REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2013-01912 BETWEEN LEROY KNIGHTS LEROY KNIGHTS (The Legal Personal Representative Of the estate of Mary Knights, Deceased) FIRST CLAIMANT SECOND CLAIMANT AND DEOSARAN DEONARINE DEFENDANT Before the Honourable Mr. Justice R. Rahim Appearances: Mr. G. Raphael instructed by Ms. D. Marcano for the Claimant Mr. A. Manwah instructed by Mr. R. Ramsaran for the Defendant
Judgment The Claim 1. This claim is one for possession of land. The Claim Form and Statement of Claim were filed on the 3 rd May, 2013. The land in dispute is situate at Tabaquite Main Road in the Ward of Montserrat, comprising approximately 454 square metres more or less (hereinafter referred to as the disputed land ). 2. The Claimants assert that they have acquired possessory title of the disputed land by uninterrupted and continuous possession since 1939 through the occupation by Mr. Peschier, the First Claimant s mother s uncle, the First Claimant s mother, Mary Knights (herein after referred to as the Deceased ) and then the First Claimant. It appears that the First Claimant has brought the claim in his own right based on possession and he has brought it as the Second Claimant on behalf of the estate. 3. The Claimants allege that sometime in or about the month of November, 2012, the Defendant encroached on the disputed land. Consequently, the Claimants claimed an injunction, damages for trespass and the following: i. An order that the Claimants do recover possession of All and Singular that certain piece or parcel of land situate in Tabaquite Main Road in the Ward of Monsterrat in the County of Caroni comprising approximately 454 sq metres more or less situated immediately to the south-south east of the lot shown as No. 17 on the survey plan hereto annexed and marked A and bounded on the North, on the South, on the East and West by Land Louis and Fidelia Peschier now in the possession of Claimants (hereinafter called the said parcel of land) and which said parcel of land forms part of a larger parcel of land comprising of 1.1374 Hectares formerly owned by Louis Peschier and Fidelia Peschier and which said larger parcel of land is shown on the copy of the survey plan of Ganeshdath 2
Ramchariatar dated 19 th January, 2004, a copy of which is hereto annex and marked L.R. 1 (hereinafter referred to as the said Survey plan ). The Defence and Counterclaim 4. By Amended Defence filed on the 2 nd May, 2014, the Defendant denied the Claimants claim and pleaded that the Deceased and to a lesser extent the First Claimant has been in occupation of three lots of land measuring approximately 16000 square feet, bounded on the North by Tabaquite Rio Claro Trace, on the South and East by lands of Jonnia and on the West by a street 22 feet wide, shown on the Cadastral Sheet G.19.K registered in RPO Vol. 11 Folio 539 of Alfred Juarez (hereinafter referred to as the Cadastral Sheet ), a copy of which is attached to the Defendant s Witness Statement and marked D.D1. Further, that the said three lots of land possessed by the Claimants is situated approximately 400 feet East of the disputed of land and is proximate to Lot 6 shown on the said survey plan. 5. The Defendant averred that the First Claimant has been for the past forty or more years living on the parcel of land situate North north-east of the Tabaquite Main Road and never occupied or possessed the disputed land. 6. The Defendant agreed that the disputed land forms part of a larger parcel of land comprising 1.1374 hectares. The Defendant alleged that he and his predecessors in title occupied a portion of that larger parcel of land. That this portion measured approximately 1,610.1 square meters more or less, and is shown as lot B on the Cadastral Sheet (hereinafter referred to as lot B ). According to the Defendant, sometime between 1927 and 1928, Mr. Benjamin James and his common law wife, Ms. Beatice Edwards and their three children, namely, Samuel Edwards, Una Issacs and Veneira Joseph occupied lot B without the consent or acquiescence of the paper title holders. The Defendant further alleged that in or about 1984, Mr. James was the only one living on lot B and the Defendant who was a neighbour assisted him in the cultivation of the lot. At this time James occupied a wooden house thereon comprising two bedrooms, kitchen and living room amongst others (hereinafter referred to as the wooden house ). 3
7. According to the Defendant in or around 1990, James vacated the wooden house. The Defendant claimed that he and his parents who lived next door continued to maintain the wooden house and cultivate on lot B. 8. The Defendant married on the 20 th March, 1994. Within that year, he and his wife began to occupy the wooden house. His wife and he maintained the house and continued the cultivation of several long and short term fruit and vegetable crops. In or around the year 2000, the Defendant extended the kitchen of the wooden house, built a step and a gallery. Subsequently, by Bill of Sale dated the 20 th April, 2009 and registered as No. BS.200900535185, the Defendant purchased the rights and interests to the house from Mr. Edwards and his sisters. The Defendant further claimed that he has paid the Land and Building taxes for lot B for the last thirteen years prior to 2009. 