to the land and those structures such that

they were now of substantial value, without protest by the Andrews or Haniff, or even the

respondent.

66. The inference that arises from the correct statutory context, and the consideration of the

relevant factual context, would not be as found at, inter alia, paragraph 66 of the judgment.

67. The inference that arises on a balance of probabilities from those factors would rather

be:-

a. The appellants enjoyed no statutory protection or statutory security of tenure at the time

that they constructed their homes.

b. These parties were not strangers to each other, and alleged agreements between them had

to be considered in that context.

c. The investment in permanent structures at the inception of their occupation would more

likely than not, be based on a perception of security of tenure greater than that of a yearly

tenant, expellable at 6 months’ notice.

d. Such a perception of security of tenure would be consistent with an option to purchase

given to them by the Andrews, even if not under the same terms as they sought to portray

as to the price at which that option could to be exercised.

e. The Andrews, and subsequently Haniff, did not ever attempt to serve them notice to quit

despite seeing the structures erected, and the subsequent improvements. This fact is

Page 28 of 42

independent of any consideration as to the specific improvements or expenditures alleged

or proved as the trial judge found that the values of the houses were as set out above.

f. The likelihood in this specific case of the alleged option to purchase giving rise to

estoppel by acquiescence, when the Andrews, and then Haniff, stood by while relatively

significant expenditures (given the appellants’ means), were incurred before 1981 on

permanent structures.

68. Those being matters common to the parties the appellants’ occupations, in addition to

pure tenancy rights, had in addition, the indicia of proprietary estoppel by acquiescence. This is

so whether or not all the terms of the Andrews agreement are accepted.

Law -Proprietary estoppel by acquiescence

69. Apart from proprietary estoppel based on a promise it is well established that proprietary

estoppel can arise also from conduct and acquiescence. See for example Snell’s Principles of

Equity 33rd Ed. Para. 12-034.

70. 12-034 (all emphasis added)

(a) An acquiescence-based principle

In Fisher v Brooker, (2009 UKHL 4) Lord Neuberger stated that: “The classic example

of proprietary estoppel, standing by whilst one’s neighbor builds on one’s land believing

it to be his property, can be characterized as acquiescence”.

The principle is certainly long-established: its operation can be seen, for example, in

The Earl of Oxford’s case. It applies where B adopts a particular course of conduct in

reliance on a mistaken belief as to B’s current rights and A, knowing both of B’s belief

Page 29 of 42

and of the existence of A’s own, inconsistent right, fails to assert that right against B. If B

would then suffer a detriment if A were free to enforce A’s right, the principle applies. It

therefore operates in a situation in which it would be unconscionable for A, as against B,

to enjoy the benefit of a specific right.

The application of the principle can be seen in Lord Carnworth L.C.’s statement in

Ramsden v Dyson that

“[i]f a stranger begins to build on my land supposing it to be his own, and I, perceiving

his mistake, abstain from setting him right, and leave him to persevere in his error, a

court of equity will not allow me afterwards to assert my title to the land on which he had

expended money on the supposition that the land was his own.”

71. In that example, the acquiescence principle operates so as to preclude A’s assertion of a

right and it can therefore sensibly be seen as an example of “proprietary estoppel”. Nonetheless,

decisions such as Ramsden that developed the principle made no reference to estoppel and the

principle can certainly apply even in the absence of any specific representation or

communication made by A to B. It also seems, moreover, that it can operate not only so as to

impose an equitable restraint on A’s assertion of a right, but may also be capable of imposing a

liability on A and thus lead, for example, to A’s being ordered to grant B a particular right……

72. Further, this applies even in relation to persons who entered into occupation as tenants,

provided that there exists a foundation of fact to support a contention that they were not tenants

simpliciter, but had been led to believe that their interest and security of tenure was in excess of

that of yearly tenants.

