BETWEEN. Caribbean Granite and Marble Ltd., -vs- Sonny Bally

Transcription

1 TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE No. CV BETWEEN Caribbean Granite and Marble Ltd., Claimant -vs- Sonny Bally Defendant Before the Honourable Mr. Justice Ventour Appearances: Mr. F. Hosein instructed by Ms. Sinanan for the Claimant Mr. D. Ali for the Defendant DECISION Page 1 of 25

2 Introduction (1) The Claimant is a supplier and importer of granite and marble material and a manufacturer of countertops. The materials are imported mainly from India and Brazil. The materials come in sheets which are already cut and polished. (2) Clients would visit the Claimant s showroom in Marabella; select the type of marble or granite they wish to use and provide the necessary dimensions and measurements for their purposes. The granite has to be cut using a special saw. There is little or no dust in the process since water would be applied to the granite while it is being cut. (3) In February 2009, the Claimant engaged about 15 employees within the granite/marble and construction sector. Some of the employees are from India. Part of their terms and conditions of employment are that they be provided with housing. (4) In or about 2005 in order to meet its business s housing and storage operations, the Claimant rented a facility located at No. 54 Beaucarro Road, Carapichaima Village, Beaucarro at a monthly rent of $12, This facility comprised a two storey residential building and a shed measuring fifteen by twenty feet. The residential building was used for housing some of the employees and the shed for storing and cutting the sheets of granite and marble. (5) In or about January 2009 the directors of the Claimant Company took a decision that it was not economically feasible to continue paying a monthly rent for a building required for storage and housing. As a consequence, the Claimant retained a real estate agent, one Ms. Usha Jagroop to locate a building for those purposes. (6) On or about the 16 th February, 2009 Ms. Jagroop contacted the Managing Director of the Claimant Company Mr. David John Jacob and informed him that she had located an appropriate property for the Company s needs. Page 2 of 25

3 (7) The property is located at Ackalloo Trace, Charlieville, Chaguanas and is described as follows:- One Thousand four Hundred and Twenty Eight point Eight Square Metres be the same more or less delineated and coloured pink in the plan registered in Volume 3342 Folio 281 being a portion of the lands described in Crown Grant in Volume 57. Folio 241 and described in the Certificate of Title in Volume 1805 Folio 117 and shown as lot 4 in the General Plan filed in Volume 245 and bounded on the North by lands now or formerly of Dookie, by lot 3 and by a road reserved 7.62 meters wide and on the West by lands of Hemlodge (hereafter called the property ). In order to access same one has to go into a small road which extends eastward from Ackalloo Trace. (8) Both Mr. Jacob, acting on behalf of the Claimant and Ms. Jagroop, the real estate agent, visited the property and were showed around by one Noel Bally and another gentleman. Following this visit the Claimant agreed to purchase the said property from the vendor Mr. Ramnath Bally for a consideration of one million dollars. Mr. Ramnath Bally is the brother of the Defendant in these proceedings. (9) By Memorandum of Transfer dated the 17 th June, 2009 and registered on the 10 th July, 2009, the Claimant became the owner of the said property. After receiving legal advice stamp duty on the transfer was paid on the commercial rate bais. Page 3 of 25

4 (10) Before transferring the said property to the Claimant, Ramnath Bally had purchased same from his parents Gaindu Mahabir and Christine Mahabir by Memorandum of Transfer registered in Volume 3342 Folio 275. Ramnath Bally benefitted from a right of way described in the said memorandum of transfer from his parents. That right of way was again described in the second schedule of the Memorandum of Transfer from Ramnath Bally to the Claimant as follows: Full Free right and liberty for the Purchasers, his heirs and assigns, servants and visitors and licensees in common with all others having the like right at all times hereafter by day or night with or without vehicles and animals of any description for the purposes connected with the use and enjoyment of the said parcel of land described in the first schedule hereto from time to time and at all times to pass and repass over and along the road reserve forming part of the Eastern Boundary line shown coloured brown on the said plan hereto annexed and marked B for the purpose of going to and from the said parcel of land to the main road known as Ackalloo Trace and vice versa. (11) The property as described above (see paragraph 7) was purchased with the intention of relocating the Claimant s business operation from Beaucarro to Ackalloo Trace in Chaguanas. The relocation process was scheduled to be completed by the end of July (12) The Defendant is the owner of the parcel of land shown as lot 5 on the plan annexed and marked DJJ 7 to the witness statement of Mr. David John Jacob. As could be seen on the plan the right of way shown thereon is the only access to all the subdivided lots including the Claimant s property and the property of the Defendant on Ackalloo Trace. Page 4 of 25

