IN THE HIGH COURT OF JUSTICE BETWEEN AND BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV BETWEEN SUCHETA BEHARRY Claimant AND WENDY PATEL MARIELVI COMPANY LIMITED 1 st Defendant 2 nd Defendant BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER APPEARANCES Mr. David West and Ms. Christine Ragoobar, Attorneys-at-Law for the Claimant. Mr. Arthur Douglas, Attorney-at-Law for the Defendant. REASONS Introduction 1. By this action, the claimant, Sucheta Beharry alleges that she had enjoyed continuous and uninterrupted possession of premises known as No. 1, Freeling Street, Tunapuna the subject property for more than sixteen years. The claimant asserts thereby that Page 1 of 23

2 the interest of the paper title owner has been extinguished and that by virtue of the Real Property Limitations Act 1, (the Act), she is entitled to the subject property. 2. On the 9 th January, 2014, I delivered an extempore decision in favour of the claimant. My reasons for so doing are set out below. Procedural History 3. By her Claim Form filed 10 th June, 2011, Ms. Beharry sought the following items of relief: 1. An interim injunction restraining the defendants from demolishing or removing any or all of the applicant s wire fence materials, dog kennels, water tanks, situated on the subject lands. 2. An interim injunction preventing the respondent/defendants from entering the said lands and /or interfering with the applicant s/claimant s possessions. 3. An order fixing a date of hearing of a mandatory injunction 4. A declaration that the claimant is entitled to the property at No. 1 Freeling Street, Tunapuna. 5. Aggravated damages for trespass 6. Costs 4. The claim form was not accompanied by a statement of case. However, on the 10 th June, 2011, the Honourable Justice Charles granted to the claimant an interim injunction restraining the defendant from entering the subject property. 1 The Real Property Limitation Ordinance Ch. 56:03 Page 2 of 23

3 5. The Honourable Justice Charles also granted permission to the claimant to file and serve her statement of case and to issue a notice seeking the continuation of the interim injunction. 6. On the 21 st June, 2011, I continued the injunction and adjourned the matter for the hearing of the first Case Management Conference (CMC) on the 28 th June, At the first CMC, I gave standard pre-trial directions and ordered by consent, that the parties commission the services of Land Surveyor, Paul Williams to conduct an aerial survey of the subject premises. 8. This trial was listed for hearing on the 28 th and 29 th October, The Court heard the evidence of two witnesses for the claimant: The claimant, Ms. Sucheta Beharry Mr. Farouk Mohammed The Court also heard the evidence of the following witnesses for the defendants: Mr. Paul Anthony Williams Mr. Elgin Seupersad The first defendant, Ms. Wendy Patel 9. The defendants counterclaimed for an order for possession. Evidence 10. This issue before this Court were entirely factual. It was necessary therefore, to resolve the claim on the evidence. For this reason, full reference is made to the evidence which was led at trial. Page 3 of 23

4 Evidence of Ms. Sucheta Beharry 11. The claimant, Ms. Sucheta Beharry testified that since 1977, she had been in sole occupation of the piece of land situated at No. 1, Freeling Street, Tunapuna. 12. This witness testified that prior to 1977, she lived at No. 3 Freeling Street, to which she eventually became entitled pursuant to the Will of her late mother. 13. Ms. Beharry testified that her family later occupied both No. 1 and No. 3 Freeling until 1990 when the house which stood on No. 1 Freeling Street had become dilapidated. 14. Ms. Beharry denied that any family arrangement had been made with Wendy Patel or Marielvi Company Limited in respect of No. 1 Freeling Street, and testified that her family continued to be in exclusive occupation of the land, claiming that they planted it with vegetables including patchoi, tomatoes and sweet peppers as well as orchids and fruit trees and that they reared poultry and ducks between 1990 and Ms. Beharry stated that around 2005, her daughter began keeping dogs on the land and asserted that for twenty-six (26) years she paid taxes for No. 1, Freeling Street and repaired and maintained the land, without any contribution from anyone else. 16. Ms. Beharry testified that on the 24 th April, 2011, Wendy Patel removed the galvanize fence on the Eastern Boundary of No. 1 Freeling Street. On the 8 th and the 9 th June, 2011, Ms. Patel tore down the chain link fence. 17. Ms. Beharry was cross-examined. Pursuant to the application of Mr. West, learned attorney-at-law for the claimant, the Court granted leave to Ms. Beharry to amend her witness statement. 18. On oath, she alleged that she lived at No. 1, Freeling Street from 1977 to 2011 and that during that period of time she had an intention to possess the land. Page 4 of 23