Page 30 of 42

73. The issue of estoppel by acquiescence is available on the pleadings and moreso on the

evidence, and this is independent of the alleged and disputed option to purchase under the

Andrews agreement to purchase the land at its historical market value. Further, this is so even

though the appellants entered into occupation as tenants, as there exists a foundation of fact to

support a contention that they were not tenants simpliciter, but had been led to believe that their

interest and security of tenure was in excess of that of yearly tenants.

74. In Ramsden v Dyson (1866) LR HL 129 (1866) at page 170 Lord Kingsdown stated as

follows:

“If a man, under a verbal agreement with a landlord for a certain interest in land,

or, what amounts to the same thing, under an expectation, created or encouraged

by the landlord, that he shall have a certain interest, takes possession of such

land, with the consent of the landlord, and upon the faith of such promise or

expectation, with the knowledge of the landlord and without objection by him,

lays out money upon the land, a Court of equity will compel the landlord to give

effect to such promise or expectation.”

(Although this was a dissenting judgment it was adopted and approved by the Privy

Council in Plimmer v. Wellington Corporation (1884) 9 A.C. 699 and applied in

Inwards v Baker infra11.)

11 That principle was applied even in relation to licensees in the case of Inwards v Baker [1965] 2 Q.B 229 at pages 36 to 37 where Lord Denning

MR stated, in relation to a licencee (all emphasis added) :

(footnote “We have had the advantage of cases which were not cited to the county court judge - cases in the last century, notably Dillwyn v. Llewelyn and Plimmer v. Wellington Corporation. This latter was a decision of the Privy Council which expressly affirmed and approved the

statement of the law made by Lord Kingsdown in Ramsden v. Dyson. It is quite plain from those authorities that if the owner of land requests

another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity.”

So in this case, even though there is no binding contract to grant any particular interest to the licensee, nevertheless the court can look at the

circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not

Page 31 of 42

75. It is clear that when the appropriate inference is drawn within the appropriate legal

framework, the issue of estoppel by acquiescence is available on the pleadings and moreso on the

evidence. On the undisputed evidence in this case it is clear from the permanence of the

structures constructed and the fact that they were constructed so shortly after entry into

possession that the appellants expected that they enjoyed a security of tenure far greater than that

associated with a yearly tenancy, determinable by six months’ notice to quit.

76. The respondent and his predecessors in title stood by without any evidence of objection

while the appellants proceeded to constructed permanent structures on the land, and proceeded to

further renovate, extend and improve those structures such that in one case one house is now

valued in excess of one million dollars. It is therefore clear that that expectation was encouraged

by the respondent and all of his predecessors in title, who had knowledge and were well aware

of the investments of the appellants in their homes.

77. It is also clear that there was a continued lack of objection from them all to those

investments in permanent structures and infrastructure. By such investments and residence in

those homes for approximately 50 years, they have restricted their options for alternative

accommodation elsewhere in their twilight years. Clearly therefore they have acted to their

detriment. This is a classic example of acquiescence, such that a court of Equity will compel the

Respondent to give effect to such expectation. Such estoppel by acquiescence is independent of

allow that expectation to be defeated where it would be inequitable so to do. In this case it is quite plain that the father allowed an expectation to

be created in the son's mind that this bungalow was to be his home….

…. So here, too, the present plaintiffs, the successors in title of the father, are clearly themselves bound by this equity. It is an equity well recognised in law. It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as the result of

that expenditure, he will be allowed to remain there. It is for the court to say in what way the equity can be satisfied. … footnote )

Page 32 of 42

the alleged and disputed option to purchase under the Andrews to purchase the land at its

historical market value.

Issue 4- If the answers to issues 1 and 2 are in the affirmative have the appellants

established that they are entitled to any equitable interests

78. The appellants have lived on the land for over 50 years and spent monies developing it to

the extent that the value of the house of the first claimant in 2013 was $920,000.00, that of the

second claimant was $295,000.00, and that of the third claimant was $1,425,000.00. Clearly

expenditure giving rise ultimately to such accrued value, in the circumstances of a belief in an

option to purchase, must give rise to an equitable interest.

