IN THE HIGH COURT OF JUSTICE BETWEEN AND. ROOPLAL RUSSELL RAMLAL Also called ROOPLAL RAMLAL RAMSANAN KEVIN KANHAI Also called KEVIN KANHAI

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV BETWEEN FAREEDA MOHAMMED CLAIMANT AND ROOPLAL RUSSELL RAMLAL Also called ROOPLAL RAMLAL RAMSANAN KEVIN KANHAI Also called KEVIN KANHAI DEFENDANTS Before the Honourable Madame Justice Margaret Y. Mohammed Dated the 26 th March, 2018 APPEARANCES: Ms. Tynnielle Tuitt instructed by Mr. Rishawn Eccles Attorneys at law for the Claimant. Mr. Taurean Dassyne instructed by Mr. Sylesh Ramjattan Attorneys at law for the Defendants. Page 1 of 77

2 TABLE OF CONTENTS THE CLAIMANT S CASE 4 THE DEFENDANTS CASE 8 REPLY AND DEFENCE TO COUNTERCLAIM 13 THE UNDISPUTED FACTS 15 ISSUES 16 ISSUE 1: WHETHER THE CLAIMANT AND HER FATHER HAVE, SINCE THE DEATH OF MR LATCHANSINGH IN 1985, BEEN IN SOLE, UNDISPUTED AND UNINTERRUPTED POSSESSION OF THE DISPUTED PROPERTY WHICH EXTINGUISHED THE DEFENDANT S TITLE BY VIRTUE OF SECTIONS 3 AND 22 OF THE RPLA 19 SUB-ISSUE: HAS THE CLAIMANT PROVIDED ADEQUATE PARTICULARS OF THE BOUNDARIES OF THE DISPUTED PROPERTY? 24 SUB-ISSUE: WERE THE CLAIMANT AND HER FATHER IN ACTUAL USE AND OCCUPATION OF THE DISPUTED PROPERTY SINCE 1985? 28 SUB-ISSUE: DID THE CLAIMANT AND HER FATHER POSSESS THE NECESSARY INTENTION TO OCCUPY THE DISPUTED PROPERTY 62 ISSUE 2: IF THE DEFENDANTS TITLE TO THE DISPUTED PROPERTY IS EXTINGUISHED WHETHER THE ACTIONS OF THE SERVANTS AND/OR AGENTS OF THE DEFENDANTS AMOUNT TO ACTS OF TRESPASS FOR WHICH THE CLAIMANT IS ENTITLED TO RECOVER DAMAGES. 63 ISSUE 3: ARE THE DEFENDANTS ENTITLED TO DAMAGES FROM THE CLAIMANT FOR LODGING A CAVEAT AGAINST THE UNEXCISED DISPUTED PROPERTY 64 SUB-ISSUE: WHETHER THE CAVEAT IS FRIVOLOUS AND WAS LODGED WITHOUT REASONABLE CAUSE. 66 SUB-ISSUE: WHETHER IN THE CIRCUMSTANCES OF THE CASE, IT IS FAIR, JUST AND EQUITABLE TO REMOVE THE CAVEAT OR MAINTAIN THE STATUS QUO 69 Page 2 of 77

3 SUB-ISSUE: WHETHER THE TITLE OWNER HAS SUFFERED LOSS AND DAMAGE ARISING FROM THE LODGING OF THE CAVEAT 69 SUB-ISSUE: ARE THE DEFENDANTS ENTITLED TO ALL REFUNDS, EXPENSES INCURRED, REIMBURSEMENTS AND CLAIMS FOR DAMAGES, INTEREST AND COSTS WHICH THEY MAY BE REQUIRED TO HONOUR WITH THE AGREEMENT FOR SALE? 72 SUB-ISSUE: ARE THE DEFENDANTS ENTITLED TO A REIMBURSEMENT OF ALL EXPENSES INCURRED IN DEVELOPING THE 10 ACRE PARCEL? 73 SUB-ISSUE: ARE THE DEFENDANTS ENTITLED TO DAMAGES FOR TRESPASS AND NUISANCE 74 CONCLUSION 77 ORDER 79 Page 3 of 77

4 JUDGMENT 1. The dispute between the parties relates to the entitlement to possession of a 1 ½ acre parcel of land situated at No 20 Cumuto South Trace, Barrackpore ( the disputed property ). The Claimant s case is that since 1985 she and her father has been in continuous undisturbed possession of the disputed and as such the paper title of the Defendants has been extinguished. The Claimant s case 2. The disputed land is part of a 10 acre parcel of land ( the 10 acre parcel ). The Defendants became the owners of the 10 acre parcel by virtue of Memorandum of Transfer registered in Volume 5711 Folio 289 Instrument 61 registered on the 1 st December 2014 ( the December 2014 Memorandum of Transfer ) and Memorandum of Transfer registered in Volume 5740 Folio 47 Instrument 57 registered on the 23 rd March 2015 ( the March 2015 Memorandum of Transfer ). Previous to the Defendants becoming the owners it was owned by Mr. Emerson Ramhit Latchansingh 1 who became the owner in Mr Latchansingh died on 17 th February and after his death, his widow Ms. Sylvia Latchansingh, applied for and obtained the Grant of Letters of administration for his estate which was registered in L5272 of Ms. Sylvia Latchansingh then became the registered owner of the 10 acre parcel by virtue of Memorandum of Assent registered in Volume 3044 Folio 117 Inst No th April Ms. Latchansingh died on 27 th June 1988 and Barbara Kanhai and Sandra Britton applied for and obtained a Grant of Probate for the estate of Ms. Sylvia Latchansingh on 14 th October 1988 No of By Memorandum of Assent registered in Volume 3301 Folio 467 Inst No th December 1988 Barbara Kanhai and Sandra Britton became the registered owners of the 10 acre parcel as joint tenants 6. 1 Memorandum of Transfer No. 76 dated 28 th January 1952 and described in the Crown Grant Volume 424 Folio Certificate of Death at Tab 1, page 1 of the Trial Bundle Volume 3. 3 Page 59 of Trial Bundle Volume 2 4 Memorandum of Assent at Tab 8, page of the Trial Bundle Volume 3. 5 Memorandum of Assent at Tab 9, page of the Trial Bundle Volume 3. 6 ibid Page 4 of 77

