Ramroop v Ishmael
| Jurisdiction | UK Non-devolved |
| Judge | LORD WALKER |
| Judgment Date | 21 July 2010 |
| Neutral Citation | [2010] UKPC 14 |
| Date | 21 July 2010 |
| Docket Number | Appeal No 0114 of 2009 |
| Court | Privy Council |
[2010] UKPC 14
Privy Council
Lord Rodger
Lord Walker
Lord Brown
Lord Kerr
Sir John Dyson SCJ
Appellant
Sir Fenton Ramsahoye SC
(Instructed by Bankside Law Limited)
Respondent
Not represented
The only issue in this appeal is whether the appellant, Rosalind Ramroop (otherwise Rosalind Sampson), has obtained a title by adverse possession to a dwelling-house at 22 Union Road, Marabella (her pleaded case is a claim to the whole house but the Board has also considered whether she has established a claim to part of the house). The appellant was the sole plaintiff in the proceedings, which were commenced as long ago as 1994. Initially the sole defendant was John Ishmael (now the first respondent), one of the persons whose claims to the freehold title the appellant is seeking to displace. The proceedings raised other issues which are no longer live, including a claim based on proprietary estoppel (which failed at trial and has not been pursued on appeal) and a claim for compensation for materials and labour contributed to the improvement of the property by the appellant and her partner Mitchin Sampson (this claim succeeded at trial, to the extent of a little over $62,000, and there is no cross-appeal about that).
Although there is now only one live issue it is necessary to refer to some of the evidence in some detail. The appellant was born in 1942 and from the age of 8 years she lived at 22 Union Road with her aunt Sookdaya Rahim and her grandmother. They lived upstairs and her aunt's partner Archaiber (or Achiba) lived downstairs. The house was built in 1940 by Sookdaya Rahim on land rented fom Mr Gopaul. The house has been improved and extended over the years, but the evidence at trial lacked clear detail on these points. The house now has a concrete lower storey and a timber upper storey under a galvanised iron roof. The ground floor was originally divided by a partition between a parlour (which had a club licence) and Archaiber's living quarters. The upper storey contained several rooms.
There was also at one time another smaller building (sometimes referred to in the evidence as the back house) within the curtilage of the property. The appellant's evidence was that she demolished it in 1979. There was a conflict of evidence about the size of the building and the purpose for which it was used.
The devolution of the title to the property during the lifetime of Sookdaya Rahim, and for some years after her death in 1963, was not in dispute. She died intestate on 19 June 1963 leaving two daughters, Popo Rahim and Sonia Heerasingh, who were entitled to her estate in equal shares. Popo Rakim obtained a grant of letters of administration on 3 February 1964. Archaiber died in 1968 or 1970. Popo and her sister agreed to purchase the freehold of the property, the purchase price being payable by instalments, and the purchase was completed by a conveyance on 26 June 1972 under which the purchasers took as joint tenants.
The appellant's evidence at trial was that when she was 15 (that is in 1957) her aunt told her that if she continued to work well at cooking and washing she (Sookdaya Rahim) would give the property to the appellant. Her case at trial was that she had lived continuously with her aunt until her death but her aunt had not kept her promise. In cross-examination on the first day of the trial she said that she had six children, the eldest born in 1972, after she began living at the property with Mitchin Sampson.
But on the second day of the trial the appellant was recalled for further cross-examination. She gave dramatically different evidence. She said that in 1960 she had gone to stay with her mother at Kelly Village. She met a man called Boyo Poolool and had four children by him, born in 1960, 1961, 1966 and 1968. Her cousin Popo Rahim looked after the two elder children and her mother looked after the two younger ones. Boyo Poolool served a term of imprisonment between the births of the second and third children. He later met a violent death. The appellant then met Mitchin Sampson in 1970 or 1971 and they started living together at 22 Union Street. The appellant had six children with Mitchin Sampson, the first born in 1972 and the youngest born in 1983.
This new evidence effectively put an end to the appellant's claim based on proprietary estoppel, and her case on adverse possession from any date before the 1970s. It also severely damaged her credibility. Her family life was not the only matter on which she tried to deceive the court. She repeatedly asserted that she had never been a tenant of the property, despite convincing evidence to the contrary. There was also what the trial judge, Jamadar J, called "unexplained suspicion" about 23 receipt stubs having been removed from the receipt book which was put in evidence.
The judge, in a full and careful judgment reviewing the conflicting evidence, found that the appellant became a tenant of Popo Rahim (Sookdaya's personal representative) of the downstairs portion of the main house (which he referred to as the "front building") at a monthly rent of $30. It was not suggested that there was any written agreement. The judge also found that, as a matter of administration, rent receipts were made out by Mitchin Sampson, but the rents were collected by Popo Rahim herself. The judge made some important findings about the occupation of the property during the 1970s:
"I accept that there were tenants of the "front" house during the period under consideration. [The judge gave detailed reasons for this conclusion and continued] Whether there were also "renters" in a "shed" at the back of the "front" house is immaterial. What is clear is that there were tenants in the front house, one of whom was Lystra Parfitt. These tenants remained at least until the death of Popo, who one month before her death collected rent from them. That is, up to June 1977 there were tenants in the "front" house paying rent to Popo, a joint owner of the premises and [predecessor] in title to Ishmael."
The text of the judgment reads "successor" but that must be a slip.
The freehold of the property had been acquired by Popo and her sister as joint tenants. But on 28 June 1977 Popo (perhaps knowing that she was seriously ill) conveyed her interest to her partner John Ishmael. This had the effect of severing the joint tenancy. In the conveyance the property was described as being subject to the tenancies of the appellant and Lystra Parfitt.
Popo died on 21 July 1977. Her sister Sonia challenged the validity of the conveyance of 28 June 1977 in proceedings commenced in 1978. The action was dismissed in 1986 and an appeal was dismissed in 1993. Sonia Heerasingh died on 24 July 1991, while her appeal was pending. There was therefore a period of about 15 years during which the freehold title to the property was in dispute, and that may have been one of the reasons why no rent was collected after Popo's death.
The judge did not accept the appellant's evidence that Lystra Parfitt was a tenant in the "back" building until 1979, when the appellant (on her evidence) demolished that building and allowed Lystra Parfitt into the front building as a licensee, because she had nowhere else to go.
It was not until the 1980s that the appellant and Mitchin Sampson incurred expenditure on improving the property. The first significant bills for building materials produced in evidence were for $770-odd in 1982 and $5,892 –odd in 1985.
On 10 September 1992 (after Sonia's death but while the appeal on behalf of her estate was still pending) John Ishmael served formal notices to quit on the appellant and Lystra Parfitt. In 1994 John Ishmail issued ejectment summonses against both the appellant and Lystra Parfitt, but he failed to proceed with them. At trial in these proceedings counsel joined in telling the judge that 2 March 1994, the date of the ejectment summonses, must have been the end of any period of adverse possession. It is now agreed that that was erroneous, and that the right date is 24 July 1996, the date of Ishmael's counterclaim in these proceedings.
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