5 (13) Before the Claimant was able to complete the relocation process it is alleged that the Defendant began to interfere with the Claimant s access to and from the Claimant s property. As a consequence, the Claimant filed a Claim Form and Statement of Case on the 24 th August, 2009 alleging that the Defendant has repeatedly interfered with, threatened and harassed the Claimant s servants and/or agents whenever they attempted to drive the Claimant s truck to the property via the road reserve, contending that the road reserve belongs to him and that the Claimant s servants and/or agents cannot drive vehicles on same unless and until the Claimant pays to the Defendant the sum of $20, (14) In its Statement of Case the Claimant claims the following relief:- (1) An injunction restraining the Defendant whether by himself or by his servants and/or agents from:- (a) Debarring/Blocking/Preventing or in any way hindering the Claimant s servants/agents/ visitors and licensees from using the right of way forming part of the Eastern Boundary line shown coloured brown on the plan annexed to the Memorandum of Transfer registered in Volume 3342 Folio 75 and more particularly described in the second schedule to the said Memorandum of Transfer registered in Volume 3342 Folio 275 whether said persons be traversing on foot or by means of any vehicle or with or without animals; (b) Blocking the entrance to the Claimant s compound whether it be by the parking of any Page 5 of 25

6 vehicles to the front of the Claimant s gate or by any other means whatsoever; (c) Intimidating, harassing and/or threatening the Claimant s servants/agents whether by words or by actions when they are using the right of way described herein above. (2) Damages for losses and expenses incurred as a result of the Defendant unlawfully blocking the entrance to the Claimant s compound and preventing the Claimant s servants/agents from freely assessing their premises with their vehicles; (3) Interest; (4) Costs; and (5) Such further and/or other relief as the Honourable Court may deem fit. (15) On the said date, that is, the 24 th August, 2009 the Claimant filed a Notice of Application seeking an inter partes injunction to restrain the Defendant from inter alia interfering with the Claimant s right to access the said property. On the 27 th August, 2009, the Honourable Mr. Justice Henderson granted the order for the injunction as aforesaid. (16) The return date for the continuation of the injunction came up before this Court on the 15 th October, 2009 and the matter was adjourned on several occasions to facilitate a discussion between the parties with a view to settlement of the action. The parties failed to achieve a resolution and on the 14 th January, 2010 this Court heard submissions from both sides and ruled as follows:- The injunction granted on the 27 th August, 2009 Page 6 of 25

7 with the undertaking as to damages to continue until trial. Costs to be costs in the cause. The trial dates were fixed for the 23 rd and 29 th September, The Defendant files a Defence and Counterclaim (17) In the interim, the Defendant filed a Defence and Counterclaim on the 17 th November, In his Defence, the Defendant, categorically denies that he interfered with the Claimant s and/or its servants and/or agents use of the right of way leading to the Claimant s property. The Defendant contends, that the property the Claimant bought is a residential property and not commercial as pleaded. The Defendant further contends that the operation of any containers along the said road reserve is illegal and that the Claimant is well aware of the fact that they cannot drive along this road or the road reserve with a forty foot container full of granite and marble for storage on their property. (18) In his Counterclaim the Defendant seeks damages in the sum of $75, as the estimated costs of repairs to the right of way; injunctions to (1) prevent the Claimant from using containers in excess of 10 tonnes in weight on the said right of way and (2) restrain the Claimant from using machinery for the purposes of cutting granite and/or marble since such use creates a health hazard and is in violation of the zoning regulations; declaration that the Claimant s property is for residential use and not commercial. The Reply and Defence to Counterclaim (18) The Claimant filed a Reply and Defence to the Defendant s Defence and Counterclaim on the 11 th January, Essentially, the Claimant contends that the property was bought as a commercial asset and as such paid the commercial rate of stamp duty for same. The Claimant also contends that the right of way which forms the subject matter of the dispute is an unrestricted right of way and that there is no limitation on the weight of any vehicles the Claimant is entitled to use on same. Page 7 of 25

