THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV Between Yvonne Rampersad (The Legal Personal Representative of Elias Hunte, deceased) Claimant And Amon Hunte Edmund Hunte Defendants Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Samuel Saunders for the Claimant Mr Robin Montano instructed by Ms Karisse Montano for the Defendants Date: 25 January 2018 Judgment Page 1 of 7

2 1. This claim concerns a property located at Ariapita Avenue, Port of Spain. The claimant was the common law husband of Elias Hunte. The Defendants are brothers and were brothers of Elias. Elias died in The claimant is his legal personal representative. Elias owned the property. He had lived there with his mother at one time. The defendants claim they moved into the property in 1982 and occupied it since. The claimant says this is not so. The defendants claim adverse possession against the estate. They claim, in the alternative, that due to proprietary estoppel the claimant cannot remove them. 2. The claimant seeks possession against the defendants, damages for trespass and an injunction. The defendants counterclaim for possession of the premises. 3. It is not in dispute that Elias had a lease for the premises from the Port of Spain City. This lease expired in 1996 and the claimant was granted a lease in The claimant gave evidence and called one witness, Mr Rollocks. The defendants also gave evidence. The claimant migrated to the United States in 1966 and would return from time to time. Elias had been with her for some years and later joined her in the United States. 5. The issues for determination were: a. Was the will of Elias a forgery or not signed by him? b. Have the defendants been in adverse possession of the premises for over 16 years? c. Alternatively, is the claimant estopped from excluding the defendants on the basis of proprietary estoppel? 6. The claimant gave evidence and called a witness one Rudolph Rollocks. The claimant gave evidence of her relationship with Elias, where she lived with him, his death Page 2 of 7

3 and the proceedings after that. She gave evidence of the previous claim challenging Elias will and how those proceedings came to an end eventually leading to the grant of probate to her over Elias estate in She also gave evidence that the property was tenanted to various persons over time including to one Barbara Hamel-Smith. Mr Rollocks gave evidence that he changed the locks on the property in 2010 and he found it to be unoccupied. 7. Edmund Hunte s witness statement focused on his brother Elias not being compos mentis from about September He gave evidence that Elias one evening had told them he was giving the property to his mother before, Violet. The witness statement was short on details and vague in the assertions being made. It essentially was asserting that he and the defendant were somehow entitled to have the property of their brother. 8. Amon Hunte spoke of the signature on the will not being that of his brother. He also asserted at paragraph 10 that he took responsibility for the financial commitments of the property including payment of bills. He did this because he believed he would get a share in the property. Again his statement was short on details. 9. I first consider whether the will of Elias has been shown to be a forgery or not signed by him. The defendants alleged forgery of the will. However there was no credible evidence on their part to support this allegation. There was no evidence led that the deceased lacked capacity and there was no evidence led that he signed it in the absence of attesting witnesses. The statements by the defendants that the signature was not that of Elias was just that. The evidence was self-serving. In the absence of any expert evidence to support this contention, I am unable to accept the defendants say so on this matter. I also do not find any evidence to show the deceased was not of sound mind. There was no evidence that the will was not properly attested. I accepted the claimant s evidence about Elias and the circumstances of the will. Page 3 of 7

4 10. Some years ago there was a claim brought by Violet Hunte, the mother of the defendants, challenging the will of Elias. The order of the court indicates that claim was compromised by being withdrawn by Violet. 11. The defendants contended that a judge made a finding that the will was forged but they have brought no evidence to prove this and in fact the evidence of the court order establishes that Violet purported to withdraw the claim by notice. Since it was a probate claim and could not be withdrawn in this manner, the evidence shows that the claimant made an application to the court by Summons in 2004 and obtained an order indicating the claim was dismissed. The defendants therefore maintained the stance of forgery with no supporting evidence and also in clear disregard of the documentary evidence available to the court. I considered these assertions undermined their credit worthiness significantly. 12. I found the evidence of the defendants concerning the will to be unconvincing, inadequate and lacking credibility. I find that the will was valid. 13. Another contention in support of their claim that they and their mother resided in the premises was contradicted by the documentary evidence available. Two affidavits and a notice of change of attorneys filed by Violet in the earlier proceedings listed her address as Laventille and Whiteman Lane, Curepe. Furthermore, the documentary evidence available shows that the property was tenanted to one Barbara Hamel Smith since 1976 for several years when they claimed Violet was in possession of the property since The Registration Form for the tenancy shows she was in possession of the entire house while the defendants claimed Ms Hamel-Smith was only in occupation of one room. I found this assertion that the tenant occupied one room and the defendants and their mother occupied the rest of the house to be unlikely in all of the circumstances and particularly having regard to the evidence provided in the Page 4 of 7

