IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER REASONS

Transcription

1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Cv. No: BETWEEN PEARL BHARATH Claimant AND CECIL PETERS EUTRICE GIBSON PETERSON 1 st Defendant 2 nd Defendant BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Mr. Gerard Raphael, Attorney-at-Law for the Claimant. Mrs. Samantha Lawson, Attorney-at-Law for the Defendants. REASONS Introduction 1. In these proceedings, the claimant sought damages for trespass in respect of the subject premises, which consisted of a chattel house standing on one (1) lot of land in Plymouth, Tobago. 2. It was the claimant s contention that she had acquired the tenancy rights to the subject premises by way of an assignment by the late Dolly Peters, who was entitled to possession. Page 1 of 17

2 3. The first defendant resisted the claim on the ground that his forebears had been in occupation of the subject premises since the 1930 s. 4. On the 21 st March, 2014, I gave Judgment for the claimant by way of an ex tempore decision. My reasons for so doing are set out below. Procedural History 5. Pearl Bharath, the claimant filed her claim form on the 17 th April, 2008, seeking the following relief: 1. Damages for trespass. 2. An injunction restraining the defendants from entering and or remaining on the said chattel house built of concrete and the parcel of land on which it stands being one lot of land formerly owned by Augusta Birmingham situate at Plymouth 6. The claim form was accompanied by the statement of case. By her statement of case, the claimant alleged that she was at all material times the owner of the subject chattel house and the land on which it stands. 7. The claimant alleged that the chattel house standing on the parcel of land was assigned to the claimant by the previous owner, Dolly Peters, who according to the claimant, had been in continuous and undisturbed possession since 1962, when he constructed the chattel house. 8. The claimant alleged that in January, 2008, the second defendant entered the parcel of land. Then in January, 2008, the first defendant entered the parcel of land and broke the lock on the front door and proceeded to change the lock. Page 2 of 17

3 9. On the 2 nd December, 2009, the claimant wholly discontinued her claim as against the second defendant. 10. The first defendant filed his defence on the 24 th June, 2008 and contended that his greatgrandfather, his grandfather and his father, had been in continuous uninterrupted possession since The defendant alleged Silas Peters, the defendant s father gave permission to Dolly Peters to occupy the wooden house on the land. The Evidence 12. Two witnesses testified in these proceedings: the claimant and the defendant. Claimant s Evidence 13. Pearl Williams Bharath testified that she had been born in Tobago in 1951, and that she lived there for nineteen years before moving to Trinidad. She became acquainted with Dolly Peters when she was five years old. 14. Ms. Bharath testified that in the year 2002, she met with the deceased Dolly Peters, who had been making requests to see her for approximately two years. 15. It was the testimony of the claimant, that at her meeting with the deceased, he said to her that it was his wish that she have his property, he also stated that he was in arrears in payments of Land and Building Taxes and Water Rates. 16. It was the claimant s evidence that she replaced the roof on the house of the deceased at a cost of $2, No receipts were produced. Page 3 of 17

4 17. The claimant testified that on the 25 th May, 2004, the deceased assigned to her his tenancy rights to the parcel of land together with the chattel house. The assignment was exhibited as P.B.2 1, the deceased Dolly Peters declared: In consideration of the sum of thirty thousand dollars paid to me by Pearl Williams Bharath I the undersigned the said Dolly Peters DO HEREBY ASSIGN to the said Pearl Williams Bharath all that chattel house AND IT IS HEREBY DECLARED that the said building is now the property of the said Pearl Williams Bharath together with the said tenancy rights. 18. Ms. Bharath testified that in the year 2005, she took possession of the property. By her evidence, she placed her niece, Cynthia Jordon to occupy the premises between December, 2006, to January, In January, 2008, Cynthia allegedly returned to Trinidad and locked the doors with a padlock. 19. By letter dated the 14 th January, 2008, attorney-at-law for the first defendant wrote to the second defendant requesting that she desist from trespassing. 20. The claimant described her relationship with the deceased between 2002 and his death saying that she would regularly visit him and would stay with the parents of the defendant, if she was alone. 21. The claimant told the Court that the deceased told her that Ms. Birmingham gave him a document transferring ownership to him. 22. The claimant testified further that the deceased told her that he had been married to Naomi Peters and because they were childless, they brought two (2) girls to live with them. The girls were: Ruth John and Bernadette Scott, both of whom were now married and out of 1 Exhibit P.B.2 in the affidavit of Pearl Bharath Williams Page 4 of 17

