In the High Court of Justice. And XAVIER GOODRIDGE. Before The Honourable Mr. Justice Devindra Rampersad

Transcription

1 The Republic of Trinidad and Tobago In the High Court of Justice Claim number CV Between BABY NAGASAR Applicant And XAVIER GOODRIDGE Defendant Before The Honourable Mr. Justice Devindra Rampersad Appearances: Mr. Rennie Gosine instructed by Ms. Boodoosingh for the Applicant Mr. Ken Wright for the Defendant Delivered on the 10 th day of October 2011 JUDGMENT Page 1 of 34

2 Table of Contents The statement of case... 3 The defence... 4 Discussion of the disparity between the description given by the defendant and that referred to in the unsigned survey plan... 5 Observations about the pleadings... 7 The evidence Baby Nagasar... 8 Her cross-examination... 9 The evidence Xavier Goodridge... 9 Cross-examination Discussion Discussion Discussion Discussion Conclusion on the facts The title issue The defendant s attorney s contention: The claimant s attorney s contention: Discussion of the caselaw referred to the court: Other authorities found by the court to be of relevance Discussion and resolution of the issue Conclusion on the title issue Conclusion and the order Page 2 of 34

3 1. The claimant in this matter has brought these proceedings for possession of 2 parcels of land which she claims to own. The defendant, on the other hand, claims to have been on the said parcels for more than 16 years and claims title by adverse possession. The statement of case 2. The statement of case was filed on 6 March 2009 by the claimant who alleges that she is the fee simple owner of two parcels of land located at Berridge Trace, South Oropouche. She pleaded her title as follows: 2.1. By deed of assent dated 9 February 1999, and registered as number 8070 of 1999, Amarnath Rampersad became the owner of all and singular that piece or parcel of land situated in the ward of Siparia in the island of Trinidad comprising m² which said parcel of land was delineated and shown pink in the plan attached to deed of conveyance registered as number [hereinafter referred to as " the first parcel"] By deed number , Amarnath Rampersad conveyed all of his interest in those lands to Polo Nagessar (the claimant's husband) and Baby Nagasar (the claimant) By deed number Polo Nagessar conveyed his interest to the claimant By deed of assent dated 9 February 1999, and registered as number 8070 of 1999, Amarnath Rampersad became the owner of all and singular that piece or parcel of land situated in the ward of Siparia in the island of Trinidad comprising m² which said parcel of land was delineated and shown pink in the plan attached to deed of conveyance registered as number [hereinafter referred to as " the second parcel"] By deed number , Amarnath Rampersad conveyed all of his interest in these lands to Polo Nagessar and the claimant. Page 3 of 34

4 2.6. By deed number , Polo Nagessar conveyed his interest to the claimant. 3. The claimant says that they had lived in close proximity to these land since 1959 and at all times those lands were unoccupied and overgrown with grass. Both parcels were purchased in 2001 and they adjoin each other. From December 2001 to October 2002, the claimant and her husband cultivated the two parcels of land with peas and coconut trees. In November 2002, the claimant stopped cultivating the parcels of land and started looking after her ailing husband. Her husband died on 22 June On or about 4 January 2009, the defendant, their servant and or agent wrongfully entered the two parcels of land and planted a few coconut trees. By letter dated 8 January 2009, the claimant wrote to the defendant requesting him to desist from entering the lands yet the defendant has continued to enter the lands. By reason of this, the claimant says that she has been deprived of the use and enjoyment of the said lands. The defence 5. In defence, the defendant says that he is the grandson of Herman Goodridge who was the tenant of Otaheite Estates with respect to 4 Acres of land more or less situated at LP 68/69 Berridge Trace and bounded on the North by lands occupied by Mohammed Ali, on the South by lands occupied partly by Regis partly by Wells and partly by Joseph, on the East by lands occupied by Mohammed and on the west by Berridge Trace. He annexed to the defence a survey plan apparently drawn as a result of a survey done on 12 November 2007 by one Reynold Bhikarry (although it was not signed by him but carries his stamp). That survey plan was for a parcel of land comprising ha or approximately 5.29 acres of land. The boundaries referred to in the plan shows that the parcel of land in that plan is bounded on the north and east by heirs of Amarnath Rampersad and on the south partly by lands of Gramandee and partly by lands of Addar and Maniah. The western boundary is Berridge Trace. Page 4 of 34