5 Cross-examination of Ms. Beharry 19. Ms. Beharry told the Court that she lived at No. 1, Freeling Street from 1977 and that she never stopped living there. Ms. Beharry then changed her answer to state that she ceased living at No.1 Freeling Street in Ms. Beharry admitted that she caused a letter to be sent to Elgin Seupersad, in his capacity as executor of her mother s estate and that the letter contained a demand for $146, as a repayment for maintenance and land and building taxes. 21. Ms. Beharry was questioned as to the sum claimed. Explaining why she claimed that sum, she said she wanted to be compensated for maintaining the property which she believed at the time to be in her possession Ms. Beharry was questioned as to paragraph 6 of her statement of case, where the claimant had made this allegation: the claimant and her family continued in occupation of No. 1 Freeling Street, Tunapuna and planted the land with vegetables 23. Ms. Beharry agreed under cross-examination that she had not given any particulars as to what was alleged in paragraph 6, and that her allegation was both bald and general. 24. In the course of cross-examination, Ms. Beharry referred to photographs which had been filed in support of her allegation. The photographs which had been tendered in a bundle and marked S.B.3, were produced for Ms. Beharry s consideration. Under cross-examination this witness could not say which photograph showed cultivation of the lot or rearing of chickens or ducks for 1994 or Ms. Beharry identified a photograph which pertained to the year According to Ms. Beharry, the photograph depicted a short building which was used as a chicken pen. 2 See Notes of Evidence, Page 17 of 103 Page 5 of 23

6 26. Ms. Beharry also identified a photograph which showed orchid plants on a table and testified that this photograph was taken around Learned counsel, Mr. Douglas put to Ms. Beharry that she had never been in exclusive possession of No. 1, Freeling Street. Ms. Beharry insisted that the suggestion of the learned counsel was incorrect. 28. Learned counsel, Mr. Douglas asked Ms. Beharry whether, her brother, Mr. Seupersad had provided monies to pay a person (Boogie) to cut the grass at No. 1, Freeling Street. Ms. Beharry denied this suggestion. 29. In the course of cross-examination, Mr. Douglas put to Ms. Beharry that her brother, Elgin Seupersad, being executor was the one who exercised control over No. 1, Freeling Street. 30. Ms. Beharry responded in this way: In the capacity as executor, my brother was executor of my mother s estate, but in control of No. 1 Freeling Street, I felt then that I took possession of it and I used it for my use over that period of time and as I said, I used it for different reasons for the poultry and planting and maintaining it and everything that took place within that period of time. So when it comes to No. 1 Freeling Street, I was in control of that portion of the land up to the point of 2011, when I was told about the sale. My brother or sister did not take any interest in No. 1 Freeling Street. 3 3 See page 42 of 103 of the Notes of Evidence Page 6 of 23

7 Evidence of Mr. Farouk Mohammed 31. Farouk Mohammed, Information Technology Manager testified on behalf of the claimant, and told the Court that he was born on the 4 th October, 1962 at Freeling Street, Tunapuna and that he grew up in the area. He testified that he left Freeling Street in 1972, but returned to live there in At paragraph 3 and 4 of his witness statement, Mr. Mohammed had this to say: 3. As far as I know, Ms. Sucheta Beharry and her family have always lived at Nos.1-3 Freeling Street, Tunapuna. I personally know that they have lived there exclusively and are responsible for maintaining those premises. 4. I know that over the years they have occupied No. 1 Freeling Street, Tunapuna until it was broken down. The empty lot of land was used by Ms. Beharry to plant vegetables and rear poultry 32. Mr. Mohammed was cross-examined. He was unable to say when last he visited the subject premises. Mr. Mohammed also indicated that he was aware that the house which stood on the subject premises had been demolished. He was unable to say when the house was demolished, but he testified that the house, at the time of demolition, was in a very dilapidated condition. 33. Mr. Mohammed indicated that he did not visit the subject premises regularly, but knew what transpired at No. 1 Freeling Street because he visited the property which adjoined the subject premises. 34. Mr. Mohammed testified that there was cultivation on the subject premises from 1990, when Mr. Mohammed returned to live on Freeling Street. This witness referred Page 7 of 23

