IN THE HIGH COURT OF JUSTICE. Between ANTHONY GROSVENOR. (as Legal Personal Representative of the Estate of Ashton Bailey deceased) ANTHONY GROSVENOR

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between ANTHONY GROSVENOR (As the Court appointed Administrator Pendente Lite of the Estate of Olive Duncan Bailey for Olive Duncan Bailey (as Legal Personal Representative of the Estate of Ashton Bailey deceased) First Claimant ANTHONY GROSVENOR (As the Court appointed Administrator Pendente Lite of the Estate of Olive Duncan Bailey for Olive Duncan Bailey) Second Claimant RENNA DUNCAN Third Claimant And DANIEL WALCOTT First Defendant CHERYL WALCOTT Second Defendant Page 1 of 8

2 Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Ken Sagar and Ms Tara Lutchman for the Claimants Mr Rudyard Davidson for the Defendants Date: 20 July 2016 JUDGMENT 1. This case concerns a plot of land with a concrete house in Cascade. Ashton Bailey owned that house. First it was a wooden house from the 1950s. Then a concrete house was built. Ashton got married to Olive Duncan-Bailey in May She lived there with him. He died in December She says he occupied the plot of land before her, they occupied it up to his death, and she occupied it after. She alleged that the defendant trespassed on this land. This claim was therefore filed by her on 16 March During the course of these proceedings Olive Bailey died on 11 November She had been remarried in 2008 to Anthony Grosvenor. He was substituted for her. 2. The defendants relied on a deed made by an attorney at law, one W. Greene. The deed is as bogus as it can be. It purports to vest 13 acres plus of land in Cascade by virtue of him being in possession and occupation of the lands and premises... for upwards of twentynine (29) years without the acknowledgement of title of any other person or persons thereto. It is purportedly conveyed from the defendant to the defendant and his daughter for $300, Page 2 of 8

3 3. There are several problems with this deed. The defendant s mother is named as one of the owners of the land on an assessment roll at the warden s office. How this came to be done is not known. The defendant said the land was acquired by Crown Grant in He heard this from his aunt. This statement can be given no weight. He said it passed from generation to generation. This is but speculation. 4. There is no Crown Grant exhibited in this claim. Even if this were so, which is not established, there would have been several owners. They had children. Their children had children, and so on. The defendant himself is one of 10 children. There is no will referred to, to show that the defendant acquired the entirety of his mother s interest, whatever that was. Thus, if anything, the defendant would be one of many persons entitled to a beneficial interest in the lands. The deed is said to have conveyed the property for consideration of $300, But he admitted in cross examination that no consideration passed. He says the attorney told him they had to put a figure. It would have been odd if there was consideration since it would have meant that he and his daughter had paid himself for lands he had been occupying for 29 years! Further, parts of the 13 acres are occupied by other persons. The defendant is not in possession of the entire 13 acres. The deed, therefore, conveyed nothing. It gives the defendant no claim to ownership of the property. 5. The defendant himself gave a lengthy witness statement containing a significant amount of hearsay statements setting out the purported history of the lands. What it failed to do was to establish any proper basis for the defendants being entitled to the 13 acres and far less for any entitlement to the plot the claimants occupied. In cross-examination he said he is the owner of the land because of heritage and deed. He said Hector Rocke was his uncle. Page 3 of 8

4 6. Olive Bailey had, however, done a witness statement before her death. Her daughter also gave a witness statement. They state they were in occupation of the land since she came to live with Ashton Bailey in 1995 when she got married to him. The lands had been occupied by her husband since the 1950s. There is documentation to support that Ashton Bailey had been on the lands for a long time before. There are land receipts. There is correspondence from the acknowledged landlord, Hector Rocke, before also. The claimant s case asserted that no rent had been paid since Rent used to be paid by post for the 1980 to 1988 period. These postal receipts were exhibited. A critical bit of evidence was a returned post envelope from This supported the assertion that rent was not paid after I accepted this as a fact based on the assertions and to the extent that the postal return supports this. 7. The claimants were in exclusive possession of the lands. They were undisturbed until the acts of trespass by the defendant. Accordingly they sought the relief of... as set out in their statement of case. 8. The defendant gave evidence and was cross examined. In cross examination he made some pertinent admissions. He said he had never collected rent from Olive Bailey. He did not know when last rent was paid or collected. He could not tell how much the rent was. 9. Olive Bailey had occupied the land. He had never gone onto the property. He knew there was a wooden house, then a concrete house. He said Olive Bailey s husband s father had lived on the land since The critical issue was who among the claimants and the defendants have a better right to possession of the land occupied by the claimant. Among them the claimants have a Page 4 of 8