5 3. By Memorandum of Transfer registered in Volume 3505 Folio 377 Inst No 70 5 th December 1991, there was a severance of the joint tenancy whereas Barbara Kanhai and Sandra Britton also called Sandra Julia Britton continued to hold the property as tenants in common in equal shares 7. Barbara Kanhai and Sandra Britton also called Sandra Julia Britton transferred the 10 acre parcel to the First Defendant on 16 th October 2014 by Memorandum of Transfer registered in Volume 5711 Folio 289 Inst No The Claimant averred that in 1970 her father obtained permission and entered into an agreement with one Mr. Singh to build a dwelling house ( the dwelling house ) on the disputed land and to cultivate rice. In exchange, the Claimant s father agreed to pay rent to Mr. Singh for use and occupation of the disputed property. The Claimant assisted her father and family in cultivating the rice and tending to the crops. In the mid-1980s, the Claimant s father planted various long term and short-term fruit trees and vegetables on the disputed land which they sold to the general public. The Claimant s father completed various renovations to the dwelling house. Following Mr Latchansingh s death on the 17 th February 1985, the Claimant s father stopped paying rent but he continued in occupation of the disputed property. The Claimant s siblings and her mother moved out of the disputed property leaving the Claimant and her father living on and cultivating it. 5. After the death of the Claimant s father on the 18 th November 2006, the Claimant along with her family continued to occupy the disputed property and she continued to renovate dwelling house on it after In 2011, the Claimant planted additional long-term fruit trees which provided an additional source of income. 6. In June 2013, the First Defendant visited the Claimant and indicated to her that he wanted to purchase the 10 acre parcel and he asked her if she knew the boundaries. The Claimant pointed out the boundaries of the disputed property but she indicated that she was not interested in selling. Thereafter the Claimant sought advice from the Basdeo Panday Foundation about her right to the disputed property and by letter dated the 21 st August 2013 ( The First Panday Letter ) the foundation wrote to the First Defendant indicating that the 7 Memorandum of Transfer at Tab 10 page of the Trial Bundle Volume 3. Page 5 of 77

6 Claimant was in occupation of the disputed property for a period exceeding 16 years and she had possessory title. 7. On another visit by the First Defendant to the Claimant in September 2013 he indicated that he had purchased the 10 acre parcel. The Claimant informed him that she and her family lived and occupied the disputed property exclusively for more than 16 years and she therefore continued her renovation works to the disputed property and repainted the dwelling house. 8. On the 6 th May 2014, the Claimant noticed the First Defendant and other persons on the 10 acre parcel and which borders the disputed property, doing works to fill up a lagoon to create an access road. The Claimant informed the First Defendant to refrain from trespassing unto the disputed property since she was in exclusive possession for more than sixteen years. Similarly on the 13 th May 2014, the First Defendant and his workmen entered unto a small portion of the disputed property and began filling up the area with soil using heavy equipment. The Claimant averred that one of her avocado trees and other small fruit bearing trees were destroyed in the process. The First Defendant failed to restore the disputed property. 9. The Claimant instructed Ms Mickela Panday, attorney at law to send a pre-action letter dated the 8 th May 2014 ( the Second Panday Letter ) to the First Defendant calling upon him to refrain from trespassing on the disputed property since she was in exclusive possession of it for a period exceeding 16 years. 10. Again on the 13 th April 2015, the Claimant saw the First Defendant and his workmen trespass on to the disputed property using heavy machinery and other equipment to destroy her trees. The First Defendant also excavated and backfilled a small portion of the disputed property with dirt and other material and as a result the disputed property became waterlogged. 11. The Claimant conducted a search in June 2016 at the Land Registry, which revealed that the disputed property was transferred to the First Defendant on the 16 th October 2014 and Page 6 of 77

