IN THE HIGH COURT OF JUSTICE BETWEEN AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV Floyd Homer BETWEEN Lawrence John Claimants AND Stanley Dipsingh Commissioner of State Lands Ian Fletcher First Defendant Second Defendant Third Defendant Before The Honourable Justice Eleanor J. Donaldson-Honeywell Appearances: Mr. Anand Seepersad for the Claimant Ms Kamini Persaud-Maraj for the First Defendant Mr. Sanjeev Lalla and Mr. Roshan Ramcharitar instructed by Mr. Brent James and Ms. Kezia Redhead for the Second Defendant Delivered on: September 21, 2015 Ruling on Preliminary Points Page 1 of 12

2 1. The Claimants commenced this matter by Fixed Date Claim filed on May 21, They seek to recover possession of a lot of State Lands at Plot #65 Edinburgh 1, Chandenagore Rd, Chaguanas [ the land ] currently occupied by the First Defendant. The Claim against the First Defendant, who the Claimants contend has illegally occupied the land since around February 2015, is for an injunction restraining trespass on the land as well as declaratory relief to establish that the First Defendant has no legal or equitable interest in the land. 2. The Claimants say they are entitled to occupy the land for agricultural purposes by virtue of a Probationary Tenancy Agreement [ the Agreement ]. The Agreement, according to the Claimants, granted them and a third party permission to use the land to plant root crops. The third party was Mr. Annand Seepersad, the Attorney-at-Law representing the Claimants in these proceedings and he elected not to include himself as a Claimant. 3. The Claimants contention is that the Agreement should have been delivered to them by the Commissioner of State Lands since May 21, 2012 after it was signed but it was never received. Accordingly, the Claimants named the Commissioner as Second Defendant for its failure to issue the Agreement. The Third Defendant was acting as Commissioner of State Lands at the material time. The Claimants initially sought declaratory relief against him to establish failure in his duty to deliver the Agreement; however that Claim has since been withdrawn. 4. On the 23 rd June, 2015, the First Defendant filed its defence which sought to strike out the Claimants Claim on the preliminary point that the Claim should not have been brought through a Fixed Date Claim as it did not comply with Rule 8.1(4) Civil Proceedings Rules, 1998 (as amended) ( CPR ). The Defence also argued that the case be dismissed as the alleged tenancy of the Claimants involved a third tenant as joint tenant who should have been a party to the proceedings. Finally, the Defence stated that the Claimants had failed to show any proof of title as the Probationary Tenancy. Document was never produced. Page 2 of 12

3 The Preliminary Points: 5. On June 24, 2015, the first hearing of the Fixed Date Claim, additional preliminary points were raised orally on behalf of all three Defendants. It was conceded by the Claimant s Attorney in response to arguments concerning the Third Defendant that he had not been properly included as a Defendant in the matter. It was in those circumstances that by consent the Third Defendant was removed as a party to the matter on the first day of hearing. 6. Written Submissions were filed, as follows, in support of the preliminary points that remained for determination. Preliminary Points raised by the First Defendant: Whether the Claimant had abused the process of the Court by commencing the matter as one for fast tracked disposition by use of a Fixed Date Claim without establishing that the requirements for same under Civil Procedure Rules (1998) (as amended)[cpr] 8.1(4) were met. The First Defendant cited CV Terrence Charles v Chief of Defence Staff and the AG of Trinidad and Tobago and CV Electrogen Sales and Services Limited v Ziad Abdool in support of the submission that there should be a dismissal of the Claim for abuse of process in these circumstances. In the Claimant s Written Submission it is contended in response that the Court ought not to dismiss the Claim for this reason but should instead exercise its general power under CPR 26.8 (3) where there has been an error of procedure or failure to comply with any rule to make an order to put matters right. Whether the Claim was improperly constituted because only two of the three persons that were said to have entered into the Agreement for possession of the land were included as Claimants. The First Defendant contends that the Claimants exclusion of the third person in the matter would render any judgment nugatory as the case is based on an alleged tenancy of three joint tenants. Whether the Claimants have failed to set out in the Claim a prima facie basis to establish any title to possession or any actual possession or land use on their part to found an action in trespass against the First Defendant. In this regard attention Page 3 of 12

