Court of Appeal
Civil Appeal No. 4 of 1994
8th September, 1994
KENNETH ST. L. HENRY P.
SIR LASCELLES ROBOTHAM J.A.
HORACE W. YOUNG J.A.

Mr. Welch for Appellant
Mr. Eamon Courtenay and Mrs. Denise Courtenay for Respondent

(Gazetted 25th February, 1995.)

Appeal from judgment in an action for possession and consequent order for delivery of vacant possession - Whether Appellant acquired licence coupled with an equity by reason of expenditure on house repairs and improvement - Proprietary estoppel - Conditions which must be satisfied before equity can be said to have arisen - Case not to be decided according to what seems fair and reasonable but according to legal principles - Elements not established so as to invoke equitable jurisdiction of Court - Appellant did not acquire a licence coupled with an equity - Appeal dismissed.

J U D G M E N T

This was an appeal from the judgment of Mr. Justice Singh delivered on the 25th February, 1994 upon the trial of Respondent's action in the Supreme Court for possession in which the learned Judge found for the Respondent (as Plaintiff) holding that she was entitled to possession of premises shortly described as 29 Faber's Road, Belize City and ordered Appellant to vacate those premises and deliver up vacant possession to Respondent not later than 30th June, 1994.

The facts are as follows:

On 4th August, 1973 Respondent became the beneficial owner by deed from her mother of a plot of land situate on Faber's Road in Belize City measuring roughly 235 feet by 50 feet (approximately 1320 square yards in area).

Respondent built at her own expense a small wooden house for dwelling (18 ft. by 20 ft.) constructed above ground level with front but no backstairs comprising a single room which in course of occupation was partitioned to provide two rooms, one to be used as the bedroom and the other as the kitchen. Her declared intention was to occupy the house herself because of a desire to be later on in her life in community with her brothers and sisters each of whom like herself had been given a plot of land in contiguity carved out of an entirety of 3 acres originally owned by their mother.

Following completion in or about 1975 Respondent despite her original intention gave permission to her son John King Senior to occupy the house with his family rent free and without stipulating any limit as to time. The son at that time had plans to build a house of his own in the near future. John King did NOT help his mother financially with the construction of the house but assisted the contractor as a labourer in small measure during the daytime without remuneration. He was at the time working nights as his mother's bartender in her club in Queen Charlotte Street where she lived and also had the business.

John King moved into the house according to plan together with Appellant (then his common?law wife) and their two infant children. They had for a short time lived with Respondent at her Queen Charlotte residence. John King gave up rented dwelling in order to take advantage of his mother's generosity.

Having moved in, John King added a separate room which was to be used as the kitchen. When he later left Belize for the United States, this addition was incomplete so that up to that time the addition was not being used.

On 29th September, 1977 John King left Belize for the United States with the intention as he himself put it, to improve the lot of his family. By then there were three more children. His intention was to remain in the United States for no more than 6 months. As it was to turn out he remained continuously abroad for some 12 years. When he returned, he only stayed for two weeks living then with Respondent. He returned again in 1991 when his father died. He lived then at 29 Faber's Road but only for a short time. Thereafter he went to live with Respondent at her Queen Charlotte address. He remained at least up until trial of this case.

After her common?law husband left, Appellant with the consent of Respondent because of the grandchildren remained in the house with those children, who, then of school age, went regularly to their grandmother's (Respondent) for food. This continued until 1984 when Appellant became pregnant by another man in consequence of which (according to Appellant) Respondent upon discovery "started to act strange. " Appellant not only gave birth to that child but in the course of time bore another for the same man. She and her seven children (five for John King and two for the other man) continued living in the house.

In late 1985 Respondent's daughter Hazel King obtained her mother's permission to put up a house on the same lot as that upon which the house in contention stood but was (according to Respondent) obstructed by Appellant which prompted Respondent to consult her attorneys accompanied by daughter Hazel.