5 Discussion of the disparity between the description given by the defendant and that referred to in the unsigned survey plan 5.1. Quite obviously, there is a material dissimilarity between the description of the land by the defendant on the pleadings and that shown on the plan. The court has noted that the plan is unsigned by the surveyor and therefore places no weight whatsoever on that plan especially since the alleged maker of that document Mr. Bhikarry - never attended court to give evidence. As a result, it is obvious that the defendant would have to rely on his description set out at paragraph 1 of the defence rather than on the plan although it is clear that his intention is to say that the subject lands are described in the said plan and the lands shown in the plan are the lands that he is claiming. 6. According to the defendant, his grandfather had rented the lands he claimed in the defence from or about 1954 at an annual rent of five dollars per acre and that he, Herman Goodridge, paid the yearly rent from or about 1954 until 1972 to the owners of Otaheite Estate. From October 1970, however, he says that the owners of Otaheite Estate stopped collecting rent and no rent has been paid since then nor was any rental demanded. Annexed to the defence were copies of receipts for the payment of rental. 7. The defendant says that his grandfather and his grandmother occupied the said 4 acre parcel of land from or about 1954 cultivating it with pigeon peas, hill and lagoon rice, dasheen, eddoes, cassava, bodi, limes, pineapples, paw-paw, coconuts, teak, portugal, plums, bene and cedar. Further, he said that animals were also reared namely cattle, sheep and goats. The defendant says that his father, Francis, grew up and occupied the said lands until Herman's death on 8 January After Herman's death, Francis cultivated the lands with vegetables, coconuts and timber. Francis migrated in or around 1999 and then the defendant and his brothers continued in occupation and cultivation of the said lands. Page 5 of 34

6 8. The said lands were, according to the defendant, completely fenced by the defendant's grandfather and by his father with barbed wire, teak trees and other trees in between to help maintain the strength of the barbed wire fence. 9. The defendant says that in or around 2001, Amarnath Rampersad, claiming to be one of the owners of Otaheite Estate, wrongfully entered the said lands and cut down some cultivated trees. The defendant says that he showed Mr. Rampersad the rent receipts for the said lands and Amarnath Rampersad never returned. From 2001 to 2006, the defendant says that he and his family have been actively engaged in rearing sheep, goats and cattle on the said parcel of land which was sold to butchers and other animal buyers who visited the land to conduct sales. 10. The defendant denied the claimant's contention that he, his servant and or agent wrongfully entered the two parcels of land claimed to be owned by the claimant on or about 4 January 2009 and in response says that "the defendant and his family have been in possession and cultivating the said land since 1954 and in exclusive possession of the 4 acres parcel of land since 1970." 11. The rest of the defence refers to High Court action number CV between the himself, as claimant in those proceedings, and Jaisree Jodhan and Dumore Enterprises Ltd., as defendants in those proceedings, where he refers to the alleged unlawful action and trespass to the 4 acre parcel of land by the defendants in those proceedings. He also spoke more about the alleged survey by Mr. Bhikarry and says that when the survey was done, no objection was made by the defendants in that action or by the claimant in these proceedings. 12. The defendant went on to counterclaim for a declaration that he was entitled to be the registered owner of the 4 acre parcel, sought damages for trespass along with an injunction restraining the claimant from entering and or remaining upon the 4 acre parcel. 13. A reply and defence to the counterclaim was filed by the claimant. Page 6 of 34

7 Observations about the pleadings 14. The defendant does not say anywhere in his defence and counterclaim that the two parcels of land claimed by the claimant forms a part of the 4 acre parcel upon which he says that he, his father, and his grandfather have exerted rights of possession to the extent that this court can make a declaration that the defendant is entitled to be the registered owner of the two parcels of land claimed by the claimant. 15. This, of course, creates a problem. The claimant has quite clearly stated that she has two parcels of land upon which the defendant has trespassed when she has given dates when that happened. She has gone on to say that the land which the defendant s grandfather tenanted and occupied the 4 acre parcel - was somewhere else. 16. It therefore ought to have been obvious to the defendant that there had to be some sort of pleaded nexus between the 4 acre parcel that he was claiming entitlement to and the two parcels of land which were the subject of the claim. That situation was never clarified on the pleadings and therefore, it is left for this court to infer that the two parcels of land claimed by the claimant forms a portion of the 4 acre parcel claimed by the defendant. 17. No objection was taken at the trial to this inference by the claimant's attorney at law and, in fact, it seemed to have been readily assumed by the parties that the two parcels of land claimed by the claimant fell within the 4 acre parcel of land claimed by the defendant. 18. On that basis, this court shall proceed to deal with the matter before it on the obvious assumption that the claimant's lands form a portion of the lands claimed by the defendant. Other than that common assumption, this court may have been prepared to say that there was no nexus between the lands claimed by the defendant and that which the claimant lays claim to. Page 7 of 34

8 The evidence Baby Nagasar 19. Baby Nagasar s witness statement filed on 27 April 2010 was in keeping with her statement of case. She said that she had been residing at 80 Berridge Trace since since 3 May 1959 when she got married to her husband and began living with him there. Her home, where she still resides, is about 400 feet from the land in dispute in this case. 20. She said that prior to July 2001, Mr. Amarnath Rampersad came to her husband and her and had a conversation with them about purchasing the two parcels of land. As a result of their conversation, the claimant says that her husband and herself along with Mr. Rampersad, visited and inspected the 2 parcels of land and noticed that neither parcel was in cultivation and that they were both in bushes and were uncultivated. On 4 July 2001, the claimant and her husband purchased the first parcel and on 20 November 2001, they purchased the second parcel. Prior to purchasing the second parcel in November 2001, the claimant says that her husband and herself again visited and inspected the additional parcel of land and did not notice any cultivation on it and found the same to be in bushes and uncultivated. 21. She proceeded to confirm in her witness statement the fact that her husband and herself had, during the period December 2001 to October 2002, cultivated her two parcels of land with peas and coconut trees. However, after her husband became ill, she stopped cultivating the lands and started to look after him. This, she said, was in November On 4 January 2009, she said that she caused her attorney at law to write to the defendant informing him that he was trespassing upon her lands. Prior to that, she said that the defendant's grandfather, whom she knew and was well acquainted with, was a tenant of a parcel of land elsewhere and that he never occupied the parcels of land which she came to buy. In fact, she said that the lands that the defendant s grandfather occupied and tenanted was bounded to a parcel of land comprising 5 acres owned by her husband and his mother elsewhere on Berridge Trace upon which the claimant reared cattle. Page 8 of 34