8 however, to an incident with a tractor demolishing everything. Mr. Mohammed indicated that the incident occurred two to three (2-3) years prior to the date of the trial. Evidence for the Defendants 35. Four (4) witness statements were filed on behalf of the defendants. They were those of: Elgin Seupersad Wendy Dawn Patel, the first defendant Aldwin Beharrysingh Gerard Pettier The third and fourth witnesses named above failed to attend Court to be cross-examined. Their witness statements were accordingly struck off the record. Evidence of Mr. Elgin Seupersad 36. By his witness statement 4, Elgin Seupersad also called Sam Seupersad testified that he was the sibling of the claimant and of the first defendant. He stated that their grandmother, Mungaree Bhuddu had been the beneficial owner of the parcels of land at Nos. 1, and 3, Freeling Street, Tunapuna. 37. Mungaree Bhuddu died on the 12 th November, 1970 leaving the beneficial ownership of the property to her two daughters: Veronica Bhuddu Singh and Dora Seupersad, who was the mother of the parties. 4 Filed herein on the 12 th December, 2011 Page 8 of 23

9 38. Dora Seupersad died testate in By her will, No. 3, Freeling Street was bequeathed to the claimant and No. 1 Freeling Street to the first defendant. 39. This witness testified that he received a Grant of Probate of his mother s Will on the 28 th November, 1986 and executed a deed of assent, transferring the property to the first defendant by deed dated the 14 th May, Mr. Seupersad testified that all siblings got married and left the subject premises, leaving the claimant and her family who lived at the subject premises until , when they moved into No. 3, Freeling Street. 41. Mr. Seupersad testified that the claimant and her family vacated the property and the house was boarded up until he (Mr. Seupersad) hired Bartholomew Transport Limited to break down the house. 42. Mr. Seupersad claimed that he paid the claimant s husband to have the grass cut and cleared by a friend, whose name was Boogie. Although he resided in Calgary, Alberta, Canada, Mr. Seupersad would visit Trinidad at least once per year and would communicate with the claimant at all times. 43. Mr. Seupersad claimed that he formed a company together with his wife. The company formed was Marielvi Company Limited, the second defendant. The second defendant purchased the second undivided share of the subject property which had been vested in Veronica Bhuddu Singh, sister of the late Dora Seupersad. 44. On March, 2011, according to Mr. Seupersad, the defendants entered into a written agreement for the sale of the subject property. Mr. Seupersad then informed the claimant of his intention to sell the subject property. 5 See paragraph 5 of the witness statement of Elgin Seupersad Page 9 of 23

10 Cross-examination of Mr. Seupersad 45. Mr. Seupersad was cross-examined by learned Attorney-at-law, Mr. West. Under crossexamination, Mr. Seupersad told the Court that the claimant was born at No. 3, Freeling Street and moved to No. 1, Freeling Street about Mr. Seupersad told the Court that he got married in 1970 and lived both in Couva and Freeling Street. He alleged that he lived in Couva because of his job but that he would return to Freeling Street on the weekend. Mr. Seupersad stated that he left No. 1, Freeling Street in 1975 and No. 3, Freeling Street in Mr. Seupersad stated that the first defendant, Wendy Patel, lived at No. 1. Freeling Street from her birth until her marriage in He accepted that the house at No. 1 Freeling Street was demolished on the 15 th November, 1994 and admitted that he had not been in Trinidad when the house was demolished by Bartholomew and Company. 48. Mr. Seupersad stated that he was in possession of the subject premises from 1985 as executor of his mother s estate. However neither No. 1, nor No. 3, Freeling Street had ever been his place of residence. 49. Mr. Seupersad admitted that the claimant lived at the subject premises continuously between 1977 and 1985 and that during those years, he never asked her to leave. 50. Under cross-examination, Mr. Seupersad told the Court that he left Trinidad to live in Canada in 1990 and that he had lived in Couva from 1968 to Mr. Seupersad stated further that between 1972 and mid-1975 he lived at No.1 Freeling Street and from 1975 to 1990 he lived at Santa Cruz, though he would visit No. 3 Freeling Street regularly. Page 10 of 23

