IN THE HIGH COURT OF JUSTICE. Between. By way of her Lawful Attorney Kenneth Antoine. And

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE Between SYBIL CHIN SLICK By way of her Lawful Attorney Kenneth Antoine Claimant GAIL HICKS And Defendant Before the Honourable Madame Justice Eleanor J. Donaldson-Honeywell Appearances: Mr. St. Claire O Neil, Attorney-at-Law for the Claimant Mr. Jerry Holder, Attorney-at-Law for the Defendant Delivered on December 16, 2015 JUDGMENT 1. The Claimant s husband Kenneth Antoine bought a property next door to the Defendant s family home at Harrydass Drive, Ojoe Road, Sangre Grande [ the property ] on July 30, The Defendant, now aged forty-six, lived at the said address all her life in a home built by her grandmother. Mr. Kenneth Antoine sold the property to the Claimant in The Claimant no longer resides in Trinidad and Tobago and Mr. Antoine acts on her behalf in this claim against the Defendant, his neighbour of over twenty-eight years. He is seeking redress for an alleged trespass on the Claimant s property by the Page 1 of 10

2 Defendant s recent construction of an annex to her family home extending over her boundary. The Claimant s case is that the annex constructed by the Defendant in 2010 encroaches on the Claimant s property by 4.4 square metres. The Claimant seeks an injunction ordering that the Defendant immediately remove the allegedly encroaching annex and a declaration that she has, by building it, trespassed onto the Claimant s property. There is a further claim for damages for trespass. 2. The Defendant denied that the annex encroached as alleged. In her Defence she contended that the annex was constructed within the boundaries of the Defendant s family property. This boundary was where she and her family understood it to be located based on occupation marked inter alia by her grandmother s chain-link fence for over thirty years. Accordingly, it is the Defendant s case that there has been no trespass on the Claimant s property. 3. Based on results of a survey conducted on 23 rd September, 2014 as directed by the court, there is now no dispute that the Defendant s annex is an encroachment on the Claimant s property. The extent of the encroachment is 4.4 Square meters. Accordingly, the determination as to whether the encroachment constituted a trespass, on the Claimant s property by the Defendant, turned on the Defendant s contention that having been in adverse possession of the part of the property where the annex was constructed for over thirty years there could be no further challenge to her ownership of it. 4. In this regard Counsel for the Defendant submitted for the Court s consideration a number of authorities including CV Juliet Poyer v Sandra Freitas. In that case Smith, J as he then observed that: In a suitable case, the fact that an occupier of land believes he is the true owner of the land may very well be strong evidence of his intention to possess the same. This belief of ownership would probably satisfy the test of legal/adverse possession. Issue: 5. The sole issue to be determined was: Whether the encroachment on the property amounted to adverse possession of that area by the Defendants? Page 2 of 10

3 Evidence and Findings of Fact: 6. In compliance with case management directions, evidence-in-chief was presented by way of filed witness statements. The main witness for the Claimant was Kenneth Antoine. Further there was a statement from a Ms. Janelle Balbosa intended to establish that the Claimant was in jeopardy of losing the benefit of an agreement for sale of her premises to Ms. Balbosa due to the encroachment. The Defendant filed a witness statement and her evidence was supported by witness statements of one of her relatives, Lynette George Hicks who had knowledge of the family home over the years. It was further supported by a statement of Mr. Harold Nicome who worked on construction of her grandmother s fence. 7. The Claimant s version of events was usefully summarised in her Attorney s closing submissions. The evidence was that by way of Power of Attorney registered as No. DE Mr. Kenneth Antoine was appointed Lawful Attorney of the Claimant, Ms. Sybil Chin-Slick. 8. The Claimant via Memorandum of Transfer No. 42 dated 28 th February 2002, became the legal owner of the property situate at Light Pole No. 33-2, Ojoe Road, Sangre Grande as described in Certificate of Title, Volume 2362 Folio 59, as that piece of land situate in the ward of Manzanilla in the Island of Trinidad comprising Five Thousand, Five Hundred superficial feet by the same more or less delineated and coloured pink in the plan registered in Volume 2362 Folio 57 being a portion of the land described in the crown grant in volume 453 Folio 201 and also described in the certificate of Title in volume 1099 Folio 539 and shown as Lot 6 in the General Plan filed in Volume 2209 Folio 13 and bounded on the North by a road on the South by a drain reserve 5 feet wide on the East by Lot 5 and on the West by Lot 7 (hereinafter described as the said property). 9. To the Eastern boundary of the said property there was a chain link fence separating the said property from the property occupied by the Defendant. In or around 2010, the Defendant started construction of an annex which trespassed onto the boundary of the said property. Mr. Antoine s evidence was that he informed the Defendant that the construction of the annex was encroaching on the said property. He says the Defendant then became very angry and verbally abused Mr. Antoine. Page 3 of 10