Issue 5- If they have what is the nature of any such interest

Quantifying the interest - The minimum equity

79. In Esther Mills v Lloyd Roberts C.A. Civ T243/2012 per the Honourable Jamadar JA,

the guidelines of the Privy Council in Theresa Henry v Calixtus Henry Privy Council Appeal

No. 24 of 2009 at paragraph 25 were adopted and applied as follows:-

25. The Privy Council in Theresa Henry and Anor. v Calixtus 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:

(i) The court should adopt a cautious approach.

(ii) The court must consider all of the circumstances in order to discover the minimum

equity to do justice to the claimant.

Page 33 of 42

(iii) The court however enjoys a wide discretion in satisfying an equity arising from

proprietary estoppel.

(iv) 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.

(v) 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.

(vi) Though in the abstract reliance and detriment may be regarded as different concepts,

in applying the principles of proprietary estoppel they are often intertwined.

80. The issues of detriment, reliance, and unconscionability were considered to be relevant in

determining the extent of the minimum equity. See Esther Mills at paragraph 26:-

Sir Jonathan Parker in Theresa Henry’s case also drew extensively from Lord Walker’s

discussion of proprietary estoppel in Gillett v Holt, Jennings v Rice and Cobbe v

Yeoman’s Row Management Ltd, adopting approvingly the following observations:

Reliance and detriment are often intertwined. However, the fundamental principle that

equity is concerned to prevent unconscionable conduct, permeates all of the elements of

the doctrine.

Page 34 of 42

(ii) Detriment is not a narrow or technical concept; it need not consist of the expenditure

of money or other quantifiable detriment, so long as it is substantial.

(iii) Whether the detriment is sufficiently substantial is to be tested by whether it would be

unjust or inequitable to allow the assurance to be disregarded; in this regard, the

essential test is unconscionability.

(iv) The aim of the court in satisfying an equity arising from a proprietary estoppel is to

decide in what way the equity can be satisfied in the context of a broad inquiry as to

unconscionability.

81. The weighing process therefore involves weighing any disadvantages suffered by the

appellants by reason of reliance on the respondent’s inducements or encouragements against any

countervailing advantages enjoyed by the appellants as a consequence of that reliance.

82. Disadvantages suffered by the appellants – two of the appellants had lived on the

disputed parcels of land for over 50 years at the time that possession was sought against them.

One had been in occupation for 48 years. Effectively they have spent the majority of their lives

on those parcels and they are each elderly persons. As a result of their belief that they had the

security of tenure arising from an option to purchase the freehold of those lands, they chose to

stay there and develop the lands and invest their resources in those houses. They each invested

their resources in what they considered to be their permanent homes. There is no evidence that

anyone ever told them otherwise. They openly renovated, extended, and invested in those

houses, to the extent that they are now valued at $920,000.00, $295,000.00, and $1,425,000.00

respectively. The physical, financial and psychological dislocation, (which as a matter of logic

Page 35 of 42

and common sense can be inferred), that would result from not giving effect to their expectations

as to a right to purchase the land on which those houses stand, are likely to be devastating.

83. Advantages enjoyed by the appellants - the appellants have had the advantage of

occupation of those lands at modest land rents, for approximately 50 years, and the landlords

have not had any benefit from those lands. But that is the bargain that the Andrews, and the

Respondent, and the Respondent’s father accepted. It is therefore not really a consideration

which can outweigh the disadvantages set out above.

84. It is for the court to quantify any equitable interest based on the specific circumstances

established on the evidence. The Appellants denied strenuously that any statutory tenancy

existed. They claim a right to purchase their respective portions at a price reflective of the value

of each when each went into occupation.

85. That price was rejected by the trial judge and we decline to interfere with that finding of

fact on the price at which the option was to be eventually exercised.

86. However after construction of homes and occupation of premises for over 50 years the

appellants are now elderly persons who should not at this stage of their lives have to be

dispossessed and seeking alternative accommodation.

87. Further they should have the option, in accordance with the option to purchase that was,

on a balance of probabilities more likely than not offered to them at the time of their entry into

Page 36 of 42

possession, to secure their investment in their homes within a reasonable period by purchasing

the land on which they stand.

