REPUBLIC OF TRINIDAD AND TOBAGO CV No. 2016-00393 Civil Appeal No. T040/2017 IN THE HIGH COURT OF JUSTICE PORT OF SPAIN Between EARLIN AGARD Claimant And WYCLIFFE HACKETT DALTON HACKETT WENDY BAIRD Defendants BEFORE THE HONOURABLE MADAM JUSTICE M. DEAN-ARMORER APPEARANCES Ms. Samantha Lawson, Attorney-at-law on behalf of the Claimant. Mr. Christoph Gift instructed by Ms. Jocelyn Gift, Attorney-at-law on behalf of the Defendants. REASONS Introduction 1. On the 16 th February, 2016, the Claimant, Earlin Agard instituted these proceedings, seeking a declaration that she was the owner in fee simple of the subject lands. 1 The Claimant also 1 All and Singular that certain piece or parcel of land situate at Chapham in the Parish of St. Patrick in the Island of Tobago comprising two (2) Lots and bounded on the North by lands of Lynette Hackett on the South by lands of Mariah Adams on the East by lands of James Lindsay and on the West by lands of Martha Skeete now Road Reserved (hereinafter referred to as the said parcel of lands). The said parcel of land is assessed on the Rolls of Supervisor Inland Revenue Division as No. ZD-61 and which said parcel of land is more particularly described in the schedule to the Deed registered as No. 5360 of 1973 but on a survey dated 21 st December, 2004 was found to comprise Nine Hundred and Twenty Nine Point One Square Metres (929.1m 2 ) and is being bounded on the North partly by a Road Reserve separating same from the lands of Lynette Hackett on the South by Parcel (37) Peter Chapman on the East by parcel (31) Sarah Lindsay and on the West by lands of Wycliffe Hackette more particularly described in Deed DE200802209538D001 and shown on survey plan attached to the said Deed. Page 1 of 10
sought a declaration as to her entitlement to use a right of way, which separates the Claimant s parcel of land from the land of Lynette Hackett. 2 2. The Claimant later filed a Notice of Application filed on the 11 th May, 2016, 3 by which she applied for four (4) injunctive orders against the Defendants. 3. On the 14 th February, 2017, I granted the orders, two of which were prohibitory and two were mandatory. My reasons for so doing are set out below. Facts 4. The facts upon which I granted the orders were to be gleaned entirely from affidavit evidence. 5. The Claimant relied on her own affidavit support of her application for injunctive relief. 4 The Claimant s application was also supported by: The affidavit of Gareth Hackett, 5 The affidavit of Mervyn Joel O Neil. 6 The affidavit of Roy Solomon. 7 6. The Defendants, in opposition, relied on the affidavit of the First Defendant, Wycliff Hackett. 8 2 The right of way is described as a road reserve which separates the Claimant s parcel from the parcel of Lynette Hackett and continues West through the First Defendant s land and comprises 102 metres in length and is 7.52 metres wide more or less which is described in the Deed DE200802209538D001 and shown on the survey plan attached to the Deed DE200802209538D001 (hereinafter referred to as the said right of way). 3 Minor Amendments were made to the Notice of Application in an Amended Notice filed on the 1 st July, 2016. 4 Filed on the 11 th May, 2016. 5 Filed on the 11 th May, 2016. 6 Filed on the 11 th May, 2016. 7 Filed on the 11 th May, 2016. 8 Filed on the 23 rd June, 2016 Page 2 of 10
7. In July, 2008 the Claimant, Earlin Agard purchased the subject parcel of land from Terrance Boyce. The lands were conveyed to her by a Deed, which was executed on the 24 th July, 2008. 8. Shortly thereafter, the Claimant entered into occupation. In 2008, the Defendants began obstructing the Claimant s use of a right of way over their land. 9. It has not been disputed that the Defendants employed a variety of methods in their effort to block the Claimant s access through their land. These are set out at paragraph 15 of the Claimant s affidavit 9 and include: Constructing a steel pole to block the Claimant s access to the right of way; Parking vehicles in the right of way. The use of dangerous dogs as a means of intimidation; The construction of a concrete wall. 10 10. It is the Claimant s contention in this action that she is entitled to use the right of way and that the Defendants have wrongly blocked her access. 11. The First Defendant, Wycliff Hackett, at the date of filing his affidavit 11 was eighty-four (84) years of age. He was the father of the Second and Third named Defendants. 12. The First Defendant is the owner of a half (½) acre parcel of land, which had originally been part of a two (2) acre parcel, owned by William Dillon, who had been the grandfather of Wycliff Hackett, the First Defendant 12. 13. William Dillon divided the two (2) acre parcel into four (4) equal blocks, which were conveyed to his four daughters: Suzannah Hackett, Martha Skeete, Beatrice Olivia Proctor 9 Filed on the 11 th May, 2016. 10 Paragraph 14 of the affidavit of Earlin Agard filed on the 11 th May, 2016. 11 The Affidavit of Wycliff Hackett had been filed on the 23 rd June, 2016. 12 See paragraph 14 of the Affidavit of Wycliff Hackett Page 3 of 10