8 The evidence of the Claimant (19) Two witnesses gave evidence on behalf of the Claimant. The first witness was Mr. David John Jacob, a director of the Claimant Company and the second was Ms. Usha Jagroop a real estate consultant by profession. (20) In his examination in chief Mr. Jacob gave evidence of the nature of the work in which the Claimant is involved. He testified that as far back as 2005 the Claimant operated at a facility at No. 54 Beaucarro Road in Beaucarro and following a decision taken by the Board of Directors of the Claimant, a new property was purchased by the Claimant in June (21) Mr. Jacob said that he had made it known to the vendor, the purpose for which the property was to be used and upon receiving legal advice the Claimant paid the commercial rate of stamp duty. (22) Mr. Jacob testified that when he visited the site, prior to the actual purchase, he observed that the property is located in an area where properties are used for both commercial and residential purposes. He said that along Ackalloo Trace are several businesses including a Truck Sales and a Commercial Spare Parts business; a place selling sand and aggregate materials and a large building owned by the Hindu Credit Union. (23) Further this witness said that on one of the properties located nearby there is a car repair garage operated under one of the houses. Also several vehicles including trucks and backhoes are sometimes parked on the said road reserve. Photographs of the area taken by this witness with a digital camera are annexed to the witness s witness statement filed on the 30 th June, 2010 and marked DJJS. (24) Mr. Jacob s evidence is that when the Claimant first began its relocation exercise the Claimant experienced no difficulty in assessing the said property. He said that on or about the middle of July 2009 the Defendant came over to the property and told him (Mr. Jacob) that he (the Defendant) had built the road reserve and that unless the Page 8 of 25

9 Claimant paid him (the Defendant) the sum of $20, the Claimant will not be allowed to use same. Mr. Jacob said that he told the Defendant that he was willing to assist in fixing the road but the Defendant insisted on the payment of the $20, as reimbursement for what he had spent over the years. Mr. Jacob told the Defendant that he was unable to agree to the proposal. (25) The witness also testified that on or about the 27 th July, 2009 an incident took place between the Claimant s driver and the Defendant as a result of which he (Mr. Jacob) had cause to speak with the Defendant by telephone. Only after Mr. Jacob agreed to meet with the Defendant to discuss the issue that gave rise to the incident did the Defendant agree to remove the vehicles that were blocking the entrance to the Claimant s property. (26) Again on or about the 28 th July, 2009 there was another incident which involved the Claimant s driver and the Defendant at the property. This incident caused Mr. Jacob to drive down to the property where he spoke with the Defendant. During the conversation Mr. Jacob testified that the Defendant said: (a) that the road reserve was his property and that the Claimant and its servants and/or agents would not be allowed to use same unless he (the Defendant) was paid the sum of $20,000.00; (b) that he (the Defendant) was supposed to have purchased the said property from his brother Ramnath Bally but his brother sold same to the Claimant behind his back; and (c) that he (the Defendant) was willing to purchase the said property from Page 9 of 25

10 the Claimant for the sum of $500, (27) On or about the 31 st August, 2009 Mr. Jacob said that he used the right of way to access the property. He testified that on leaving the property the Defendant and another gentleman stood in front of his (Mr. Jacob) vehicle and began threatening and abusing him and the two other occupants who were sitting in his vehicle. Mr. Jacob said that the Defendant shouted that he had no intention of obeying any Court order and that he is a Trinidadian and will shoot him (Mr. Jacob). (28) At the same time Mr. Jacob said that the Defendant and the other gentleman dragged a wire partly across the right of way from the direction of lot 3 so as to impede access along the right of way. Usha Jagroop testifies (29) The other witness to give evidence on behalf of the Claimant is Ms. Usha Jagroop, the real estate Consultant. Ms. Jagroop testified that she has been a real estate Agent since This witness narrated how she met with Mr. Jacob and subsequently introduced him to the property which is the subject matter of these proceedings. (30) Ms. Jagroop testified that on or about the 16 th February, 2009 she visited the property with Mr. Jacob and another gentlemen. She said that the owner of the property one Mr. Noel Bally and his younger brother were in attendance. Upon inspection of the premises she made the following observations: (a) The property is located off Ackalloo Trace and is accessible via a small road extending off the said Ackalloo Trace; (b) Standing on the site are two buildings, a single storey residence and a single storey annex; and (c) The main building i.e. the single storey residence Page 10 of 25