4 10. The Defendant completed the construction of the annex in December, Mr. Antoine says he made a report of the Defendant s alleged trespass to the Sangre Grande Regional Corporation. However, on getting no assistance he sought the assistance of his Attorney at law. On or about March, 2013, Mr. Antoine, acting on behalf of the Claimant, commissioned Mr. Hugo Sumarsingh, Licenced Land Surveyor, to survey the said property and outline the trespass. On or about the 27 th March, 2013 Mr. Sumarsingh provided the Claimant with a survey report outlining the Defendant s encroachment. 11. On or around the 25 th September, 2013, the Claimant s Attorney at Law wrote to the Defendant requesting that she remove the portion of the annex that encroaches on the said property. On or about the 16 th October, 2013, the Defendant responded to the letter dated the 25 th September, Mr. Antoine claimed in his evidence that the Defendant s trespass caused the Claimant a great deal of stress and inconvenience. Furthermore he contended that as a result of the encroachment the Claimant is in danger of being in breach of a contract for the sale of the said property, which was entered into with one Janelle Balbosa on the 31 st day of December, He said that he and Janelle Balbosa agreed that the said property would be sold to her for Seven Hundred and Fifty Thousand Dollars ($750,000.00). Over the years Janelle Balbosa claims to have made substantial payments towards the purchase price. 13. The Claimant in her reply and by evidence of her witness, Mr. Antoine, admitted that there was a fence that was constructed by the Defendant s grandmother approximately thirty years ago. However, according to the Claimant the said fence was then properly placed on the correct boundary line between the properties belonging to the Claimant and the Defendant. Therefore according to the Claimant, at no material time was the Defendant in occupation of any portion of the Claimant s land prior to The Claimant s witness also denied that the annex was built within the Defendant s original fenced area. He stated that the said chain linked fence fell on or around He said that he then proceeded to build another fence three feet inside the Claimant s boundary line. He said he put the fence there so as to allow for maintenance and also to construct a drain on the outside of the said fence. According to the Claimant, the Page 4 of 10

5 Defendant has now occupied a portion of the Claimant s land and the consequence is that there is an undermining of the Claimant s fence and flooding in the Claimant s property. 15. Mr. Antoine s witness statement on behalf of the Claimant was supported by documentary evidence exhibited thereto. This included photographs of the two neighbouring properties showing the position of the annex. The said photographs also showed the position of the front wall of the Defendant s property which ended with a square post painted yellow. 16. Counsel for the Defendant in his closing submission also provided a useful summary of the evidence of the Defendant s witnesses both in chief and under cross-examination. He underscored that the Defendant s testimony was that when Mr. Antoine came to live next door all the posts and the wire fencing of the fence put up by the Defendant s grandmother were still standing. The Defendant explained that Mr. Antoine built his own fence in a different location inside the Claimant s property. 17. She said that her annex was built within where her grandmother s fence had been for over thirty years. Witnesses called on her behalf confirmed this version of events. Harold Nicome testified on her behalf that he worked on the construction not only of her grandmother s fence but he also helped build the wall at the front of her premises. Accordingly he was able to confirm that the yellow post at the end of the wall was in line with where the Defendant s grandmother s fence had been. Findings of Fact: 18. Although there was an encroachment on the Claimant s property it is my finding that the Defendant was unaware of it when she started and finished the annex in I accept the Claimant and her witnesses as truthful when they say they were occupying that part of the property by way of a fence placed there over thirty years ago by the Defendant s grandmother. One of the Defendant s witnesses Mr. Harold Nicome, aged seventy-one, gave credible testimony that he had helped build the fence. 19. Under cross-examination the witnesses were asked to look at the picture exhibited to Mr. Antoine s witness statement which showed a yellow square post at the end of the front wall of the Defendant s premises. It was put to them that that post was built at the same time as the construction of the annex in Importantly, there had been no such Page 5 of 10