As a result of that consultation Respondent's attorneys served notice to quit upon Appellant in the form of a letter dated 23rd October, 1985 addressed to her.

On 6th November, 1985 Appellant on her own initiative called upon Respondent's attorneys in their Chambers and discussed the letter with Mr. V. H. Courtenay of Counsel for Respondent. According to Mr. Courtenay Appellant at the interview promised to seek alternative accommodation. In her own testimony at trial Appellant admitted that she had mentioned during the interview that she had been "seeking" a low cost house from Government.

Appellant sought independent legal advice and thereafter continued to live in the house at 29 Faber's Road still with her seven (7) children.

On 29th February, 1988 Respondent sued Appellant in the Supreme Court in an action for possession of the dwelling?house and the land appertaining thereto on the grounds (sic) that the dwelling?house was reasonably required by Respondent as a residence for her son.

Appellant entered Appearance and after interlocutories the action was set down for trial on 26th November, 1991 and was tried on 20th May, 1992; 22nd November, 1993 and 3rd December, 1993.

At the trial Appellant testified as follows:

"As a result of the legal advice I decided to let the Court hear the matter. I had at first promised to come out and look for alternative accommodation. I didn't know my rights then. After I got legal advise (sic) I changed my mind."

Appellant claimed to have spent during occupation of the house over the years 1975?1992, some $34,820.00 on so?called necessary repairs and improvements which she contended had been authorized and encouraged by Respondent. The alleged expenditure according to a statement of expenses tendered without challenge as an exhibit at the trial showed a pattern of modest spending between 1975 and 1985 (the year notice to quit was given) amounting to no more than just under $4,000.00. From 1986 to 1990, the pattern remained more or less the same, and expenditure of just over $4,000. However, alleged expenditure in 1991 was $20,442 approximately and in 1992 roughly $6,200. Appellant had converted the unpretentious one?flat wooden dwelling?house into an elaborate dual?purpose building by constructing a fully appointed concrete structure at ground level. By the time she reached her maximum spending the finished building with all appointments and facilities and well?filled lot was formally valued at $75, 100. In contrast the value of the original dwelling was an estimated $6,000 to $7,000. Appellant had also improved the lot itself by concentrated filling.

Respondent's daughter Hazel King testified that on the day in 1985 when she accompanied Respondent to consult her attorneys the house was the same as it had always been. The changes took place after that date. She also testified that Respondent paid and had been paying tax and insurance.

Appellant continued to expend money on the property even up to date of trial which prompted Respondent to obtain an injunction through her attorneys on 29th April, 1992 (that is, before hearing commenced) to stop Appellant from further repair or improvement.

John King the erstwhile common law husband played less than a significant role in the case discounting the fact that it was through him and by virtue of the fact that Appellant had borne his children that Appellant went into and continued in occupation of the premises. Not only was he off the scene for a considerable period as mentioned but took another woman in marriage in the United States (reportedly in 1988). This occurred after Appellant had in his absence given birth to two children by another man and after the relationship between them had positively come to an end. John King Senior it appeared hardly corresponded with Appellant and generally had very little if anything to do with her and their children and did not support them while in the United States.

It is to be noted, however, that an important feature of Appellant's case was that she based her claim of right to possession in part upon alleged representations made to her by John King as it were on his mother's behalf and that she believed he had the right to make those representations and that they were binding upon Respondent.

Another incident worth mentioning in which John King Senior featured was the fact deposed to by John King Junior, son of Appellant and John King Senior that in 1991 he the Junior had with permission from his father built a room for himself as an adjunct at ground level to the upper level premises of the dwelling house in Faber's Road. Admittedly it is difficult to discern from the Record how this fits in with the scheme of construction embarked upon by Appellant.

The grounds of appeal are:?

1. That the decision was unreasonable as the learned Trial Judge did not take into consideration the special family relationship that existed between the defendant and the plaintiff when he ruled that the representation by John King could never bind the plaintiff.

