IN THE HIGH COURT OF JUSTICE BETWEEN

Transcription

1 THE REPUBLIC OF TRINIDAD & TOBAGO CLAIM NO. CV IN THE HIGH COURT OF JUSTICE BETWEEN JUDY LAUV SHERRY NARINESINGH PAMELA KADAN MOHAMMED SANKARDAI SADAL SURUJDAI MOTAY LEELA RAMSUMAIR GARY UGAL KADAN Claimants AND LOUISA VISSIA MEDRANO RONALD RICHARDSON Defendants Before the Honourable Mr. Justice R. Rahim Appearances: Mr. G. Armorer for the Claimants Mr. G. Raphael for the First Defendant No appearance for the Second Defendant

2 Judgment 1. This is a claim for the recovery of land and involves the issue as to who is entitled to possession of the land in dispute (hereinafter referred to as the disputed land ), which forms part of a larger portion of land more particularly described in the Deed registered as No of 1965, situate at Edinburgh Road, Longdenville, in the Ward of Chaguanas comprising twenty one acres, three roods and fifteen perches. The Second Defendant has played no part in these proceedings and the court has been informed by Attorney for the First Defendant, who is also on record for the Second Defendant, that the Second Defendant has since removed himself from the disputed land. The Claimants however maintain their claim against the Second Defendant. The Undisputed facts 2. The land was conveyed to Sandra Kadan, also known as Samdai Kadan and Sandra Samdai Kadan (hereinafter referred to as Sandra Kadan ) by Deed No of 1965 from one James Victor Gobin. All of the Claimants in this matter are siblings and are the siblings of Sandra Kadan, who contributed to the purchase price for the said land. Sandra Kadan died on February 25, 1994, and on March 24, 1995, one Chanderdai Dolly, also known as Chandra Dolly (hereinafter referred to as Chanderdai Dolly ) obtained a grant of probate for the will dated February 23, 1994 of Sandra Kadan and the grant of probate is registered as No of 1995 in the Protocol of Wills at the Probate Registry. 3. The land was devised to the Claimants and Chanderdai Dolly by Will and by Deed of Assent, Deed No. DE D001, dated January 4, 2001, Chanderdai Dolly, as executrix of the estate of Sandra Kadan, assented and conveyed the said land to the Claimants and herself. The Fourth Claimant died on November, 11, 2003 and Chanderdai Dolly died in May

3 4. The Claimants are the owners of the said land and the disputed land, which measures approximately five thousand square feet, forms part of the said land. There is no dispute in respect thereof. CASE FOR THE CLAIMANTS 5. It is the Claimants case that Sandra Kadan and the Claimants visited the said land regularly from 1965 until the attempted coup in On or around February or March 1992, Sandra Kadan, the Seventh Claimant Gary Kadan, and some of the other Claimants visited the said land, where they found that Ivan Garcia (the common law husband of the First Defendant) had taken possession of the disputed land without the permission of Sandra Kadan or the Claimants. 6. The Claimants allege that the said Ivan Garcia was in the process of constructing a wooden structure on the disputed land. The Claimants informed Ivan Garcia that they owned the land and on the request of Ivan Garcia, produced the deed of Sandra Kadan in the presence of Gary Kadan. According to the Seventh Claimant, Ivan Garcia agreed to vacate the disputed land. 7. Gary Kadan testified that in March 1992, he saw the First Defendant living in a house at No. 2 Gail Trace, Palmiste, approximately ¼ mile from the disputed land so that at the time of the visit the First Defendant was not living on the disputed land. The Claimants also claim that the First Defendant and the said Ivan Garcia had been previously renting lands of Veronica Kernahan and sometime during or after 1992 they moved from those lands onto the disputed land. 8. Between 1992 and 1994, the Claimants visited the said land less frequently due to Sandra Kadan s illness. During this period, the disputed land was abandoned. The Seventh Claimant subsequently visited the said land in 1994 where, for the first time, he 3