and Lucy also called Beatrice Warden. 13 The Defendant deposed that no provision was made for access to and egress from the public road in respect of three of the four parcels. 14. In 1958, the parcel, which had been given to Martha Skeete, became invested in the First Defendant, Wycliff Hackett. The half (½) acre parcel, which had passed to Suzannah Hackett, was further divided into two (2) portions. Suzannah Hackett conveyed one half (½) acre portion to her daughter, Lynette Hackett. Suzannah Hackett conveyed the other half (½) acre parcel, which is now held by the Claimant, to her son, Gareth Hackett. 15. Gareth Hackett, the younger brother of the First Defendant, became seized of the subject land in 1973. Between the 1970 s and the 1990, Gareth Hackett gained access to the land by using a Road Reserve, which is south of the parcel of land. 16. There was no dispute that during the tenure of Gareth Hackett, the Second and the Third Defendants respectively constructed houses on either side of the original right of way. Gareth Hackett then began to access his property over Wycliff Lands, through the right of way which is the subject of this claim. 17. The evidence of the Claimant is supported by that of Gareth Hackett, himself who by his affidavit testified that in the 1990 s he began accessing the subject parcel through Wycliff Lands. 14 It was the evidence of Gareth Hackett, that following the construction of her home in 1990, the Third Defendant reserved an access from the Road Reserve through Wycliff Lands. Gareth Hackett testified that he used this right of way until he sold his land in 1995. 18. Gareth Hackett also testified that he saw Terrance Boyce using the very access during the time that he owned the land. 13 See paragraph 14 of the Affidavit of Wycliff Hackett 14 See paragraph 9 of the affidavit of Gareth Hackett filed on the 11 th May, 2016. Page 4 of 10
19. The Claimant, in support of her application for injunctive relief stated that she had been passing over the lands of a third party, whose lands are located to the West of the Claimant s land. Since April, 2015, however, the Claimant had been warned to discontinue use of her access over the land of the third party. Issues 20. Two issues arose for my consideration: (i) whether the Claimant was entitled to the two prohibitory injunctions which she sought and; (ii) whether the Claimant was entitled to the mandatory injunctions which she sought. Law and Discussion 21. Parties relied on the Written Submission of their respective Attorneys-at-law. After receiving the first set of Written Submissions, the Court requested further submissions, as to the circumstances in which a mandatory injunction would be granted. Grant of the Prohibitory Injunctions 22. The Claimant moved this Court for an order restraining the Defendants from obstructing the subject right of way. She also applied for an order restraining the Defendants from intimidating or harassing the Claimant, her servants and/or her agents. 15 23. An interim injunction is a discretionary remedy, in respect of which the Court had traditionally been required to ascertain whether there was a serious issue to be tried; whether damages were an adequate remedy and whether the balance of convenience was tilted in favour of the Claimant. 16 15 See the Notice of Application filed herein on the 11 th May, 2016. 16 See American Cyanamid Co. v. Ethicon Ltd [1975] 1 All ER 504. See too Bean on Injunctions [1987] p. 22 Page 5 of 10
24. It is well-known, and accepted by both sides, that the law in respect of interlocutory injunctions was revolutionised in Jet Pak Services Ltd. v. BWIA 17, where Chief Justice de la Bastide, held that it is necessary for the Court to make an assessment of the appellant s chances of succeeding at trial. 18 Chief Justice de la Bastide also decreed that the Court should ask itself this question: Where does the greater risk of injustice lie, in granting the injunction or in refusing it? 19 25. In the East Coast Drilling 20, in which the Court of Appeal applied the learning in Jet Pak 21, de la Bastide, CJ reiterated the well-known principle that on an interlocutory application, the Court does not attempt to decide issues of fact. 22 26. Accordingly, in the course of my decision to grant the two prohibitory injunctions, as sought by the Claimant, I embarked on an assessment of the appellant s chances of succeeding at trial. 27. In this regard, it was my view, that the Claimant had put evidence before the Court that the subject right of way had been used by her predecessors since 1990. The clear implication of this allegation was that by the 16 th February, 2016, the date on which the Claim was filed, the right of way had been used by the Claimant s predecessors-in-title for more than sixteen (16) years. 23 17 Jet Pak Services Ltd. V BWIA International Airport Ltd. (1998) 55 WIR 362 18 See Jet Pak Services Ltd. V BWIA International Airport Ltd. (1998) 55 WIR 362 at p. 370g 19 See Jet Pak Services Ltd. V BWIA International Airport Ltd. (1998) 55 WIR 362 20 East Coast Drilling & Workover Services Ltd. v. Petroleum Company of Trinidad and Tobago [2000] 58 WIR 351 21 Jet Pak Services Ltd. V BWIA International Airport Ltd. (1998) 55 WIR 362 22 East Coast Drilling & Workover Services Ltd. v. Petroleum Company of Trinidad and Tobago [2000] 58 WIR 351 at 357 23 See The Prescription Ordinance, Ch. 5 No. 8 Page 6 of 10