7 the First Defendant transferred an undivided half share to the Second Defendant on the 23 rd March 2015.The Defendants are still actively engaged in clearing and excavating the larger parcel for construction thereby encroaching on the disputed property. 12. As a result of the Defendants actions the Claimant instituted the instant action against the Defendant seeking the following reliefs: i. A declaration that the Claimant is entitled to the sole and exclusive possession of the disputed property by virtue of her adverse possession for a period exceeding sixteen (16) years; ii. A declaration that the Defendants title over the disputed property has been extinguished by virtue of the Claimant s exclusive and undisturbed possession of for a period exceeding sixteen (16) years pursuant to sections 3 and 22 of the Real Property Limitation Act ( the RPLA ); iii. An interim injunction to restrain the Defendants whether by themselves, their servants and/or agents and/or employees from: a) Going onto, entering unto, using, parking on with or without motor vehicles, machinery and/or other motorised equipment unto the disputed property until the determination of the claim. b) From harassing and/or interfering with the Claimant s use and enjoyment of the disputed property until the determination of the clam. c) From doing any act or thing inconsistent with the Claimant s right to occupy and enjoy the disputed property until the determination of the claim. d) From disposing, selling and/or transferring and/or developing any part or portion of the disputed property until the determination of the claim. e) Destroying and/or interfering with the Claimant s trees, crops and/or produce until the determination of this claim. iv. An interim injunction restraining the Defendants from building and/or erecting any building/structure and/or sub-dividing and/or developing any part or portion or doing whatsoever upon the disputed property to interrupt and disturb the Claimant s use and enjoyment of it until the determination of the claim. Page 7 of 77

8 v. An order that possession of those areas of the disputed property upon which the Defendants have trespassed be restored to the Claimant. vi. Damages for trespass to the disputed property whether by the Defendants themselves or their agents/ servants including aggravated damages. vii. Damages for nuisance by the unlawful acts of the Defendants and/or their agents. viii. Damages for the destruction of the Claimant s fruit bearing trees and other plants/vegetation on the disputed property whether by the Defendants themselves and/or by their servants or agents. ix. In the alternative, a mandatory order that the Defendants must restore all damage to the disputed property whether caused by the Defendants themselves and/or their servants or agents. x. An order directing the Registrar General to endorse the Certificate of Title registered with the right, interest and entitlement of the Claimant to the disputed property. xi. Interest. xii. Costs. The Defendants case 13. The Defendants denied that the Claimant and her father occupied and were in continuous, uninterrupted and exclusive possession of the disputed property since 1985 and that their title has been extinguished by such occupation. 14. The Defendants averred that the Claimant and her father only occupied approximately 5000 square feet or 1 lot of land ( one lot ) of the disputed property for a period of less than 16 years. They denied that the Claimant s father obtained permission by Mr Singh to build a dwelling house instead they averred that he was given permission to occupy a dwelling house which was initially constructed on the one lot by a man called Broko and the Claimant s father paid rent in the sum of $2.00 annually for the one lot alone. The Defendants averred that the dwelling house initially built by Broko was removed in 2010 and the concrete pillars were enclosed using clay blocks and ply board which the Claimant presently occupies. Page 8 of 77

9 15. The Defendants also averred that Mr Latchansingh, appointed one, Soram Dass ( Mr Dass ), the care taker of the 10 acre parcel and gave him permission in or around 1955 to occupy approximately 2 acres of land with the Cumuto Road being along the eastern Boundary, and continuing in a westerly direction, which said 2 acre parcel included the area where the Claimant s house currently stands. Mr Dass was also the owner of a 5 acre parcel located next to the 10 acre parcel. Mr. Dass in or about 1965, allowed one, Ranjit Jaglal ( Mr Jaglal ) and his mother, to take over renting the said 2 acre parcel, which had an annual rent of at $6.00 per task, less the house spot then occupied by Broko which was less than 1 lot. 16. The Defendants denied that the Claimant s father cultivated rice or crops or reared animals on the disputed property since the Claimant s father was unable to walk unless he used a walking stick and he could not stand for long periods of time and depended on neighbours and relatives for support of his family. The Defendants denied that it destroyed any of the Claimant s trees when it cleared the disputed property. 17. The Defendants denied that the Claimant s father, his servants and/or agents cultivated rice on the disputed property as claimed by the Claimant and sold same. The Defendants averred that the majority of the rice and/or other farming was done by Mr Jaglal and other persons, not being the Claimant s father and/or the Claimant and/or their servants and/or agents, in the area, who were permitted to plant on various parts of the 10 acre parcel including the disputed property less the 1 lot of the Claimant and her father. No long-term crops were ever permitted to be planted on the 10 acre parcel which they the Defendants purchased. All occupation of the 10 acre parcel by persons of the area was for the sole purpose of planting short-term crops.the area immediately surrounding the Claimant s home, was successively used and occupied by various persons in particular Mr Dass, Jaglal Ramjit, Sumaria Seenath, Lookhoor and Dhaniram Ramdeo from the early 1960 s until the 10 acre parcel was purchased by the Defendants, To date Mr. Ranjit continues to rear animals including bisons and sheep on the disputed property. 18. The Defendants averred that the Claimant went to live with her father when she was 9 years old and when she got married she moved out of the dwelling house and lived in Page 9 of 77

