Download - REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/LibraryJud/Judgments/HC/rahim/...Page 6 of 29 17. According to the first defendant, Yvonne permitted Mr. Patrick Henry (“Henry”),

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2015-01990

Between

JANET CHARLES

Claimant

AND

EVERAD MITCHELL

First Defendant

LEONARD MITCHELL

Second Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. K. Walesby instructed by Ms. S. Rajkumar for the claimant

Mr. C. Mattis instructed by Mr. J. Philbert for the defendants

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Judgment

1. This claim is one for possession of land. By Claim Form filed on the 12th June, 2015 the

claimant claims that she has acquired possessory title of land situate at 181B Caratal Road,

Gasparillo, comprising of 1144.4m2 (“181b”) since she has been in continuous, exclusive

and undisturbed occupation of same from the year 1983.

2. According to the claimant, in or about 2007 the defendants asserted that they were the legal

title owners of 181b. The claimant alleges that at this time the defendants brought tractors

onto the land with the intention of clearing same and demolishing her home. Further, that

through the intervention of the police, the defendants were prohibited from so doing. As

such, the claimant claims an injunction, damages for trespass and the following;

i. A declaration that the legal rights of the defendants, if any to the said property

situated at 181B Caratal Road, Gasparillo, comprising of 1144m2, (“the said

property”) have been extinguished due to the effluxion of time and/or pursuant to

sections 3 and 22 of the Real Property Limitation Act Chapter 56:03.

ii. A declaration that by virtue of the claimant’s continuous, exclusive and

undisturbed possession of the said property for over 30 years that the claimant is

entitled to legally and beneficially own and possess the said property.

3. By Defence and Counterclaim filed on the 16th November, 2015, the defendants claim that

the land the claimant is claiming is part of a one acre parcel of land which has been in the

possession and control of their relatives since 1914 as evidenced by Deed dated the 2nd

June, 1914 and registered as DE1914014990BF. According to the defendants, Deed of

Assent dated the 30th May, 1969 and registered as No. 5547 of 1969 conveyed the one acre

parcel of land to their mother, Faustina Mitchell and her siblings.

4. The defendants allege that their aunt, Yvonne Williams (“Yvonne”) took possession of the

one acre parcel of land and granted to Winston Miller, the common law husband of the

claimant, permission to occupy one lot of the land. As such, the defendants admit that the

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claimant resides at 181b but argues that she only occupies one lot of land, compromising

of 504.7m2.

5. Consequently, the defendants aver that the claimant’s occupation of the one lot of land is

not in issue and that they are prepared to give her that portion of the land. The defendants

therefore deny that they possessed an intention to demolish the claimant’s home at the time

of entry onto the land. The court understands the defendants to be saying that although the

claimant was in occupation of one lot with permission, the defendants are not claiming the

lot as part of the counterclaim. It means that there is no issue enjoined between the claimant

and the defendants on the claim for adverse possession of the one lot which the defendants

say the claimant occupies. The defendants do so however without making an admission on

the issue of adverse possession of the one lot.

6. The defendants however do dispute the claimant’s occupation of the remaining balance of

land comprising of 639.7m2 (1144.4m2-504.7m2) (“the disputed land”). According to the

defendants, the one acre parcel of land which includes the disputed land is now in their

control and possession. The defendants allege that the disputed land was formerly occupied

by one Mr. Chattergoon and that after his death they repossessed the disputed land. The

defendants further allege that in 2012, the claimant encroached upon the disputed land. It

is therefore the case of the defendants that the claimant is illegally attempting to claim the

disputed land as she has not been in possession and control of same since 1983. As such,

the defendants counterclaim for a declaration that they are entitled to the land and other

consequential relief.

7. Neither party holds paper title to the disputed land in their names. 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 defendants.

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8. The defendants are brothers and gave evidence for themselves. The first defendant, a

plumber currently resides at 175 Caratal Road, Gasparillo (“175”) which is a part of the

one acre parcel of land. He began living there in 1998.