9. As such it is the case of the Defendant that any title to Lot B which the Claimants or any third party may have had has been extinguished by adverse possession. The Defendant claimed that he has been in continuous, open, adverse possession of lot B since March 1994 up until the present time. 10. Consequently, the Defendant by Counterclaim filed on the 26 th July,2013 claimed against the Claimants the following: i. A declaration that the Defendant is entitled to possessory title of all singular that house and land measuring three (3) lots more or less as shown on the survey plan of Alfred Juarez and bounded on the North by Tabaquite Rio Claro Trace, on the South and East by lands of Joonia and on the West by a Street wide and there is no person having an interest adverse to his rights therein. ii. An injunction restraining the Claimant, his agents and/or servant from entering the parcel of land measuring three (3) lots or more or less as shown on the survey plan of Alfred Juarez and bounded on the North by Tabaquite Rio Claro trace, on the South and East by Lands of Joonia and on the West by a Street 22 feet wide; iii. Costs and 4
iv. Such further and/or other relief as this Honourable Court may seem just in the circumstances. 11. Neither party hold paper title to the disputed land. The court therefore has to determine which party has the better entitlement or right to possession. This is primarily a matter of evidence. The case for the Claimants 12. Evidence for the Claimants was given by the First Claimant and Mr. Samuel Edwards. A Hearsay notice in relation to the evidence of Mr. Edwards contained in his Witness Statement was filed on the 7 th April, 2016. Mr. Edwards is eighty-four years of age and was unable to attend the trial due to his medical condition. 13. The First Claimant is the son of the Deceased. He was born on the 17 th January, 1937. The Deceased died on the 8 th September, 1999. On the 15 th June, 2007, the First Claimant obtained a Grant of Letters of Administration of the estate of the Deceased. Land was described in the inventory filed in support of the application for the grant. The description reads: Possessory Title in the remaining portion ALL AND SINGULAR that certain piece or piece or parcel of land situate in the Ward of Montserrat, in the County of Caroni, in the Island of Trinidad comprising 1.5454 Hectares be the same more or less bounded on the North by State Lands on the South by lands now or formerly of Etwariah on the East partly by lands now or formerly of Sagram and Omedia and partly by the Tabaquite Mayaro Road and on the West by partly by lands of Marie Guiellmo, partly be lands of Loius and Fidelia Peschier and partly by the Tabaquite Mayaro Road, which said piece or parcel of land is intersected by the Tabaquite Mayaro Road (East to West) and is more particularly described in Certificate of Title registered in Volume 368 Folio 183, which said piece or parcel of land is known as No. 86 Tabaquite / Rio Claro Main Road, Tabaquite. 5
14. According to the First Claimant, by Certificate of Title in Volume 516 folio 7, Louis Peschier and Fidelia Peschier (hereinafter referred to jointly as the Peschiers ) became the original owners of the said land. The First Claimant during cross-examination placed an X on the said survey plan (the survey plan is annexed to the Witness statement of the Claimant and marked L.R. 2 ), to indicate to the Court the said location of the land. 15. Mrs. Peschier predeceased Mr. Peschier. Mr. Peschier died on the 22 nd November, 1939. The Deceased, her husband and her children lived on the northern portion of the Peschiers lands with Mr. Peschier until his death. The larger parcel of land was mainly used as an agricultural estate except for those portions along the Tabaquite Main Road which were rented out by the Peschiers for residential purposes. 16. It is the evidence of the First Claimant that after the death of Mr. Peschier, the Deceased and her family continued the cultivation of the agricultural portions of the land which included the disputed land. Further, that after the death of Mr. Peschier, the Deceased paid the Land and Building taxes for the disputed land in the names of the Peschiers. After the death of the Deceased, the Claimant continued cultivating the lands and paying the Land and Building taxes for same. During cross-examination, the First Claimant testified that he was aware that the Defendant also paid Land and Building taxes but that the Defendant was stopped from paying same. 17. Further, the First Claimant testified that he and his family continued to occupy all of the lands excluding those portions which were rented out as residential lots. During crossexamination, the First Claimant testified that he lives on the Northern side of the Tabaquite Main Road. He further testified that where he lives is not indicated on the survey plan. 18. According to the First Claimant, the Peschiers rented out one of the residential lots to Ms. Ethel Glasgow. This lot is situate south of Lot No. 17 as shown on the survey plan and comprises approximately 5000 square feet. The First Claimant testified that there were no 6