4 was drawn to paragraphs 25 and 26 of the Statement of Case, which the First Defendant contends amount to an admission by the Claimants that they had neither possession by title nor by occupation. In addition to the foregoing preliminary points the First Defendant contended that the Claimant acted in breach of the Practice Directions on Pre-Action Protocols (2005) issued under the CPR by disregarding the opportunity given by the First Defendant for further ventilation of the matter between the parties before commencing this action. The Pre-action Protocol Directions issued under the CPR are intended to ensure that all efforts are made by prospective litigants before filing a Claim to explore options for resolving the matter by alternate measures that avoid the commencement of litigation. This approach, if followed, can assist the parties in avoiding unnecessary litigation. On receiving a Pre-action Protocol letter from the Claimant, the First Defendant suggested three alternate dispute resolution measures namely: that the issues should be raised with the Commissioner of State Lands, or alternatively, that there be a ventilation of any issue which touches and/or concerns a prevailing lease of the lands in question by mediation and finally that the First Defendant s Attorney would remain open to further formal exchanges of correspondences or perhaps even a settlement conference, if need be, in furtherance of assisting the Honourable Court with its overriding objectives pursuant to the CPR, should this matter arrive at such jurisdiction. These suggested alternate resolution measures were in fact disregarded by the Claimant in a response dated May 1, The Claimant thereby demanded that the First Defendant remove himself from the land within seven days failing which legal action will be taken. Preliminary Points raised by the Second Defendant: Whether the Second Defendant does not have the legal capacity either under the State Lands Act, Chap 57:01 or the State Liability and Proceedings Act, Chap 8:02 in law to be sued. Whether no cause of action has been established in this Claim for which the State can be held liable for the actions of the Second Defendant as a servant of the State, since such cases are limited to actions in tort and although trespass is a tort, Page 4 of 12

5 the instant Claim alleges trespass only against the first Defendant and does not seek recovery of possession against the Second Defendant. Whether the Claim against the Second Defendant is essentially one seeking administrative relief in the form of a review of its actions and decisions which ought to have been commenced as a Claim for Judicial Review against the Second Defendant and not jointly with the Private Law Claim against the First Defendant for trespass. 7. The Claimants having considered submissions filed by the Defendants in support of the preliminary points discontinued the Claim against the Second Defendant. However, the Claimants urged the Court to rule that the hearing of the Claim in trespass be continued against the First Defendant. Factual Background: 8. The Claimants case is that they applied to the Commissioner of State Lands for a plot of land for the production of root crops in response to the Ministry of Food Production s initiative to boost root crop production. They claim that they were short-listed, interviewed and were subsequently invited along with other successful applicants to draw plots. 9. The Claimants were then issued an Application Confirmation Certificate a copy of which is annexed to their Statement of Case. The Claimants further claim to have accepted an offer for a Probationary Tenancy Agreement, executed an Agreed Programme of Development, paid the processing fee and signed the Agreement on the 21 st May However, the Commissioner failed to provide the Claimants with a copy of the said Agreement. 10. The Claimants made requests in writing to be furnished with said Agreement but have not been successful in obtaining it. 11. On or about February, 2015 the Claimants noticed that the land was being utilized by the First Defendant for agricultural purposes. The Claimants maintain that the First Page 5 of 12