9 22. It is in her witness statement that the claimant says that the parcel of land which the defendant is claiming in this action "includes a portion of land owned by me". This goes towards the assumption referred to in the previous section by this court. Her cross-examination 23. In cross-examination, the claimant was hard-pressed to agree with the defendant's attorney at law that the subject parcel of land was at LP #68 on Berridge Trace. She said that despite the fact that she knows Berridge Trace very well, she never noticed the LP number. She was confident, however, that she knew her lands. It was put to her that the lands at LP # 68 and 69 weree occupied by the Goodridge family even up to now but she insisted that it was not so occupied and was in lastro when she bought it. 24. She said that from where she lived, she was able to see the two parcels of land which she bought and she never saw the Goodridge family on the lands. 25. She insisted on more than one occasion in cross-examination that the Goodridge family occupied a 4 acre parcel of land which was not in the vicinity of the lands which she bought and that the Goodridge 4 Acre parcel was on another parcel of land owned by the Partaps. 26. She was not aware of any court proceedings between her husband and the defendant's father. 27. She denied that there was any vegetation on the second parcel when the survey was done with respect to her two parcels of land. She said that all there was on the land when she bought the parcels was bush. There were no fruit trees, no teak trees, no lime trees and no corn or peas trees. The evidence Xavier Goodridge 28. Quite a substantial part of Mr. Goodridge s witness statement was struck out by reason of the fact that a lot of it was hearsay evidence for which no foundation had been led or no hearsay notice had been filed and served. Page 9 of 34

10 29. Once again, his focus was on the 4 acre parcel of land without suggesting that the two lots of land claimed by the claimant was a portion of that 4 acre parcel. 30. He acknowledged that the claimant lived in close proximity to the 4 acre parcel and he said that during the period 2001 to 2006, his family and himself had been actively engaged it in rearing sheep, goats and cattle on the said parcel of land which he and his family sold to butchers and other animal buyers and they visited the land to conduct the sale. He said that he was aware that the claimant and her husband had purchased the two parcels of land which are the subject of these proceedings and he denied that the claimant and her husband cultivated lands with peas and coconut trees. He said that he and his family had been in possession and cultivating the said land since 1954 and in exclusive possession of the 4 acres since At paragraph 22 of his witness statement, he said that the cultivation and the rearing of animals and 4 acre parcel of land was, and still is, an integral part of his family life and a vital source of income. Further, produce therefrom greatly assisted in maintaining his grandfather and his grandfather's family and now his siblings and himself. Cross-examination 32. The defendant stated in cross-examination that he was born in November 1980 and therefore it is obvious that he could not have had any firsthand knowledge of what was happening on the land prior to Even then, he said that he first became aware that the land was approximately 4 acres in size when he was around 11 years old and that would have been around This was something that his father told him that is that the land was approximately 4 acres in size. 33. Quite a lot of the evidence in relation to what his grandfather did with respect to the land would have had to been hearsay since his grandfather died in 1977 prior to his birth in As a result, a substantial portion of the defendant's evidence in relation to the use of the land was inadmissible. Page 10 of 34

11 34. He admitted that he did not state in his witness statement in these proceedings anything about the vesting of the tenancy in the 4 acre parcel by way of a deed of assent from his grandmother Octavia. He also admitted that even though his brothers were present in the courtroom or in the country, they were not brought as witnesses nor were any persons from the neighborhood brought as witnesses to support his contention. 35. In his witness statement, at paragraph 10, he said that in or around 2001, Amarnath Rampersad claiming to be one of the owners of Otaheite Estate wrongfully entered the said land and cut down some cultivated trees. He said that he informed him that he, Rampersad, was not the owner of the said land. After being shown the rent receipt for the said land Amarnath Rampersad never returned. In cross-examination however he acknowledged that he was not there when Mr. Amarnath Rampersad allegedly came in and cut down the trees and that he got this information from his mother and brother. He also accepted that he never showed any rent receipts to Amarnath Rampersad and that the receipts were shown by somebody else to Mr. Rampersad. 36. He also agreed that he never named any butchers or buyers or how often he sold animals. He also acknowledged that if he sold a cow there would be a receipt but he did not produce any. He said that he and his family sold produce but he did not put in any evidence of the type of produce or to whom it was sold. Discussion This is an important admission in light of the fact that he said that the rearing of animals for sale was an integral part of his family's life and a vital source of income. In such circumstances, the court would have expected that the defendant would have had proper information in this regard especially because of its importance to him and his family. Regrettably, there was no independent evidence to corroborate this selfserving allegation. 37. A pleaded portion of the defendant's case was with respect to magisterial court proceedings between his father and the claimant's husband, now deceased. Once Page 11 of 34