11 is situate on approximately 2,400 square feet of land. The other structure, namely, the annex occupies approximately 1900 square feet in total. (31) This witness also testified that there were a number of boxes stored in different room in the main building. She said that the annex was also used as a storage area for a variety of items. Her evidence is that she knew the Ballys to be proprietors of several clothing and shoe stores throughout Trinidad. She also saw two twenty foot containers on site at the time of her visit. (32) Ms. Jagroop further testified that the said property is located in an area where land use is both residential and commercial in character. She said that there are several business places located in and around Ackalloo Trace. (33) The cross-examination of Mr. Jacob and Ms. Jagroop did not in anyway diminish the quality of their testimony. Two other witness statements were filed on behalf of the Claimants. One was filed by Mr. Nkosi Gilbert and the other by Mr. Kishore Lackhan. Both statements were filed on the 30 th June, Neither of these two witness attended Court to be cross-examined on their evidence. As a consequence, there statements were not admitted into evidence. The Defendant s evidence: (34) Mr. Sonny Bally, the Defendant was the only witness called for the Defence. Mr. Bally s witness statement was filed on the 30 th June, He is a retired heavy Equipment Operator. Mr. Bally testified that he is the owner of the property at No. 84 Ackalloo Trace, Charlieville and that his property adjoins that of the Claimant. He has lived at the said property for the past 40 years continuously and uninterruptedly. He testified, that prior to his occupation of the land, his parents used the land for agricultural purposes. However, subsequent to the subdivision and sale the said lands were used exclusively for residential purposes. Page 11 of 25

12 (35) This witness said that the Claimant carries on the business of storage and warehousing of marble and granite at the said property. He testified that the Claimant is also involved in the business of manufacturing and construction and the operation of a hostel for Indian nationals who are employed by the Claimant. The Claimant s operations necessitate the frequent passing of heavy equipment and 20 and 40 foot containers at all hours of day and night. He said that the constant noise from the use of heavy sounding machinery and the many loud voices coming from the property help to create a nuisance in the area. The Defendant s evidence is that the marble and granite generate huge amount of dust and silt, which, during the rainy season forms mud in the road and even in his home. (36) Mr. Bally further testified that the Claimant has failed to seek permission from the Town and Country Planning Division of the Ministry of Planning and from the Environmental Management Authority to conduct its business in the area. He categorically denied ever threatening the Claimant s servants and/or agents at blocking their entrance to the Claimants property. He also denies demanding the sum of $20, from the Claimant for the use of the right of way. (37) The Defendant was thoroughly cross-examined by Counsel for the Claimant. The manner in which he responded to many of the questions asked by Counsel did nothing to enhance his credibility. There were times when he appeared to be indignant and even irascible. At other times I considered him to be less than forthright in his answers. He did not impress me as a witness of truth. (38) The evidence of Mr. Bally that there is frequent passing of 20 and 40 foot containers on the right of way at all hours of the day and night has been categorically denied by Mr. Jacob who testified on behalf of the Claimant. So too is the Defendant s evidence that the cutting of marble and granite generate a huge amount of dust and silt which create mud during the rainy season along the road reserve and also at the Defendant s home. (39) Mr. Jacob explained to the Court that the Claimant uses an electrical device for the cutting of the granite. He testified that the cutting takes very little time since the sheets are already pre-cut and polished when they are imported. He further states that the cutting process involves the use of water and as a result there is no dust created. Page 12 of 25

13 He admits however, that since the premises are not sound proof some level of noise may be heard by the neighbours when the saw is being operated during the normal working hours from 8:00 a.m. to 4:00 p.m. (40) It is indeed unfortunate that the Court has not had the privilege of hearing from any of the residents in the area particularly those residing along the road reserve as to the alleged nuisance of which Mr. Bally testified. (41) The evidence before the Court has revealed that lot No. 3 is owned by Seenath Bally, the brother of the Defendant and that lot adjoins the Claimant s property. The loud noise, the huge amount of dust, the mud and the silt of which Mr. Bally complains must have affected the adjoining owners. So too would the movement of the heavy equipment all hours of the day and night. Regrettably, no one has come forward to corroborate the testimony of the Defendant as to the alleged nuisance being created by the Claimant. In all the circumstances I therefore believe the testimony of Mr. Jocob as it relates to the manner in which the Claimant conducts its operations at Akalloo Trace. (42) I find as a fact that there were occasions when the Defendant did unlawfully interfere with the Claimant s right to use the right of way in particular by blocking Mr. Jacob s vehicle when he sought to exit the premises. (43) Therefore, on the evidence before the Court I am satisfied that not only did the Defendant unlawfully interfere with the Claimant s right to pass and re-pass on the right of way leading to the Claimant s property, but the Defendant also abused and threatened the Claimant s servants and/or agents while using the said right of way. (44) Counsel for the Claimant has identified the issues for determination as follows:- (i) Whether or not the right of way forming part of the eastern boundary line shown coloured brown on the plan annexed to the Memorandum of Transfer registered in Volume Folio 75 and more particularly described in the second schedule to Page 13 of 25