4 observed a house, different from that of the wooden structure previously constructed by Ivan Garcia, on the disputed land. This house was a concrete structure. 9. In 2006, the Seventh Claimant along with one Krishna Ramalakhan, a land surveyor, visited the said land and was informed by the First Defendant that the said land concerned her. Further, the Seventh Claimant also met the Second Defendant on the disputed land in 2006, where he was informed that the Second Defendant was a tenant of the First Defendant. This appears on the evidence, to be the house which is now occupied by the son of the First Defendant. The house does not have a water connection, electricity, or a telephone. It also does not have road access as one accesses the house by way of a track. 10. The Claimants claim that the First Defendant was never in occupation of the disputed land; that after the death of Ivan Garcia, around 1992 to 1993, the First Defendant, without the permission of the Claimants or Sandra Kadan, constructed a house on the disputed land and began renting the said house to various persons including the Second Defendant. CASE FOR THE FIRST DEFENDANT 11. By way of Defence and Counterclaim the First Defendant alleges that the Claimants are debarred from bringing an action to recover possession of the disputed lands by virtue of section 3 of the Real Property Limitation Ordinance Ch. 5 No. 7, the First Defendant having been in adverse possession for a period of at least 16 years prior to suit, namely from the year This claim was commenced in the year 2006 and this is the second trial thereof. 12. The First Defendant lives at No. 2 Gail Trace, Palmiste Village, Longdenville, which is a short distance away from the disputed land. It is the evidence that to get to the 4

5 disputed land one would have to use a track off of Gail Trace which leads to the house on the disputed land. It is the case of the First Defendant that on or around 1987, the First Defendant and Ivan Garcia began renting the disputed land from one Henry Kerr. They believed the land to be owned by one V.A. Spencer and then by Veronica Kernaham. 13. The First Defendant and Ivan Garcia took occupation and possession of the disputed land and in 1987 constructed a flat concrete dwelling house, comprising two bedrooms, a living room, dining room, kitchen, toilet and bath and a porch. The First Defendant alleges that prior to Mr. Garcia s death they both occupied the said house and possessed the disputed land. She continued to be in occupation and possession after his death but she has rented out the premises over that period and has recently permitted her son and his family to reside in the said house. The First Defendant therefore claims that she has acquired a possessory title to the disputed land. 14. The First Defendant also claimed that she and Mr. Garcia paid rent for 1988 and 1989 but Henry Kerr stopped collecting rent for the property around At that time Henry Kerr had informed both the First Defendant and Ivan Garcia that he could not collect rent for the land as he was renting someone else s land. 15. Ivan Garcia died on May 18, By paragraph 8 of her Amended Defence, the First Defendant averred that after the death of Ivan, she left the disputed land and moved back to the house at No. 2 Gail Trace and the house on the disputed land was put the Second Defendant into possession in He left in April ISSUES 16. It is no longer an issue whether the disputed land falls within the land purchased by Sandra Kadan and thereafter conveyed to the Claimants via Deed of Assent Deed No. 5

6 DE D001. This was the agreed position at trial, which is a retrial. Further, it is not an issue that the occupation of the land has been without the consent of the Claimants. Therefore the issues which are primarily issues of fact to be determined are as follows: a. Whether the First Defendant entered into and remained in continuous and undisturbed possession of the disputed land prior to the expiration of sixteen years from the date of the institution of these proceedings on the 22 nd December 2006, namely prior to December b. If not, whether the Defendants have committed trespass onto the disputed land and are therefore liable for damages for trespass. 17. Before moving on to determine the issues the court reminds itself of the law as relates to the doctrine of adverse possession. For the First Defendant s counterclaim in adverse possession to succeed, she must prove both factual possession and an intention to possess the land. This factual possession should be exclusive and ought not to have been by force, hidden or with the paper owner s permission. She must also show an intention to take possession on her own behalf and for her own benefit to the exclusion of all other persons including the owner with the paper title so far as is reasonably practicable: JA Pye (Oxford) Ltd v Graham [2002] UKHL 30. Evidence for the Claimants 18. The Claimants have provided documentary evidence of their ownership of the land as follows: a. Deed of Conveyance, Deed No. Deed No of 1965, transferring the land from one James Victor Gobin to Sandra Kadan; 6