12 again, the defendant did not have firsthand knowledge of the facts of this case and could only have relied upon a magistrates court extract which was of no relevance or assistance to this court. Discussion Without the substance of the case and the pertinent facts being properly brought before this court by way of first-hand evidence, this court has no appreciation for the relevance of this evidence at all. The defendant was clearly not in a position to give any evidence about this matter especially since he was still a minor when the incident allegedly occurred on 25 January 1996 and therefore he could not have been in court to hear the evidence firsthand. As a result, this evidence is disregarded by this court. 38. The defendant acknowledged having received a letter in the year 2000 from the claimant's attorney at law and he said that there was a response sent with respect to that from one Mr. Dass from the Land Tenant Association but he did not produce a copy of that letter in the year 2000 nor the response. With respect to the claimant s allegation that she caused a letter dated the dated 4 January 2009 to be sent to the defendant, the defendant said in cross-examination that he never received that letter. He acknowledged, however, that he did not mention that in his witness statement. In fact, even though that letter was referred to in the statement of case, the defendant did not address it at all in his witness statement. 39. The defendant stated that he employed the surveyor, Mr. Bhikarry, to do a survey work on the 4 acre parcel but Mr. Bhikarry was not a witness in this matter. Discussion This caused great concern to the court. Mr. Bhikarry was obviously an independent professional and expert who could have spoken about the defendant's alleged occupation in 2007 which would have been prior to the claimant's allegation as to when the defendant entered onto the land which she put as However, Mr. Bhikarry did not attend to give evidence. Page 12 of 34

13 39.2. Further, and rather incredibly, the defendant sought to rely upon a survey plan allegedly prepared by Mr. Bhikarry and to put great emphasis upon it when in fact he did not have a properly signed and prepared version of it for production to this court This, of course, left a great doubt in the court's mind as to the bona fides of the defendant and with respect to the true reason for Mr. Bhikarry not attending court to support the defendant and to validate his alleged survey plan In this regard, the court has serious doubts as to whether Mr. Bhikarry would have in fact supported the defendant if even he did in fact do the plan. 40. The defendant admitted that the claimant lived 400 feet away and that she would be able to see the subject lands if she came out on the road and she would then have seen if the lands were occupied. 41. Quite interestingly, the defendant said that he only became aware that the claimant was the owner of the two parcels of land because of the High Court proceedings in claim number CV which was commenced in June Yet, he acknowledged to this court that he served a notice in respect of the alleged survey by Mr. Bhikarry in November Discussion Why then would he have served the notice on the claimant if it was not because she had some sort of beneficial interest in the lands? Quite obviously, the claimant was recognized as the owner of the lands prior to when the defendant says that he became aware that she was the owner. The court does not believe the defendant when he says that he did not know that she was the owner until the filing of CV No Page 13 of 34

14 Conclusion on the facts 42. Other than the claimant and the defendant themselves, no one else gave evidence in these proceedings. It is quite obvious that the defendant was incompetent to speak firsthand of matters prior to his involvement in the land so that all of the evidence in respect of his grandfather s occupation was of no assistance to this court. 43. The defendant himself did not impress this court to be a truthful witness. It seems rather inconceivable that he would not have known that this case was about roughly 2 lots of land yet his pleadings focused on a 4 acre parcel without pinpointing his entitlement, if any, to these two lots. By his own admission, he was not the only person allegedly in possession of the lands so that in any event, he alone would not be entitled to these lands. His failure to call Mr. Bhikarry was a serious lapse, in the estimation of this court. His failure to produce any cogent and/or independent evidence in respect of those vital and important sales of livestock and produce further damaged his credibility especially when he was unable to refer to names of persons or instances when sales would have taken place. Even details as to the number of cattle, sheep and goats were omitted by the defendant. There were also inconsistencies in his evidence as mentioned above, for example in relation to the alleged interaction with Mr. Amarnath Rampersad. 44. All in all, the defendant failed, on a balance of probabilities, to satisfy this court that his defence had any merit and, more importantly, that he was entitled to the relief sought in his counterclaim. 45. On the other hand, the claimant was not seriously threatened or shaken in crossexamination and some of what she had to say was corroborated by the defendant himself such as the fact that she lived in the area for a long time just about 400 feet away from the lands and could have seen if anybody was in occupation thereof. It seems hardly credible that the claimant would have agreed to purchase lands in 2001 if the lands were in occupation by the defendant. She would have known she ought to have known if the subject lands and the lands surrounding it were in any way occupied by the defendant and his family. It is not in Page 14 of 34