10 Penal/Barrackpore area for a number of years and thereafter returned to live with her father in the 1 lot. 19. The Defendants also averred that the Claimant failed to issue any renewal of her tenancy on or before the 31 st July 2011, as required by the Land Tenants Security of Tenure Act 8 and if the Claimant was in adverse possession, time, as against the holder of the legal title, only began to accrue after the expiration of the statutory tenancy in 2011, which is not sufficient to establish an entitlement for adverse possession. 20. The Defendants admitted that the First Defendant visited the Claimant in June They denied that the Claimant indicated that she was not selling the disputed property which she pointed out to the First Defendant as 1 lot. They averred that the Claimant indicated she rented the disputed property and that she agreed to move the dwelling house next to Balraj Maniram s house which was less swampy and more comfortable. 21. The Defendants denied that the First Defendant received the First Panday Letter. The Defendants admitted that the First Defendant visited the 10 acre parcel in September 2013 where he was approached by the Claimant and they had a conversation whereby they agreed that the Claimant would be relocated to a lot of land within the 10 acre parcel which did not flood and was less swampy preferably a lot next to Balraj Maniram s house. The Claimant thereafter indicated that she would only sign an agreement to move the dwelling house after the land was graded and properly drained to ensure the lot of land that she was moving into did not flood and was easily accessible from the Cumuto Trace. They denied that the Claimant indicated she was not selling the disputed property. 22. The Defendants admitted that they hired someone to excavate, grade and backfill the entire 10 acre parcel less the 1 lot occupied by the Claimant. They averred that excavation works commenced in May 2014 and concluded in November All the vehicles and machinery used for the excavation and grading entered on the roadway next to the dwelling house since it was the only access path to the 10 acre parcel. 8 Chapter 59:54 Page 10 of 77

11 23. The Defendants admitted that the First Defendant received the Second Panday Letter. The First Defendant averred that upon receiving the Second Panday Letter he attended the home of the Claimant who indicated that she sent the second Panday Letter since she was unable to contact the First Defendant and that she became scared when an employee of the contractor who was grading the 10 acre parcel told her in a harsh tone that the dwelling house was within the area of the access road which was being built and consequently it will have to be demolished. The Claimant thereafter agreed that she will take no further legal action and that she would relocate the dwelling house to the lot of land next to the existing dwelling house and next to Maniram s house. 24. The First Defendant averred that the Claimant indicated to him that she was advised to state that she occupied the disputed property since it was easier to get RPO for a parcel of agricultural land rather than a single approved dwelling lot since the area was predominantly an agricultural area. The First Defendant further averred that he indicated to the Claimant he already made arrangements to pay Dhaniram Ramdeo also called Jhan who agreed to accept the sum of $40, and to relocate him. The Claimant thereafter acknowledged that Jhan moved his house and built a concreted structure and thereafter from 2014 the Claimant made no objection to the Defendants occupation of the 10 acre parcel 25. The First Defendant also averred that at no material time, he encroached on any portion of the 1 lot which the Claimant occupied. Furthermore, whilst excavating works were taking place and upon the agreement of the Claimant, the area near to the dwelling house on the western boundary was backfilled with soil to replace the stagnant body of water which the Claimant never objected to. After the excavation works were done to this part of the 10 acres, the Claimant and First Defendant agreed that the Defendants would allow the backfill to settle for some time, so that the Claimant would be able to observe if the lot of land she was being relocated to would flood.the Defendants averred that no area close to the dwelling house was affected by the gathering of water after the backfill was placed and they denied and disputed the authenticity and admissibility of photographs referred and annexed to the Statement of Case. Page 11 of 77

12 26. They denied that any area near the dwelling house was affected by excavation works or gathering of water after they backfilled the area near it. The Defendants denied contributing to any damage to the dwelling house by constructing along the drainage system of the Cumuto Road. The Defendants averred that the dwelling house is located close to the Cumuto Road and is subject to continuous vibrations from vehicular traffic. The Defendants also contended that when they began surveying and constructing, the access road in January 2014, the Claimant had no objections. 27. The Defendants averred as a result of the caveat filed by the Claimant against the 10 acre parcel, they have been unable to complete the transactions for the sale of parcels of the 10 acre parcel and they may be liable to damages and loss. They asserted that they have been severely prejudiced since they have been denied access to the 10 acre parcel. The Defendants submitted that they will suffer financial hardship in the event they have to provide all refunds and reimbursements. 28. The Defendants denied that the Claimant is entitled to any of the reliefs as stated and counterclaimed against the Claimant for the following reliefs: i. A declaration that the Defendants are entitled to exclusive possession of the disputed property. ii. A declaration that the roadway measuring 12 meters wide and bounded on the North and South by lands of the Defendants and on the West by lands of now or formerly lands of Balkaran Dabie and Rookmin Dabie and on the East by the Cumuto Road is the designated road way to access and exit the 10 acre parcel of land without obstruction of any kind by the Claimant her servants and/or agents and more particularly described in Crown Grant in Volume 424 Folio 515 and bounded on the North by lands of Sanicharia by Crown Lands of Loungee and by lands petitioned for by Jooman on the South by Lands petitioned for by Soomur on the East by Cumuto Road and on the West by lands of Loungee and which said parcel of land is also described in Certificate of Title in volume 1232 Folio 247 is now owned by the Defendants. Page 12 of 77