6 allegation in the pleadings so the Defendant s witnesses could not have been coached on how to answer the question. Their answers under cross-examination revealed that the concrete post was in line with where the annex ended which was where they said the old fence that had been there for thirty years was. 20. The evidence of the Defendant and her witness, Mr. Nicome, was that there was an iron picket placed at that point marking the boundary. They said the picket was removed by the Claimant s Surveyor in Mr. Nicome s evidence under cross-examination was that he and a fellow called Toot built the yellow concrete post at the end of the wall and it had been there for over thirty years. The Defendant and her other witness Lynette George Hicks, without having had any opportunity to collaborate, steadfastly maintained under cross-examination that the concrete post was there long before the annex was constructed. 21. It is on the basis of the consistent and corroborated evidence of the Defendant and her witnesses that I find that she was unaware of the encroachment when she was building the annex. She and her family always believed that their boundary line was where the old chain link fence was, which was in line with the yellow concrete post. She admitted under-cross examination that she is aware of the encroachment now but did not agree that she constructed the annex with total disregard. She said If I knew that that was where Mr. Antoine s land was by where I had the picket I would never have built there. It is now I know from the survey. 22. It is also my finding that the Claimant s agent Mr. Antoine had not at that time in 2010 obtained any expert assessment to support his complaint that the annex encroached on the Claimant s property. Although he has pleaded that he noticed the encroachment when the Defendant started the construction in 2010 and informed her about it, he says at paragraph 6 of his witness statement that he only reported it to the Sangre Grande Regional Corporation after the annex was completed in December, He further pleads that it was only in March, 2013 that he obtained a survey report which outlined the encroachment. 23. I do not accept that Mr. Antoine was certain of the encroachment at the time he says he first complained in Furthermore, since he had no proof of the encroachment at that time and has produced no documentary evidence or witnesses to support that he Page 6 of 10

7 complained to the Defendant and or reported the encroachment to the Corporation in 2010, I do not accept that he took such steps. It is my finding of fact that the first time he complained to the Defendant about the trespass was in September 13, 2013 when he retained an Attorney to write to her some three years after the annex was completed. 24. Prior to 2013 he had, by failing to take appropriate steps to verify the boundary and write to her about it, allowed the Defendant to act to her detriment by incurring expenses in completing the annex. As stated by the Defendant in her letter dated October 16, 2013 in response to the Attorney, all Mr. Antoine had done by then was complain to the regional authorities about water entering the Claimant s premises from the annex. In any event it was only from April, 2013 that Mr. Kenneth Antoine obtained authority to act for the Claimant in relation to her property so there is no evidence of any issue of trespass properly raised by the Claimant in The Claimant therefore failed to take any action to seek possession of the part of his property encroached on until This allowed the Defendant to remain in possession without being prevented from doing so. 25. Mr. Antoine and his supporting witness Ms. Balbosa were discredited under crossexamination when they gave differing answers in trying to establish that the Claimant was in danger of being in breach of a contract for the sale of the property to Ms. Balbosa. The contract was said to have been an oral one entered into in December, Receipts for monthly payments from 2009 up to the time of filing the action in 2014, alleged to have been paid by Ms. Balbosa to Mr. Antoine although she had not yet moved in, were produced in evidence. 26. The witnesses fell into difficulties after Mr. Antoine was cross-examined about whether he had a Power of Attorney at that time to enter such an agreement on behalf of the Claimant. After admitting he did not, he attempted in his answers to establish that his wife, the Claimant was involved in the negotiations and agreement with Ms. Balbosa. This new evidence contradicted his witness statement where at paragraph 11 he said that it was Ms. Balbosa and himself who entered into the sale agreement. 27. He and Ms. Balbosa gave different answers about how involved the Claimant was in the alleged agreement. Ms Balbosa also fell short when she was asked when Mr. Antoine obtained the Power of Attorney from his wife. She said it was in 2002 and Counsel for the Defendant pointed out to her that she was just guessing. Page 7 of 10