7 b. A copy of the last will and testament of Sandra Kadan dated February 23, 1994; c. Grant of Probate to Chanderdai Dolly of the said last will and testament, registered as No of 1995 in the Protocol of Wills at the Probate Registry; d. Deed of Assent, Deed No. DE D001, dated January 4, 2001conveying the said land from Chanderdai Dolly, as Executrix of Sandra Kadan s estate, to the Claimants and herself. 19. The Claimants also retained the services of Paul Anthony Williams (hereinafter referred to as the expert witness ), a registered and licensed Trinidad and Tobago land surveyor and photogrammetric engineer. His evidence included aerial photographs of the area which showed the said land. He testified that the aerial photographs were used to determine the usage of the land at the point in time in which the photographs were taken and that he used the aerial photographs to check for the house on the disputed land. 20. At paragraph 20 of the witness statement of the expert witness, he stated that, a. The photography for each year was examined in pairs in order to obtain a three dimensional view of the general area in which in the House was. I looked for and located the House. I located the House in the only photographs in which it was visible, namely only in the most recent aerial photograph of the area which were those for the year I checked in order to find out whether there was any aerial photography or satellite imagery of the area which was available for the period between January 1988 and March 1993 from other suppliers of aerial photography and satellite imagery but there was none. 21. Further, at paragraph 25 of the expert witness statement the witness stated, 7

8 a. There is no house in the same location in the aerial photographs for the years 1986 or 1988 I have therefore deduced that the House was built after January 13, 1988 which is the date on which the aerial photograph for 1988 was taken. I can also say that there was no house in the same location as the House in 1986 or The location where there is the House in the 1993 photography is, in the 1986 and the 1988 photography, not being used and is covered with vegetation. 22. During the cross examination of the expert witness, he testified that he visited the area in 2007 and located the position of the house in the 1993 aerial photograph and took pictures of the house. The photograph shows that the house is a concrete structure with a concrete wall in front. He also stated that in 1998 there was no track but there was a clearing next to the said land with vegetation and a wall standing up and further that the ground where the disputed land is located was undisturbed. 23. The Claimants only other witness was Gary Kadan, the Seventh Claimant. During crossexamination, Kadan testified that the purchase price for the said land was provided by all the siblings and but that the said land was transferred only to Sandra Kadan. He further stated during cross-examination that from 1965, Sandra Kadan, some of the other Claimants and he, visited the said land frequently up until 1990 and that the First Defendant and Ivan Garcia were not in occupation of the said land during this period; nor was there any house or structure built on the said land during this period. Further, it is his evidence during cross-examination that he saw Ivan Garcia for the first time on the said land in February to March 1992 in the process of building a wooden structure but did not see the First Defendant. During 1992 and 1993 he claims he did not see anyone on the said land and the structure was abandoned until 1994 where he saw for the first time a concrete house on the said land, which, in 2006 he learned, was built by the First Defendant. 8