5 touch with him. A hearsay notice had been filed on the 30 th July, 2010, in respect of the hearsay content of this evidence. 23. The claimant testified as to her contributions to the household of the deceased, including a refrigerator, television, pots, pans, and a radio. 24. No receipts were produced to prove the purchase of these items. 25. The claimant then testified as to incursions made by the first defendant on the property. In January, 2008, the first defendant allegedly broke down the lock on the front door and proceeded to change it. 26. Ultimately in August, 2008, the first defendant allowed two men to occupy the property effectively denying entry to the claimant. Defendants Evidence 27. The first defendant Cecil Peters was the only witness, testifying on behalf of the defendants. He stated that he was in possession of the subject parcel of land and that his great grandfather, his grandfather and his father had been in continuous exclusive possession of the subject parcel since the 1930 s. 28. The defendant stated that the land had been leased by the State to Augusta Birmingham. It had been forfeited in 1916 and a re-grant issued in The deceased stated that since his birth he lived with his father and other family members until 1960, and that his father had given him total control of the land. 30. The defendant testified that in 1960, his father, Silas Peters gave his cousin Dolly Peters permission to occupy the land with his wife Naomi. In 1962, Naomi and Dolly reconstructed the wooden house into a concrete structure. Page 5 of 17

6 31. The defendant testified that he continued to play on the land with his siblings regardless of the occupation of Dolly Peters. 32. Naomi Peters died on the 28 th September, The defendant stated that in 2004, the claimant told him and others that Dolly Peters was her father. 33. The first defendant contended that the claimant did not attempt to assert rights to the property until his father had died and that he has been and continues to be in possession of the land. The Agreed Bundle 34. The parties filed an agreed bundle of documents which was tendered into evidence. Cross-examination of Pearl Williams Bharath 35. Under cross-examination, the claimant stated that the first time she paid Land and Building Taxes was the year The claimant agreed that the name appearing on the receipts exhibited as P.B. 1 2 was Augusta Birmingham. 37. The claimant agreed that she gave her lawyer instructions to prepare the assignment, but that she had not done a title search. 38. The claimant admitted further that she had not seen any document of lease between Augusta Birmingham and Dolly Peters. 39. The claimant admitted further that she was not aware of any lease between Augusta Birmingham and Dolly Peters. The claimant also admitted that the document stated that the land was owned by Augusta Birmingham and not the deceased, Dolly Peters. 2 Exhibit P.B.1 in the affidavit of Pearl Bharath Williams Page 6 of 17

7 40. The claimant admitted that Dolly Peters died in 2005 by drowning and that even following the assignment, Dolly Peters lived in the property until his death. The claimant admitted that she never lived in the property. 41. The claimant admitted that Silas and Dolly Peters were cousins. She denied that the first defendant was the son of Silas and Mini Peters, but admitted that they lived together across the road and that Silas died on the 8 th July, The claimant admitted that she produced no receipts for repairs of the roof or payments to WASA. 43. The claimant was questioned as to the earlier occupation of the land. She stated that she was not acquainted with the father of Silas Peters or with Augusta Birmingham, that she had never met Naomi, the wife of Silas Peters and that she had no discussions with Silas as it related to the property. Cross-examination of Cecil Peters 44. Under cross-examination, the first defendant told the Court that he was the owner of a restaurant and bar at Plymouth and that he lived opposite to the subject premises. 45. The first defendant stated that he got married at the age of twenty-eight, but that he lived with his parents until the age of forty-four and that he lived at the subject premises with Dolly Peters for two months. 46. The first defendant was questioned as to the alleged arrangement between his father and Dolly Peters and admitted that he had not been present when the arrangements were made and could not say what arrangements had been made. The defendant also denied that Dolly Peters constructed the concrete house. 47. The defendant was questioned as to the alleged assignment. He denied knowledge of it. Page 7 of 17