13 iii. An injunction against the Claimant from obstructing/ harassing and/ or preventing the Defendants whether by themselves, servants and or agents from entering the disputed property. iv. An order that the caveat filed against the Defendants 10 acre parcel be removed. v. Damages for lodging a caveat on the entire 10 acre parcel and preventing the Defendants from completing their obligations under various agreements for sale. vi. Damages for preventing the Defendants from selling further portions of the 10 acre parcel land by virtue of these proceedings and the caveat lodged on the entire 10 acre parcel. vii. Damages for any and all refund, expenses incurred and reimbursements and claims for damages, interests and costs that the Defendants may be required to honour in accordance with agreements of sale referred to paragraph (iv) of this counterclaim. viii. Damages for nuisance and trespass unto the 10 acre parcel owned by the Defendants. ix. Reimbursement for all expenses incurred in developing the 10 acre parcel. x. Interests on any damages xi. Costs. Reply and Defence to Counterclaim 29. The Claimant averred that her father started using a walking stick in 2001 but it did not hamper his capacity to work or take care of his family. She stated that at times other person were permitted by Mr. Latchansingh to plant on certain parts of the remaining 10 acre parcel which excluded the disputed property. 30. The Claimant admitted that when she got married, she lived with her ex-husband s family for about two months (October 1993 to November 1993) while her father and brothers remained and occupied the dwelling house. She returned in late 1993 with her husband to live with her father and brothers. 31. The Claimant averred that the Land Tenants (Security of Tenure) Act does not apply to the Claimant because any tenancy of agricultural land by the Claimant and family falls outside the scope of it. Page 13 of 77

14 32. The Claimant denied that there was any discussion about relocation nor was any agreement/offer made to this end. 33. The Claimant denied that the access road built by the Defendants was on any existing pathway. The Claimant averred that the roadway constructed by the Defendants measured about 8.7 feet from the Claimant s house and it was not the only access path from the Cumuto South Trace Road unto the 10 acre parcel until The Claimant stated that there was an old cart road bounded by the lands of Lachmin where persons would access the remaining portion of the 10 acre parcel. It was backfilled by the Defendants and is covered with overgrown grass currently. 34. The Claimant denied that she was in any discussions with any of the Defendants for the resolution of the matter after the pre-action letters dated the 15 th March 2017 or that the she requested the sum of $100, and the one lot or that she made any agreement to have a formal contract prepared. 35. The Claimant denied giving the Defendant permission to excavate the disputed property or backfill any part/portion of it. 36. The Claimant admitted that she caused her attorney-at-law to file a caveat to protect her interest in relation to the disputed property but she pleaded that the caveat is not against the entire 10 acre parcel but the disputed property. The Claimant denied that she is liable to the Defendants for any loss or damage suffered as a consequence of her lawful registration of a caveat and that she did not stop the Defendants from developing or selling the remaining portion of the 10 acre parcel. She averred that the Defendants have not complied with all the requirements for final approval for subdivision of the remaining lots of the 10 acre parcel. The undisputed facts 37. Based on the pleadings it was not in dispute that: Page 14 of 77

15 (a) Mr Latchansingh owned the 10 acre parcel from 1952 until his death in February After his death the 10 acre parcel was owned by his wife Sylvia from 1986 until she passed away and after she passed away in 1988 it was vested in Barbara Kanhai and Sandra Britton from 1988 to October 2014 when it was sold to the First Defendant and later in February 2015 both Defendants became the owners. (b) In the 1970s, Mr. Emerson Ramhit Latchansingh had an agreement with the Claimant s father for his family to occupy and live on lands along the Cumuto South Trace Road for which he paid a rent to Mr. Latchansingh. (c) The Claimant as well as her parents, siblings and her daughter lived in a dwelling house on the 10 acre parcel from the 1970s. (d) After Mr. Latchansingh s death, the Claimant s father continued to live at 20 Cumuto South Trace Road with members of the family until his death on 18 th November 2006 (e) The Cumuto South Trace Road also called Cumuto Road is a public roadway that runs to the front of the 10 acre parcel described in Certificate of Title Volume 1232 Folio 247. (f) The 10 acre parcel is bounded by the property occupied by Lelawatee Balraj s family and the other side by the property owned by Lachmin. (g) The Claimant lived in the dwelling house since she was a child, and after the death of her father in 2006 the Claimant continued to live at 20 Cumuto South Trace Road to present. (h) In or around September 2013, the Claimant and the First Defendant had discussions in relation to the Claimant s interest in the disputed property 9. (i) The First Defendant received the Second Panday Letter stating that the Claimant had possessory title to the dwelling house and disputed property 10. (j) By 2014, the Defendants had engaged contractors to enter onto the 10 acre parcel and to excavate, grade and backfill it paragraph 5.1 of the Amended Statement of Case on page 13 of Trial Bundle 1; paragraph 19 of the Evidence of Fareeda Mohamed on page 12 of Trial Bundle Volume 2 and paragraph 14 of the Defence and Counterclaim on page 157 of Trial Bundle Lines 4 to 40 on Page 40 of 76 and Lines 1-4 on page 41 of 76 of the evidence of Rooplal Ramlal on Friday 1 st December 2017 of the Defendant s trial Evidence Transcript Bundle at Tab TB3 11 paragraph 5.2 of the Amended Statement of Case on page 13 of Trial Bundle 1; paragraph 22.1 to 27 of the Evidence of Fareeda Mohammed on page 13 to 15 of Trial Bundle Volume 2 and paragraph 15of the Defence and Counterclaim Page 15 of 77