9. The first defendant testified that sometime in 1914, his great grandfather, George Williams

(“George”) bought a parcel of land situate at Caratal Road, Gasparillo comprising one acre

more or less (“the one acre parcel of land”) as evidenced by Deed No. 1499 of 1914 (“the

1914 deed”). The 1914 deed describes the one acre parcel of land as being bounded on the

north by land of Vendee and Crown lands, on the south by land of Beepat, on the east by a

public road (Caratal main road) and on the west by lands of Gajadar.

10. According to the first defendant, George constructed a house on the one acre parcel of land

and also cultivated upon same. George died on the 29th August, 1940 and his wife died

sometime thereafter. By Deed of Assent dated the 30th May, 1969 and registered as No.

5547 of 1969 (“the 1969 deed”), O’Farrell Gregory Williams as administrator of the estate

of George assented and conveyed the one acre parcel of land to George’s five children,

Alphonsine Williams, O’Farrell Gregory Williams, Clement Williams, Laura George and

Ismay Williams.

11. In the 1969 deed of assent, the one acre parcel of land is described as follows;

“All that piece or parcel of land situate at Caratal Road, - Gasparillo, in the Ward of

Naparima, in the Island of Trinidad and bounded on the North by lands of Joseph Williams

and Crown Lands, on the south by lands of Beeput, on the East by a Public Road and on

the West by lands of Goodman or howsoever otherwise the same may be butted or bounded

together with all buildings and appurtenances thereon.”

12. During cross-examination, the first defendant admitted that he does not have a deed in his

name for the one acre parcel of land. He further admitted that there is no deed in the second

defendant’s name for the one acre parcel of land. During cross-examination, the first

defendant testified that Faustina Mitchell (“Faustina”), his mother is the daughter of

Clement Williams (“Clement”) who died on the 20th November, 1970. As seen above

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Clement is one of the persons named in the 1969 deed as owner of the one acre parcel of

land. By will dated the 14th October, 1970 Clement bequeathed all his property, real and

personal to Faustina. The first defendant testified that he did not know if Faustina executed

a deed transferring Clement’s interest in the one acre parcel of land to herself. He further

testified that he was not aware of any other deed being executed after 1969 deed.

13. The pleaded counterclaim of the defendants appears in somewhat obscure fashion to aver

that the defendants are entitled to possession based on both paper title and their previous

possession carried over from their aunt. In submissions however, the defendants appear to

have abandoned their counterclaim on the basis of paper title but has pursued possessory

title.

14. In his witness statement, the first defendant testified that sometime in or around 1972, his

aunt Yvonne (subsequently revealed in cross examination to be his mother Faustina’s

cousin), entered upon the one acre parcel of land and took possession of same without the

permission of any of the paper title owners named in the 1969 deed. The first defendant

further testified that in 1973, Yvonne constructed a three bedroom dwelling house at 175.

During cross-examination, the first defendant testified that he was born in 1965 and was

therefore seven years old at the time Yvonne built her house on number 175. He therefore

admitted during cross-examination that he could not answer as to whether Yvonne

exercised any rights over the lands claimed by the claimant since he was only seven years

old at the time.

15. In 1998, Yvonne obtained permission from the defendants’ parents to have the first

defendant live with her at 175.

16. The first defendant married his wife Denise on the 18th December, 2004 and they live

together with their son at number 175. The first defendant testified that prior to 2004, he

paid all utilities bills and land and buildings taxes as Yvonne was a pensioner. During

cross-examination, the first defendant admitted that the WASA bill for 175 is still

registered in the names of the persons stated in the 1969 deed.

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17. According to the first defendant, Yvonne permitted Mr. Patrick Henry (“Henry”), Mr.

Andre Barnett (“Barnett”) and Mr. Chattergoon to each use one lot of the one acre parcel

of land for agricultural purposes. In 2006, the defendants asked Henry, Barnett and

Chattergoon to desist from any further use of the three lots of land they occupied. However,

Barnett and Henry refused to move as they claimed that they had growing crops on the

land.

