REPUBLIC
OF TRINIDAD AND TOBAGO
IN
THE COURT OF APPEAL
Cv.
App. No. 90 of 1999
BETWEEN
AND
M.A. de la Bastide, C.J
M. Warner, J.A.
R. Nelson, J.A.
DATE
DELIVERED:
NOVEMBER 7th , 2001
JUDGMENT
Judgment
delivered by M.A. de la Bastide, C.J.
The appellant, who is an American, brought this action against the respondents, who were husband and wife, but have since divorced. The action was brought to establish a half-share interest of the appellant in a property at Mt. Irvine which comprises something over fourteen thousand square feet of land on which a house has been built.
The appellant and the first respondent, that is the respondent husband, worked together in New York and had an affair which lasted from about 1982 to 1989 or 1990. Throughout the affair the respondent husband was married to the second respondent but this was not known to the appellant.
In fact in 1989 it appears that the appellant became engaged to be married to the first respondent although he was at that time himself married. The respondents were divorced in 1991. The discovery of the existence of a wife was made by the appellant in or around late 1989. During the subsistence of the affair the appellant and the respondent husband vacationed together from time to time in the Caribbean. Both were living in New York. They decided that they wanted to buy a property in the Caribbean and chose a property at Mount Irvine in Tobago.
On the Judge’s findings of fact, the appellant contributed some U.S. $25,000 towards the purchase of the land and the construction of a house on it. The understanding of the appellant, created by the respondent husband, was that she was unable by law to acquire an interest in the property and that the property would be acquired in the name of the respondent husband, and to the extent that she did not provide the necessary monies for purchase and construction, these would come from the respondent husband.
Well, so far as the legal position is concerned, that understanding was correct, because under the then existing Aliens’ Landholding Act Chapter 58:02, an alien was forbidden to hold land in Trinidad and Tobago without having obtained a licence permitting him to do so. The appellant had no such licence. It was also expressly provided in Section 15 of that Act that it was illegal to hold land on trust for an unlicensed alien.
Unknown to the appellant, however, the property was not bought in the name of the husband alone, but a conveyance was taken in November 1987 in the names of both respondents. It also appears, as the Judge found, that the monies for the purchase of the property were provided, in part at any rate, by or from a joint account in the names of both respondents.
There was a sharp conflict of evidence as between the appellant and the respondent husband as to whether the appellant had in fact provided any monies at all for the purchase of the land and the building of the house. The learned trial Judge resolved that dispute in favour of the appellant; he held that she had contributed U.S. $25,000. The purchase price of the land as documented in the deed of conveyance was $80,000, Trinidad and Tobago currency, and the evidence of the husband, unsatisfactory though it was, was that about $175,000 had been spent on the construction of the house, making a total cost for land and building of $255,000.
The learned trial Judge having found all the material facts in favour of the plaintiff, nevertheless declined to grant her the relief which she sought, namely a declaration that she was entitled to a half-share interest in the property. He felt unable to do so because he thought he was constrained by a consent order made in certain proceedings between the respondents. These were proceedings No. 223 of 1991 in which a consent order was made by Mr. Justice Blackman on the 9th November, 1983. In those proceedings the wife was the plaintiff and the husband was the defendant, and by consent Mr. Justice Blackman on the 9th November, 1993, ordered that the property be sold and the proceeds of sale divided between the husband and wife equally.
It is remarkable that it did not occur to anyone, either Counsel or the learned Judge, that this order could have no effect whatever on such rights as the appellant might have in the property for the simple reason that she was not a party to the proceedings in which the order was made. This point was raised by this Court in the course of argument and was adopted by counsel for the appellant and introduced by him with the leave of the Court by way of amendment of his grounds of appeal. Clearly, the Judge was wrong to have denied the appellant the relief which she sought on the basis of that order.
On the other hand, however, there was a major barrier to the Court granting that relief, which again was not adverted to by anyone. Indeed not only was this point not raised in the pleadings or at the trial, it was not raised either on appeal until the Court in this instance as well, first raised it with Counsel. It is the question of illegality, given the provisions of the Aliens’ Land holding Act to which I have referred. It would have been a violation of that Act for the Court to have recognised the existence of any trust over this land in favour of the appellant an unlicensed alien.
The Aliens’ Landholding Act was in force until it was repealed in 1990 by the Foreign Investments Act No.16 of 1990. I do not think that we can ignore the provisions of the Aliens Landholding Act. Clearly, if we were to declare that the appellant was entitled to any interest in this land under some form of trust arising out of her contribution to the cost of purchasing the land and building on it, we would be flying in the face of the provisions of that Act.
Although the issue of illegality has not been raised by any of the parties, I feel that we are under an obligation to raise it ourselves and to refrain from making any order or giving any judgment that would be in conflict with the provisions of that Act. This means that the Judge was right, though for the wrong reason, to deny any interest in the land to the appellant. The question is whether we ought in those circumstances, to uphold his order for the repayment of the $25,000 U.S. with interest by the respondent husband to the appellant. I think that we can and should do so, even though no alternative claim for repayment of the money was pleaded. It may be that if the plea of illegality had been raised in the defence, counsel for the plaintiff might have been sufficiently alarmed by that, to have framed by way of an amendment of the Statement of Claim an alternative claim for the recovery of the money paid by her.
It seems to me that such a claim could be based on the fraud of the respondent husband. He succeeded in getting this money from the plaintiff on the basis of a whole fabric of lies and promises which he never intended to keep and did not keep. He got the money from her, first of all, on the pretence that he was going to marry her and that he was unmarried at the time. Clearly, that was a false pretence. Also, he falsely pretended that he was going to provide the balance of the money himself and take the conveyance in his name. That also was a false pretence.
Clearly, the justice of the case requires that the order for the repayment of the money should stand, and I consider that there is a solid foundation in law, given the facts found by the learned trial Judge, for making such an order.
In the result, I would dismiss the appeal and the cross-appeal of the respondent husband and affirm the orders made by the learned trial Judge.
The orders which we confirm are that the first respondent, that is the husband, pay the plaintiff the sum of $25,000 U.S. currency, with interest on that sum from the 3rd November, 1992, which is the date of the writ, at a rate of interest of six per cent per annum.
Secondly, we confirm the orders for costs made in the Court below, that is, that the first respondent pay the plaintiff’s costs in the Court below, but that the plaintiff pay the second respondent’s costs in the court below. Given the mistakes that have been made on both sides in relation to this matter, and more especially in the appeal, we make no order as to the costs of the appeal.
JUSTICE WARNER: I agree with the Judgment of the learned Chief Justice.
JUSTICE NELSON:
I also agree.
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