16 (k) The Defendants constructed a road starting from the Cumuto South Trace Road running down the 10 acre parcel. (l) The First and Second Defendants received pre-action letter dated 20 th March 2017 from the Claimant s Attorneys-at-Law. (m) The Claimant lodged a caveat on 20 th March Based on the matters in dispute the following issues are to be determined: (1) Whether the Claimant and her father have, since the death of Mr. Latchansingh in 1985, been in sole, undisputed and uninterrupted possession of the disputed property which extinguished the Defendants title by virtue of sections 3 and 22 of the RPLA. (2) If the Defendants title to the disputed property is extinguished whether the actions of the servants and/or agents of the Defendants amount to acts of trespass for which the Claimant is entitled to recover damages. (3) If the Claimant fails to prove that the Defendants title to the disputed property is extinguished but proves that the Claimant has been in adverse possession of the 1 lot: (i) whether the Defendants are entitled to damages for lodging of a caveat against the unexcised disputed property which prevented the Defendants completion of obligations under the agreements of sale. (ii) whether the Defendants are entitled to damages for preventing them from selling further portions of the 10 acre parcel by virtue of the proceedings and the caveat lodged. (iii) whether the Defendants are entitled to damages for any and all refunds, expenses incurred and reimbursements and claims for damages, interest and costs that the Defendants may be required to honour in accordance with the agreement for sale. (iv) whether the Defendants are entitled to reimbursement for all expenses incurred in developing the 10 acre parcel. on page 158 of Trial Bundle 1paragraph 25 of the evidence of Rooplal Ramlal on page 149 of Trial Bundle Volume 2 12 Caveat at Tab 13, page 73 Page 16 of 77

17 (v) whether the Defendants are entitled to damages for nuisance and trespass unto the 10 acre parcel owned by them. 39. At the trial, the Claimant gave evidence on her behalf. She also called as her witnesses her brother Rasheed Mohammed ( Rasheed ), her daughter Cristabell Aladdin ( Cristabell ), her brother in law Mr Charanlal Badree ( Charanlal ), her companion Ms Deodath Sookoo (Deodath ), her pastor Mr Amozan Khan ( Amozan ) and a fellow member of her church, Mr Hyatali Rosan ( Hyatali ). 40. The Defendants gave evidence on their behalf and they called Mr Jaglal, Mr Harish Balkaran ( Harish ) and Lelawatee Balraj ( Lelawatee ). 41. In adverse possession matters, much turns on the Court s findings on issues of facts. It was common ground that there were substantial disputes of facts in the instant matter. Indeed the determination of liability concerned the Court finding which version of the events from the evidence of the witnesses was more likely. In Winston McClaren v Daniel Dickey and ors 13 Rajnauth Lee J (as she then was) repeated the approach the Court should adopt where there are different versions of the events as: 12. Where there is an acute conflict of evidence, the Judicial Committee of the Privy Council has laid down the following principles in the case of Horace Reid v Dowling Charles and Percival Bain Privy Council App. No. 36 of At page 6, Lord Ackner delivering the judgment of the Board examined the approach of the trial judge : Mr James Guthrie, in his able submissions on behalf of Mr Reid, emphasized to their Lordships that where there is an acute conflict of evidence between neighbours, particularly in rights of way disputes, the impression which their evidence makes upon the trial judge is of the greatest importance. This is certainly true. However, in such a situation, where the wrong impression can be gained by the most experienced of judges if he relies solely on the demeanour of witnesses, it is important for him to check that impression against contemporary documents, 13 CV , unreported Page 17 of 77

18 where they exist, against the pleaded case and against the inherent probability or improbability of the rival contentions, in the light in particular of facts and matters which are common ground or unchallenged, or disputed only as an afterthought or otherwise in a very unsatisfactory manner. Unless this approach is adopted, there is a real risk that the evidence will not be properly evaluated and the trial judge will in the result have failed to take proper advantage of having seen and heard the witnesses. 13. Accordingly, the trial judge must check the impression that the evidence of the witnesses makes upon him against (i) contemporary documents, where they exist; (ii) the pleaded case; and (iii) the inherent probability of improbability of the rival contentions. 14. The Judicial Committee of the Privy Council adopted a similar approach in the case of the Attorney General and another v Kalicklal Bhooplal Samlal (1987) 36 WIR 382. Lord Ackner who delivered the judgment of the Board made the following statement at page 387: The trial judge may well have reached his decision entirely as a result of the impression made upon him by the manner in which the witnesses gave their evidence. Indeed, it is difficult to draw any other conclusion. But a judge must check his impression on the subject of demeanour by a critical examination of the whole of the evidence (see Yuill v Yuill [1945] P 15 at page 20). In this case the Court of Appeal were fully entitled to conclude that he did not balance demeanour against the rest of the evidence and had thus not taken proper advantage of having seen and heard the witnesses. It is essential when weighing the credibility of a witness to put correctly into the scales the important contemporaneous documents (the brochure and the letter of 12th October 1981) and the inherent improbability, as the Court of Appeal percipiently pointed out, that the licence would have been granted without samples of those tiles which were not depicted in the brochure, being produced. Page 18 of 77