15 contention that she was able to see the lands quite clearly from when she was. So why would she buy into contention or conflict? That just does not make any sense. 46. This court believes that after purchasing the lands, the claimant occupied it planting short crops for a while and that she eventually stopped planting the same because of the illness of her husband, who eventually died shortly thereafter. This account had a ring of truth to it and the court accepts what she has to say about that. The title issue The defendant s attorney s contention: 47. The defendant s attorney has submitted that since the claimant has failed to prove her title to the two (2) parcels of land, she cannot prove that she is entitled to possession of the same as against the defendant and therefore her claim for damages, injunction and possession is bound to fail. In support of that contention, the defendant relies upon: Civil Appeal 50 of 1960 Olga Charles v Harrichand; H.C.A. 522 of 1975 Ramdhan v Solomon; H.C.A of 1980 Allan Man Hong & ors v Singh H.C.A. T- 107 of 1998 Murray v Biggart. The claimant s attorney s contention: 48. In response, the claimant s attorney at law contends that An abstract of title in the Conveyancing Law of Property Act Cap. 56:01 section 5 which is referred to in the Defendant s submissions is with respect to the duty of a vendor in any contract for the sale of land to adduce good title. The section does not apply outside of the contractual relationship and responsibilities between a Vendor and Purchaser. There is no sale agreement between the Claimant and the Defendant, the Page 15 of 34

16 Claimant is thus not charged with any statutory burden under the Act to show good title to a trespasser when asserting her entitlement to the lands. The claimant s attorney at law relies upon the Privy Council case of Ocean Estates Ltd. v. Norman Pinder [1969] 2 A.C. in support of his contention. Discussion of the caselaw referred to the court: 49. It is necessary for this court to resolve this issue with respect to the law involved by considering the relevant case law submitted by both sides. 50. Olga Charles v Harrichand: This seminal decision of the Court of Appeal delivered on 17 January 1964 forms the basis of the defendant s contention The respondents in this case claimed to recover possession of a lot of land on the ground that they purchased the lot and provided a deed dated 20 January At the time of the purchase, the appellant was occupying the house standing on the lot and had been occupying it for some years previously. The appellant alleged that she was the owner of the house and that she was beneficially entitled to a tenancy in the land which she relied upon to found the basis for her remaining in possession. The Court of Appeal opined that the respondent could recover possession on one of two footings: That the appellant was the tenant of the respondents, or hold by some title derived from the respondent s tenant, in which case the appellant could not dispute the landlord's title. The respondents refused to adopt this footing as it would have granted the appellant certain statutory rights and protections under the Rent Restriction Ordinance; They could get an order for recovery by the strength of their own title without any regard to the weakness of the appellant title. Page 16 of 34

17 Consequently, the case for the respondents was conducted under the second footing on the basis that the appellant had no right to be there and that she was a trespasser. According to Wooding CJ: "That being so, they had to prove their title, and to prove it strictly. Merely putting in a certified copy of a deed whereby two or three months before they purchased a lot of land from the alleged owner of it is not proof of title. It would be necessary to show that the vendor of the lot had a right to sell, that is to say, a title which she could pass on. And in the absence of that proof the title of the respondents was not proof. There is no presumption from the mere putting into evidence of a certified copy of a deed of such recent date, and the appellant would be entitled to sit by quietly, say nothing save merely to contend that title has not been proved against her, and that therefore the order for recovery of possession was not one which it was competent for the learned judge to make." The Court of Appeal came to this position, describing it as a matter of pleading and relying upon the learning set out in Bullen & Leakes Precedents of Pleadings (11th edition) at page 45 which said: " Where, however, there is no suggestion that the defendant received possession from the plaintiff, or has paid him rent, the onus lies on the plaintiff of strictly proving his title, and he must take his title in full detail in his pleading, deducing it step-by-step through the serious mesne assignments. On the other hand, the defendant is allowed to state merely that he is in possession and thus to conceal all defects in his title, unless he is in possession by virtue of a lease or tenancy granted by the plaintiff or his predecessor in title, or unless he relies on some equitable defence, in which case he must plead it specially." Because the title was not proved, and this was not a case of the appellant being a tenant of the respondents, the Court of Appeal was of the view that the respondents failed to prove the case which they sought to make out. Page 17 of 34

18 51. Ramdhan v Solomon; This is a first instance judgment of the Hon. Mr. Justice Ibrahim delivered on 18 March The plaintiffs claim against the defendant was, inter alia, for possession of one lot of land. The plaintiffs set out their title going back for a period of nine years deduced in their deed of conveyance and the previous deed of conveyance by which the persons from whom they bought had acquired the parent parcel comprising 15 acres of land and out of which the plaintiffs parcel comprising 5 acres 1 rood and 11 perches was excised The defendant, against whom the order for possession was being sought, claimed to be the common-law wife of the tenant of the subject parcel of land who died in She brought a counterclaim for damages for the destruction or damage to crops belonging to her on the subject lands by the plaintiffs which, at the end of the day, was successful based on the fact that the learned judge held that after the death of her common-law husband, she became the tenant of one Simeon Butler who the defendant claimed was a previous owner of the lands who had granted the tenancy unto her common-law husband The learned trial judge relied upon the authority of Olga Charles and went on to quote from section 5 of the Conveyancing and Law of Property Ordinance Ch 27 No. 12 which stated: "In the completion of any contract of sale of land, and subject to any stipulation to the contrary in the contract, 40 years shall be the period of commencement of title which a purchaser may require." The learned judge went on to say that: This period of 40 years was reduced in 1976 to a period of 30 years by section 5 of the Law Reform (Property) Act It was therefore necessary for t is he plaintiff's to state their title in the pleading for the full period of 40 years since the writ was filed before the 1976 amendment deducing it step-by-step through the various mesne assignments. Page 18 of 34