2. The decision could not be supported having regard to the evidence and is against the weight of the evidence.

3. The learned Trial Judge was wrong in law in holding that the (Defendant) Appellant had not acquired a license coupled with an equity in the property after he accepted that the plaintiff did in some manner acquesied (sic) to the defendant's making necessary repairs to the house and after he accepted the evidence of the defendant that she spent almost $4,000.00 on the property.

4. The learned Trial Judge was wrong in law in holding that if the (Defendant) Appellant acquired an equity in the property such equity had already been satisfied.

5. The learned Trial Judge was wrong in holding that the (Plaintiff) Respondent was under no obligation to compensate the (Defendant) Appellant for expenditures after the legal notice to quit when upon the evidence the equitable interest had arisen before the legal notice to quit or alternatively the legal notice to quit was waived by the (Plaintiff) Respondent allowing the (Defendant) Appellant for over two years to remain on the property before the filing of the writ of possession.

6. The learned Trial Judge was wrong in law to hold that an equity could not have arisen in the absence of express words when an equity can arise without express words. Also by accepting the evidence of the (Plaintiff) Respondent that she told the (Defendant) Appellant to leave the property after the (Defendant) Appellant got pregnant the learned Judge could have come to the conclusion that an equity has arisen in favour of the (Defendant) Appellant.

7. The learned Trial Judge failed to consider the case as a whole.

8. The learned Trial Judge upon a proper assessment of the evidence and directing himself properly on the law could not have come to the conclusions at what he came upon the facts or the law (sic).

9. The learned Trial Judge was wrong to hold the (sic) that the (Plaintiff) Respondent was entitled to possession of the premises at No. 29 Faber's Road.

Counsel for Appellant in opening reiterated the defence to be that Appellant occupied the premises at 29 Faber's Road as licensee in equity and therefore was entitled to possession.

As to ground one Counsel quoted from the learned trial Judge's judgment (top of page 59 of the Record of Proceedings) as follows: "… Indeed the defendant seems to be relying on alleged representations made to her by John King. King denies making such representations. Even if he did, such could never bind the plaintiff. There is no suggestion that John King was ever acting as his mother's agent." He submitted that since the defence was based in equity the learned Judge ought to have taken into consideration the total circumstances including the special relationship between the parties.

Counsel referred to Cheshire on Contract 11th edition page 442 and to the case of Gregory & Parker v. William (1817) 3 Mer 582.

The learned author there was dealing with the doctrine of privity of contract and with attempts from time to time to avoid that doctrine and confer benefits upon strangers culminating in the common law rule becoming modified by the equitable doctrine of constructive trust. Counsel, it was clear, was simply using this as a principle (generally accepted) to boost his submission in this regard.

Counsel in passing from ground one proceeded on to argue grounds 2 & 3 and 5 to 8 in combination. He referred once more to the matter of representations by John King made to Appellant. After conceding that the defence raised by Appellant was not founded on any contract between Respondent and Appellant and after referring in detail to the actual alleged representations on the Record, Counsel emphasized that the main contention in that regard was that since the learned trial Judge was dealing with the question of a licence coupled with an equity, he ought NOT to have taken the attitude that the representations could not bind Respondent. Counsel referred to Inwards and Others v. Baker [1965]1 All E.R. 446;[1965] 2 QB. 29 (to which further reference will be made).

Counsel for Respondent in reply contended that the finding of the learned trial Judge was wholly supported by the evidence. He reiterated the Judge's commentary that the question of agency between Respondent and her son John King had not arisen and indeed had not been pleaded or brought up at the trial with which we concur. Counsel submitted further that at the time the alleged representations were made there was no special family relationship between John King and Appellant, any such relationship having positively ended by 1986 following Appellant's pregnancies by and continuing intimate relationship with another man. Counsel opined that those representations were at best ambiguous, had no colour of authority from Respondent and in any event had been denied by John King.