14 the said Memorandum of Transfer is an unrestricted right of way? (ii) Whether or not the Defendant has unlawfully debarred/blocked/hindered/interfered with the Claimant, its servants and/or agents and licensees use of the right of way? (iii) Whether or not the Defendant has blocked the entrance to the Claimant s compound, whether it be by parking of vehicles in front of the Claimant s gate or by any other means? (iv) Whether or not the Defendant has threatened intimidated/harassed the Claimant s servants and/ or agents whilst they were using the right of way? (v) Whether the Claimant damaged the right of way as alleged by the Defendant? (vi) Whether or not the Defendant is entitled to any damages/compensation of any alleged damage to the right of way in law? (vii) Whether the Defendant is entitled to the declaratory and injunctive relief sought in the counterclaim against the Claimant. The above issues form the Statement of unagreed issues filed by the Claimant on the 16 th July, No objection to these issues was offered by Counsel for the Defendant. Page 14 of 25

15 (45) I propose to deal with each of the several issues raised by Counsel for the Claimant. Is the right of way an unrestricted right of way? (46) The Defendant has contended that the right of way was intended for residential use only. During cross-examination he admitted that the larger parcel of land was originally owned by his parents Gaindu Mahabir and Chiristine Mahabir who at the time used the lands for agricultural purposes. However, in 1989, his parents developed the land into 5 lots and gave a lot to each of the five children. (47) Lot No. 1 was given to Chalsinath Bally; lot No. 2 to Premnath Bally; lot No. 3 to Seenath Bally; lot No. 4 to Ramdath Bally and lot No. 5 to Sonny Bally, the Defendant herein. The right of way was created by Gaindu and Christine Mahabir to facilitate the owners of the 5 lots of land to access Ackalloo Road. (48) In conveying lot No. 4 to their son Ramnath Bally by Memorandum of Transfer No. 44 dated 18 th August, 1988 the vendors also conveyed to the purchaser the Full free right and liberty for the purchaser his heirs and assigns servants and visitors and licencees in common with all others.. with or without vehicles at all times to pass and repass over and along the road reserve. (49) By Memorandum of Transfer dated the 17 th day of June, 2009 Ramnath Bally transferred all his estate and interest in the said parcel of land to the Caribbean Granite and Marble Ltd., the Claimant herein. The words used in describing the right of way do not, in my respectful view, allow for reading into the language any restriction in its use. In order to construe the words used, I have looked carefully at the surrounding circumstances which have given rise to its creation and can find nothing to restrict the use for residential purposes only. (50) David John Jacob s evidence is that he had observed on the road reserve and also on lot No. 2 the presence of a backhoe and this evidence was corroborated by the Page 15 of 25

16 photographic evidence in exhibit DJJ2 A. Lot No. 2 is owned by Premnath Bally, the Defendant s brother. (51) The Defendant was asked by Counsel for the Claimant to look at exhibit DJJ 2 which is the photograph of a shed built at the side of Premnath s house. A part of the cross-examination of this witness continued as follows:- Counsel: Witness: Counsel: There is a backhoe. Yes. Sometimes it is parked to the right of the road called the road reserved? Witness: Counsel: Sometimes. Sometimes it is parked where it is in the photograph. Witness: Counsel: Witness: Counsel: First time I am seeing that. He has more than one backhoe? He has no backhoe. There is usually a forklift parked on Premnath s property? Witness: Counsel: I have never seen it. Sorry it is a caterpillar. It is sometimes in the shed and at other times on the side of the road. Witness: Counsel: What Caterpillar? Which of the Caterpillars you have seen parked there? Witness: The backhoe. Page 16 of 25