9 Evidence for the Defendants 24. The witnesses for the Defendants were the First Defendant, Louisa Medrano and one Jerome Williams, a neighbour of the First Defendant. 25. The First Defendant produced receipts for the years 1988 and 1989 for the rental of land known as Gale Land, Palmiste Village, Longdenville in respect of which she paid an annual rent of $ The First Defendant has testified both in her witness statement and during cross-examination that the rent was paid for the disputed land despite the description on the receipt. It is her evidence that the receipt for the year 1987 was either lost or destroyed and she was unable to locate receipts for the years 1987 to 1988 and 1988 to The court must say that it finds this bit of evidence to be curious to say the least. This is so as the evidence bears conflict with itself as the receipts produced appear to be for the 30 th June 1988 and the 30 th June 1989 respectively. The First Defendant also stated that the address at which she lives is referred to as Penco Lands and that the address on the receipt is in fact that of the disputed land. This is the first time that the name Penco Lands is being used in this case by the First Defendant to describe her residential address but be that as it may, the court accepts her viva voice evidence in relation to the rental and the limited support provided by the receipts. Both receipts clearly demonstrate that they were allegedly for rental from 30th June 1988 to 29 th June 1989 then for 30 th June 1989 to 29 th June 1990 as it is the testimony of the First Defendant that she paid rent in advance. The court therefore does not accept her testimony that she rented the disputed land from Ms. Veronica Kernaham in 1987 in light of the information contained in the receipts. The finding of the court is that lands were rented from Ms. Kernaham from the 30 th June The court also accepts the evidence that Mr. Kerr (as agent of Kernaham, there being no evidence to the contrary of her testimony in which she says that he was in fact agent) ceased collecting rent sometime in It would by process of inference be that Ms. Kernaham collected no rent for the period 30 th June 1990 to 29 th June 1991 and thereafter. 9

10 26. The First Defendant has also produced receipts from the year 1987 to 1991 to show that material was purchased for the construction for the house on the disputed land. The receipts state the address of the First Defendant as Gail Trace, Palmiste. The court accepts that the inference is that these receipts demonstrate in their totality that the material bought was for concrete work. What the receipts do not by themselves demonstrate is whether the concrete work was that of the construction of the house on the disputed land. The receipts are dated from March 1987 to the month of September It is the testimony of the First Defendant that they began construction of the house in She has not stated the date at which she began to renovate the wooden house at Gail Trace mentioned below. 27. Upon being cross-examined the First Defendant testified that she inherited the land upon which she presently resides at Gail Trace (and which she refers to as Penco Lane above) from her father, now deceased. This land is situated on the main trace named Gail Trace and is not the land in dispute. It is her evidence that her father built a small wooden house for her at the time he gave her the land. Ivan Garcia was her common law husband and is the father of her last child who was born in April She has since renovated the house into a concrete structure and it is an ongoing project. These renovations were also ongoing in In relation to the house which is situated on the disputed land it was her testimony that her son Brian Garcia has been living at the house since the year 2009 with his wife. 28. Jerome Williams, the other witness for the Defendants stated at paragraph 2 of his witness statement that he moved to Gail Trace, Palmiste in 1987 and built a house there on lands belonging to the said Veronica Kernaham that same year, two hundred feet away from the parcel of land on which the First Defendant and Ivan Garcia built their house. At paragraph 3, Jerome Williams stated that the house of the Defendant was being constructed when he moved to Gail Trace, Palmiste and that the First Defendant and Ivan Garcia moved into the house in He assisted in the construction of the 10

11 said house built by the First Defendant and Ivan Garcia. It is also his testimony that the First Defendant moved out of the house in 1992 and went to live on her land on Gail Trace, after which the house was occupied by the First Defendant s nephew and his wife. Jerome Williams however admitted during cross-examination that he assisted in the construction of the house on the disputed land in 1988 and that he did now know when the First Defendant and Ivan Garcia moved into the house on the disputed land. Submissions of the Claimants 29. The Claimants have asked for possession based on their legal title to the said land. They have relied on the authority of Reid v. Charles & Bain P.C. Appeal No. 36 of 1987 in an effort to demonstrate the approach that the court should adopt in respect of evaluating the evidence in this case. It was submitted that contemporary documents should be looked at and carry more weight than viva voce evidence and affidavit evidence. They also relied on Stauble v. Bholai H.C.A. No. 803 of These authorities represent general principles and there is no issue in respect thereof on the part of the Defendant. 30. It was submitted that the evidence of the expert witness is the better evidence to be relied on to conclude that the First Defendant was not on the disputed land in Further, it was submitted that the First Defendant was not in continuous occupation of the disputed land as she stated that she left the disputed land after the death of Ivan Garcia. In addition to this, it is unclear as to when the Second Defendant took up occupation of the disputed land after the death of Ivan Garcia; which was either in 1994 according to the pleaded case of the First Defendant and her cross examination in January 2010, or 2002 according to the witness statement of the First Defendant. These gaps in occupation are both within the sixteen-year period immediately preceding the filing of the Claimants claim. 11

