IN THE HIGH COURT OF JUSTICE. San Fernando BETWEEN MANO SAKAL AND DINESH KELVIN. (Wrongly sued as Dinesh Kissoon) GANGADAI KELVIN

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE San Fernando Claim No of 2015 BETWEEN MANO SAKAL Claimant AND DINESH KELVIN (Wrongly sued as Dinesh Kissoon) First Defendant GANGADAI KELVIN (appointed as the Legal Personal Represetnative of the Estate of Kelvin Kissoon by virtue of the order of the Honourable Madam Justice Eleanor Donaldson-Honeywel l 2 nd day of November 2015) Second Defendant Before the Hon Madame Justice Eleanor J. Donaldson-Honeywell Appearances: Mr. Jeevan Andrew Rampersad, Attorney-at-Law for the Claimant Mr. Gerard Raphael, Attorney-at-Law for the Defendant Delivered on 22 nd March, 2016 JUDGMENT Page 1 of 11

2 I. Introduction: [1] The Claimant, Mano Sakal, seeks by the instant Claim to recover possession of a one (1) acre parcel of land situated at No. 40 San Francique, Pluck Road, Centeno Branch Trace, Penal [ the property ] which he has owned since November 9, 2011 by virtue of a Certificate of Title Volume 5394 Folio 211 [ the paper title ]. The Claimant also claims damages for the Defendant s trespass and destruction of a pond and trees on the land, as well as orders mandating the Defendant to remove a dwelling house he constructed on the property in [2] Prior to becoming the owner of the property the Claimant had served as liquidator of the former owner Santa Cecilia Limited since He purchased the property from Santa Cecilia Limited while he was still the liquidator in [3] The Defendant s major defence is that by virtue of the Real Property Limitation Act, Chap. 56:03 the time for bringing an action (16 years) had expired. The Defendant claims that he and his father lived on the property since At the time Santa Cecilia Limited had executed an agreement with one Basmateeah Kissoon and Kelvin Kissoon, the Defendant s father to sell the property and a neighboring lot of land, known as Lot A, to them. The balance of the purchase price, however, was never paid and the transfer never fully executed. [4] The Defendant s parents thereafter continued to reside on Lot A. The neighbouring property that is the subject matter of this action was not utilised for residential purposes until the Defendant built a house on it in The Defendant claims, however, that the family previously occupied it by cultivating it for agricultural purposes. The Defendant s father s estate is joined as a party to the Defence represented by the Defendant s mother Gangadai Kelvin. [5] The Defendant in his defence also challenged the paper title of the Claimant. However, that aspect of the defence was never pursued at the trial or in written submissions. The Defendant s major contention is that he and his father cultivated the entirety of the property and therefore he is entitled to possession of it, more than sixteen years having elapsed from the time in 1993 when his parents entered the aborted agreement with Santa Cecilia Ltd. Page 2 of 11

3 [6] The Claimant argues that the Defendant only took up possession of the property in 2006 when the house was built. He contends that a survey was done of the property in 2005 and no occupants were discovered on the land. In 2006 when he discovered the home construction work being done by the Defendant, the Claimant asked the Defendant to vacate the property and had an Attorney write to him demanding that the work cease. He explains that the reason for the delay, thereafter, in making a further demand for possession and in bringing this action was due to fear of the Defendant who had threatened him. II. Issues: [7] The issues to be determined in the present case are: a. Whether the Defendant is a trespasser on the property or has proven his entitlement to remain in occupation based on possession of it for the requisite period for the title holder s claim to be statute barred; and b. If the Defendant is a trespasser, whether the Claimant has established entitlement to damages for destruction of trees and a pond on the property and an injunction to prohibit further trespass on the property. III. Evidence: [8] Evidence-in-Chief was filed by both parties in the form of witness statements in accordance with Case Management directions. In addition, supporting evidence was filed for the Claimant in the witness statement of Harvey Ramrekha, Licensed Land Surveyor who had surveyed the property in The Defendant s supporting witnesses were his mother Gangadai Kissoon and a neighbor, Olive Pandohie who lived a few hundred feet away from the Defendant s mother s home. [9] The Claimant s evidence was consistent throughout cross-examination. He impressed me as a witness of truth and he had a strong recollection of all relevant facts in relation to his claim. At age eighty-seven, having resided near the property for his entire life his knowledge of the state of the land was expressed with great familiarity. His evidence was that although there was an agreement in 1993 between the Defendant s father and the former owners of the property to sell to the Defendant s father the property and the neighboring Lot A, the Defendant s father only lived on Lot A. He said that the Page 3 of 11