6 Defendant was a trespasser on the lands rented to them by the Commissioner of State lands by the Agreement of the 21 st May, It is the First Defendant s case that it also made an application to the Commissioner of State Lands for the transfer of the subject lands to its name. Further, the First Defendant applied on 24 th March, 2015 to the Ministry of Food Production for a pond to be dug on the lands and this application was granted and the works were carried out around the 4 th April, The First Defendant then made an application under the Freedom of Information Act to the Land Management Division of the Ministry of Food Production, Land and Marine Affairs on 16 th April, 2015 to determine whether the subject lands were assigned by way of tenancy to any person. This application revealed that there had been no documentation of any assignment of the lands. 14. The First Defendant maintains that the Claimants have failed to produce documentation of the terms of their alleged tenancy and further, the lands had been unoccupied and uncultivated for three years. Disposition and Issues Considered: 15. In exercise of the authority provided at CPR 27.2 (3) to deal with a Fixed Date Claim summarily and having considered the preliminary points it is my determination that the Claim must also be discontinued against the First Claimant. 16. The issues considered in this decision were: (a) Whether there has been an abuse of the court s process by the Claimants in the institution of the Claim as a Fixed Date Claim and if so, whether this error can be rectified in order for it to be continued under the regular rules; (b) Whether the exclusion of the third tenant to the Agreement would render any judgment nugatory; and Page 6 of 12

7 (c) Whether the Claimants have, on the pleadings, established a prima facie case of possession against the First Defendant in this matter. Law and Analysis: 17. CPR 8.1(4) provides: [A] Fixed Date Claim Form must be used- (a) In proceedings for possession of premises which arei. Occupied in whole or in part for residential purposes; or ii. Subject to any statutory restrictions on the Claimant s right to possession. (b) In claims arising out of hire-purchase or credit sale agreements; (c) Whenever its use is required by a rule or practice direction; and (d) Where by any enactment proceedings are to be commenced by originating summons or motion. 18. As argued by the First Defendant, the disputed land is not occupied for residential purposes nor is it subject to any statutory restrictions. It is, in fact, agricultural land given by the State for the production of root crops. The Claim, therefore, clearly does not meet the requirements of CPR 8.1(4). 19. Thus, it is to be determined whether this error can be cured or rectified to continu0e as a regular Claim. 20. In the High Court decision of Ablack v Ablack 1 it fell to be considered whether a Claim should have been initiated as a Fixed Date Claim rather than as a regular Claim. The Court considered the authority of Hannigan v Hannigan 2 where Brooke, LJ stated at para. 36: 1 CV [2000] FCR 650 Page 7 of 12

8 Moreover the judge was quite correct when he said that the Civil Procedure Rules were drawn to ensure that civil litigation was brought up to a higher degree of efficiency. But one must not lose sight of the fact that the overriding objective of the new procedural code is to enable the court to deal with cases justly, and this means the achievement of justice as between the litigants whose dispute it is the court's duty to resolve. In taking into account the interests of the administration of justice, the factor which appears to me to be of paramount importance in this case is that the Defendants and their solicitors knew exactly what was being claimed and why it was being claimed when the quirky petition was served on them CPR 1.3 provides that the parties are required to help the court to further the overriding objective, and the overriding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties. 21. That case concerned the use of an incorrect form of petition to begin a Claim under the New Rules. This can be likened to the present case where the error in form can be considered to be a technicality. 22. The court considered in Ablack that the main points arising from Hannigan were that: (d) The new procedural codes are to enable the Court to deal with cases justly. In other words the procedural code is to facilitate the Court and the effective management of the Court s resources. Form on its own does not create an independent benefit to litigants. (e) The purpose and benefit of the form is fulfilled where the details of the Claim and reason for it are adequately disclosed or the document (f) Any errors in procedure must be acted upon quickly by parties in order to avoid delay and achieve the overriding objective. (g) Technical squabbles are to be deprecated. 23. In the present case, the Claimants have outlined their case sufficiently in the Statement of Case in order for it to be converted to a regular Claim without injustice. Further, the Page 8 of 12

9 error having been identified at a very early stage of the proceedings, the parties involved suffered no prejudice as a result of the use of the wrong type of Claim Form. 24. This, therefore, would to be a fit case for the Court to exercise its discretion under CPR 26.8 to rectify the errors made in consideration of the Court s duty to deal with cases justly under CPR The second issue for determination is whether the failure to join the third tenant as a party to the Claim would render any judgment nugatory. 26. CPR 19.3, 19.4 & 19.5 provide: 19.3 The general rule is that a Claim shall not fail because (h) A person was added as a party to the proceedings who should not have been added; or (i) A person who should have been made a party was not made a party to them However (a) Where a Claimant claims a remedy to which some other person is jointly entitled with him all persons jointly entitled to the remedy must be parties to the proceedings, unless the court orders otherwise. (b) If any person does not agree to be a Claimant, he must be made a Defendant, unless the court orders otherwise. This rule does not apply in probate proceedings (1) The court may add, substitute or remove a party on or without an application. (2) An application for permission to add, substitute or remove a party may be made by Page 9 of 12