18. Consequently, the second defendant initiated proceedings in the San Fernando Magistrate’s

Court against Barnett and Henry for trespass. Both matters were settled out of court and

the defendants recovered the land. The second defendant paid five hundred dollars to Henry

for the fig plants he had planted on the land and eight thousand dollars to Barnett as

compensation for the crops he had cultivated on the land. The first defendant testified that

no payments were made to Chattergoon as he had stopped planting on the land in or around

2006 and died in 2008.

19. Yvonne died on the 23rd July, 2007. By her last will and testament dated the 21st September,

1998, Yvonne bequeathed her house at 175 and all her property real and personal to the

first defendant. The first defendant testified that Yvonne occupied the one acre parcel of

land from 1973 up to the date of her death. During cross-examination, the first defendant

testified that he did not apply to probate Yvonne’s will. Further during cross-examination,

the first defendant accepted that Yvonne did not specifically mention the one acre parcel

of land in her will.

20. According to the first defendant, in 2008 Krishna Boodram (“Boodram”) and his family

began claiming ownership of the one acre parcel of land. In order to deal with the

Boodram’s claim, the defendants were advised by their then attorney at law, Mr. Steadson

Jack to survey the portion of the one acre parcel of land which they had in their possession

and control. The first defendant testified that the portion of land he and the second

defendant had in their possession at that time comprised of 4738.8m2. In 2011, Hollis

Eversley (“Eversley”), a land surveyor surveyed the land and produced a survey plan dated

the 21st September, 2011 (“the defendants’ survey plan”).

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21. During cross-examination, the first defendant accepted that it is not stated on his survey

plan that the survey was done in accordance with the 1914 and 1969 deeds. Further during

cross-examination, the first defendant accepted that his survey plan was not conducted to

identify the land the claimant was occupying. Moreover, he admitted that the notice dated

the 13th June, 2011 given to the claimant informing her that the survey was going to be

conducted did not state that all the boundaries of the land she occupied would have been

identified.

22. In his witness statement, the first defendant testified that according to his survey, the

claimant only occupied one lot of land comprising of 504.7m2 at that time. He further

testified that the claimant and her family did not occupy more than one lot of land for the

past sixteen years and that the claimant only planted crops on that one lot. However, during

cross-examination the first defendant testified that when his survey was conducted, he

became aware that the claimant was occupying additional lands to the south of her property.

He further testified that the purpose of the survey was to identify encroachments along the

eastern boundary of the claimant’s property and that is why at the bottom of his survey the

following is stated;

“Encroachment by P. Henry- 39.1m2

Encroachment by J. Charles – 2.8m2

Encroachment by Julien Miller – 504.7m2”

23. The first defendant testified that in 2012, the claimant caused a tractor to enter unto the

disputed land and began clearing same. The disputed land according to the defendants is

located to the south of the one lot of land occupied by the claimant. Consequently, by letter

dated the 2nd November, 2012, the defendants’ then attorney at law, Mr. Jack demanded

that the claimant do stop her trespass on the disputed land. By this letter, the defendants

also offered to sell to the claimant the one lot of land she was occupying. During cross-

examination, the first defendant accepted that this letter did not state that prior to the

claimant’s trespass on the disputed land, either he or Yvonne was in possession of same.

Further, during cross-examination the first defendant accepted that prior to this claim he

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did not make mention of Yvonne’s occupation and possession of the one acre parcel of

land.

24. Subsequent to their survey, the defendants placed iron fence posts in concrete bases on the

southern boundary line of the lot of land possessed and occupied by the claimant in an

attempt to fence their land. The first defendant testified that during the fencing process, he

and the second defendant were subjected to objections and harassment from the claimant,

Julien and a third party. He further testified that due to the behaviour of the claimant and

her family, the second defendant obtained the services of two officers from the Gasparillo

Police Station for two days to continue the fencing work. The first defendant testified that

even with the police present, the claimant, Julien and the female third party continued to

harass the workers present.

25. Thereafter, the second defendant initiated proceedings in the San Fernando Magistrate’s

Court against the claimant and Julien to prevent them from further trespassing on the land.

The first defendant testified that this action was withdrawn because the Magistrate’s Court

did not have the powers to deal with the issues arising.