19 The learned Judge, after quoting again from Olga Charles went on to say that: "The plaintiffs not having pleaded their title in full for a period of 40 years they have failed to establish a case in the pleadings." He then went on to rely upon the case of Dawkins vs Lord Penryhn (1878) 4 App. Cas. 51 and the words of Earl Cains LC at pages 58 and 59 where he said: "With regard to the Statute of Limitations as to personal actions, the cause of action may remain even although six years have passed. It cannot be predicated that the defendant would appeal to the Statute of Limitations for his protection, many people or some people at all events, to not do so but with regard to real property it is a question of title. The plaintiff has to state his title, the title upon which he means to rely and the Statute of Limitation with regard to real property says that when the time has expired within which an entry or a claim must be made to real property, the title shall be extinguished and pass away from him who might have had it to the person who otherwise has the title by possession, or in whatever other way he may have it." Based on this extract, and what was said before in Olga Charles, the learned judge found reinforcement for his statement that the plaintiff has to state his title, the title upon which he means to rely, and having failed to do so, the action was dismissed with costs. 52. Allan Man Hong & ors v Singh: This is a first instance decision of the Hon. Mr. Justice George Edoo delivered on 26 July The plaintiffs brought this action for damages for trespass and for an injunction to restrain the defendant from trespassing upon a strip of land Page 19 of 34

20 out of a parcel of land which the plaintiffs claimed to have derived the title by virtue of a deed registered as number of In defence, the defendant said that he and his predecessors in title used the strip of land as a right of way without interruption since 1935 to get to and from the Southern Main Road and claimed that the plaintiffs right or title to the right of way, if any, was extinguished by virtue of section 22 of the Real Property Limitation Act chapter 5 number 7 and also relied upon section 3 thereof. The defendant counterclaim for a declaration that he was entitled to use and is the owner of the right of way Although he did not quote from or refer to the decision in Ramdhan, the learned judge referred to and relied upon Olga Charles and section 5 of the Law Reform (Property) Act 1976 to reach a similar decision in relation to the need for the defendant to deduce his title in his pleadings. 53. Murray v Biggart: This was a decision of the Hon. Mr. Justice Smith, as he then was, dated 15 February The Plaintiff alleged that he was the owner of a parcel of land in Pembroke, Tobago comprising approximately hectares and he produced two Deeds of Assent as proof of his title. The Plaintiff also testified that between 1965 to 1995 one Gertrude Murray and one Errol Walcott used to pick up coconuts and plant garden on the estate and that in 1994 the Defendant deposited building material on to a portion of the estate. As a result, he obtained a survey of the disputed portion of land, requested the Defendant to stop the trespass and ultimately, brought this action against the Defendant. The defendant also claimed to be the owner of the same parcel of land The learned judge stated at paragraph 7 of the judgment that the law was that Unless a Defendant is in possession of land with the consent of a Plaintiff (e.g. a tenant), a Plaintiff who seeks possession of land from a Defendant must prove his title to the land strictly. He must set out all the links in his Page 20 of 34

21 title, showing a good root of title and establishing that he is the owner of the land. In a claim for possession, a Plaintiff succeeds on the strength of his own title and not on the weakness of the Defendant s title. See Charles v Singh C.A. Civ. 50 of 1960 Ramdhan v Solomon H.C.A. 522 of 1975 Man Hong v Singh H.C.A of 1980 Bullen & Leake s Precedents of Pleading 11 th ed pg 45 He went on to say at paragraph 8 et al that: 8. There is no dispute in this case that the relevant root of title had to be deduced for 30 years. The issue in this case is whether the two Deeds of Assent which the Plaintiff produced in proof of his title to the land can be considered a good root of title. 9. A root of title is a document purporting to deal with the entire legal estate in the property and not depending upon any previous instrument for its validity and containing nothing to throw any suspicion on the title of the disposing parties. The best examples of a root of title are a conveyance on sale or a freehold mortgage. A specific devise in a Will followed by the relevant Deed of Assent can be a good root of title but not so a general devise in a Will. (See Halsbury s Laws of England 4 th ed Vol. 42 para 148). 10. A Deed of Assent is prepared without a search of title and is a document which assumes a previous instrument of title. By itself, it is not a good root of title. 11. Since the Plaintiff failed to prove his title to the land in question, he cannot prove that he is entitled to possession of the land as against the Defendant and his claim for damages and an injunction must fail. 54. Ocean Estates Ltd. v. Norman Pinder: This was a decision of the Judicial Committee of the Privy Council delivered on the 14th of January The facts and orders of the respective courts are copied verbatim from the headnote. Page 21 of 34