4 Defendant s father was only given the option to purchase the property because there was no one in occupation of it and he lived in close proximity on Lot A. The Agreement was eventually rendered null and void when the Defendant s father failed to pay the full purchase price. Notwithstanding the agreement the Claimant s evidence is that neither the Defendant nor his predecessors ever cultivated the property as they remained strictly in occupation of only Lot A, until The Claimant said further that he had lived his entire life in close proximity to the property. During that period there was no cultivation on it of any short term crops and the land was heavily forested and undisturbed with old fully grown trees and forest-like shrubs. [10] Under cross-examination the Claimant maintained that he was at all times in a position to see what was happening on the property and that neither the Defendant not his father ever took possession of it until He said that the property was entirely forested until 2006 and the Defendant s family was only in possession of the other piece of land, Lot A, which they had been renting even before they entered the agreement to try to purchase it in [11] The Claimant s supporting witness, Licensed Surveyor, Harvey Ramrekha, testified on the basis of his professional expertise. So it was clear that his evidence was not fabricated to support the Claim since his survey had in fact been done since He was quite credible in his testimony that when he surveyed the property in 2005 he saw no cultivation on the land. He said what I saw when I went there was teak trees and high bush. [12] The Defendant and his witnesses all testified that he and his father before him had been cultivating the land for many years before None of the defence witnesses however gave convincing evidence as they were unable to provide information on material facts such as where they purchased materials for the cultivation, when trees were planted, how the Defendant who was otherwise employed could cultivate an acre of land without assistance and how the forested land could be accessed prior to the building of the road in [13] The evidence of the Defendant was supported by photographs of the property. However, the photographs were of little evidential weight since there was no evidence as to when or where they were taken. Furthermore, the photographs did not adequately reveal that the land was cultivated by the Defendant or his family. They merely showed fruit trees on the land that could have been planted by anyone and could have grown naturally in the forest Page 4 of 11

5 without being planted. The Defendant did not produce any expert evidence to effectively contradict the testimony of Mr. Ramrekha that the land was entirely forested in IV. Law and Analysis: Possessory title: [14] An adverse possessor may acquire possessory title to private property after being in continuous exclusive possession for sixteen years S. 3 Real Property Limitations Act, Chap. 56:03 ( RPLA ). According to the House of Lords in JA Pye (Oxford) Ltd v Graham 1, in order to establish possession a Claimant must show: "a sufficient degree of occupation or physical control coupled with an intention to possess;... to establish factual possession the squatter had to show absence of the paper owner's consent, a single and exclusive possession and such acts as demonstrated that in the circumstances, in particular the nature of the land and the way it was commonly used, he had dealt with it as an occupying owner might normally be expected to do and that no other person had done so; that the requisite intention was, not to own or acquire ownership, but to possess and on one's own behalf in one's own name to exclude the world at large, including the paper title owner, so far as was reasonably possible". [15] Halsbury s Laws of England 2 explains: [F]or the Claimant's possession of the land to be adverse, so as to start time running against the owner, the factual possession should be sufficiently exclusive and the Claimant should have intended to take possession on his own behalf and for his own benefit. Where the occupier's possession of the land is by permission of the owner, that possession cannot be adverse. [16] In the present case, the Claimant has sufficiently established his paper title to the property. What must therefore be determined is whether the Defendant has in fact established factual possession of the property as well as an intention to possess it on his own behalf and for his own benefit. On the evidence, the Defendant is seeking to establish adverse possession based not only by his residence on the property since 2006 but also by his alleged 1 [2002] 3WLR 221, Limitation Periods (Vol. 68 (2008)) [1078] Page 5 of 11