10 (a) An existing party; or (b) A person who wishes to become a party. (3) An application for an order under rule 19.2(5) (substitution of new party where existing party s interest or liability has passed) may be made without notice but must be supported by evidence. (4) Nobody may be added or substituted as a Claimant unless (a) He has given his consent in writing; and (b) That consent has been filed with the court office. 27. In accordance with the CPR Part 19 the Claimants ought to have added the third joint tenant to the Claim as he is equally entitled to the remedies claimed. However, this is not detrimental to the Claim as an Order could be made by the Court to add the third tenant as a party to the Claim in accordance with the rules of CPR Part The final issue is whether the Claimants have established any grounds for bringing this Claim. CPR 26.2(1) provides that a Statement of Case may be struck out where it discloses no grounds for bringing the Claim. 29. According to Halsbury s Laws of England 3 at paras : Trespass is an injury to a possessory right, and therefore the proper Claimant in a Claim of trespass to land is the person who was, or who is deemed to have been,in possession at the time of the trespass. The owner has no right to sue in trespass if any other person was lawfully in possession of the land at the time of the trespass, since a mere right of property without possession is not sufficient to support the Claim. However, if land is vacant, the owner does have sufficient possession to sue in trespass A person having the right to the possession of land acquires by entry the lawful possession of it, and may maintain a Claim of trespass against any person who, being in possession at the time of entry, wrongfully remains on the land If land is in the possession of a tenant, the 3 Halsbury s Laws of England, Tort (Vol. 97 (2015)) Page 10 of 12

11 tenant is the proper Claimant to sue for trespass committed in respect of the land. 30. A person claiming, as the Claimants do in this case, to be a tenant does in fact have the right to maintain a Claim for trespass against a person who wrongfully remains on the land. However, a person making such a Claim based on tenancy must either have possession of the land or the right of possession and have entered upon the land in order to succeed in a trespass action. The Claimants in the present case have not established their tenancy of the land as they have admitted they do not have a Probationary Tenancy Agreement. The Claimants have not included any information in the Statement of Case establishing their possession of the land or entry upon it. On the other hand, the First Defendant has furnished the court with documents from the Second Defendant indicating that at the time when they applied to use the plot of land in question it was unoccupied. The pleadings before the Court suggest that Claimants never entered the land to take possession and have not occupied the land in over three years of the alleged Probationary Tenancy. In all the circumstances, due to the lack of evidence in proving any title to the land, the Claimants have failed to establish any grounds for bringing the Claim in possession against the First Defendant. 31. In this case both the Claimants and the First Defendant are claiming entitlement to the land based on allocation thereto by the Commissioner of State Lands. The appropriate avenue to be taken by the Claimants would be through dialogue between the parties and the Commissioner of State Lands in order to settle this dispute or to obtain the information necessary to bring a proper action against the First Defendant. The Claimants however, omitted to properly utilise the Pre-action Protocol to resolve this matter by methods alternative to litigation. This option remains open to the Claimants as the Second Defendant in its Written Submissions has undertaken that The Commissioner.can provide any assistance and information the court may require in order to resolve the matter in dispute between the Claimants and the First Defendant. The current proceedings have been discontinued against the Second Defendant. The Commissioner of State Lands is hereby urged however, to fulfil their undertaking by entertaining dialogue with the parties and giving due consideration to providing them Page 11 of 12

12 with information requested so that future litigation can be averted. Accordingly, a copy of this Ruling will be served on the Commissioner of State Lands. Order: 32. The Claim is dismissed with costs to the Defendants. Eleanor J. Donaldson-Honeywell Judge Assisted by: Christie Borely Attorney-at-Law Judicial Research Counsel Page 12 of 12