12 31. Submissions were made also on behalf of the Claimants in respect of damages and costs. Submissions of the First Defendant 32. It was submitted that the Claimants have never pleaded that the First Defendant s possession has not been continuous, but have pleaded in paragraph 5 of the Re- Amended Statement of Case that the First Defendant took possession in February to March 1992 and has thereafter wrongfully remained in possession. This submission of course ignores the legal burden imposed on the one who alleges adverse possession to prove same. Further, the submissions of the Defendants mostly all relate to inconsistencies in the evidence of Gary Kadan which the court has considered but has determined that they are not material inconsistencies which make the evidence of Kadan unreliable in respect of the issue to be tried in this case. Findings on the first issue 33. The court finds on the evidence that it is satisfied that the First Defendant has been in continuous adverse possession of the disputed land since 1988 for the following reasons: a. The land which is the subject of the dispute in this case was not owned by Veronica Kernaham in The chain of title extracted by the Claimants demonstrates that the lands were transferred to Samdai Kadan by James Victor Gobin in December of Samdai Kadan remained the paper title owner until the date of her death when the beneficial interest was passed to the Claimants by Will and thereafter the land was transferred to the Claimants by Deed of Assent in the year b. Veronica Kernaham was possessed of the adjoining lands to the north. Upon her death, her Legal Personal Representative Janet Bernard applied to bring the said 12

13 lands under the provisions of the Real Property Ordinance (RPO) on the basis of Kernaham s long and continuous possession. The application to bring the lands under the provisions of the RPO is exhibited to the witness statement of Gary Kadan and there is no evidence to the contrary. This evidence must be considered together with the strong, cogent and compelling evidence of the expert witness whose testimony demonstrates that there was no house on the disputed land prior to January 13 th, A house is shown in The Defendants have not negated this evidence. It follows that the inference to be drawn from both pieces of clear evidence is that First Defendant and her common law husband had paid rent to Ms. Kernaham for a parcel of land situated on Ms. Kernaham s land which is situated north of the land of the Claimants. The receipts bear testimony to the fact that the First Defendant and her husband paid rent for the periods 1988 to 1989 and 1989 to c. The First Defendant appears however to be saying by inference that although they rented from Ms. Kernaham, the land pointed out to them turned out subsequently to be that of the Claimants and that is why Kernaham stopped collecting rent from them. Even if this was in fact the case, the expert evidence clearly demonstrates that the First Defendant and her common law husband had not constructed a house on the lands of the Claimants by the 13 th January It means therefore that the First Defendant s evidence to this court when she testified that she and her husband constructed a concrete house on the land in 1987 (See paragraph 5 of her witness statement), is unreliable. It is not to say that the court finds that she is being untruthful or is attempting to deceive the court on this material issue. She has admitted in cross-examination that it was only in 1988 that Mr. Kerr took she and Ivan to see the land and that it was then that they agreed to rent the land. It means that she is saying in crossexamination that the house was built thereafter. Her evidence is supported in material particular by her witness Jerome Williams, who although not the 13

14 clearest of witnesses seemed resolute in his evidence that he assisted in the construction in Then there are the receipts which show purchases of large amounts of concrete and building materials during the period. It therefore appears to the court that the First Defendant may be mistaken when she says that the house was built in d. It follows therefore follows as a matter of common sense that either one of two thing may have occurred. Firstly, that the First Defendant and Ivan rented lands from Ms. Kernaham which were situated on Ms. Kernaham s lands and subsequently moved onto the lands of the Claimants and constructed a house sometime during or after 1988 but before Secondly, that the First Defendant and Ivan rented lands from Ms. Kernaham which land turned out to be that which is situated on the lands of the Claimants and she and Ivan built a house sometime during or after 1988 but before In the court s view the latter is more likely than not having regard to the incontrovertible evidence by the First Defendant that Mr. Kerr informed her in 1990 that this was the reason that he was not collecting any more rent and the court so finds. Animus Possedendi e. That the First Defendant would, having operating under a factual mistake, and would have believed that she was entitled to possession of the disputed land certainly from the 30 th June 1988 is therefore clear. But whether the First Defendant in fact took possession of that land and therefore had both factual possession and the intention to possess for the required period of years is a matter of fact to be proven by the First Defendant. Further, the construction of a house is but one item of evidence which may go towards proof of possession but it is not usually the only consideration. The court ought therefore to examine whether there is any evidence which supports the case of the First Defendant 14