11 52. Learned counsel, Mr. West put to Mr. Seupersad that No. 1 Freeling Street was not boarded up in 1985, but that those premises were furnished with the claimant s belongings in In answer to a suggestion that there had been no agreement as to who owned No. 1 Freeling Street, Mr. Seupersad had this to say: My grandmother died in My mother who lived next door controlled it until her death in 1985 and I controlled it after that as executor 54. Mr. Seupersad insisted that he was in possession of No. 1 Freeling Street as executor. He insisted that he paid land and building taxes for three (3) years from 2002 to Mr. Seupersad was questioned about crops on the subject premises. He was shown a photograph in which he recognized Mr. Lloyd Beharry, spouse of the claimant, displaying crops in a garden. Mr. Seupersad agreed that the photograph was taken in 1995 and that Mr. Beharry was engaged in cultivating the garden. Mr. Seupersad insisted that the planting was done at his request and with his permission, but admitted that he had inscribed at the back of the photograph the words: a man in his garden 56. Mr. Seupersad was shown a photograph which had been tendered and marked E.S. 1. The subject of the photograph was a lady dressed as a bride. Mr. Suepersad recognized the bride to be his niece Shivanna. He recognized the background to be the subject premises. Mr. Seupersad provided a vague answer to a suggestion that there were animal pens in the photograph. 57. Mr. Seupersad was shown a photograph tendered and marked E.S. 23 and admitted that the claimant s daughter kept dogs on the property within the past five (5) years. He Page 11 of 23

12 was shown the photographs which had been tendered and marked E.S. 26. Mr. Seupersad identified a chain link fence and told the Court that the galvanize fence came down more than five (5) years ago. 58. This witness admitted that the galvanize fence was removed in 2011 and that it was replaced by a chain link fence. He admitted that at the material time he had been abroad. Evidence of Wendy Patel 59. Wendy Patel testified in her witness statement that together with the second defendant, she was joint owner of the subject premises. 60. Ms. Patel testified that after her mother s death, the claimant continued to occupy the subject premises until the claimant moved to No. 3, Freeling Street with the permission of their brother, Elgin Seupersad. 61. Under cross-examination, Ms. Patel agreed that she had been the beneficiary under her mother s will of one half share in the subject premises, and that her aunt Veronica Bhuddu Singh held the second half. 62. Ms. Patel agreed further that between 1985 and 2011, she had no dealings with the subject property. She accepted that the claimant lived at No. 1, Freeling Street between 1977 and Ms. Patel, clarifying portions of her witness statement, told the Court that during her lifetime, the grandmother, Mungaree Bhuddu, lived at No. 1, Freeling Street, and that she left No. 3 Freeling Street in 1982 when she got married. The claimant then moved into No. 3, Freeling Street in Page 12 of 23

13 64. Ms. Patel agreed that she had no control over the subject premises, proffering that her brother had control since the property was part of her mother s estate. She agreed that she neither paid taxes nor cut the grass. 65. Ms. Patel said that she had walked the subject property, not to inspect it but that she walked on it. This witness agreed however, that her visits to the subject land took place when the claimant lived at No. 3, Freeling Street. 66. Ms. Patel admitted that in April, 2011, she caused a galvanise fence to be removed from No. 1, Freeling Street. This witness also agreed that before the 24 th April, 2011, there was no dispute between herself and the claimant regarding the land. 67. Ms. Patel insisted that she never saw vegetation on the land, but that she saw a couple of ducks and chickens on the land. 68. Ms. Patel was shown the photograph exhibited as S.B.3. The witness was unable to recognize the premises indicating that she had not been on the premises for a number of years. Evidence of Mr. Paul Anthony Williams 69. Paul Williams testified as an expert witness. He told the Court that he was a Registered and Licensed Trinidad and Tobago Land Surveyor and Photogrammetric Engineer. 70. Mr. Williams told the Court that photogrammetry was a specialized area of surveying and is the process of making precise measurements by means of photography or the process of making maps or scale drawings from photography. 71. Mr. Williams referred to an image of the two properties at Nos. 1, and 3, Freeling Street and to a fence between the buildings. He provided evidence as to how the report was prepared, stating that he had obtained aerial photographs captured during the years Page 13 of 23