19 Thus the balancing operation, which is of the very essence of the judicial function, was not properly carried out. (Emphasis added). 42. In The Attorney General of Trinidad and Tobago v Anino Garcia 14, the Court of Appeal stated that any deviation by a Claimant from his pleaded case immediately calls his credibility into question. Whether the Claimant and her father have since the death of Mr. Latchansingh in 1985 been in sole, undisputed and uninterrupted possession of the disputed property which extinguished the Defendants title by virtue of sections 3 and 22 of the RPLA 43. Sections 3 and 22 of the RPLA creates a right of possession in favour of an adverse possessor who has been in continuous undisturbed possession of property for 16 years and prevents his ouster from the land by the paper title owner. 44. Section 3 of the RPLA provides that No person shall make an entry of distress, or bring an action to recover any lands or rent, but within 16 years after the time at which the right to make such entry or distress, or to bring such an action, shall have first accrued to some person Accordingly, any action for recovery of any land that may have accrued by an entry on land by an unauthorized third party after 16 years of interrupted possession is barred by section 3 of the RPLA. 46. Section 22 of the RPLA provides for the extinguishment of the title of the owner of the land where 16 years have lapsed from the date of the accrual of the right to bring an action if no action for recovery was brought. It provides that: At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action or suit 14 Civ. App. No. 86 of 2011 at paragraph 31 Page 19 of 77

20 respectively might have been made or brought within such period shall be extinguished. 47. Slade J. in Powell v. McFarlane 15 is instructive in providing guidance on what constitutes possession. The Court stated that: (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ( animus possidendi ). (Emphasis added). 48. Factual possession was described by Slade J. in Powell v. McFarlane as: Factual possession signifies an appropriate degree of physical control. It must be single and conclusive possession, though there can be a single possession exercised by or on behalf of persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which the land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants : West Bank Estates Ltd. v. Arthur [1967] AC 665, 678, 679; [1966] 3 WLR 750, per Lord Wilberforce. It is clearly settled that acts of possession done on parts of land to which a possessory title is sought may be 15 [1977] 38 P & CR 452 Page 20 of 77

21 evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so. 49. The intention to possess was described by Slade J as: The animus possidendi, which is also necessary to constitute possession, was defined by Lindley MR in Littledale v Liverpool College [1900] 1 Ch. 19, as the intention of excluding the owner as well as other people. This concept is to some extent an artificial one because in the ordinary case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that the animus possidendi involves the intention, in one s own name and on one s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. (Emphasis added) 50. Based on the aforesaid learning, if a party intends to assert a claim based on adverse possession the onus is on that party to satisfy the Court that she not only had factual possession of the disputed property for more than 16 years but that she also had the requisite intention to possess same to the exclusion of others. Page 21 of 77

22 51. It was not in dispute that the Defendants are the paper title owner of the 10 acre parcel and their title disclosed no interest which is adverse to them as proprietor 16. Therefore, their title is absolute and indefeasible pursuant to section 37 of the Real Property Act 17 ( the RPA ). In Lincoln Dillon v Mary Almandoz and anor 18 Bereaux J (as he then was) stated that the conclusiveness of the Certificate of Title was: It is a fundamental principle of the system of registered conveyancing that the title of every proprietor registered thereunder is absolute and indefeasible and cannot be impeached or affected by the existence of an estate or interest which, but for the registration, might have had priority. The Register is conclusive. All interests are set out on its face. Nothing else is determinative However, Section 45 of the RPA sets out two exceptions where the indefeasibility of a registered proprietor s paper title can be challenged namely in cases of fraud or adverse possession. It states: 45. Notwithstanding the existence in any other person of any estate or interest, the proprietor shall, except in the case of fraud hold the same subject to such mortgages, encumbrances, estates or interest but absolutely free from all other encumbrances, liens, estates or interests whatsoever except the estate or interest of a proprietor claiming the same land under a prior grant or certificate of title and any rights subsisting under any adverse possession of such lands (Emphasis added). 53. The law provides a party with a basis in adverse possession to challenge the title of the paper owner of lands. How is a party to establish such a claim? The learning in Zanim Ralphy Meah John v Courtney Allsop and Ors 20 by Kokaram J is instructive where he stated: 16 Vol. 1, pp. 13, Chapter 56:02 18 HCA 75/ HCA No. 75/2000 page 1 para 1 20 CV at paragraph 34 Page 22 of 77

23 Claims of adverse possession must be carefully drafted and the pleader must make it clear that this is the case which is being set up in the defence of a claim for possession. It [adverse possession] is therefore a very serious and significant claim where that type of occupation [adverse possession] will trump a legal right. The claim must therefore be carefully scrutinized to determine the character of the land, the nature of the acts done upon it and the intention of the occupier. The onus of establishing the defence of adverse possession is on the Defendant who put it forward. The facts relied upon to establish adverse possession must be cogent and clearly stated in the defence. (Emphasis added). 54. It was submitted on behalf of the Defendants that the Claimant s claim in adverse possession for the disputed property must fail since she has failed to show the extent of the boundaries of the disputed property which she has claimed to be in occupation. In particular, the sketch plan which the Claimant has annexed to her statement of case and her supplemental witness statement is not cogent evidence to support a claim for adverse possession. The Defendants also submitted that the Claimant failed to prove that her father rented the disputed property from Mr Latchansingh and even if he did before 1985 it did not necessarily mean he continued to occupy the disputed property after Further, the Defendants argued that the Claimant failed to prove that she and her father dealt with the disputed property as an occupying owner was normally expected to. 55. The Claimant s position was that she has put sufficient cogent information to demonstrate the boundaries of the disputed property. In particular Counsel for the Claimant argued that the two drawings which the Claimant annexed to the Statement of Case, the Reply and Defence to Counterclaim and also in her supplemental witness statement, although not drawn to scale can be of assistance to the Court and the Court must take into account the Claimant s limited financial means in evaluating this aspect of the Claimant s evidence. It was also argued that the evidence from the Claimant and her witnesses was unshaken in cross-examination that the Claimant and her father were in actual use and occupation of Page 23 of 77