6 cultivation of all the land. He says his parents cultivated the land since 1971 and he continues to do so to the present time. [17] As it relates to residential possession the Claimant s testimony is that the Defendant only began building his house in 2006 shortly after a survey was taken which showed that the property comprised undisturbed forested lands. During cross-examination, the Claimant s witness did not appear from his responses to have been able to venture into the middle of the land as it was heavily forested in 2005 when he was retained to survey the land. He testified that he had walked around the entire perimeter of the land and even on the outskirts of the land he had to navigate through trees to identify the boundaries. [18] The Defendant s case is supported by a receipt dated November 12, 1993 annexed to the witness statement of his mother as G.K.2. which proves the payment by the Defendant s father of a deposit for purchase of two parcels of land, namely, the property that is the subject of this action and the neighboring Lot A. The receipt stated: It is clearly understood that no further claims for any land will be made by Basmateeah Kissoon and Kelvin Kissoon and that they are responsible for all legal and survey fees that may accrue. All outstanding lands and building taxes are also for their account. This agreement however, was never executed as payment of the balance was not made. The existence of the Agreement does corroborate the fact that the Defendant s father had an interest in obtaining both properties. There is no dispute that the Defendant s parents resided on the neighboring Lot A, hence the demand that outstanding rates and taxes be paid by the Defendant s parents. [19] There is however, no claim by the Defendant that either he or his parents resided on the property prior to Instead he bases his claim to actual and intended possession on alleged cultivation of the land. There is authority in Powell v McFarlane (1979) 38 P&CR 452 cited by Counsel for the Claimant in submissions, that cultivation can be sufficient to prove possession. Slade J said in that case that ploughing and cultivating agricultural land was an act so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. It was made clear however that the cultivation of land involves the breaking up of the surface of the land, planting in it and in the case of arable land, harvesting crops. It amounts to the complete physical control of the land and is an unambiguous act of possession. The courts have Page 6 of 11

7 consistently treated the cultivation of both arable land and land used as a garden as amounting to possession, provided that there is a clear boundary marking out the extent of the land cultivated. [20] The Defendant s testimony under cross-examination revealed that he was unaware to a large extent of what areas of the property that is the subject of this Claim his father would have cultivated and what would have remained in a state of natural forestation. He was not intimately aware of the details of his father s cultivation including when the trees would have been planted and where the seeds were obtained from. Further, the evidence adduced from the Defendant s mother was for the most part unreliable due to her being unable to recall many of the details of their occupation of the land. [21] Further, although the Defendant claimed that he himself still regularly cultivates the land with cane, rice and other short-term crops it is clear from his evidence at trial that this was done on a very small scale mainly for the consumption by his own household and to be given away to members of his church. Furthermore, he gave evidence that he works fulltime and has no other help to cultivate the land. It is therefore improbable that he would be able to farm the entire acre of land on his own while working full-time. The evidence of the neighbor, Olive Pandohie, was similarly unhelpful on this point as she was unable to view the land from her house and therefore was not in a position to comment on the frequency of the cultivation by the Defendant. [22] The Defendant therefore, appears from the evidence to have been in possession of the area upon which the house was built since 2006 together with a small area in which the crops for his household were planted. However, his intention to possess did not extend beyond this area and it is my finding that neither the Defendant nor his father had actual possession by cultivating the land on the property prior to Instead I accept as truthful the evidence of the Claimant and his witness the surveyor that the land remained in a forested state with such fruit bearing trees as may have grown there over the years before and after 1993 forming part of the natural forestation. Therefore, the Defendant has not established a case for possession of the property. Trespass: Page 7 of 11

8 [23] The Claimant s written submissions include a synopsis of the law on trespass to property. According to Gregory v Piper 3, trespass is the entry by the Defendant on the Plaintiff s land. Deliberate entry is sufficient to constitute trespass, whether or not the Defendant honestly believed the land belonged to him 4. [24] Halsbury s Laws of England exposition on the Remedies for Trespass 5 states: In a claim of trespass, if the Claimant proves the trespass he is entitled to recover nominal damages, even if he has not suffered any actual loss. If the trespass has caused the Claimant actual damage, he is entitled to receive such an amount as will compensate him for his loss. [25] The Claimant based on the foregoing, has proven trespass by the Defendant onto his land. He is entitled to nominal damages without proof of actual damage. However, in the present case, actual damage to the property was occasioned by the Defendant. Therefore, the Claimant is entitled to recover damages for the losses sustained. The Defendant has filed no objection to the evidence of the value of the damage put forward in a valuation of destruction of trees and damage to the pond on the property attached to the Claimant s witness statement and entered into evidence as Exhibit M.S.9. [26] The Claimant s claim to be entitled to the sum of One Hundred Thousand Dollars ($100,000.00) as the value of the damage done to the trees and the pond was neither admitted nor denied in the Defendant s pleadings. However, the Defendant underscored that there was no indication in the valuation report of the qualifications and expertise of the valuator in assessing the value of aquatics, fauna and flora. Furthermore, the methodology used to arrive at the valuation was not stated. [27] Having considered the valuation report it is my finding that it does not adequately support an award of One Hundred Thousand Dollars ($100,000.00) in damages. The Claimant appears to have also abandoned reliance on the valuation report as in closing written submissions the only submission made on damages is with regard to a nominal award. Accordingly, only nominal damages will be awarded to the Claimant herein. 3 (1829) 9 B&C Conway v George Wimpey & Co (1951) 2 KB Tort (Vol 97 (2015)) [591] Page 8 of 11