8 48. Under cross-examination, the first defendant denied that Dolly Peters lived at the premises with his wife, and alleged that the deceased would visit from time to time. The first defendant admitted however, that Dolly Peters and his wife looked after the property until they died, but denied that the deceased, Dolly Peters was the owner of the tenancy rights in the property. 49. The first defendant admitted that he had never applied for letters of administration of his father s estate. 50. Learned counsel, Mr. Raphael put to the first defendant that he never lived on the premises after 1960 and had nothing to do with the property after The defendant s answer was significant: Sir, we lived there. We always there. One family. Just a road separate us. We always by Dolly Peters. 51. The first defendant admitted that he entered the premises in 2008 and broke and changed the locks. He claimed under cross-examination that Cora Daley, his cousin was living there, but admitted that no reference had previously been made to his cousin. Facts 52. Having heard the evidence in these proceedings, I made findings of fact which are set out below. 53. In the village of Plymouth, Tobago, there stands a chattel house on a parcel of land comprising 376.3m 2. The house is built of concrete and comprises three bedrooms, a living room, a kitchen, toilet and bath. It is covered with galvanized sheets. 54. This parcel of land had originally been leased by the State to Augusta Birmingham, by virtue of a re-grant in the year Land and Building Taxes Receipts which were issued Page 8 of 17

9 as recently as 2005, continue to bear the name Augusta Birmingham as the owner of the parcel of land. 55. The first defendant alleged without contradiction that Augusta Birmingham migrated in the 1930 s to the United Stated of America and that she gave the parcel of land to his great grandfather and that the parcel of land passed from his great grandfather to his grandfather and then to his father, Silas Peters. 56. Silas Peters occupied the premises which were situated opposite to the subject premises. Sometime between 1960 and 1962, Silas Peters allowed his cousin, Dolly Peters to enter the premises. A wooden structure stood on the premises. 57. The terms upon which Dolly Peters was allowed to occupy the premises are not known. The defendant, having made vague allegations, agreed under cross-examination that he had been a teenager at the time of the discussion and could not say what had transpired. The claimant had no knowledge of any arrangement. 58. What was clear however, was that Dolly Peters and his wife looked after the property until they died. The defendant also admitted that his attorney-at-law had suggested by way of letter that Dolly Peters carried out renovations. 59. The first defendant himself lived at the subject premises for two years after his marriage. He then returned to the home of his parents, Silas and Mini. Under cross-examination, the defendant agreed that after 1960, he did not live at the subject premises, since he had moved out to a different house. 60. The defendant insisted further that they always lived at the subject premises as one family, that only a road separated the families and that they always lived by Dolly Peters. Page 9 of 17

10 61. From the answer given by the first defendant under cross-examination, the Court infers that the families of Silas and Dolly were close. They were not only a close family but they were also close geographically, since one was across the road from the other. There was therefore a lot of interaction between the families. 62. However, the evidence of the defendant himself suggests that pursuant to an arrangement between the late Silas Peters, the late Dolly Peters entered into occupation of the subject premises and lived there with his wife Naomi. 63. I therefore find on a balance of probabilities that since 1960, Dolly Peters had been in occupation of the subject premises and that the first defendant Cecil Peters never had possession of same. 64. The claimant was a new comer to the long on-going family arrangement. She appears on the stage in the year The first defendant asserted that the claimant had told him and others that Dolly Peters was her father. 65. The claimant produced a document dated the 25 th May, 2004, by which she claimed to have purchased the chattel house and tenancy rights from Dolly Peters. The defendant has not contested the signature which purports to be that of the late Dolly Peters. Under crossexamination the defendant disclaims any knowledge of the arrangement. On a balance of probabilities, therefore, I accept that the claimant purchased the chattel house and tenancy rights from the late Dolly Peters. The effect of the document is a matter of law. 66. The claimant also asserted that she took possession of the property following the death of Dolly Peters in September, The claimant stated that she placed Cynthia Jordan, her niece, in the property between December, 2006 and January, Page 10 of 17