15 that she took possession of the disputed land prior to 1990 as the effect of her intention to possess was that the consequences were adverse to the true owner from the day of possession despite the mistake of fact, she being a trespasser on the land. It is not enough that the First Defendant was entitled to exclusive possession, even though mistaken, she must have exercised and demonstrated that possession on the evidence. f. In JA Pye (Oxford) Ltd v Graham (supra), Lord Hope of Craighead at paragraph 70 and thereafter had this to say: 70. The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. As between themselves they have separate rights, but as against everyone else they are in the position of a single owner. Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue. But it can be transferred from one person to another, and it can also be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. The acquisition of possession requires both an intention to take or occupy the land ("animus") and some act of the body ("corpus") which gives effect to that intention. Occupation of the land alone is not enough, nor is an intention to occupy which is not put into effect by action. Both aspects must be examined, and each is bound up with the other. But acts of the mind can be, and sometimes can only be, demonstrated by acts of the body. In practice, the best evidence of intention is frequently found in the acts which have taken place. 15

16 71. The question as to the nature of the intention that has to be demonstrated to establish possession was controversial, particularly among jurists in Germany: see, for example, Henry Bond, Possession in the Roman Law (1890) 6 LQR 259. But it is reasonably clear that the animus which is required is the intent to exercise exclusive control over the thing for oneself: Bond, p 270. The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor. The word "adverse" in the context of section 15(1) of the Limitation Act 1980 does not carry this implication. The only intention which has to be demonstrated is an intention to occupy and use the land as one's own. This is a concept which Rankine, The Law of Land-Ownership in Scotland (4th ed, 1909), p 4, captured in his use of the Latin phrase cum animo rem sibi habendi (see his reference in footnote 1 to Savigny, Das Recht des Besitzes, translated by Perry (1848), paras 1-11). It is similar to that which was introduced into the law of Scotland by the Prescription Act 1617, c 12 relating to the acquisition of an interest in land by positive prescription. The possession that is required for that purpose is possession "openly, peaceably and without any judicial interruption" on a competing title for the requisite period: Prescription and Limitation (Scotland) Act 1973, section 1(1)(a). So I would hold that, if the evidence shows that the person was using the land in the way one would expect him to use if it he were the true owner, that is enough. g. The court would add that it appears that when Lord Hope of Craighead speaks of the use of the land as if the occupier was the true owner, he is referring to true owner in the context of he who is entitled to exclusive possession of the land. In other words the acts of the person must be consistent with acts of those who are entitled so to act whether they be freehold title owners or tenants who are 16

17 themselves entitled to exclusive possession as is the case here. Lord Browne- Wilkinson put it succinctly at paragraph 41 of Pye: 41. In Powell Slade J, at pp , said this: (3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several 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 land of that nature is commonly used or enjoyed.. 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. I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before 30 April h. An examination of the evidence shows that the First Defendant has given no evidence of any other activities on the disputed land to demonstrate possession at the material time, namely before December 1990 other than the building of the house. The court must therefore examine the evidence to assess whether it 17