Continuing submission at large as to combined grounds 2 & 3 and 5 to 8 Counsel for the Appellant proceeded to attack the Respondent's Statement of Claim (Delivered 9th January, 1991) by inviting attention to paragraph 5 which reads:

"If (contrary to the Plaintiff's contention) the Defendant has by operation of law or otherwise acquired a lawful tenancy of the said dwelling?house and the land appertaining thereto the same has been duly determined by Notice to Quit dated the 23rd October 1985 and the Plaintiff claims possession thereof on the grounds that the dwelling?house is reasonably required by her as a residence for her son."

Counsel then correctly pointed out that no evidence had been led as to that allegation. He referred to Respondent's testimony at page 13 of the Record declaring that she had built the house as a residence for herself. He also pointed out that there was evidence that Appellant wanted the property for her daughter Hazel upon which to build a house. These, Counsel contended, were the reasons advanced by Respondent for wanting the house.

It appears to us on this aspect of the case that Counsel for Appellant with respect misconceived the true design behind paragraph 5 of the Respondent's Statement of Claim. We visualize it to have been nothing more than an alternative pleading in the event of possible failure of Respondent's claim for possession the basis of the averments in the preceding paragraphs 2, 3 and 4 of the Statement of Claim which alleged in summary that the Respondent had allowed her son John King to take up residence in the house in question, taking Appellant with him as his common law wife together with their children; that several years later the son had departed temporarily for the United States whereupon Respondent agreed to Appellant continuing in occupation with the children rent?free during the absence of the son; that some six years later the son abandoned his intention to return.

Significantly enough, neither in the indorsement of the Writ of Summons claiming possession nor in the Attorneys' letter of 23rd October, 1985 giving notice to quit is there any mention by Respondent of wanting the house for her son or for anyone else.

Appellant in her Defence (delivered 4th February, 1991) averred as follows in paragraph 4:

"The defendant says that at no time neither before or (sic) after the said John King left for the United States of America did she discussed (sic) with the plaintiff nor agreed with the plaintiff that she the defendant occupied the premises as a tenant with or without the payment of rent"

However, the basic contention by Counsel for the Appellant continued to be pursuant to Ground 3 that Appellant had acquired a licence coupled with an equity through her expenditure initially on the house itself for necessary repairs and later on for improvement and also for improvement on the plot of land upon which the house stood which at the outset had been swampy land which needed to be filled. The expenditure began almost if not immediately upon the Appellant and Respondent's son John King going into occupation together and spanned approximately 18 years (1975 to 1993). The spending over the first 15 years or so (1975 ? 1990) was admittedly on the part of the parties, modest (around $8,000.00), ostensibly for necessary repairs. In 1991 and 1992 it had escalated to some $20,400 and $6,200 respectively, this time admittedly for substantial improvement. The expenditure it was argued was not only acquiesced in but also encouraged by Respondent despite the fact that she gave notice to quit in 1985, began suit in the Supreme Court in 1988 and obtained an injunction in 1992 to prevent Appellant from further construction work on the premises.

We now examine for purpose of this appeal the relevant principles applicable to the equitable doctrine (commonly known as proprietary estoppel and otherwise as estoppel by acquiescence) by reference to which Appellant seeks to obtain relief.

We are indebted to Counsel on both sides for citing and dealing, each in his own way, with the relevant celebrated case of Inwards and Others v. Baker (mentioned earlier). Their submissions thereon have been most helpful.

The facts of the case, while not altogether on all?fours with the facts of the instant case, bear enough resemblance in certain respects to have induced Counsel for Appellant to make capital of them and of the fact that the son (defendant) was allowed as licensee with an equity to remain in occupation.

On the other hand the case was cited by Counsel for Respondent in order to quote and to comment on the utterance of Lord Denning, M.R. (page 36 of the Queen Bench Report and page 448 of the All England Report):

"It is quite plain from the 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."

The doctrine is also explained in Snell's Equity (29th edition) at pages 573 to 579 where the learned author mentions (on page 574) that there are four conditions to be satisfied for the equity to arise in favour of one person (the licensee) against another (the land?owner). T'he conditions are:?