17 Counsel: Do you know who would park the Caterpillar there? Witness: Counsel: Witness: Counsel: Witness: Counsel: Witness: Counsel: His son. It belongs to him? I don t know. He seeks your permission to park it there? No. Did you complain? No. You made any complain that the backhoe is being driven on the road reserve? Witness: No. (52) Further both Mr. Jacob and Ms. Jagroop had testified that when they first visited the premises at No. 4 Ackalloo Trace they had seen two 20 foot containers parked at the said premises. Ms. Jagroop in particular, had said that she knew the Ballys were proprietors of several clothing and shoe stores throughout Trinidad. She testified that at the time of her visit she noted that there were numerous boxes stored in different rooms. She also recalled that before she left Mr. Ramnath Bally removed some of the boxes and placed some in his van. (53) It is reasonable to conclude therefore that the two 20 foot containers and the van with the boxes would have had to exit the premises via the right of way, to get to Ackalloo Road. The evidence shows that no complain or objection was made by the Defendant to what was clearly a commercial use of the right of way by his brother Ramnath Bally. However, there was strong objection to its use by the Claimant who had lawfully purchased the said property from Mr. Ramnath Bally. (54) Could it be argued that the right of way created by the original owners in the year 1989 was restrictive in nature? Page 17 of 25

18 (55) The Court of Appeal in the United Kingdom had to consider such an issue in the case of Robinson v- Bailey [1948] 2 AER 791. The facts of the case very briefly are that the Plaintiff had sold to the Defendant a ¼ acre of a plot of land measuring 15 acres. By the conveyance the Defendant covenanted that only one house is to be erected on the plot of land. The conveyance also included a grant of a right of way. The Defendant, who was a builder, began to build a dwelling house on the land but was unable to complete same. He, therefore, use the land and the unfinished house for storing building materials, and from time to time lorries used the right of way to deliver or collect such materials. (56) The Plaintiff objected and sought to restrain such user of the right of way as excessive and on the ground that such use would place an increased burden on the Plaintiff in carrying out maintenance to the road. The Judge at first instance refused to grant to the Plaintiff the injunction and damages sought. The Plaintiff appealed. In dismissing the appeal the dicta of Lord Greene M.R. at page 793 is very instructive. The learned Judge said: In so far, therefore, as the nature of the road is to be collected from this document coupled with the plans, It is to be a road paved,.. and lit and such a road as eventually will be taken over as a public road by the local authority. Merely taking the language of that document, there is no restriction whatsoever imposed on the nature of the right of way being conferred. There is nothing there which in any way limits what on the face of it is a perfectly unrestricted right of way, and, if the matter had stood there, I should have thought that there was no question that the user now complain of was permissible and was contemplated at the time. As Evershed, L. J., pointed out during the argument, it was competent for the Page 18 of 25

19 vendor to restrict the right of way which he was granting, if he wished, and there are well-known formulae for doing that. He did not do so. He chose what, in language, at any rate, is unrestricted. (57) As a matter of construction, in the instant case both Mr. Gaindu Mahabir and Ms. Christine Mahabir could have, if they wished, restricted the right of way granted to Ramnath Bally in They did not do so. They chose language which, in my respectful view is perfectly unrestricted. In the view of this Court the Defendant is not in a position to object or complain about the scope of the use of the right of way undertaken by the Claimant. (58) Further the Defendant has raised and relied on the lack of planning permission from the Town and Country Planning Division for the change of user of the dwelling house as the basis for the allegation that the right of way is restricted in use for residential purposes only. (59) The Town and Country Planning Act, Chap. 35:01 (hereinafter referred to as the Act ) is quite clear in its purpose and intent. Essentially, the Act provides for the orderly and progressive development of land in both urban and rural areas throughout Trinidad and Tobago. Notably the Act does not confer legal rights of any kind on private citizens nor does it give rise to any private causes of action based on a failure to obtain planning permission for the development of lands in accordance with section 8 of the Act. (60) I could find no relationship between the use of a private right of way granted by virtue of a Memorandum of Transfer and the provisions of the Act requiring permission for the development of land. If it is found that permission has not been granted by the Town and Country Planning Division for the development of land or that there has been non-compliance with the permission so granted it is the right of any citizen to lodge a complaint to the relevant authority and the Minister is empowered to take such action as is necessary or to issue an enforcement notice pursuant to section 16(2) of the Act. Page 19 of 25