18 assists with the time when the house was more than likely built. In her witness statement the First Defendant stated that she and Ivan also fenced around the house but there is no evidence of a fence in the 1988 aerial photograph. According to the expert Williams, a fence is shown on a different parcel of land in the 1988 photograph. In cross-examination the witness stated that in 1988, Kerr took them to the spot and it is only then that she indicated that they would take the land. i. This brings the court back to the receipts, as there is no evidence of other acts. The receipts are made in Ivan s name. The First Defendant explained that he was the one who did the transactions. This is a quite reasonable explanation having regard to the norms in our society. There are fifty receipts which date from 1987 to They appear to be for items which would usually be used for construction including many bags of cement, steel and nails. In this regard the Claimants have sought to persuade the court that the address set out by Ivan on the receipts was in fact that of the house which the First Defendant inherited. The court is of the view that this is not necessarily so. The evidence shows that the material had to be deposited on the main road (Gail Trace), to be carried to the spot where the house was being built because of accessibility issues and the court accepts this evidence. The explanation is reasonable. The evidence also is that all the houses in that area carry that said address, namely Gail Trace. In Trinidad and Tobago this is also a common feature so that the court also accepts that explanation. In totality therefore there is a strong inference from the receipts when viewed with all the other evidence that the First Defendant has proven that the house was constructed sometime between the 13 th January 1988 and the 26 th March The evidence is that the work continued through the years. It means that the work was certainly started prior to December In the court s view, the evidence demonstrates that the construction of the house started in It means that at that time, the First Defendant and Ivan 18

19 has assumed possession of the disputed land upon which they were building their house. Whether the house was completed in 1988 or 1989 or 1990 or 1991 is of no consequence to the issue of possession, as it cannot be reasonably argued that someone who is building a concrete structure on land for his own use and benefit is not in possession of the land and is unable to exclude all others. The burden lies on the First Defendant to prove that she has been in possession prior to December 1990 and she has discharged that burden. The court may not be satisfied of the precise date upon which the house was begun but it is not necessary for the court to be so satisfied. j. In relation to the submission of the Claimants that on her own admission, upon the death of Ivan, the First Defendant moved out in 1992 but returned in 1994 and therefore she has not been in continuous possession, the court is of the view that such an argument hold no merit. Clearly possession is not necessarily to be equated with occupation. Possession is about control to the exclusion of all others. It is clear that even though the First Defendant may have moved out, she was nonetheless in possession of the house which she and Ivan had built together and therefore in possession of the disputed land. This is adequately demonstrated by the fact that she was able to move back in when she wanted in 1994, rent out the house at times, and gave permission for her son and his wife to live at those premises. 34. Further, the court has considered the inconsistencies in the testimony of the First Claimant as set out in the submissions of the Claimants and suffice it to say that the court does not consider them to be material to the main issues to be decided. Further, while the court has found that the inconsistencies do exist, they appear to the court to be errors made by the First Defendant having regard to the passage of time. They do not therefore impact on the court s findings herein in respect of the credibility and reliability of the First Defendant. 19

20 35. The court also notes that Gary Kadan s evidence is that he saw Ivan Garcia for the first time on the disputed land in It is also his testimony that he stopped visiting the land after the attempted coup in This occurred on the 27 th July His evidence is that Ivan Garcia was in the process of erecting a wooden house. He gives no specific evidence of visiting the land in 1988 or He relies on a survey plan which shows no buildings on the area of the disputed lands done in He claims to have been present when the survey was done. This survey plan was shown to the witness Paul Williams a licensed Land Surveyor (Claimants witness) who had some choice words for the plan in cross-examination. This witness was very familiar with the plan and testified that he uses this plan when teaching as an example of what a land surveyor should not do. He says that the plan shows nothing, that the plan was doing mischief to the client. It is his evidence that when that plan was done there were at least seven (7) properties on the said lands which are not shown on the plan. This is very damning evidence on this issue from the Claimants own witness. The court accepts the evidence and finds that it renders the evidence of Gary Kadan unreliable on the issue of his being present when the survey was done and his testimony that there were no houses on the land in 1990 to say the least. 36. For these reasons the second issue does not arise. The court shall therefore dismiss the claim and there shall be judgment for First Defendant on the counterclaim. Costs shall follow the event. Dated the 15 th day of June Ricky Rahim Judge 20