14 1987, 1988, 2001 and These photographs had been captured by Mr. Williams company for the Government of Trinidad and Tobago. 72. Mr. Williams at paragraph 20 of his witness statement told the Court that he had photographed the area in question in He identified the buildings known as Nos. 1, and 3, Freeling Street. 73. Mr. Williams referred to the photographs which had been taken in 1994 at this time, and testified that he observed only one building on the two parcels. This witness concluded as follows: The building that was situated immediately north of the library (No. 1, Freeling Street) has been demolished and the site is partly cleared and partly covered by vegetation: There are large trees on the northern and southern boundaries of No. 1 Freeling Street and the middle portion of the plot is cleared Mr. Williams referred to photographs captured in January, 2001, in respect of the subject premises, and stated: The structure immediately north of the library (known as No. 1, Freeling Street) is missing. There is a cleared space and short vegetation on the cleared site and large trees on the northern and southern boundaries of No. 1 Freeling Street In respect of year 2003, Mr. Williams painted a similar picture referring to: a cleared space and short vegetation on the cleared site 8 6 See paragraph 4 of the Witness Statement of Paul Anthony Williams filed on the 16 th January, Ibid at paragraph 23 8 Ibid at paragraph 24 Page 14 of 23

15 76. At paragraph 28 of his witness statement, Mr. Williams provided his expert conclusions and had this to say: The southern building immediately north of the library was removed sometime after February 21 st, 1987, the date of the 1987 photograph and before March, 20 th, 1994 I did not see any visible evidence of organized farming or horticulture of the vacant plot from 1987 forward Viva Voce Evidence of Mr. Williams 77. Mr. Williams provided viva voce evidence-in-chief and requested that a power point screen be provided to assist his presentation. 78. Mr. Williams told the Court of his conclusions on the 1994 photograph, in respect of which he said: One building has been removed and the land is cleared 79. In respect of 1998 photograph, Mr. Williams stated: there is a clearing, there is a space between and its cleared and the vegetation appeared short 80. In his conclusion, Mr. Williams repeated his observation that from 1987 he had not seen any evidence of organized farming or horticulture. Cross-examination of Mr. Williams 81. Under cross-examination, Mr. Williams asserted continuously that he was relying on a three dimensional view of photographs which would be viewed together using a stereoscope. Mr. Williams was asked: You are relying on your report from the slide show? 9 He answered: 9 See page 60 of 103 of the Notes of Evidence Page 15 of 23

16 I am not relying on this I am relying on the three dimensional views that I looked at The Court asked Mr. Williams: Well what s this? Is this the slide show? 11 Mr. Williams answered: No. The two pictures with the bundle, if you put them together and use a stereoscope they stand up in the air No stereoscope has been requested and none was available. The evidence of Mr. Williams could not be supported by the images projected at the trial. The equipment upon which he relied was not available. The Court found the evidence of Mr. Williams to be confusing and unhelpful. 84. Under cross-examination, Mr. Williams was asked what he meant by short vegetation. Mr. Williams was unable to assist the Court because he had no stereoscope Law and Submissions 85. Written submissions on behalf of the claimant were filed on the 19 th of December, Attorney-at-law for the claimant submitted that the claimant was entitled to the Lot No. 1 Freeling Street since she was in sole exclusive possession of the land since 1977 and that there has always been an intention to possess the land. It is also the claimant s submission that although the house was broken down in 1994, she was in exclusive occupation of Lot No.1 without the consent of the Defendants up until April 24 th, Ibid 11 Ibid 12 Ibid Page 16 of 23

17 86. Attorney-at-law for the claimant relied on the following authorities in support of the submissions: 1. J.A Pye (Oxford) Ltd. & Ors v Graham et al [2002] UKHL Buckinghamshire County Council v. Moran [1990] Ch Attorney-at-law of the defendants filed written submissions on the 22 nd of December, It was submitted that the claimant s occupation of Lot No.1 came with the consent of the defendants and that the only act whereby the claimant exercised control of the subject land is the alleged construction of a chain link fence. It was also submitted that the payment of land and building taxes by the claimant does not constitute any evidence of actual occupation by the claimant. 88. Authorities relied on in support of the submissions by the defendants are as follows: 1. Adverse Possession by Stephen Jordan QC and Oliver Radley Gardner at paragraph J.A Pye (Oxford) Ltd. & Ors v Graham et al Horace Reid v. Dowling Charles and Percival Bain 14 Law 89. By Section 3 of the Act 15 the right of action to recover any land is statute barred after 16 years from the date of the accrued right of action. Section 3 provides: 3. No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall 13 [2002] UKHL 30, P.C.A. #36 of Ch.56:03 Page 17 of 23