20 (61) The evidence before the Court is that the Defendant did properly exercise his right of complaint to the Division and a letter dated the 27 th May, 2010 was addressed to Mr. Jacob seeking information as is required by section 36 of the Act. It appears that the Defendant s complaint to the Town and Country Planning Division referred to the non-residential use of the property at lot No. 4 Ackalloo Trace, Charlieville and had nothing to do with the use of the right of way. (62) As Lord Denning, M.R. stated in the case of Jelbert v- Davis [1968] 1 AER 1182 commenting as he did, on whether there was an excessive use of a right of way the Learned Law Lord said at page 1184:- The planning permission did not affect the legal rights of the owners of the soil. The planning authority could not, and did not, give the plaintiff any right to go along this lane for himself or the campers. He had to rely on his conveyance for such a right. (63) Based on the language used in creating the original grant of the right of way in 1989 I can find no basis for confining the use of the said right of way to residential purposes only. Could the Defendant have legitimately objected to the Claimant s use of the right of way to transport sporting equipment in its private motor vehicle for commercial purposes? I think not. Such use would have fitted well within the scope of the right of way and would have been unobjectionable. Has the Defendant unlawfully interfered with the Claimant s right to use the right of way? (64) Issues 2, 3 and 4 are interrelated as they, in one way or another, involve the unlawful interference of the Claimant s right to use the right of way, either by blocking same or by threatening or intimidating the servants and/or agents of the Claimant in their use of same. (65) There is evidence from Mr. Jacob that on or about the 28 th July, 2009 an incident occurred between one of the Claimant s driver and the Defendant along the right of way. Page 20 of 25

21 As a consequence, Mr. Jacob had cause to drive down to the property to speak with the Defendant and that is when, according to the testimony from Mr. Jacob the Defendant told him that he had to pay the sum of $20, to use the right of way. (66) Following the discussion with the Defendant, Mr. Jacob sought advice from the Claimant s Attorney at Law and by letter dated 28 th July, 2009 the Attorney at Law wrote to the Defendant complaining about the Defendant s unlawful interference with the Claimant s right to use the right of way and the Defendant s demand for the payment of $20, to do so. (67) During cross-examination the Defendant denied interfering with the Claimant s right to use the right of way and further denied that he demanded the sum of $20, from the Claimant for the use of the right of way. When questioned whether he had received the Attorney s letter of 28 th July, 2009 with the allegation he said he had taken same to his lawyers to respond. (68) The evidence before the Court is that the Defendant s lawyers did communicate with the Claimant s lawyers asking for 28 days to reply to the allegations made, but up until the grant of the order for the injunction made in favour of the Claimant there was no reply to the allegations contained in the letter of 28 th July, The injunction was granted on the 27 th August, In short, there is no evidence placed before this Court that the Defendant ever denied the allegation made against him in the Attorney s letter of the 28 th July, (69) Mr. Jacob in his testimony further related an incident which took place on the 31 st August, On that day the witness said that he personally accessed the Claimant s property by driving along the right of way. He said that when he was about to leave the premises some time later, the Defendant came out of his yard and together with another man, stood in front of his (Mr. Jacob s) vehicle and started to threaten and abuse him and the other two occupants in his vehicle. Mr. Jacob said that the Defendant shouted that he was under no obligation to obey the order of the Court. I note that the injunction was granted against the Defendant on 27 th August, Page 21 of 25

22 (70) Mr. Jacob further stated that the Defendant was acting as if he was crazy and that he became very fearful for his personal safety. The Defendant, Mr. Jacob continued, with the help of the other gentleman then dragged a wire partly across the right of way from lot No. 3, interferring with the free passage way. After about 10 to 15 minutes of shouting the Defendant and his companion removed themselves and Mr. Jacob was then free to exit the area. (71) I am not inclined to accept the bland denial from the Defendant of what appears to be an unlawful interference of the Claimant s right and that of its servants and/or agents to the use of the right of way. The details of such interferences provided in the testimony of Mr. Jacob makes the evidence of the Claimant far more credible than that of the Defendant. On a balance of probability the Claimant has proved to this Court that the Defendant has unlawfully interfered with its use of the right of way and has threatened/intimidated and/or harassed the Claimant s servant and /or agents whilst they were lawfully using the right of way. Damage caused to the right of way (72) The Defendant has alleged in his Defence and Counterclaim filed on November 17, 2009 that the Claimant has, through its negligent actions, caused damage to the right of way. See paragraph 13 of his Defence. No particulars of negligence have been provided to the Court and no evidence has been adduced by the Defendant to support his allegation of negligence on the part of the Claimant. (73) There is no evidence from the Defendant that the Claimant has caused damage to the right of way. There is evidence that the Claimant has, since acquiring the property in June 2009, brought unto the property 3 forty foot containers of marble and granite. There is no evidence that these 3 containers have caused damage to the roadway. Of course, the use of vehicles on any roadway would cause the roadway to deteriorate over time but, to attribute the deterioration to any particular user would require evidence of a particular nature. (74) Evidence emanating from the Claimant showed that the predecessor in title of lot No. 4 had containers on the premises which would have accessed the property using the right of way. Also there is evidence that the owners of lot No. 3 had, on their premises, a Caterpillar which could easily be described as a heavy equipment. This Page 22 of 25