11 67. The defendant by his witness statement testified that Silas continued to maintain the property until his own death in Even if I accept on a balance of probabilities that Silas maintained the property until his death in 2007, the defendant fell short of alleging that Silas took possession of the property. Moreover, no particulars have been provided of the manner or the frequency at which Silas maintained the property or how the defendant came by such knowledge. 68. Moreover, the defendant has provided no evidence to suggest that he personally took possession of the property. Even if Silas had taken possession of the premises up to his death, the defendant has not connected his rights with those of his father. Accordingly, it is my view and I find on a balance of probabilities, that the defendant had no connection with the land. 69. I turn now to consider the case for the claimant. The claimant asserted quite boldly 3 that in December, 2005, she took possession of the land. This allegation is supported by the allegation that she placed her niece in charge of the premises from December, 2006 to January, The claimant failed however to produce her niece for cross-examination and her evidence was weakened by the counter-allegation that Silas maintained the premises following the death of Dolly Peters. 70. The one allegation is in reality, mutually exclusive with the other, in that it is highly unlikely that Silas would maintain premises occupied by someone else. 71. The Court was therefore required to determine on a balance of probabilities whether the claimant ever placed her niece, Cynthia Jordan in occupation of the premises. In my view, this evidence was far too tenuous and vague, and I rejected that the allegation that Cynthia Jordan was ever placed in possession. 3 Paragraph 14 of the Witness Statement of the Claimant Page 11 of 17

12 72. What was clear however, was that the claimant had placed a padlock on the premises, which admittedly had been removed by the defendant. 73. The claimant therefore is left to rely on the document which had been signed by Dolly Peters transferring to her his tenancy rights and his right to the chattel house as well as the act of placing a lock on the premises as an assertion of her possession thereof. Law Bills of Sale Act Chap. 82: The relevant sections are set out below:- 2. This Act shall apply to every bill of sale (whether the same be absolute, or subject or not subject to any trust) whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale. 9. Every bill of sale and every transfer or assignment thereof shall be duly attested and shall be registered within seven clear days after the execution thereof, or if it is executed in any place out of Trinidad and Tobago, then within seven clear days after the time at which it would in the ordinary course of post arrive in Trinidad and Tobago if posted immediately after the execution thereof; and shall truly set forth the consideration for which it was given; otherwise such bill of sale, transfer, or assignment shall be void in respect of the personal chattels comprised therein. Page 12 of 17

13 Limitation of Certain Actions Act Chap 7: Section 3(1) (a) is set out below:- 3. (1) The following actions shall not be brought after the expiry of four years from the date on which the cause of action accrued, that is to say: (a) actions founded on contract (other than a contract made by deed) on quasi-contract or in tort; Ocean Estates Limited v. Norman Pinder [1962] 2 AC At page 25 of the judgment, Lord Diplock expounded the following principle: At common law there is no such concept as absolute title where questions of title to land arise in litigation the Court is only concerned with the relative strengths of the titles provided by the rival claimants. If party A can prove a better title than part B, he is entitled to succeed notwithstanding that C has a better title than A, if C is neither a part to the action nor a person by whose authority B is in possession Kamal Rampaul v. Chandradath Seenath et al HCA S-629/ In considering whether a deed of gift was void for non-compliance with section 9 of the Bills of Sale Act Chap. 82:32, Bereaux J (as he then was) said: The language of the section is not only plain but mandatory the requirements of the section are strict and that the failure to comply with the statutory requirement will render the instrument void Page 13 of 17

14 Carballo et al v. Paul et al HCA #31 of In this case, the plaintiff claimed damages for trespass and possession of a parcel of land. The claimant had alleged that the defendant was in unlawful possession of the parcel of land. 79. Persad Maharaj J reiterated the principle that trespass to land is a possession and can only be brought by someone in possession. 80. The learned Judge said: The author at p. 45 in Salmond on the law a Tort, 7 edit said: A trespass is actionable only at the suit of him who is in possession of the land using the possession in the strict sense as including a person entitled to immediate and exclusive possession... Olga Charles v Harrichand Singh and Others CA No. 50 of In this case the respondents sought to recover possession of premises, which they had purchased by Deed, some months before commencing proceedings. According to the respondents, Olga Charles was not a tenant of the respondents, but a trespasser. 82. In the course of his decision, Wooding CJ quoted Bullen & Leake Precedents of Pleadings (11 th Edition) in this way: the onus lies on the plaintiff of strictly proving his title and he must state his title in full detail in his pleadings, deducing step by step, through the various means assignments. 4 4 Bullen & Leakes Precedents of Pleadings (11 th Edition) (1959) by E. Bullen and S.M. Leake at page 45 Page 14 of 17