18 have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. 90. Section 4 of the Act 16 identifies the time at which the right of action shall be deemed to have accrued. By Section 4 (1) the right of action is deemed to have accrued when the owners of the land were dispossessed or have discontinued possession 91. Section 22 of the Act 17 provides for the extinguishment of the title of the owner of the land in this way: At the determination of the period limited by this Act to any person for making entry or bringing any action or suit, the right and title of such person shall be extinguished 92. The principles to be applied by the Court in determining whether a person was in adverse possession were authoratively stated by the House of Lords in the case of J.A Pye Oxford v Graham. 18 To succeed in a claim for legal possession there are two essential ingredients which must be satisfied: 1) A sufficient degree of physical custody and control- factual possession 2) an intention to exercise such custody and control on one s own behalf and for one s own benefit (intention to possess) The Real Property Limitations Act, Ch. 56:03 17 Ibid 18 [2002] UKHL 30 paragraph Per Lord Browne- Wilkinson in J.A. Pye v Graham [2002] UKHL 30 Page 18 of 23

19 93. The principles expounded in Pye have been held to be applicable in the jurisdiction of Trinidad and Tobago 20. Factual possession signifies an appropriate degree of physical control. There must be a single and exclusive possession The intention to possess was accepted by Lord Browne- Wilkinson as requiring: 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 22 Findings of Fact Reasoning and Decision 95. Prior to her death on the 12 th November, 1970, Mungaree Bhuddu had been the beneficial owner of the two (2) parcels of land known as Nos. 1 and 3 Freeling Street, respectively. 96. Upon her death, Mungaree s beneficial interest in the two (2) parcels passed to her two (2) daughters, Veronica Bhuddu Singh and Dora Seupersad. 97. According to the evidence before me, Dora Seupersad had three (3) children: the claimant, Sucheta Beharry, the first defendant, Wendy Patel and Elgin Seupersad, who together with his wife, was a director and shareholder of the second defendant, Marielvi Company Limited. 20 See Latmore Smith v. Benjamin 78 WIR Per Lord Browne- Wilkinson approving the words of Slade J. in Powell v Mc Farlane [1977] 38 P& CR J.A. Pye v Graham [2002] UKHL 30, 865 at 877 Page 19 of 23

20 98. Dora Seupersad died in 1985, leaving a will. 23 By her will she bequeathed her interest in No. 3, Freeling Street to the claimant. Her interest in No. 1, Freeling Street she bequeathed to the first defendant. 99. Three (3) years after the death of Dora, her sister, Veronica Bhuddu Singh, executed a deed of assent transferring the interest of the late Mungaree to herself, Veronica Bhuddu Singh and to Elgin Seupersad, as personal representatives of Dora s Estate Accordingly in the year, 1988 and by deed dated the 6 th October, 1988, the parcels of land known as Nos. 1, and 3, Freeling Street were held by Veronica Bhuddu Singh and Elgin Seupersad in fee simple as tenants in common Elgin Seupersad held an interest in the properties qua personal representative of the estate of his late mother. The first defendant, as beneficiary under the will of her mother, held one half of the beneficial interest in the subject property. The claimant, as beneficiary under her mother s will, held one half of the beneficial interest in the property known as No. 3, Freeling Street The claimant contends that she occupied the premises continuously from 1977 to The defendants on the other hand, countered that after their mother s death, the claimant stayed at No. 1, Freeling Street for some time, but then returned to No. 3, Freeling Street In my view however, the significant year for the purpose of these proceedings is It was not disputed that in 1994, the house which stood on the subject premises had been demolished by Bartholomew Transport Limited at the request of Mr. Seupersad The claimant contends that between 1994 and 2011, she continued to occupy the subject premises for the purposes of planting short term crops, orchids and of rearing poultry 23 The Will of Dora Seupersad is exhibited to the Witness Statement of Elgin Seupersad and marked E.S. 2 Page 20 of 23