5 Registration Form of what was tenanted together with the claimant s evidence. 14. The second defendant claimed to be occupying the property since He was, however, a resident of the United States since the 1960s. In cross examination he indicated he was working in the United States up to Edmund Hunte said that although he lived and worked in the United States until 2011, since 1982 he spent three-quarter of the year at Ariapita Avenue. I found this to be highly unlikely. 15. I found his assertion that he was occupying the property to be unconvincing since he essentially lived in the United States. 16. The first defendant also admitted to owning a property in Chaguanas but said he did not live there for all of the years. However, the WASA bill for the Ariapita property, which he was looking after for a period of time, went to his Chaguanas property. It strains credulity that he would have the WASA bill go to Chaguanas where he claims he did not reside, but it would not be sent to Ariapita Avenue when he claimed that he was living there. 17. Another bill went to a brother s home in Whiteman Lane, Curepe. All of this suggests that the defendants were not living at Ariapita Avenue and that in fact it was tenanted out. I therefore did not believe either defendants when they say he occupied the property since The evidence also establishes that the defendants mother, Violet, moved among different locations of her children and did not in fact live in the property from the 1982 period. The documentary evidence of her own admissions of where she lived in different documents show this. 18. The defendant, Amon Hunte, in cross-examination, admitted that another brother, Maximus, who lived elsewhere was the one who took care of the property over a long period of time Page 5 of 7

6 and then he later took over responsibility. The claimant had given evidence that Elias had authorised Maximus to collect the rent and pay the bills for the property while he was in the United States. I found it to be unlikely that both defendants would be living in the property while another brother who lived elsewhere would be responsible, on behalf of Elias, to look after paying bills for the property. 19. Given the inconsistencies in the defendants case with the documents available to the court and the implausibility of their contentions I found their evidence to be unreliable. I preferred the evidence of the claimant. 20. The question also arises whether adverse possession could properly run on the property and from when. The deceased died in The lease expired in The option to renew the lease was not exercised. However, the defendants said they paid rent to the City Corporation in the name of the deceased after his death. A new lease has now been made in favour of the claimant. Time would run against her only from Based on the reasoning set out in Nester Ralph and Another v Malyn Bernard, Civil Appeal No 131 of 2011, delivered 9 March 2016, per Mendonca JA, it seems to me that adverse possession would not be available to the defendants. In any event, I find as a fact that they were not in possession of the premises for the period from 1982 or for 16 years. I accepted the claimant s evidence that they have recently gone there. I accepted Mr Rollocks evidence that he found the place unoccupied when he changed the locks on it. 21. The issue of proprietary estoppel was raised in submissions. There was, however, no pleading that the claimant or the deceased gave any representation either to Violet Hunte or the defendants and there is no evidence of the defendants or Violet acting to their detriment as a result of any representation. The defendants merely assert that the deceased wanted Violet Hunte to have the property. However, there is no evidence of Violet Hunte acting to her detriment as a result of any representation to her. In fact, the Page 6 of 7

7 evidence suggested that Violet Hunte had lived elsewhere, among the homes of other family members, for several years and was not an occupant of the Ariapita Avenue property. 22. There is some evidence of the defendants expending a limited amount of money on the property but there is no evidence that this was done as a result of any representations made to them by the claimant or the deceased. This was also of recent vintage. The first defendant in his witness statement made reference to Violet promising them the property. However, it was not Violet s to give. 23. The result is that the claims of the defendants fail. The claimant has proved her right to possession of the premises. The defendants have not shown any right to remain in possession. The defendants must give up possession of the premises forthwith. An injunction is issued to prevent them from occupying or continuing to occupy the property at Ariapita Avenue. Nominal damages can follow for their trespass, but in the circumstances of this claim I do not propose to make any order on this. 24. The defendants must pay the costs of the claim in the sum of $14, and half the costs of the counterclaim, in the sum of $7, each. I have made this order given that each side was essentially maintaining a right to possession of the premises so in deciding the claim the court determined who was entitled to possession on the evidence. 25. There is a stay of execution until 28 February Ronnie Boodoosingh Judge Page 7 of 7