22 54.2. The plaintiffs, a development company, were the owners in fee simple of 144 acres of land under a conveyance of March 30, In 1963, as owners, they sued the defendant for damages for trespass to land and an injunction restraining further trespass. At the trial they duly proved a devolution of title going back through a series of intervening conveyances to a conveyance of May 3, 1937, to C.O. Co. Ltd. The defendant claimed a possessory title to the whole of the land and advanced no alternative claim to any part of the land as distinct from the whole. He relied upon a title acquired under section 1 of the Real Property Limitation Act, 1874, and the consequent extinction of the plaintiffs' title under the Real Property Limitation (No. 1) Act, on the ground of his full free and undisturbed possession of the land by farming thereon continuously for more than twenty years prior to the date of the writ, having cultivated various plots of the land from 1949 to 1967, and having planted fruit trees on part of the land from 1954 until The plaintiffs relied upon their documentary title to the land; on the use of the land by the director of C.O. Co. Ltd., their predecessors in title, between 1941 and 1946 when he planted and harvested fruit trees on parts of the land and also by the plaintiffs' own exercise of powers of dominion over the land in 1957 and from 1959 to 1960 by having the land inspected and surveyed for future building development. The trial court held that the defendant had failed to prove a possessory title to the whole of the land and gave judgment for the plaintiffs. The Court of Appeal took the view that the plaintiffs' title, being less than 30 years, could not have been forced on an unwilling purchaser and they treated the action as if it were one between competing trespassers each relying upon his own actual occupation of the land, and on that basis allowed the appeal On appeal to the Judicial Committee the defendant did not seek to uphold the judgment of the Court of Appeal on those grounds but contended that notwithstanding the plaintiffs' documentary title to the whole land, the particular form of action selected, that of trespass to land, was not Page 22 of 34

23 available to them because they had failed to show that at the time the action was brought they had sufficient possession of the land to maintain such an action:- It was held, allowing the appeal, that the plaintiffs had, by the use of the land by their predecessors from 1941 to 1946, by their architect's inspection in 1957 and the surveys from 1959 to 1960, established sufficient possession to bring an action for trespass to land and to negative any intention on their part to abandon possession, having regard to the special purpose of eventual building development by them In the judgment, delivered by Lord Diplock, he said: Before the Court of Appeal the point was taken for the first time that the plaintiffs had failed to prove a sufficient documentary title because their title could not have been forced upon an unwilling purchaser under section 3 (4) of the Conveyancing and Law of Property Act, as it commenced with the conveyance of May 3, 1937, which was less than 30 years before the date of the writ. The contention was accepted by the majority of the Court of Appeal, who regarded the plaintiffs as being in no better position than if they had no documentary title at all. They accordingly treated the action as if it were one between competing trespassers, each relying upon his own actual occupation of the land, and held that the plaintiffs had failed to establish a possessory title. On this ground they allowed the appeal. In their Lordships' view the question of what documentary title a vendor is entitled to insist on forcing upon a purchaser has no relevance to the present action. At common law as applied in the Bahamas, which have not adopted the English Land Registration Act, 1925, there is no such concept as an "absolute" title. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land. It follows that as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the Page 23 of 34

24 land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 20-year period of continuous and exclusive possession by the trespasser. In the present case, where the defendant made no attempt to prove any documentary title in himself or in any third party by whose authority he was in occupation of the land it would have been sufficient for the plaintiffs to rely upon the conveyance of the land to themselves of March 30, 1950; for where a person has dealt in land by conveying an interest in it to another person there is a presumption, until the contrary is proved, that he was entitled to the estate in the land which he purported to convey. In fact, however, the plaintiffs went further than was strictly necessary. They proved a devolution of title going back through a series of intervening conveyances to the conveyance of the fee simple in the land by Mrs. Key to the Chipper Orange Co. Ltd. of May 3, [Emphasis mine] With respect to the issue as to whether the plaintiff had sufficient possession of the land to maintain an action for trespass, Lord Diplock said: It is in their Lordships' view unnecessary to consider to what extent at the present day, more than a century after the abolition of forms of action, actual entry by the person having title to the land is necessary to found a cause of action in trespass as distinct from ejectment or recovery of possession. Put at its highest against the plaintiffs it is clear law that the slightest acts by the person having title to the land or by his predecessors in title, indicating his intention to take possession, are sufficient to enable him to bring an action for trespass against a defendant entering upon the land without any title unless there can be shown a subsequent intention on the part of the person having the title to abandon the constructive possession so acquired: see Bristow v. Cormican (1878) 3 App.Cas. 641, Lord Hatherley at p. 657, and Wuta-Ofei v. Danquah [1961] 1 W.L.R In the present case the plaintiffs can rely upon the entry on the land by Mr. Chipman on behalf of the Chipper Orange Co. Ltd. from 1941 to 1946 and his use of it for growing fruit trees, and Page 24 of 34