26. Subsequently, the claimant brought the present claim against the defendants. The first

defendant testified that the second defendant has developed the one acre parcel of land by

filling areas with hundreds of truckloads of dirt and by putting up dry walls. He further

testified that the second defendant currently uses the disputed land to store sand, gravel,

building materials and his equipment.

27. During cross-examination, the first defendant was referred to letter dated the 1st July, 2014.

This letter which was sent to the claimant’s attorney at law by the defendants’ attorney at

law referred to the 1914 and the 1969 deeds. The first defendant accepted that in this letter,

his claim to the ownership of the one acre parcel of land was premised on the two deeds.

28. The second defendant, a proprietor, currently resides at Mary Street, Gasparillo and not

on the disputed land. Most of the second defendant’s evidence was the same as the evidence

given by the first defendant and as such there is no need to repeat it. During cross-

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examination, the second defendant also admitted that there is no deed in his name for the

one acre parcel of land.

29. The second defendant testified that Yvonne permitted Winston to occupy one lot of the one

acre parcel of land. That Winston constructed a house thereon and resided there with the

claimant and his children until he died in 2000. The second defendant further testified that

the claimant and Julien currently reside in the house constructed by Winston.

30. The second defendant described the location of the lots of land that Yvonne gave

permission to Henry, Barnett and Chattergoon to utilize as follows;

i. The lot of land utilized by Henry was located immediately behind his land on his

western boundary;

ii. The lot of land utilized by Barnett was located immediately to the north of the land

used by Henry; and

iii. The lot of land used by Chattergoon was immediately north of the land used by

Barnett and bordered the lot of land now occupied by the claimant.

31. The second defendant testified that the claimant did not serve any notice on him or the first

defendant prior to undertaking the survey she did on lot 181b in 2012. According to the

second defendant, the first defendant and he served a notice on the claimant prior to conduct

of their survey.

32. The second defendant testified that he has always assisted in the planting and maintaining

of the disputed land and treats same as his own.

33. During cross-examination, the second defendant denied trespassing on the claimant’s land

in 2007. However, he admitted that he took a tractor to the western side of the claimant’s

house and that he destroyed trees which the claimant had planted on the western side of

her house. The second defendant denied telling the claimant that he intended to clear up

the land and to build a road through 181b.

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34. During cross-examination, the second defendant was shown the claimant’s survey plan of

181b which was done by land surveyor, Sasha Addo. The second defendant denied that the

claimant planted crops on the entirety of the parcel of land to the west of her shed shown

on the plan. He testified that there were fruits trees planted to the west of her house near

her shed. He further testified that there is a mango tree about ten to fifteen feet away from

the claimant’s southern boundary line.

The case for the claimant

35. The claimant gave evidence for herself and called one other witness, Glenna Bethelmy.

36. The claimant, a housewife shared a common law relationship with Winston Miller

(“Winston”) who died on the 4th July, 2000. The claimant and Winston have four children,

Rhona Charles (“Rhona”), Lesliean Charles (“Lesliean”), Ina Miller (“Ina”) and Julien

Miller (“Julien”) who were born on the 5th May, 1977, the 17th April, 1978, the 18th April,

1981 and the 14th June, 1982 respectively.

37. According to the claimant, sometime in 1977 she began living with Winston at his mother,

Adina Miller’s (“Adina”) house located at 181A Caratal Road, Gasparillo (“Adina’s

house”). Adina’s house is located to the east of 181B Caratal Road, Gasparillo (“181b”).

The claimant testified that prior to 1977, Adina used 181b as her land and planted various

crops on same straight down to a river located on the land.

38. The claimant testified that while living at Adina’s house, she never saw anyone enter 181b

without Adina’s permission. Sometime in 1979 or 1980, in the claimant’s presence a man

by the name of Gibson asked Adina for her permission to plant on a portion of 181b. The

claimant testified that Adina gave Gibson permission to use part 181b and that Gibson built

a fence to mark the portion of 181b which he took possession and control of. Gibson was

therefore in possession of the land between the fence and the river. According to the

claimant, the fence which is partly broken down now is the western boundary of her land.

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39. During cross-examination, the claimant testified that on 181a there were two apartments.

