IN THE HIGH COURT OF JUSTICE. Sub-Registry, San Fernando BETWEEN WINSTON HAMID. And TRICIA LAKSHMI SAWH AND RAMNARINE SUNIL GAJADHAR.

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Sub-Registry, San Fernando Claim No. CV BETWEEN WINSTON HAMID And TRICIA LAKSHMI SAWH AND CLAIMANTS RAMNARINE SUNIL GAJADHAR And KRISHNA ANCIL GAJADHAR DEFENDANTS BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR APPEARANCES Ms Renu Teekasingh for the Claimants Ms. Temilola Ade-John for the Defendants Page 1 of 6

2 Oral decision Friday 8 th May The claimants claim that they purchased a parcel of land from the defendants. That parcel of land is to the east of the defendant s parcel on which they have their dwelling house. The parcel of land of the defendants adjoins the Bonne Adventure Road in Gasparillo. 2. They also claim that:- a. They were expressly told that they would be entitled to a right of way 15 feet wide and 300 feet long to gain access to the property that they were purchasing. b. That this alleged right of way is the only way that they can access the land that they purchased. This is not admitted. In fact the defendants alleged i. that they made no such representation or promise or indication, ii. that there was no need to offer any alternative access as there was always a public access running to the south of their property from the Bonne Aventure Main Road, directly to the parcel of land that the claimants had purchased, and iii. that the alleged right of way would have been running very close to their dwelling house. 3. The claimants sought and obtained an injunction restraining the defendants from interfering with their access via this alleged right of way as they contended that it was the only access that they had, that they had spent money in developing it as a roadway, and that they were Page 2 of 6

3 being impeded from construction of their dwelling house as they could not transport materials to their house from the Bonne Aventure Main Road without that access. The injunction was discharged on 9 th April A joint survey plan was prepared by Mr. Ramon Fortune, a surveyor, to establish, i. whether as the claimants contended, the alleged right of way was their only access to their land; or ii. whether, as the defendants contended, the claimants had access over an adjacent roadway running from the Bonne Aventure Main Road. The joint survey plan 5. The joint survey plan put into evidence makes clear that there was always for the past 20 years, at least according to a government topographical map , public access to the south of the defendants property. 6. The survey by Mr. Ramon Fortune also makes clear that the proposed right of way claimed by the claimants would run extremely close to the defendant s house, and would take up a significant portion of the defendant s property. 7. The defendants admit affording the claimants the use of a right of way along the route of the proposed/claimed access for a period of approximately 2 years from the date of purchase by the claimants of their land. They contend that they did so at the request of the claimants, and as a temporary measure to facilitate them, because of complaints reported to them by the claimants, Page 3 of 6

4 that the use by the claimants of heavy vehicles to transport their building materials was causing damage to the public access. 8. As a result, to facilitate them, they allowed them the use of the parallel access within their property. This however was not intended to be a permanent arrangement. It came to an end when the claimants allegedly threatened the defendants in a dispute about the blockage of a drain by the claimants and the waterlogging of the defendants land as a result. 9. The Claimants and defendants testified. The Defendants strenuously denied that they ever made the alleged promise or representation that, along with the sale of the land to the claimants, they would also provide an easement for them over the defendants property, whether 15 feet wide or otherwise. This is accepted as:- a. It is quite clear that there was, as the defendants have always contended, a public access over which the claimants had access to get to their land. There are even photographs of the persons connected to the claimants driving a vehicle over it. In any event the surveyor s expert and independent evidence is determinative of this issue. Accordingly the claimants are clearly being untruthful when they contend that the only way for them to have gained access to their land was over the allegedly promised right of way over the defendants land. There would have been no need for such a promise. I accept the evidence of the defendants that they afforded a temporary use of their land to accommodate and facilitate the claimants when they requested that facility, allegedly because of the complaints that they were causing damage to the public access. Page 4 of 6

5 b. Secondly, given the width of the defendants property, the alleged right of way is almost one third of that, which constitutes a significant portion of the width of the defendants property, and it would pass extremely close to the house of the defendants. It is straining credulity to contend that the defendants would permanently impair such a significant portion of their own property by providing the alleged access on a permanent basis, far more so when there was the public access running to the south of their property which would have left their property intact and unimpaired. c. Thirdly, the alleged right of way is not recorded in the deed of conveyance, despite the certificate of the claimants that they read, understood and agreed with the contents of the deed. In fact there were 2 deeds February and March. Yet this alleged right of way was not mentioned in the deeds despite the alleged importance, and in fact the necessity, of such a right of way as alleged by the claimants. 10. The surveyor has reported that the public access was being fenced in or enclosed on his visit on October 17 th According to his report it exists on the property, to the south of the Defendants property, but was used as a public access from at least the past 20 years as shown on the government topographical map. It may therefore be that now the access of the claimants to their property is being impaired. 12. However that is not their case. Page 5 of 6

6 i. In so far as they contend that the defendants promised to them, and in fact sold to them, property, together with an alleged right of way over the defendants property, that allegation is rejected as being quite inconsistent with the evidence. ii. In so far as they contend that the alleged right of way was necessary to allow them access to their land, that allegation is rejected as being inconsistent with the independent expert evidence, and the photographic evidence of the use of what was, at that time, a public access to their property. iii. In so far as they insinuate that the alleged right of way was inadvertently omitted from the deeds that they attested they had read, and the contents of which they had agreed to, that contention is rejected as being inconsistent with the documentary evidence. iv. The counterclaim is dismissed with no order as to costs. Order 13. a. The Claimants claim is dismissed. b. The Claimants are to pay to the defendants costs in the sum of $14, c. The counterclaim is dismissed with no order as to costs. Dated this 8 th day of May 2015 Peter A. Rajkumar Judge. Page 6 of 6