24 the disputed property and that on a balance of probabilities the Claimant had proven that she and her father used and enjoyed possession of the disputed property to the exclusion of others. 56. Has the Claimant provided adequate particulars of the boundaries of the disputed property? 57. The Defendants contended that they are the owners of the 10 acre parcel and that the Claimant only occupied 1 lot which is a portion of the 10 acre parcel. In support of this pleading they annexed a copy of the December 2014 Memorandum of Transfer, the March 2015 Memorandum of Transfer, a survey plan of a survey conducted in December 2013 and survey plan dated 20 th September In the Claimant s Reply and Defence to Counterclaim the Claimant did not dispute the said survey plans. 58. According to the First Defendant when he bought the 10 acre parcel he hired a surveyor named Morris to conduct a survey. The Claimant was present during the survey when the first picket was found and when they were grading along the western boundary but she was not there when they found the remaining boundaries nor did she object to the survey being done as well as the grading. Mr Morris surveyed the 10 acre parcel and divided it into 8 parcel in order to get outline approval for the subdivision of the 10 acre parcel from Town and Country Planning Division. The grass was graded outlining 8 parcels and Morris reduced same into a consolidated plan. After the survey was done it was easy to identify these individual parcels due to the work by the tractor. 59. In the First Defendant s witness statement he stated that the dwelling house is described as Lot A 2 on the survey plan dated the 1 st March 2016 which he annexed as A to his witness statement. He also annexed as B to his witness statement a copy of a survey plan prepared from a survey conducted in December 2013 which showed the division of the 10 acre parcel into 8 pieces. 60. The Claimant pleading in her Statement of Case with respect to her claim for adverse 21 Exhibit C to the Defence and Counterclaim Page 24 of 77

25 possession was ONE AND A HALF ACRES (1 ½ acres) of agricultural lands with concrete house/ building situate at eastern boundary of Cumuto South Trace and known as 20 Cumuto South Trace forming part of a larger parcel of land described in Crown Grant in Volume 424 Folio 515 The Claimant then described the boundaries of the 10 acre parcel. She did not describe the boundaries of the disputed property save and except that it was at the eastern boundary of the Cumuto South Trace. Therefore having asserted that she was claiming to be in adverse possession of the disputed property which was 1 ½ acres of the 10 acre parcel the onus was on her to describe the boundaries of the disputed property. 61. In paragraphs 10.1 to 10.3 of the Claimant s witness statement she describes the disputed property as: 10.1 The lands that my family and I lived is L shaped area, with the rice area forming the base of the L letter and the front being the long side of the letter L. I have drawn some sketch plans to assist the Court and to explain the size of the lands we occupied and the location of the lands for lagoon and agricultural lands. These sketches represent the current position of the land its dimensions and does not show the placement of where the agricultural crops and/or the rice lagoon exhibited on the sketch plans. Copies of the sketch plans that I initially drew at different times in 2017 and thereafter had put into a computerised format are hereto annexed in a bundle as F.M The first sketch plan features a large rectangular area that symbolises the entire 10 acre plot. I thereafter drew a square which is shaded grey to represent the area occupied inadvertently the shape I should have used was two rectangular pieces to show the front ½ acre and the lagoon 1 acre area. The dark spotted rectangle represents the current access road that has been built by the Defendants and the smaller rectangular strips represent the box drains which are labelled. At the time of this drawing I used a tape measure to span the distance and I wrote that the dimensions were 139ft from the edge of the road to Lachmin s property and a combined 153 feet from the edge of the road closet to my home to Leelawattie s home. I then measured Page 25 of 77

26 the distance of land from where the defendants backfilled which was about 49.63ft and placed a dashed box to represent the area that I was left with that had not been backfilled. I wrote on the drawing that it was not drawn to scale as it was reflectively of my measurements After the Defendants s representatives came to do a site visit on 4 th August 2017 with regards to the distance of the access road to my house I decided a few weeks later to take my daughter and do a full measurement of the area where we lived to fully explain the area that my father and now I occupied. I did my best however the land has changed dramatically from how I knew it and some of the original landmarks were backfilled and/or cut down. The second sketch plan seeks to show the 1 ½ acre occupied and places reference points such as the street name and the neighbour s who bound the property Leelawattie Balraj and Lachmin. My daughter and I measured feet to the front area along the Cumuto South Trace Road also known as Cumuto Road, which stretches from Ms. Leelawatie s boundary to Lachmin s boundary. It was about feet from the Cumuto South Trace Road down on the side near Lachmin s property and feet from Lachmin s property boundary to the center area of the property. This front area is here the agricultural crops and our house was located. Then feet towards the west and/or towards the remaining 8 ½ acres and about feet from that centre area towards the direction of Leelawatie s home area, this was the area was the lagoon where my parents used to cultivate the rice. My daughter wrote down the measurements that we took and I sketched out the drawing and then the drawing was redone on a computer. 62. The Claimant has relied on the case of Eastwood v Ashton 22 to support her use of a sketch plan and her own measurements as being sufficient to identify the disputed property. However, Eastwood was not a case that dealt with an adverse possession claim and in this regard it is of little assistance. 22 [1915] AC 990 at 916 HL Page 26 of 77