The issuance of a Court order to recover the possession of premises against the husband does not permit the wife who became aware of the order and its execution to seek the issuance of a declaratory judgement that she was at the material time the statutory tenant of the premises. Besides, the issuance by the Court of a contradictory order, not only is undesirable and impermissible, it gives the affected party the right to request by appeal the annulment of a new order that conflicts with a previous one. Moreover, the doctrine of estoppel by conduct affects the legal relationship created by the issuance of the original order, such conduct amounting to acceptance of it. Failure to invoke the doctrine of estoppel on appeal does not deprive the Court of the power to apply the principle of estoppel when the circumstances warrant it. A party who wishes to protect his rights that are affected should act promptly upon learning of the order and use the legal procedures that allow him to set it aside, rather than seeking the issuance of a contradictory order.

The option of taking legal proceedings before the Court for the issuance of a contradictory order leads to an inconclusive result and will either be rejected, or if issued, will be overturned on appeal. The Supreme Court, in its judgement issued on 12.7.2022 raised the dimension of the issue setting the question whether the Court of first instance, despite the existence of the previous order to recover possession of the premises, which at the relevant time was in force, correctly proceeded to issue the disputed declaratory order. The Court decided that the answer to the question is clearly negative.

The Supreme Court emphasized that the wife, although she had the right based on O.43(A) of the Civil Procedure Rules, as a person claiming to have actual possession of the premises, to apply to the Court for remedy, after having been informed of the relevant order, however, no relevant procedural steps were taken and without any objection, she allowed the execution of the order against her and the subsequent delivery of the property to the owner. What matters, the Court said, is the final consent order of repossession issued against her husband, which was never set aside. The wife did not file an application to request a review, amendment or annulment of the eviction order, claiming that it was issued pursuant to any fraud, misrepresentation or material mistake, based on Article 6 of Law 23/1983. This omission did not permit her to seek the issuance of the requested declaratory order.

The Court finally decided that the following were established: – (a) the way the wife chose to deal with the order of eviction issued against her husband and in particular the inaction she showed in its execution and her failure to apply for its annulment, and (b) her failure to comply with the condition imposed by the Court of first instance in the context of the temporary injunction she had secured – which prohibited the interference with her peaceful enjoyment and use of the premises – amount to her acceptance of the issuance of the eviction order and was therefore estopped by conduct from continuing the legal proceedings before the Court of first instance, by which she sought to be recognized as the statutory tenant of the property.

With regard to the doctrine of estoppel by conduct, the Court referred to caselaw and English textbook where the following was mentioned: “when a party to a transaction by his words or conduct makes a promise or assurance to the other party, which is intended to affect the legal relations between them and the other contracting party acts upon it, varying his position to his detriment, the contracting party who made the promise or gave the assurance will not be permitted to act in a manner inconsistent with it.”

Finally, the Court pointed out that the non–reference of the doctrine of estoppel by conduct in the owner’s appeal, in no way deprives the Court of Appeal of the power to examine its application, as long as it is justified by the indisputable circumstances of the case. Consequently, the Court allowed the appeal and set aside the decision of the Court of first instance.