15 Gillian Belford Joseph v. Charlene Glaude CV The facts of this case are similar to those of Olga Charles v. Harrichand Singh 5. The Claimant contended that she purchased a chattle house from Fanny Clarke for the sum of $20, The claimant produced to the court, a Certified Copy of a Mortgage Bill of Sale to prove her purchase and ownership. The claimant alleged that the Defendant entered into occupation in 2007 and was a trespasser. 84. In this case, as the presiding judge, I dismissed the claimant s application on the basis that the claimant failed to discharge the onus of proving title. I quoted the following statement of Wooding CJ.: Merely putting in a certified copy of a deed, whereby two or three months before they purchased a lot of land from the alleged owner of it, is not a proof of title. It would be necessary to show that the vendor of the lot had a right to sell a title which she could pass on. There is no presumption from the mere putting into evidence of a certified copy of a deed of such a recent date and the appellant would be entitled to sit by and quietly say nothing save merely to contend that title had not been proved against her Reasoning and Decision 85. In these proceedings, the claimant sought damages for trespass to the subject parcel of land on the ground that she was entitled to possession. The issue which arose for my consideration was whether the claimant s right to possession of the subject premises was superior to that of the defendant. The claimant provided tenuous evidence of possession of 5 Olga Charles v. Harrichand Singh CA No. 50 of 1960 Page 15 of 17

16 the premises. Her strongest evidence of possession was her entitlement by virtue of a document signed by a person who had been in possession at the date of his death and by her having secured the premises by a padlock. 86. By contrast, the defendant has not at all proved that he had been in possession before his act of breaking the claimant s lock. 87. The Court is therefore faced with two parties who both had very weak cases. 88. In my view, the principle to be applied is that expounded by Lord Diplock in Ocean Estates 6. The Court is required to consider which party can prove a better title. In my view, the defendant has proved no connection at all. Whatever title he may have had arises from the title of his late father, to whose estate the defendant has no right at law or in equity. 89. The claimant s title rests on that of the late Dolly Peters, who by the document signed on the 25 th May, 2004, asserted that he had tenancy rights in the land. This has not been seriously challenged by the defendant, who had admitted that in the year 1960, Dolly Peters entered into occupation of the land pursuant to a conversation with the defendant s deceased father. 90. On a balance of probabilities, I found that Dolly Peters was invested with tenancy rights which he passed to the claimant by a document signed in his lifetime on the 25 th May, This document was exhibited in the proceedings as P.B.1. This document was not a Bill of Sale. There was therefore no requirement that it be registered under the Bill of Sale Act 7. 6 Ocean Estates Limited v. Norman Pinder [1962] 2 AC 19 7 The Bill of Sale Act, Chapter 82:32 Page 16 of 17

17 91. The defendant relied on the authority of Olga Charles v. Harrichand Singh 8. In my view, however Olga Charles v. Harrichand Singh 9 was distinguishable from the instant case. In Charles v. Singh 10, the plaintiff sought to displace the defendant who had been in possession for long time. On the facts of the instant claim, the defendant has not been possession at all, and sought to assert his rights on the strength of the possessory title of another. Although the claimant s claim to be possession was tenuous, the defendant has failed altogether to establish any right to possession. 92. Accordingly, it is my view and I held that there should be judgment for the claimant. The defendant was ordered to remove all building materials placed by him on the land. 93. I also granted an order restraining the defendant whether by himself, his servants or agents from entering upon or remaining on the land. 94. The defendant was ordered to pay to the claimant costs in the sum of fourteen thousand dollars ($14,000.00) and the Court granted to the defendant a stay of execution of fortytwo (42) days. Dated this 5 th day of January, M. Dean-Armorer Judge 8 Olga Charles v. Harrichand Singh CA No. 50 of Ibid 10 Ibid Page 17 of 17