23 evidence from the Claimant remains unchallenged. It is difficult in all the circumstances to attribute any damage to the roadway resulting from the activities of the Claimant. In any event, the Defendant has not produced any evidence of the nature of the alleged damage if any, to the Court. His estimate of the cost of the repairs (in the sum of $75,000.00) cannot amount to evidence that the Claimant has caused damage to the right of way. In fact the estimate from Harry Persad & Sons Limited dated 30 th September, 2009 provides no evidence that repair work was to be undertaken by the Company. (75) Further the Defendant has adduced no evidence whatsoever to prove to this Court that he is the owner of the right of way and that compensation, if any, for any damage that may have been caused to the right of way, ought to be paid to him. (76) In my view the Defendant has, on a balance of probability, failed to satisfy this Court that the Claimant has caused any damage resulting from its use of the right of way. The damages sought by way of relief in the counterclaim in the sum of $75, is therefore denied. (77) Further the injunction sought to prevent the Claimant, its servants and/or agents from passing on the road reserve with containers in excess of 10 tonnes in weight in accordance with the Road Traffic Regulations is also denied. If such information is brought to the attention of the relevant authorities then the violator of the traffic laws will be dealt with according to law. It is not the responsibility of this Court to grant injunctions to restrain citizens from breaching the traffic laws. I think it is irresponsible for the Defendant to have boldly pleaded in paragraph 5 of his Defence that the Claimant s servants and/or agents had removed the sign put up by the Chaguanas Borough Corporation indicating the weight limit that no vehicle exceeding 10 tons in weight can travel along the Ackalloo Road. The allegation made is a serious one but there was absolutely no evidence coming from the Defendant to support the allegation. Neither was there any evidence that the alleged breach was reported to the Borough Corporation. (78) The injunction sought by the Defendant to restrain the Claimant, its servants and/or agents from carrying on its operations at the property because there are serious health hazards and moreso because the operations are a clear violation of the zoning Page 23 of 25

24 regulation currently enforced by the authorities is also denied. Firstly, there is no evidence before this Court that the cutting of granite and marble poses a serious health hazard to citizens and secondly, if such operations are a violation of the zoning and other regulation then it becomes a matter of concern for the regulatory bodies i.e. the Town and Country Planning Division and the Environmental Management Authority to carry out the necessary investigation and to take such actions as are appropriate or as the law allows. (79) On the claim for damages for nuisance I have already stated in this judgment that the Defendant has failed to prove on a balance of probability that the operations of the Claimant conducted at lot No. 4 Ackalloo Trace creates a nuisance and therefore the question of damages does not arise. (80) The Defendant s claim for a declaration that the right of way does not give the Claimant a right to pass and repass on the road reserve for commercial purposes is also denied. The Court, on the evidence, has found that the language used by those who granted the right of way in no way imposes a restriction on its use whether for residential and/or commercial purposes. Orders of the Court: (81) Finally, the Court having carefully considered the evidence before it and the submissions made by Counsel for the Defendant and Counsel for the Claimant now make the following orders:- (i) An order in terms of paragraphs (1) and (2) of the relief clause in the Statement of Case filed by the Claimant on the 24 th August, 2009; (ii) Damages to be paid by the Defendant to the Claimant. Such damages to be assessed by a Master.; (iii) The Defendant s Counterclaim is dismissed; and Page 24 of 25

25 (iv) The Defendant to pay to the Claimant costs of the Claim and Counterclaim on the prescribed basis. Dated this 21 st day of October, 2011 Sebastian Ventour Judge Page 25 of 25