5 superior right to possession. Ashton Bailey had been on the lands from the 1950s. His house has always been there. He was a tenant. He stopped paying rent. The defendants have never been in possession of the subject lands. 11. The evidence is therefore clear. Ashton Bailey had been in possession of the subject land since Olive Bailey had been in possession of the lands since May This is for more than 16 years. It was exclusive and undisturbed. Moreover the land was possessed with the requisite intention to possess. The last rent paid was before 1988 as far as is known. They lived on and used the land. She has a claim to adverse possession. 12. I was urged to draw adverse inferences against the claimant because of a deed of assent Olive Bailey made in 2008 conveying Ashton Bailey s interest to herself and her daughter in her capacity as administrator of the estate. Ashton Bailey, it turns out, had 3 children from a previous marriage. Thus that deed of assent is of no effect. I did not consider any recitals in that deed to the effect that it was transferring the leasehold interest or reference to a statutory tenancy to be of any relevance to this matter. Accordingly I attached no significance to these statements. They did not in my view affect the possession nor did it cast doubt on the intention to possess the property. 13. Even, however, if the statement in the deed that they covenant to pay the rent reserved by the statutory lease was significant, this does not in my view give any priority to these defendants since, between the claimants and the defendants, the claimants show a superior right to possess the lands. In fact, the defendants show no right to possess the lands. 14. There was also a claim for trespass made by the claimants. Little weight could be attached to Olive Bailey s assertions in her witness statement as to facts related to the Page 5 of 8

6 defendants coming onto the land using a tractor. I had no opportunity to see and assess her and to hear her responses to cross-examination. Renna Duncan was of limited assistance in this regard. She was actually not present when any of the works were done. The defendants denied they did any of the work by the tractor. In fact they said the work was done by the Regional Corporation. I found the claimants have not proved this aspect of the claim. 15. The real issue was how much of the land were they in possession of. This came down to the battle of the surveyors. The claimant called a surveyor and the defendant called one also. There was no success in them reconciling the surveys. The claimant s surveyor Mr Ramon Fortune said the area occupied was 5,356 square feet. The defendant s surveyor says it was 3,892.2 sq feet. 16. I accepted both witnesses as persons who were qualified to give evidence regarding the survey of the land. 17. Mr Fortune noted that his survey was an occupational survey. He looked at the occupation and drew a plan accordingly. Mr Second s survey was part of a wider job to survey the entire parcel of land claimed by the defendants. His survey, exhibit CH 3 to his witness statement, adjusts the roadway to secure a wider roadway. He notes this as a proposed roadway. Mr Second also did a field survey. This included a hatched area claimed by Daniel Walcott as an encroachment by Olive Bailey. He gave his opinion under the field survey as showing square feet being occupied by the claimants. This therefore cut into the occupation by the claimants. 18. Given that Mr Fortune s survey was essentially an assessment of an occupational survey, I preferred his survey report as representing the area occupied by Olive Bailey and the Page 6 of 8

7 other claimants. This took into account structures existing on the property. Mr Second s survey was adjusted to suit the instructions of the defendant and did not seek to encompass the structures of the claimants already existing. For this reason I preferred Mr Fortune s survey report as representing the area occupied by Olive Duncan. 19. The Order is therefore as follows. 20. It is declared that the deed dated 11 September 2008 and registered as No. DE is null, void and of no effect and it is ordered that same be delivered up to the Registrar General for cancellation. 21. It is declared that the first and second claimants have been in continuous and exclusive occupation of the subject property known as All and Singular that piece or parcel of land situate at and known as No.13A Upper Cascade Valley Road, Cascade in the Ward of St. Ann s in the Island of Trinidad now described as 5,356 square feet in the Survey Report of Arnold Fortune dated 23 December 2013 and bounded on the North by lands of Maxies Joseph, on the South by lands of Louisa Cupid, on the East by lands of Harrylal and on the West by a public road or howsoever same may be bounded or abutted (the subject property). 22. It is declared that the first and second claimants have been in adverse possession of the subject property such that any title of the owner has been extinguished by operation of law. It is declared that the first and second claimants are entitled to possession of the subject property. Page 7 of 8

8 23. An injunction is granted restraining the defendants, their servants and agents from entering upon, interfering, harassing and interrupting the use, occupation and possession of the claimants of the subject property. 24. The counterclaim of the defendants is dismissed. 25. The defendants must pay the claimants their costs of the claim and counterclaim together in the sum of $28, Ronnie Boodoosingh Judge Page 8 of 8