28. It was also significant that, in her assertion as to the length of time over which the right of way had been used, the Claimant relied on the direct evidence of Mr. Gareth Hackett, who was her predecessor-in-title. In my view, there was a strong probability that the Claimant would be successful in establishing a right to use the right of way under the Prescription Ordinance. 24 29. It was also my view that there was a very strong likelihood that the Claimant would be successful in establishing that she was entitled to the subject right of way as a right of way of necessity. 25 There was no dispute that the Claimant s property and Wycliff Lands had originally been part of one larger two (2) acre parcel of land 26. The Claimant has also asserted that she has no other means of access or egress. This is disputed by the Defendants. At this interlocutory stage, however, the Court will not embark on a resolution of factual issues. In my view, therefore, the Claimant has an excellent chance of succeeding at trial. 30. I considered where the greater risk of injustice lay. It was my view, that the balance of justice favoured the Claimant. Unless the Defendants were prohibited from actively preventing the Claimant s use of the alleged right of way, the Claimant would be constrained to trespass the lands of a third party, with all the attendant and foreseeable consequences, of litigation by the third party or the possibility of some more direct retaliation. 31. By contrast, the Defendants have not been able to demonstrate any inconvenience. It was their case that the Claimant had alternative access and that in any event, she has no cause for complaint, since she was aware, at the time of purchasing the property, that it was landlocked. 24 The Prescription Ordinance, Ch. 5 No. 8 25 See Manjang v. Drammeh PCA#10 of 1989 for the elements of the right of way of necessity. 26 See the Affidavit of Wycliff Hackett at paragraph 14 Page 7 of 10
Grant of Mandatory Injunction 32. I turned to consider whether the Claimant was entitled to the mandatory interim injunctions which she sought. Essentially, the Claimant sought orders compelling the Defendants to break and remove the concrete wall, which they had constructed on the right of way and to remove items which they had placed on the right of way. 27 33. In the course of their submissions, learned Attorneys-at-law relied on a number of authorities, some of which are set out below. 34. In Locabail International Finance Ltd. v. Agroexport 28 Lord Mustill held that the Court would lay down rigid conditions for the grant of interlocutory mandatory injunctions which would not normally be granted. Lord Mustill identified this exception: However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one that could easily be remedial or if the defendant attempted to steal a march on the plaintiff a mandatory injunction will be granted 35. In the course of his judgment, Lord Mustill also referred to Shepherd Homes Ltd. v. Sandham [1970] 3 All ER and quoted these words of Meggary, J. Third, on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable prohibitory injunction. In a normal case the court must, inter alia, feel a high degree of assurance that at the trial it will appear that the injunction was rightly granted and this is a higher standard than is required for a prohibitory injunction. 27 See the Notice of Application filed on the 11 th May, 2016 28 Locabail International Finance Ltd. v. Agroexport [1986] 1 All ER 901 Page 8 of 10
36. Accordingly from the authorities, it was my view, that the following principles governed the grant of an interlocutory mandatory injunction: (i) the Court is far more reluctant to grant a mandatory interim injunction than it is to grant a comparable prohibitory injunction. (ii) the Court ought to feel a high degree of assurance, that it will appear that the injunction was rightly granted. (iii) the mandatory injunction will only be granted where the claimant has a high prospect of success at trial. (see Factortame v. Secretary of State [1990] UKHL 13). (iv) in weighing the risk of injustice, the Court will consider whether the grant or the refusal of the injunction will have the practical effect of putting an end to the trial. NWL Ltd. v. Woods [1979] 3 All ER 614 (v) the Court will consider the cost which will be borne by the defendant in the course of complying with the mandatory injunction. See Redland Bricks Ltd. v. Morris. 29 37. It was my view, as stated at paragraph 26-29 supra, that the Claimant held a high degree of assurance of success. 30 38. It was also my view that the balance of justice favoured the Claimant, since, she would be constrained to trespass over the land of a third party, should the Court refuse to grant the injunction. In such event, the Claimant would have to endure this inconvenience for many years until the hearing and determination of the Claim. 39. The Defendants, on the other hand, would suffer the inconvenience of having to break the wall, which they constructed and to remove the steel pole and other items, which were obstructing the right of way. This exercise would undoubtedly require the Defendants to 29 Redland Bricks Ltd. v. Morris [1970] AC 652 30 See paragraph 26-29 supra Page 9 of 10
incur expenses. Should they be successful in defending the Claim however, the Claimant would be bound by her undertaking in damages, to compensate them for the financial loss. 40. Accordingly, it was my view, that this Claim, was one of the rare instances where the Court should grant a mandatory injunction. I therefore granted all the orders which were sought by the Claimant in her Notice of Application of the 11 th May, 2016. Dated this 17 th day of March, 2016. M. Dean-Armorer Judge Page 10 of 10