buildings south of the lot rented to Ms. Glasgow since the land was never rented out, the Deceased and her family having cultivated on those portions of the land. 19. Further, the First Claimant testified that Glasgow owned the said wooden house on the lot of land rented to her. James, who came from Grenada lived with Ms. Edwards in the wooden house. James left the wooden house in the early 1990 s and thereafter rented same to the Defendant. The Defendant broke down the house in or about the year 2000. During cross-examination, the First Claimant testified that the piece of land where the house was located was one lot of land. 20. As mentioned above, the First Claimant testified that sometime in or about the month of November, 2012, the Defendant encroached on the parcel of land south of the lot of land rented by Glasgow. This encroachment was by way of construction of a dwelling house. During cross-examination, the First Claimant testified that Defendant did not build on the same spot where the said wooden house was situated. That the steps to the wooden house still exists which is depicted in the photographs attached to the witness statement of the Claimant and marked L.R. 8. Accord to the First Claimant, the Defendant built west of spot of the wooden house. 21. By letter dated the 21 st November, 2012, the First Claimant s Attorney-at-law called upon the Defendant to cease all building works on the disputed land. According to the evidence of the First Claimant, when the Defendant received the letter he threw away same and informed the First Claimant that he was going to continue construction of the house and further informed the Claimant that if he took him to Court that he would have to sell or lease him the disputed land. 22. Mr. Samuel Edwards testified that he knew the Claimants and the Defendant. He was born in Grenada on the 29 th January, 1932. His mother, brought him and his two sisters to Trinidad in or about 1965. They went to live with his aunt, Glasgow in the wooden house. 7
23. James came from Grenada sometime in or about 1940 to live with them at the wooden home. Edwards was sixteen years of age when he went to live at the home of his father s sister situate at Vessigny, La Brea. Edwards testified that his mother and James continued to live in the wooden house until his mother got sick in the early 80 s at which time she went to live with her daughter in Sobo Village, La Brea where she eventually died. Even though Edwards left Tabaquite in 1948, he visited his mother and James from time to time. After his mother died, he would visit James on weekends and during the holidays. James continued to live in the wooden house until he got sick in the early 1990 s. James then went to live with Edwards at Vessigny Village. While James lived with Edwards, James rented the house to the Defendant. 24. Edwards testified that the disputed parcel of land on which the wooden house stood was situate east of Lot No. 17 shown on the survey plan. He further testified that the parcel of land was approximately one lot of land. That it was not two lots of land. According to the evidence of Edwards, no gardening was done on this parcel of land. James and his mother did gardening on Petrotrin s land which was located south of the Peschiers lands. He further testified that the parcel of land south of their land was cultivated by the Deceased. 25. According to Edwards, sometime in or about the year 2000, he and his sisters sold the house on the land to the Defendant for $50,000.00. Edwards knew that the Defendant later broke down the house. When Edwards and his sisters signed the Bill of Sale in 2009 assigning the house to the Defendant, there was no building on the land. 26. Sometime in late 2012, Edwards visited the area and saw that the Defendant was building a concrete house south-east of the lot of land on which the wooden house stood. He testified that this area of land where the Defendant was building was always in the possession of the Deceased and her family. Edwards spoke to the Defendant and asked him how he could build on that lot of land as it was not where they had sold him the house. The Defendant responded to Edwards by saying that he had rights there. The Evidence for the Defendant 8
27. Evidence for the Defendant was given by the Defendant, Ms. Eulie Garcia and Mr. Theophelus Subero. Mr. Subero passed away before the commencement of these proceedings and a hearsay notice in respect of his Witness Statement was filed on the 11 th April, 2016. 28. Most of the Defendant s evidence in chief by way of witness statement has been set out above in the Defence and Counterclaim. What follows is that which was elicited during cross-examination. 29. The Defendant testified that the wooden house stood on about one lot of land however James occupied two lots of land. According to the Bill of sale (attached to the Defendant s witness statement and marked D.D2 ) the size of the wooden house was 20 feet by 18 feet. It is the evidence of the Defendant that he lived with James for about twenty years prior to his marriage and permanently thereafter. The wooden house was demolished in 2012, James having vacated in or around 2008. 