9 [28] As it relates to the claim for an injunction Halsbury s 6 further states: An injunction may be granted to prevent any threatened or apprehended trespass. Where the trespass is of a trifling nature, where damages are a sufficient remedy or where the granting of an injunction would be oppressive, an injunction may be refused. However, where damages are not an adequate remedy, an injunction may be granted even if the trespass causes little or no injury to the Claimant, although its operation may be suspended for a limited period if hardship would otherwise be caused to the Defendant. Where the Defendant claims a right to enter upon the land in question, the court, in addition to or in substitution for damages or an injunction, may make a declaration concerning the claim. [29] On the facts of this case it is my finding that an injunction is necessary as the Claimant expressed having been fearful of violent conduct on the part of the Defendant in previously refusing to vacate the property. V. Decision: [30] The Claimant has succeeded in proving his paper title to the land in question. The destruction of the pond and certain trees on the property to construct a house and an access road and to later on develop the road therefore constituted a trespass. The Defendant is liable to the Claimant for the damage. It is clear that in cutting down trees to build a house and road in 2006 and later filling in the pond to further develop the road in 2011, damage was done to the property. The value of the damage has not however been adequately quantified. Accordingly, an award of nominal damages at Thirty Thousand Dollars ($30,000.00) will be made in favour of the Claimant. [31] The Claimant is entitled to an injunction restraining the Defendant from entering upon his lands. VI. ORDER: A] The Claimant is awarded the relief claimed as follows: 6 Civil Procedure (Vol 11 (2015)) [1160] Page 9 of 11

10 1. The First Defendant is to deliver forthwith to the Claimant possession of all that piece of land situate at No. 285 San Francique, Pluck Road, Timital Junction, Penal in the Ward of Siparia in the island of Trinidad being portion of a larger parcel comprising SIXTEEN THOUSAND ONE HUNDRED AND THIRTY POINT EIGHT SQUARE METRES OR ONE POINT SIX ONE THREE ONE HECTARES be the same more or less delineated and coloured pink in the plan registered in Volume 5394 Folio 205 being portion of the lands described in the Crown Grant in Volume 146 Folio 81 and also secondly described in the Certificate of Title in Volume 1365 Folio 161 and shown as Lot B in the General Plan filed in Volume 3783 Folio 183 and bounded on the North by Lot A, by Lot C and by San Francique Road on the south by Lot 1, by Lot 2, by Lot 3, by Lot 4 and by Lot C on the East by lands of G.F. Huggins, by Lot 4, by Lot 3, by Lot 2 and on the West by Lot 1, by Lot C and by San Francique Road. 2. The First Defendant to pay to the Claimant Nominal Damages for trespass in the amount Thirty Thousand Dollars ($30,000.00). 3. The First Defendant is directed to demolish and or dismantle the small blue wooden house on the property measuring 25 by 20 feet in dimension. 4. An injunction is hereby ordered against the First Defendant restraining him, whether by himself, his servants and/or agents or whosoever from further entering and/or remaining upon the subject lands belonging to the Claimant. 5. A further injunction is hereby ordered against the Defendant restraining him, whether by himself, his servants and/or agents or whosoever from assaulting, committing any battery, cursing, harassing and/or threatening and/or verbally abusing the Claimant in any way whatsoever whilst on the subject lands or wherever. B] The Defendants counterclaim is dismissed. C] The First Defendant is to pay the Claimant the costs of the claim and the counterclaim on the prescribed scale in the amount of Fourteen Thousand Dollars ($14,000.00). Page 10 of 11

11 . Eleanor Joye Donaldson-Honeywell Judge Assisted by: Christie Borely Judicial Research Counsel I Page 11 of 11