88. We consider that, while the appellants insisted they were not statutory tenants, in the

special circumstances of this case, their situation was in practical terms, though not legal terms

similar to those of persons who were, and who had renewed their statutory tenancies.

89. They had built homes on rented land. Those homes had been occupied by them for

decades. It would be inequitable for them to have to raise finance hurriedly to purchase the land

on which their homes stand, as failure to do so within a constrained time frame could result in

loss of their homes, and negation of their equitable rights. The appellants are past their working

lives, and the opportunity should be afforded for such purchase to be made by heirs or potential

beneficiaries. While recognizing that their legal positions are not identical, the appellants, with

equitable rights, should therefore be afforded a remedy consistent with that of persons who were

statutory tenants, and who had renewed their statutory tenancies.

90. The Respondent sought to claim possession after what he considered to be the expiration

date of their alleged statutory tenancies - May 31st 2011. While the appellants were not statutory

tenants, that is the date at which the value of the land should be assessed for the purpose of any

option to purchase.

91. Accordingly in the circumstances, it would be consistent with equity to give effect to an

option to purchase, giving further effect to the security of tenure that they have enjoyed for over

Page 37 of 42

50 years, and declare and quantify their interest to be a tenancy for a 15 year period

commencing May 31st 2011 with an option to purchase the parcels of land on which their

houses stand, by themselves, or their heirs or assigns, at any time within that period at half of the

market value as at May 31st 2011.

Issue 6- Has the third named appellant established title by adverse possession in relation to

a smaller portion of land comprising 2500 square feet or even 741 square feet?

92. We are of the view that there is no basis in revisiting or overturning the findings of fact

that the trial judge made on this issue in relation to this appellant for the reasons set out in her

judgement.

93. The discrepancy between the area of land claimed and the area revealed on survey, the

unlikelihood that the area could have been much more than the 6 foot width of the water tank

which was placed on it, the unlikelihood that the topography of the area in dispute permitting

cultivation or the type of cultivation claimed, all adverted to in the judgment, are matters for the

trial judge assessing the weight and credibility of the testimony. On the basis of the principles

set out in Beacon and Harracksingh we decline to revisit those findings in that regard.

Conclusion

94.

i. As to the first issue, the findings made and inferences drawn by the trial judge on

the undisputed evidence in relation to the Andrews agreement can be revisited.

Page 38 of 42

ii. As to the second issue, the appellants can raise, and in fact had raised at trial,

arguments in relation to proprietary estoppel by acquiescence, separate and apart

from the alleged terms of the Andrews agreement;

iii. As to the third issue, on the undisputed facts there is a basis for examining

whether proprietary estoppel by acquiescence existed;

iv. As to the fourth issue the appellants have established that they are entitled to an

equitable interest in their respective parcels;

v. As to the fifth issue the interest that the appellants have established is a

continuing tenancy which we have assessed as one of 15 further years from May

31st 2011, with an option to purchase, as reflected in our order;

vi. As to the sixth issue we decline to reverse the finding of fact of the trial judge

that the third named appellant has not established title by adverse possession in

relation to a smaller portion of land that he claims comprising 2500 square feet.

95. The findings made and inferences drawn by the trial judge on the undisputed

evidence in relation to the Andrews agreement can be revisited, in so far as they were based

on an assumption that the appellants were protected by the Rent Restriction Act, which

protection influenced their choice to erect permanent structures on the land they rented. This was

based on a misapprehension of law, as that Act had been excluded in its application to dwelling

houses constructed after 1954 by virtue of the Rent Restriction (Exclusion of Premises) Order.

96. This misapprehension in relation to the appellants alleged security of tenure under the

Rent Restriction Act was a material factor in the court’s assessment of:

Page 39 of 42

(i) the significance of the permanent nature of the structures that the appellants proceeded

to erect, and

(ii) the likelihood that erection of and investment in such structures would be based on a

belief in entitlement to some security of tenure, arising out of an agreement with the

Andrews, and the subsequent conduct of the Andrews and Haniff.