30. According to the Defendant, he did not build outside of the lot of land on which the wooden house stood. He testified that he did not know how much he originally occupied when he purchased the wooden house in 2009 since the land was not surveyed when the Bill of Sale was executed. Subsequent to the execution of the Bill of Sale the Defendant had the land in which he occupied surveyed (lot B). 31. The Defendant was shown the pictures attached to the witness statement of the Claimant and marked L.R.8. The Defendant testified that the steps depicted in the photographs were situated at the entrance to the front door of the wooden house prior to demolition. He further testified that the trench which he was erecting was about one foot away from the step. 32. The Defendant was shown the survey plan (annexed to the witness statement of the Claimant and marked L.R. 2.). He was directed to the area of the plan which showed the 1.1374 hectares. He testified that the wooden house was situated south-west of lot 17 and that the Peschiers were in occupation of this land and cultivated this area. The Defendant 9
retracted his statement that the Peschiers and the Claimant cultivated this area. According to him, the Peschiers and the Claimants cultivated the opposite side, the Knights estate not that portion what Samuel was on, I cultivate that. 33. It is the evidence of the Defendant that James was a farmer. That he did farm Petrotrin lands but he also had one or two fruit trees and vegetables on the lot B which the Defendant helped him to plant and cultivate. 34. The Defendant testified that he was served with a letter when he started the construction of his house in 2012. According to the Defendant Mr. Edwards never told him that he was constructing his house on the Claimants property. Further, that Edwards never asked him how he could build on that land. The Defendant testified that when Edwards saw him building on the land, Edwards said he had nothing to say because that is Peschier land not Knights land. 35. Ms. Eulie Garcia testified that she was born at Emanuel Junction, Tabaquite and grew up on that land. She subsequently married the late Mr. Ramraj Ramcharan when she was seventeen and moved to No. 85 Main Road, Tabaquite, where she currently resides. 36. According to the evidence of Garcia, to the east of her house was Mr. Oliver Moonisar s house along the main road. Mr. Moonisar has passed away. To the right of that house is Darling Ramcharran s house along the main road. To the right of Ramcharran s house is the Seven Days Adventist Church along the Tabaquite Main Road. To the east of the Church is where the Deceased and her family lived. 37. It is the evidence of Garcia that her house is close to Lot B where the Defendant resides and to the back or south of her house is an empty lot. Behind that empty lot or south of it is a wooden house occupied by the Defendant s brother called Mellow. To the back or south of Mellow s wooden house is the land that the Defendant occupies. Ms. Garcia testified that the Defendant s house is a concrete structure south-west of Mellow s house. Vishnu, another of the Defendant s brothers has a house South-east of Mellow s house. 10
38. According to Garcia, she knew the Defendant from his youth. She testified that when he was fifteen years old he moved onto Lot B which was occupied by James and Ms. Edwards. Prior to moving onto Lot B, the Defendant lived at his father s residence which was about 150 feet away from Lot B. 39. Before James and Ms. Edwards died, she knew that the Defendant helped their family to maintain Lot B and plant fruit trees. She further testified that sometime after Ms. Edwards died, James eventually moved out and left the Defendant in the wooden house alone. 40. According to Garcia, when the Defendant got married, his wife moved in with him in the wooden house. The Defendant and his wife continued to maintain the property by cutlassing, raking and cleaning the grounds. The Defendant and his wife also continued to maintain the fruit trees and cultivate the lands. 41. It is the evidence of Garcia that she knew the Deceased and her family since she came to live at No. 85 Tabaquite, Main Road. She testified that the Deceased and her family lived east of the Seven Days Adventist Church (shown on the survey plan). That the First Claimant eventually moved to the opposite side of the main road when he got married and built a house there. The Deceased however continued to live next to the Seven Days Adventist Church until her death. 42. Garcia testified that she has never seen the First Claimant or his family on Lot B. That it was only after the court matter was commenced that she saw the First Claimant driving onto Lot B. She further testified that as far as she knew, the First Claimant and his family never planted or occupied Lot B. Cross-examination of Garcia 43. During cross-examination Garcia testified that James occupied more than one lot of land but she did not know exactly how much land he occupied. She further testified that the wooden house was on about a lot and a half of land. 11