(a) Detriment . . . the person claiming must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment;

(b) Expectation or belief . (The person claiming) must have acted in the belief that he already owned a sufficient interest in the property to justify the expenditure or that he would obtain such an interest. But if (he) has no such belief and improves land in which he knows he has no interest or merely the interest of a tenant, or licensee, or occupier under an incomplete or revocable contract, he has no equity in respect of his expenditure .....

(c) The belief of (claimant) must have been encouraged by (landowner) or his agent or predecessor in title ....

The fourth condition deals expressly with a case where enforcement would contravene some statute, or prevent the exercise of a statutory discretion or excuse the performance of a statutory duty and also with the case in which the "land?owner" was a minor when the improvements were made. It is therefore inapplicable to the issues in the instant case.

Counsel for the Appellant in order to support his contention that Respondent not only acquiesced in but also encouraged the expenditure for repairs between 1975 to 1985 referred to the good and pleasant relations which existed between Appellant and Respondent during that period. He pointed out that during John King's absence Appellant and Respondent had a friendly relationship. Appellant and children remained in the house, with Appellant going to work to support her family, while occassionally assisting Respondent with her household chores at her house when not working. Also Respondent had been regularly providing the children with food and even sometimes visited the house at 29 Faber's Road. It was only after the matter of Appellant' s pregnancy by someone else and about the same time the alleged obstruction of Respondent's daughter Hazel by Appellant when Hazel wanted to build a house on the same premises that the goodwill between them ended. By then, Counsel maintained, the licence with an equity had crystallized and became irrevocable so that when notice to quit was served that irrevocable licence was already in place.

(When asked by the court in an aside):

"What was Counsel's opinion as to Appellant's entitlement by virtue of the licence", Counsel's reply was: "Reasonable expectation that she could live there until she desired to move out."

Counsel invited attention to the following passage in the judgment of the learned trial Judge (beginning on page 57 at line 30 and on to page 58 ending at line 11 of the Record):

"The defendant's claim to be a licensee with an equity is based on what she says was encouragement and acquiescence by the plaintiff in the defendant's expenditure of money on the house. As noted earlier, the defendant alleges that the plaintiff told her to go ahead and do the necessary repairs on the house, as it would be for the benefit of herself and the children. The plaintiff either denies that the defendant asked her about repairing the house, or she states that she does not remember. I am satisfied that the plaintiff did tell the defendant that she (plaintiff) did not have any money to repair the house and that the defendant should do it. I am also satisfied that the defendant did necessary repairs to the house with the passive encouragement or acquiescence of the plaintiff. This also appeared to have been during the time that it was expected that John would have returned to his family."

Then later on down page 58 at line 21:

"Be that as it may, available evidence indicates that almost $4,000.00 was expended on the property over the 10 year period 1975 to 1985."

Counsel then repeated the substance of Ground 3 which maintained that the learned trial Judge erred in holding that Appellant had not acquired a licence coupled with an equity after accepting that Respondent had acquiesced in Appellant effecting necessary repairs to the house and after he had accepted the evidence of Appellant that she had spent almost $4,000.00 on the property.

Counsel for Appellant next mentioned that the learned trial Judge made reference in his judgment to the fact that notice to quit had been served in 1985. It was to be noted Counsel remarked that 2 years and 8 months elapsed between service of the notice to quit and the Writ for possession and that during this period Appellant spent little or nothing on the repairs. This submission as we understood it was in relation to the learned trial Judge's holding on page 61 of the Record, line 3 "that the expenditure she made on the property after legal notice to quit was served upon her, and even after she was served with a writ of Summons claiming possession, was made at her own risk and in defiance of the wishes of the plaintiff who is legal owner of the property and the plaintiff is therefore under no legal obligation to compensate her for such improvements. The defendant was ill-advised to make such an expenditure when this matter was sub?judice. She might have been misled by John King, but that in no way compromises the plaintiff."