21 and, in later years for the purpose of breeding dogs. The years 1994 and 2011 span seventeen (17) years. Should the claimant succeed in proving adverse possession for this period, she would have succeeded in extinguishing the title of those holding any interest in the property The first defendant denies that the claimant used the premises as she contended. In an effort to belie the claimant s allegation, learned Attorney-at-law for the defendants cross-examined the claimant seeking details as to the crops planted and the sums expended on maintenance Although the claimant failed to supply details, she was consistent in asserting that she had control of the premises. She distinguished between her brother s control and the control which she exercised. In the capacity as executor, my brother was executor of my mother s estate, but in the control of No. 1 Freeling Street, I felt then that I took possession of it and I use it for my use over that period of time and as I said, I use it for different reasons, for the poultry and for the planting and maintaining it and everything that took place within that period of time. So, when it comes to No. 1 Freeling Street, in particular, I was in control of that portion of the land up to the point of 2011 when I was told about the sale. My brother or sister did not take any interest in No. 1 Freeling Street Mr. Seupersad admitted under cross-examination that he had inscribed to the back of a 1995 photograph a man in his garden, which was positive evidence of cultivation on the part of the claimant and her family. 24 See Notes of Evidence page 42 of 103 Page 21 of 23

22 108. It was my view that the defendants were not successful in eroding the testimony of Ms. Beharry. Moreover, there was no positive evidence that the premises were occupied by anyone other than the claimant. According to his own testimony, Mr. Seupersad was abroad for the greater part of the relevant period. Similarly, by her own testimony, Ms. Patel was unfamiliar with the premises The evidence of the expert also failed to contradict the allegations of Ms. Beharry. The report of the expert was unequivocal in asserting that there was no structure on the subject premises from Mr. Williams reported that there was no organized farming or horticulture and that one would have expected the appearance of furrows. Mr. Williams stated however, that he observed trees and short vegetation. In my view, this would have been consistent with the short crops which the claimant allegedly cultivated Moreover, the Court found the evidence of Mr. Williams to be unhelpful, in that he expressed his inability to demonstrate his findings because he lacked access to a stereoscope The defendants also contended assumingly in the alternative that Ms. Beharry occupied the subject premises with the consent of Mr. Seupersad. Were this so, Ms. Beharry s occupation would not have been adverse By their defence, the defendants alleged that Mr. Seupersad orally granted permission to the claimant 25. There were no particulars of the date or place at which or the circumstances in which such permission was granted. In my view however, there was no evidence to suggest that Ms. Beharry obtained anyone s permission. From 1994 to 25 See paragraph 4 of the Defence filed on the 22 nd July, 2011 Page 22 of 23

23 2011, she exercised control over the subject premises and basically did what she liked until April, 2011 when the defendants moved in and began their exercise of demolition It was my view that Ms. Beharry proved on a balance of probabilities that she had both the intention to possess and factual possession for seventeen (17) years, that is to say from 1994 to April, Although it is a cause for regret that the claimant did so against the wishes which her mother expressed in her will, Ms. Beharry satisfied the Court on a balance of probabilities that she had enjoyed continuous, uninterrupted possession of the subject premises for more than sixteen (16) years. Accordingly I gave judgment for the claimant in terms of paragraph 4 of the claim as follows: 4. A Declaration that the Claimant is entitled to the property at No. 1 Freeling Street Tunapuna in the Ward of Tacarigua in the Island of Trinidad situate on ALL AND SINGULAR that certain piece or parcel of land situate at Tunapuna in the Ward of Tacarigua in the Island of Trinidad measuring SIXTY FEET on the North and South boundary lines and EIGHTY FIVE FEET on the East and West boundary lines and bounded on the North by lands of Sucheta Beharry on the South by the Central Library on the East by Freeling Street and on the West by lands now or formerly of Armstrong being the southern moiety of the parcel of land comprising ONE AND ONE HALF LOTS described in Registered Deed Number DE D001. Dated this 14 th day of October, M. Dean-Armorer Judge Page 23 of 23