44. According to the evidence of Garcia, the Defendant is constructing on the same spot where the wooden house was located. 45. Mr. Theophelus Subero testified that he has been living at No. 9 Cito Lane, Tabaquite for approximately thirty years. When he first went to live at No. 9 Cito Lane, he noticed that Lot B was occupied by Ms. Edwards and James. At this point the Defendant was living at his father s residence about 150 feet away from Lot B. The Deceased and her family were living on the northern side of the Tabaquite Main Road, east of the Seven Day Adventist Church. When James and Ms. Edwards died, the Defendant helped James family to maintain the surrounding land and the fruit trees. When the Defendant got married, he began to live on Lot B with his wife in the wooden house formerly occupied by Ms. Edwards and James. They continued to maintain the fruit trees. Subero further testified that the Defendant has continued to occupy Lot B since 1994 to this day. That during that time he and his wife had three children. 46. According to Subero, the First Claimant and his family never planted or occupied Lot B. On or about March or April, 2013, was the first time Subero saw the First Claimant in the area of Lot B. The First Claimant was walking around and measuring the area. It is the evidence of Subero that the Defendant s house was not yet finished at this time. Issue 47. The Claimants are not seeking possession of the entire area of lot B but only 454 square metres which the Claimants claim the Defendant encroached upon. The Claimants accept that the Defendant purchased what is essentially a house spot and so make to claim to same. 48. In the case of Ocean Estates Ltd. V Norman Pinder (1969) 2 A.C. 19, Their Lordships Privy Council stated at pages 24 and 25: 12
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 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. 49. The case of Baby Nagasar v Xavier Goodridge CV 2009-00771 considered the implication of the judgment in Ocean Estates Ltd. V Norman Pinder (supra) on our jurisdiction. At paragraph 57 of the judgment Rampersad J opined that the decision in Ocean Estates Ltd. V Norman Pinder (supra) was a turning point with respect to the issue of proof of title in actions for possession in our jurisdiction moving from a requirement for absolute title to one of relative title instead. 50. Trespass to land is the unwarranted intrusion upon land and interference with certain interests in land in the possession of, or belonging to, another. In order to succeed in its claim the Claimants must satisfy the Court on a balance of probabilities that: (i) at the time of the alleged trespass it was in lawful possession of the land that is the subject matter of the complaint; and (ii) the Defendant wrongfully entered the said land: National Spiritual Assembly of the Baha'is of Trinidad and Tobago v Winston Chen H.C.1833/2004. 51. The Defendant is claiming that he has adversely possessed lot B which includes the disputed land since 1994. In relation to the principle of adverse possession, Section 3 of the Real Property Limitation Act Chapter 56:03 provides that; No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom 13
he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same. 52. Further, Section 22 of the Real Property Limitation Act provides that; At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished. 53. The well-known authority of JA Pye (Oxford) Ltd v Graham (2002) 3 All ER 865 sets out the applicable criteria for adverse possession. According to JA Pye, a claim to title by adverse possession is comprised of two crucial elements: factual possession and intention to possess (animus possidendi). Factual possession signifies a degree of exclusive physical custody and control and the question of whether the acts of the squatter are sufficient to meet this must depend on the circumstances of the case. The intention to possess means an intention, in one s own name and on one s own behalf, to exclude the world at large, including the owner with paper title.so far as is reasonably practicable and so far as the processes of the law will allow. : JA Pye supra, Lord Browne- Wilkinson, paragraph 43. Submissions The Submissions of the Defendant 54. The Defendant submitted that the disputed land does not form part of the estate of the deceased. That the land described in the inventory in respect to the application for the estate of the Deceased is a different piece of land. The parcel of land in the inventory comprises 1.5454 hectares and is described in Certificate of Title Volume 368 Folio 183. 14
The Defendant further submitted that when the boundaries of the larger parcel of land (shown in the survey plan annexed to the Witness Statement of the Claimant and marked L.R.2 ) is compared with the boundaries of the lands described in the inventory, the eastern boundary of the larger parcel of land is the western boundary of the lands described in the inventory. The boundary is partly by lands of Marie Gauillmo, partly by lands of Louis and Fidelia Peschier and partly by the Tabaquite Mayaro Road. As such it is the submission of the Defendant that this can only be so if the lands described in the inventory is immediately east of the larger parcel of land, that is, where the lands of Joonia is located. 