8 28. On a balance of probabilities it is my finding that the alleged agreement for sale was a fabrication intended to establish damage sustained by the Claimant due to the encroachment. That attempt appears to have been abandoned in the written closing submission filed by the Claimant on November 4, Therein only nominal damages are proposed as an appropriate award. It is my finding that the Claimant is entitled to neither general nor nominal damages on the evidence presented. 29. The inconsistencies in the evidence regarding the alleged agreement for sale did great damage to the credibility of Mr. Antoine and shed doubt on whether he was truthful in areas of his other testimony such as when the Claimant first became aware and complained to the Defendant about the encroachment. I found the Defendant and her witnesses to be truthful and it is my finding that she and her family were in possession of the disputed area of the Claimant s property for over thirty years believing that it was within their boundary. It is my finding that the Defendant thought that she was the owner of the property where she built the annex. Law and Analysis: 30. A person is considered to have acquired land by adverse possession if he with the requisite intent to dispossess the true owner has been in possession of land for a continuous period of at least sixteen years. After the expiration of this period the true owner is barred from bringing an action to recover possession S.3 Real Property Limitation Act, Chap. 56:03. According to the House of Lords in JA Pye (Oxford) Ltd v Graham 1, in order to establish possession a Claimant must show: "a sufficient degree of occupation or physical control coupled with an intention to possess;... that to establish factual possession the squatter had to show absence of the paper owner's consent, a single and exclusive possession and such acts as demonstrated that in the circumstances, in particular the nature of the land and the way it was commonly used, he had dealt with it as an occupying owner might normally be expected to do and that no other person had done so; that the requisite intention was, not to own or acquire ownership, but to possess and on 1 [2002] 3WLR 221, 223 Page 8 of 10

9 one's own behalf in one's own name to exclude the world at large, including the paper title owner, so far as was reasonably possible". 31. This is supported in Halsbury s Laws of England 2 which states: [F]or the Claimant's possession of the land to be adverse, so as to start time running against the owner, the factual possession should be sufficiently exclusive and the Claimant should have intended to take possession on his own behalf and for his own benefit. Where the occupier's possession of the land is by permission of the owner, that possession cannot be adverse. 32. In the present case, the Defendant has established sufficient factual possession of the disputed area. The Defendant and her witnesses all stated under cross-examination that there had been a concrete post on that area for over thirty years. Further, the construction of the annex in that area is another act which demonstrates exclusive possession of that area. It does not appear that any of these acts were carried out with the consent of the Claimant. 33. The Defendant, however, must also prove sufficient intention to possess. According to Halsbury s Laws of England 3 : For there to be adverse possession the person claiming possession should have the necessary intention, that is, an intention to possess the land to the exclusion of all other persons including the owner with the paper title so far as is reasonable and so far as the process of the law will allow. An intention to use the land merely until prevented from doing so does not amount to the requisite intention. The fact that the Claimant believed that he was the owner will not prevent him from having the necessary intention. 34. Midland Railway Co. v Wright 4 was cited in Halsbury s as authority for the proposition that a belief that one is the owner of land does not defeat the intention to possess. In that case, the Defendant s predecessors acquired certain land by Deed of Conveyance, unaware that a piece of it had been previously sold. Although he was unaware that that parcel did not belong to him, the factual exclusive possession for over thirty years entitled him to possession of the area. 2 Limitation Periods (Vol. 68 (2008)) [1078] 3 Limitation Periods (Vol. 68 (2008)) [1080] 4 [1901] 1 Ch. 738 Page 9 of 10

10 35. In all the circumstances the Defendant did, in fact, have intention to possess to the exclusion of all others. The construction of the permanent annex structure is evidence that she did not merely intend to use the area until prevented from doing so as this would have required great expenditure on her part. It is clear from their actions that the Defendant and her grandmother before her, both believed that that area of land belonged to them. However, as illustrated in the case of Poyer v Freitas cited by Counsel for the Defendant, this is not sufficient to negate the Defendant s intention to possess. Disposition: 36. The Defendant has proved that she and her other family members have been in continuous adverse possession of the land where the annex was built for over thirty years. The Claimant was the owner of the neighbouring property for some thirteen years of that time. Before that her husband Mr. Antoine owned the property and when he purchased it in 1987 the Defendant and her family already had actual possession of the land where the annex stands. 37. The Defendant has not counterclaimed for any relief. This matter is determined by dismissal of the Claimant s claim. The Claimant is hereby ordered to pay to the Defendant prescribed costs in the sum of Fourteen Thousand Dollars ($14,000.00). Dated the 16 th Day of December, Eleanor Joye Donaldson-Honeywell Judge Assisted by: Christie Borely Attorney-at-Law Judicial Research Counsel Page 10 of 10