25 upon their own entries by their architect in 1957 and by their surveyor in In addition to being enough in themselves to establish sufficient possession to bring an action for trespass these later entries negative any intention on the part of the plaintiffs to abandon possession, having regard to the purpose, viz that of eventual building development, for which the plaintiffs held the land. Other authorities found by the court to be of relevance 55. Merle Thomas v Aslyn Campbell: The only authority from the local Court of Appeal which this court has been able to find which referred to the decision of the Privy Council in Ocean Estates is the case of Merle Thomas v Aslyn Campbell Petty Civil Appeal Number 5 of 1996 delivered by Permanand JA on 30 June The appellants claim for possession of a parcel of land situated in Tobago was dismissed by the Court of Appeal. The appellant relied solely on the fact of her purchase of the land in 1983 and claimed that that purchase was sufficient title for the court to make the order sought and to dispossess the respondent. The respondent called no evidence but put the appellant to strict proof of a title of the land. The Court of Appeal found that the appellant had not pleaded and proven her title in the approved manner set out in Olga Charles The Court of Appeal found that the case appeared to be devoid of evidence as there was no evidence as to how the respondent came to occupy the building on the land and the only evidence as to the respondents status was gleaned from a notice to quit served on the respondent by the appellant which described her as a tenant at will Both attorneys relied on Olga Charles and Ramdhan and the appellant's attorney also relied on Ocean Estates. Page 25 of 34

26 55.5. Interestingly, the sole quotation by the Court of Appeal was the following quote from the judgment of Lord Diplock: The devolution of the plaintiffs' freehold title from the conveyance of May 3, 1937, was duly proved at the trial. No point was taken as to its sufficiency and the trial proceeded on the footing that the only remaining issue was whether or not the defendant had established that the plaintiffs and their predecessors in title had been dispossessed of the land or had discontinued possession thereof for more than 20 years before December 20, 1963: see Real Property Limitation (No. 1) Act, s No mention was made in this judgment of the Court of Appeal of the fact that the issue as to title was raised at the Bahamian Court of Appeal and not at the trial (where, as a result, there was no contention) and it was the Bahamian Court of Appeal that found that, even though the plaintiffs freehold title was proven at the trial, it was proven for a period less than the statutory 30 year period required for showing good title to a purchaser. As such, using the test set out in Olga Charles and Ramdhan and the cases following these authorities, good title had not been proven. Even more strikingly, there was no reference to the Privy Council s pronouncements on their view of the law in respect of the required standard of proof of title, which was quoted above at paragraph Instead, the Court of Appeal reaffirmed the approach adopted in Olga Charles and Ramdhan for the reasons set out therein and stated at page 8 and, in dismissing the appeal, said: "No argument was advanced by counsel for the appellant as to why this court should not follow the decision in the above-mentioned case of Olga Charles and I see no reason why this court should not follow that decision or in any way depart from it having regard to the facts adduced in the matter and the applicable law." Page 26 of 34

27 56. Bernadine Seebaran Guy v Selwyn Baptiste: This was a decision of the local Court of Appeal delivered on the 25th of July 2005 by the Hon. Hamel-Smith JA which deals with the circumstances where a person in possession claims against a trespasser with no better title At paragraph 7, et al, the learned Hamel-Smith JA said: ".. This was a claim by a person in actual possession of a parcel of land against a trespasser who has not shown that he had a better right or interest to the land. The law is clear on the point. If a trespasser peaceably enters or is on land, the person in actual possession or the person entitled to possession may request him to leave, and if he refuses to leave may remove him from the land, using no more force than is reasonably necessary (see Hall v Davis (1825) 2 C & P 33). To justify the expulsion of a trespasser, however, the person must be in possession or acting under the authority of the person in possession. (see Monks v Dykes (1839) 4 M & W 567). If resort to legal proceedings is required, it is open to the Court in its discretion to grant an injunction preventing further trespass. (see Kelsen v Imperial Tobacco Ltd [1957] 2 All E.R. 342) 8 While not binding on this Court, the case of Bodha Ganderri v Ashloke Singh (1926) ILR 5 Pat 765 is quite persuasive. It is authority for the proposition that where a person has been in possession of property for a number of years without title is dispossessed by another who has no title, the former is entitled to be restored to possession. And in Glenwood Lumber Co v Phillips [1904] AC 410, the plaintiff was in possession of the trucks on the railway as his own. The defendants took them out of his possession and converted them. The defendants sought to defeat the action for conversion by showing title, not in themselves or in anyone under whom they acted, but title in a stranger against whom they would be wrongdoers. By this they sought to defeat the prima facie right arising from possession. Wightman J. referred to Wilbraham v Snow (2 Wms Saund. 47f) where the old law upon the property necessary to maintain trover was stated thus: So possession with an assertion of title, or even possession alone, gives the possessor such a property as will enable him to maintain Page 27 of 34