Counsel for Appellant on this submission was simply repeating in essence Ground 5 predicated upon the contention that upon the evidence the equitable interest had arisen before the legal notice to quit which entitled Appellant to be compensated for expenditures after the notice. In the alternative, predicated upon the second limb of Ground 5, Counsel submitted that the notice to quit was in any event waived by Respondent allowing Appellant more than 2 years to remain on the property before filing a writ for possession, which if we understood correctly, of itself entitled Appellant to be compensated for expenditure throughout the years of occupation of the premises by Appellant.

Counsel then invited attention to the words of the learned trial judge in his judgment on page 58 of the Record at line 5:

"I am satisfied that the plaintiff did tell the defendant that she (plaintiff) did not have any money to repair the house, and that the defendant should do it."

Then at line 12:

"The defendant states that, based on what the plaintiff told her, 'I understand that she was telling me that you all will be living in the house for a long time . . . "In the absence of express words to support this impression, I fail to see how the defendant could have arrived at this conclusion."

In this instance as well, Counsel was simply repeating in substance what had already been alleged in Ground 6. As to the first part of the allegation, we say here and now that we do not understand the learned trial Judge to be saying that an equity could not have arisen in the absence of express words. What we understood the learned trial Judge to be saying was that in the absence of Respondent saying to Appellant in express words: "You all will be living in the house for a long time", he could not see how Appellant could have arrived at that particular conclusion. What the Respondent expressly said in the opinion of the learned trial Judge was: "I do not have any money to repair the house; you should do it" or words to that effect, from which Appellant had said she came to the conclusion alluded to.

Counsel for the Appellant wound up his submissions on the note that admittedly the facts of the instant case are strange but that basically it all had to do with arrangements within a family and between family members among themselves and that those were the factors which really counted.

Counsel's final submission, except for his commentary relative to Ground 4, was this:

Appellant/Defendant acquired a licence coupled with an equity even though unusual and she should be allowed to continue to live in the house. Alternatively, the Court could look to see how the equity can be satisfied. Counsel cited Pascoe v. Turner (1979] 2 All E.R. 945.

Counsel for Respondent submitted, dealing with Ground 3 that in order to found her claim to a licence coupled with an equity, Appellant must bring herself within the four comers of the principle as enunciated by Lord Denning, M.R. in Inwards v. Baker.

Counsel for Respondent did not dispute the alleged expenditure between 1975 and 1985 but contended that such expenditure was not made under an expectation created or encouraged by Respondent. Appellant went into occupation of the premises with Respondent's son as his common?law wife. She remained there after the son left Belize intending to return shortly but abandoned that intention upon which Appellant remaining, in occupation became a licensee. Repairs over the decade was relatively small and were necessary for the house to be more comfortable for Appellant and her children. Appellant was acting in her own interest and for her benefit and that of her children.

Counsel submitted that Appellant had failed to establish that she was entitled to a licence coupled with an equity. Appellant had not made the relevant expenditures with any expectation created by Respondent.
Counsel cited:

(1) Coombes v. Smith, already referred to herein.

(2) Cherrington v. Hoare, Supreme Court of Belize: Action No. 110 of 1976.

Counsel for Respondent submitted in relation to the second limb of Ground 5, that service of the notice to quit was merely confirming what Appellant already knew, that is, that Respondent wanted her off the property. Counsel submitted that whether or not the notice to quit was waived was irrelevant in determining whether Appellant is entitled to compensation for expenditures after 1985.

Counsel for Respondent submitted as to Grounds 2, 6, 7 & 8 in combination that the learned trial Judge fully treated the evidence in the case and came to proper conclusions of law and fact. The inferences which he drew were reasonable and well grounded.

At the end of the submissions of Counsel for Respondent, Counsel for Appellant in reply submitted that Appellant in the instant case was on a stronger leg than Appellant/Defendant in the Belize case of Cherrington v. Hoare. The learned Chief Justice in that case seemed to have placed emphasis in coming to his conclusion on the letter of March 3, 1967.