55. According to the submissions of the Defendant, the contention that the Deceased lived elsewhere and not on the larger parcel of land was supported by the evidence of the First Claimant when he testified during cross-examination that he lived on the northern side of the Tabaquite Main Road and that where he lived is not shown on the said survey plan. The First Claimant further testified that he lived further along the eastern side of the plan. The Defendant submitted that it was confirmed during cross-examination that where the Deceased lived and the First Claimant lives is on the Peschier estate. 56. It is the submission of the Defendant that the most logical explanation is that the Peschiers had two parcels of land. That this was evidenced by the Land and buildings taxes receipts produced by the First Claimant (annexed to the Witness Statement of the First Claimant and marked L.R. 7 ) which depicted an assessment No. N-249, for 2 lots and $17.32 was paid whereas those produced by the Defendant (annexed to the Witness statement of the Defendant and marked D.D3 ) displayed an assessment No. N250, for 3 acres, 1 rood and 25.94 perches and 63.22 was paid. The Defendant submitted that these are clearly two separate parcels of land. 57. As such, it is the submission of the Defendant that the Deceased lived and the First Claimant lives on a parcel of land which is not the larger parcel of land and the Letters of Administration with respect to the Deceased s estate allows the First Claimant to deal with only the lands therein described. Therefore, the Claimants have no locus to recover the disputed parcel of land. 15
58. Further, the Defendant submitted that the disputed land the Claimants seek to recover was pleaded as being south-south east of lot 17. However, in direct contrast to this, the First Claimant when asked by the Court to put an X on the said survey plan to indicate the location of the disputed land, placed the X south-south west of Lot 17. 59. According to the Defendant, he was in occupation of Lot B which includes the disputed parcel of land since 1994 and as the Claimant cannot rely on title since he has none, therefore, even if he was in possession, he cannot now maintain an action for trespass. The Submissions of the Claimants 60. The Claimants submitted that based on the evidence, the wooden house was on one lot of land and not two lots or 1.610.1 square metres as suggested by the Defendant. The witness for the Defendant, Garcia testified that James occupied one and one-half lots of land. 61. According to the Claimants, the First Claimant s evidence was that James occupied one lot of land. Further, that this evidence was supported by the evidence of Mr. Edwards who knew James. It is the submission of the Claimants that the Defendant s evidence on the other hand was unconvincing and contradictory. That the Defendant admitted during cross-examination that he was approached by Mr. Edwards but testified that Mr. Edwards told him that he had built on the same land. The Claimants submitted that the question for the Honourable Court is why would Mr. Edwards approach the Defendant and tell him that he had built on the same land. That on the balance of probabilities the Defendant was clearly trying to mislead the Court. 62. The Claimants submitted that the inventory of the estate of the Deceased has nothing to do with this claim. That the Claimants claim as outlined in paragraph 1 of their Statement of Case is based on their possession of the disputed land. Further, that the Claimants claim is not based on any title by virtue of the Real Property Ordinance or any title by deed. The inventory is therefore irrelevant to the Claimants claim. 16
63. According to the Claimants, they have satisfactorily established their title by possession. That their claim is for possession, damages for trespass and an injunction restraining the Defendant from entering and/or remaining upon the disputed land which would mean that the Court is respectfully being asked to confine the Defendant to the parcel of land on which the wooden hose stood namely one lot of land comprising of 454 square metres more or less. 64. The Claimants submitted that the authorities establish that trespass is actionable at the suit of the person in possession of land who can claim damages or an injunction: See John Trenbreth v National Westminister Bank (1979) 123 S.J. 388. A person in possession can sue although he neither is owner nor derives title from the owner. A de facto possession gives a right to retain possession and undisturbed enjoyment as against all wrongdoers: See Clerk & Lindsell on Torts 19 th Edition, paragraphs 19-10, 19-16. 65. The Claimants further submitted that proof that they were in possession before the Defendant, no matter how short a time, is prima facie evidence of they having title, for such prior possession raises a presumption that they were seised in fee and such presumption cannot be rebutted merely by showing that the Claimants did not derive their possession from any person who had title: Doe (deceased) Smith v Webber (1834) 1 A.E. 119, Clerks & Lindsell On Torts 19 th Edition, paragraph 19-70. Findings Where is the disputed land situated 66. The First Claimant testified that the disputed land is situated to the south south east of lot number 17 as shown on the plan he has produced in evidence. The inference to be drawn from his evidence is that the Defendant purchased the house immediately south south west of Lot 17, but has encroached further east of the house which he purchased which means that the disputed 454 sq. meters lies south south east of lot 17 as testified to by the First Claimant. The Defendant has admitted that he purchased the house which is located in the very spot that the First Claimant says it is located. Therefore, when the evidence is 17