97. In fact the appellants’ belief in or actual security of tenure, further to that then associated

with annual tenancies, could only arise from agreement with, or representation, by the Andrews,

as there was no alternative statutory protection at that time. As such security of tenure could

not have arisen at the time of their respective entries through legislation, the likelihood, on a

balance of probabilities, of agreement with the Andrews on an option to purchase as contended,

must be reassessed.

98. On the undisputed facts as set out above, a belief by the appellants in an entitlement to

security of tenure by their ability to eventually purchase the land, giving rise to their erection of,

and continued investment in, permanent structures in formerly undeveloped, hilly, and forested

terrain and their subsequent investments therein, is consistent with an agreement with the

Andrews on an option to purchase as contended. In fact, on a balance of probabilities, such an

option to purchase is more likely than not. The substantial investments over the years in the

houses such that they are now valued at $920,000.00, $295,000.00, and $1,425,000.00

respectively, can hardly be explained otherwise.

Page 40 of 42

99. The trial judge cannot be faulted in dismissing as inherently incredible the embellishment

on the price in that option to purchase alleged for the reasons that she did, including the alleged

right to purchase the land at its value at the time of the alleged agreement with the Andrews.

However, shorn of the disputed term, there was still sufficient material on the appellants’ pleaded

case, and sufficient evidence, based on the undisputed facts and the actions of the appellants, to

substantiate the allegation that an option to purchase had in fact been conferred on the appellants,

unembellished by the details alleged as to its price.

100. The misapprehension of law identified above, coupled with the appellants’ focus and

emphasis at trial on establishing the price at which it is alleged the option to purchase was to be

exercised, led the trial judge to fail to fully appreciate the significance of the appellants’

willingness and readiness (i) to immediately construct permanent structures in that difficult

terrain and (ii) thereafter to expand and renovate them with (iii) the acquiescence of both the

Andrews and the respondent’s father when he later became the owner.

101. While this may have been the situation of many tenants of land, who erected permanent

structures on rented land in which they had a limited interest at best, in this case the parties were

all related.

102. Their assertion that the appellants were the beneficiaries of an option to purchase,

whatever its terms, was (a) consistent with the relationship among the parties, and (b) fortified

by the actions of the appellants in constructing permanent homes, consistent with a belief in a

security of tenure, (which had not been conferred by statute at the time that they constructed

Page 41 of 42

their homes), and (c) consistent with the acquiescence of the Andrews, Haniff, and even to some

extent the Respondent, in the expansions and renovations of the appellants’ houses.

103. The circumstances under which they went into occupation were not disputed save as to

the specific terms of the Andrews agreement, and in particular the specific price alleged in the

disputed term. However the acceptance of the specifically pleaded price at which the option to

purchase was to be exercised (at historical values), was not a finding essential to the appellants

nevertheless establishing a. an option to purchase simpliciter (unembellished by the allegation

that the price at which that option was to be exercised was the historical value of the land as

undeveloped land at the time of the agreement), and /or b. equitable rights which both predated

and survived the Land Tenants (Security of Tenure) Act.

104. Further, and /or in the alternative, even in the absence of such an inference, on the

undisputed facts there was sufficient to satisfy the evidential and legal requirements of

proprietary estoppel by acquiescence, such as to give rise on that basis also to equitable rights in

the appellants.

Order

105. It is declared that the appellants are each entitled to a tenancy for a 15 year term

commencing May 31st 2011 with an option to purchase the parcels of land on which their

houses stand, (as described in paragraph 2 of the claim form filed on July 22nd 2014), by

themselves, or their heirs or assigns, at any time within that term at half of the market value of

Page 42 of 42

the land as at May 31st 2011, as assessed by an independent valuator agreed by the parties, or in

default, nominated by the Registrar of the Supreme Court.

Dated April 26th 2017

…………………………………..

Peter A. Rajkumar

Justice of Appeal