We now turn to consider according to the sources mentioned whether the elements or requisites mentioned have been established and in doing so remind ourselves of what is known to have been said often, namely, that in a case such as the instant case we are not free simply to do what seems fair and reasonable in all the circumstances but rather to exercise our equitable jurisdiction only according to well?known principles.

The basis of Appellant's claim to a licence with an equity was the expenditure on the house in question for repairs which was incurred between 1975 and 1985. There was continuing expenditure after 1985 and up to 1988 both for repairs and improvement which increased sharply thereafter right up to the injunction and after; but the real basis was clearly the expenditure for repairs up to 1985.

It is noteworthy that Appellant had at the commencement of the action in the Supreme Court in 1988 pitched her claim at a much higher level than eventually evolved. The Defence delivered as late in the day as 4th November, 1991 averred:

(1) in paragraph 2, ". . . that the dwelling?house was built from joint funds of the plaintiff and her son John King and they were allowed to live in the dwelling?house as long as they want to";

(2) in paragraph 5, ". . . that after ... John King left... the plaintiff on several occasions stated to the defendant in the presence of the defendant's children that they can live on the property as long as they wished";

(3) in paragraph 7, "Between the years 1977 to February 1988 the plaintiff allowed the defendant and acquiescene (sic) in the defendant spending large sums to improve the property and the premises thereon."

Nothing of the above was proved in evidence.

Against the above background and accepting the basis of the claim to be essentially the expenditure for repairs we now consider and apply first the principle as enunciated in simple terms in 1965 by Lord Denning, M.R.. The question is, was the expenditure incurred under an expectation created or encouraged by Respondent? The learned trial Judge rejected the suggestion that it was. Counsel for Respondent submitted that the expenditure was not so incurred and we agree with them both. Lord Denning, later on in the same passage towards the end of his judgment (page 37 of the Queen's Bench Report) said:

"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."

We are of the opinion that the Appellant was not so led by the Respondent to believe.

Turning now to the conditions enunciated in Snell's Equity, first as to detriment, there is no doubt about the expenditure having been incurred, but was it upon the evidence in any sense a detriment or prejudicial to Appellant? According to the evidence of the Appellant herself quoting the Respondent the repairs were necessary to render the house comfortable and more habitable and moreover was for the benefit of the children. The expenditure was however a detriment and prejudicial to her in as much as it was incurred on property she did not own and could not therefore ordinarily be recovered.

Next, as to expectation or belief and as to encouragement in that belief. On the totality of the evidence we are unable to discern that the Appellant acted in the belief that she already owned a sufficient interest in the property to justify the expenditure or that she would obtain such an interest. Certainly on her own evidence up to the time notice to quit was served on her and prior to her seeking legal advice she entertained no such belief. It follows that if she had no such belief, then there could have been no encouragement.

It appears to us that the Appellant fails to measure up to the required elements. We are satisfied that she did not acquire a licence coupled with an equity and that the Respondent remains entitled to possession.

It becomes unnecessary for us to consider grounds 4 & 9.

Accordingly, we dismiss the appeal and order the Appellant to deliver up vacant possession of the premises at 29 Faber's Road in Belize City to the Respondent no later than 30th April, 1995.

CROSS APPEAL

The learned trial Judge upon delivering judgment ordered that in the circumstances in the interests of justice each party bear her own costs. From this order the Respondent cross?appealed on the following grounds:

"1. That there is no apparent reason why costs should not follow the event.

2. That the contemptuous conduct of the Appellant for the rights of the Respondent and for the proceedings in the action supports an award of costs against her."

Taking the submissions of counsel and all the circumstances into account we see no reason to interfere with the order of the learned trial Judge.

The cross?appeal is accordingly dismissed.

In the special circumstances of the case, we make no order as to the costs of the appeal and cross?appeal.

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