properly assessed, and all reasonable inferences drawn, both parties place the house and the disputed land in the same location. See also the draft cadastral attached to the evidence of the Defendant wherein he refers to the land upon which the house is situated as lot B. It is to be noted that the court finds that the witness Edwards is mistaken when he testified that the wooden house was situated east of lot 17. Did the Claimants occupy and possess the disputed land prior to the Defendant s occupation of the house 67. It is clear to this Court that the Deceased and her family resided on the northern portion of the lands. The moot issue was therefore whether the Claimants cultivated on the disputed land and so possessed and occupied same. On an evaluation of the evidence the Court finds that the Claimants did occupy and possess the disputed land prior to the Defendant s occupation of the wooden house. 68. According to the evidence of the Claimants, the Deceased and her family resided on the northern portion of the Peschiers land. At paragraph 4 of his Witness Statement, the First Claimant testified that the larger parcel of land was mainly an agricultural estate except for those portions along the Tabaquite Main Road which portions were rented out by the Peschiers for residential purposes. He further testified that after the death of Mr. Peschier, the Deceased and her family continued the cultivation of the agricultural portions of the land and also operated a palour thereon. During cross-examination, the First Claimant testified that this palour was situated on the northern portion of the lands near to the church. After the death of the Deceased, the First Claimant testified that he continued occupying and cultivating the land which included the disputed land. During crossexamination he testified that he lives on the northern portion of the land. 69. Mr. Edwards gave evidence that the Deceased cultivated on the lands south of the wooden house. According to Mr. Edwards, James and his mother, Ms. Edwards did their gardening on Petrotrin s land located south of the Peschiers lands. Mr. Edwards further 18
testified that that sometime in 2012 he visited the area and saw the Defendant building south-east of the location where the wooden house was situated. According to him, this land was always in the possession of the Deceased and her family. 70. Witnesses for the Defendant also gave evidence that the Deceased and her family lived on the northern portion of the lands. According to the evidence of the Defendant, the First Claimant and his family never planted the southern portion of the lands. 71. Belief in the Defendant s evidence would mean the disbelief of Mr. Edwards evidence on this issue. The court does not believe that Mr. Edwards would have fabricated evidence. He simply has no reason to do so on the evidence. As such, Mr. Edwards was viewed by this Court as an impartial and independent witness. The Court formed this opinion as Mr. Edwards has nothing to gain by corroborating the evidence of the Claimants and giving false testimony against the Defendant. Thus, much weight was attached to the evidence given by Mr. Edwards and his evidence placed is to be preferred. 72. Accordingly, this Court found the evidence for the Claimants to be more reliable and certainly more accurate than the evidence for Defendant. The First Claimant being born in the year 1937 would have been twenty six years of age at the time the Defendant was born. As such, the Defendant cannot attest to the use of the southern portions of the lands prior to his existence. Garcia gave evidence that at the age of seventeen she moved to Tabaquite. This would have been in the year in or about 1967. Theophelus gave evidence that he has been living at Tabaquite for approximately thirty years which means that he would have been living there since in or around 1985. Consequently, the evidence of Mr. Edwards was preferred over the evidence of the witnesses for the Defendant as Mr. Edwards having lived on the land in the wooden house with his mother since in or about 1935 until 1948 would have attained the knowledge of the use of the land at that time. Mr. Edwards also testified that he continued to visit James and his mother even after he left Tabaquite. Accordingly, the Court is satisfied that on the balance of probabilities that the Claimants occupied and possessed the disputed land prior to the Defendant s occupation of the wooden house. 19
73. The Court agreed with the submissions of the Claimants that this case was based on their possession of the disputed land as outlined in paragraph one of the Statement of Case and as such the inventory of the estate of the Deceased had nothing to do with the claim and the Court so finds. Did the Defendant purchase the land upon which the house stood, and what did he occupy 74. The evidence is clear that the Defendant purchased the wooden house and not the land on which it stood. It is the evidence of the Claimants that the land on which the wooden house stood was approximately one lot and not two lots of land. During cross-examination, the Defendant agreed that the wooden house stood on one lot of land but that he occupied more than one lot of land. According to the Bill of Sale in respect of the house, the size of the wooden house was 20 feet by 18 feet on lands measuring two lots more or less. According to the evidence of the Defendant, in or around 1978 to 1981 he expanded the occupation from two lots of land to cultivating approximately 1,610.1 square metres, or 17,334 sqaure feet. Much more than two lots and in fact almost four lots. The Defendant gave evidence that the land which he occupied was surveyed subsequent to the Bill of sale (which itself was executed in 2009) and measured 1,610.1 square metres. The witness Garcia, during crossexamination gave evidence that the wooden house stood on approximately one and one half lots of land. This is somewhat consistent with the size of the land set out in the Bill of Sale. It is therefore abundantly clear that the Defendant purported to expand his occupation from that which upon which the house stood to almost double its size after the survey was done. There is no evidence as to whether anyone else was present when the survey was conducted so that there is no evidence that proper boundaries were pointed out to the surveyor by anyone except the Defendant. To that extent the survey is unreliable. 75. Mr. Edwards having lived in the wooden house and the land on which it stood would have been in a better position to give accurate evidence on the size of the house, its location on the land and how much land his mother, Ms. Edwards and James occupied. 20
76. This Court examined the photographs attached to the First Claimant s Witness Statement and marked L.R. 8. Upon examination of these photographs, this Court observed that the steps to the wooden house were still standing. Those steps are not very high steps but appear to be steps of houses of stilts or what used to be commonly known as pillow trees. They certainly appear to be front steps. Further, the trench which was being built for the new house at the time appeared to be left of the said steps and a considerable distance away. As such, this Court concluded that the house the Defendant built in 2012 did not occupy the same spot as the wooden house. Common sense would dictate that a house which measured 20 feet by 18 feet would not have occupied more than one lot of land. Further, that the concrete structure which the Defendant built on the land would have been larger in size than the wooden house and would consequently occupy more land than that which the wooden house occupied. 77. In the round therefore the Court concluded that on a balance of probabilities, the Defendant did not originally occupy 1,610.1 square metres of land but extended his occupation of the lands upon the construction of his concrete house in 2012. The Defendant would have occupied one lot for the least and two lots for the most upon purchase of the house. The court is certain that he in no way occupied over three lots which he now claims to occupy. Accordingly, this Courts finds that the Defendant did encroach on the lands occupied and possessed by the Claimants. The Claimants therefore hold a better possessory title to the land which they claim and the court will make the order accordingly. 78. In respect of the counterclaim, it follows from the court s ruling that the Defendant having extended his occupation sometime after 2009, the counterclaim fails. 79. In relation to damages for trespass, none has been proven but the Claimants are entitled to an award for nominal damages for the act. 80. The judgment of the Court is therefore as follows: i. It is declared that the Claimants are the owners and entitled to possession of All and Singular that certain piece or parcel of land situate in Tabaquite Main Road in the 21
Ward of Monsterrat in the County of Caroni comprising approximately 454 sq metres more or less situated immediately to the south-south east of the lot shown as No. 17 on the survey plan and bounded on the North, on the South, on the East and West by Land Louis and Fidelia Peschier and which said land forms part of a larger parcel of land comprising of 1.1374 Hectares formerly owned by Louis Peschier and Fidelia Peschier and which said larger parcel of land is shown on the copy of the survey plan of Ganeshdath Ramchariatar dated 19 th January, 2004. ii. The Defendant is to surrender possession of the said land to the Claimants. iii. The Defendant whether by himself, his servants, agents, or otherwise is restrained from entering and/or remaining upon the said land. iv. The Defendant shall pay to the Claimants nominal damages for trespass to land in the sum of $5,000.00. v. The counterclaim is dismissed. vi. The Defendant is to pay to the Claimants the prescribed costs of the claim in the sum of $14,000.00. vii. The Defendant is to pay to the Claimants the prescribed costs of the counterclaim in the sum of $14,000.00. Dated the 1 st November 2016 Ricky Rahim Judge 22