That Adina lived in the front apartment and Chattergoon lived in the back apartment. She

further testified during cross-examination that in 1980 Chattergoon took possession of a

piece of land located to the east of 181b and began cultivating crops such as cassava and

dasheen on same. According to the claimant, Gibson planted behind Chattergoon which is

as the court understands to the west of Chattergoon.

40. Moreover, during cross-examination the claimant testified that she also knew that Barnett

began planting a piece of land to the south of the land used by Chattergoon. She further

testified during cross-examination that Henry planted to the back of his house which was

to the south of the land planted by Barnett.

41. According to the claimant, sometime in 1983, Winston and she informed Adina that they

wanted to move out of her house as they wanted to have a home of their own. The claimant

testified that Adina told Winston and her to build their home on 181b as no one was living

there. She further testified that Adina told her that she believed that 181b was state lands

and that she (Adina) used the land without the permission of anyone.

42. In 1983, Winston and the claimant built a wooden house for their family. At that time, the

house consisted of an upstairs apartment on wooden posts. In her witness statement, the

claimant testified that since 1983, she has planted various fruit trees which included corn,

peas, plum, guava, mangoes, lemon, lime, cherries, green fig, silk fig, pommerac,

sugarcane, pommcythere and pumpkin on 181b. However, during cross-examination she

testified that she did not plant anything on the disputed land. According to the claimant,

she and her family have enjoyed the harvest from those fruit trees over the years. The

claimant would sometimes share the fruits with her neighbours.

43. On the 15th October, 1984 the claimant’s house was inspected and on the 9th January, 1985

Winston obtained approval for an electricity connection for their house. In 1985, whilst

living at 181b the claimant registered to vote. Also in 1985, the claimant and Winston

converted most of their house from wood to concrete. They built a concrete gallery, steps

and added two bedrooms to the upper portion of the house.

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44. According to the claimant, in 2003 she added a concrete toilet, bathroom and kitchen to

her house. In 2006, she obtained a cable and internet connection. In 2009, Leslien on behalf

of the claimant hired a contractor, Shirlan Soogrim (“Soogrim”) to convert the entire house

into concrete and to convert the ground floor of the house into two self-contained

apartments.

45. Currently, Julien, his wife and their two children live in one of the self-contained

apartments located at the ground floor of the house and Rhona and her children live with

the claimant at the upper portion of the house. The claimant testified that her other children

visit regularly and would sometimes stay overnight.

46. According to the claimant, in 2007, the second defendant for the first time alleged that he

was the owner of 181b. The claimant further testified that sometime in 2007, the second

defendant brought a tractor onto 181b which destroyed most of her crops. The tractor was

parked right next to the claimant’s tank stand which is located to the west of her house.

47. It was the testimony of the claimant that when she heard the tractor, she looked out and

asked the second defendant what he was doing. She testified that the second defendant

stated that he intended to clear up the land and build a road through 181b to connect 181b

to Syls Avenue. She further testified that the second defendant claimed that she and her

family were encroaching on land which belonged to him. The claimant asked the second

defendant if he had any proof of such an allegation. She testified that the second defendant

failed to produce any documents showing he had title to 181b and further did not produce

any court order which allowed him to destroy her crops. Lesliean who was home at the

time called the Gasparillo Police Station but the second defendant left before the police

arrived.

48. According to the claimant, about two weeks later, whilst she and her family were having a

get together at her house, the second defendant accompanied by two police officers and

workers entered upon 181b. She heard the second defendant telling the workers to put down

posts by the steps of her house. The claimant and her family members all went outside to

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stop the second defendant. The second defendant informed her that he was going to erect

a fence on the land. In response, the claimant and her family began quarreling with the

second defendant and the claimant told the second defendant to stop the work.

49. The claimant testified that upon hearing the commotion, the police officers in her presence

asked the second defendant to show the claimant and her family his deed for the land so he

could continue with his work. According to the claimant, the second defendant did not have

any deed to produce and so the police officers indicated that he should stop the work he

was doing and remove all his equipment. The claimant testified that the second defendant

and his workers complied with the police officers’ indication.

50. In November, 2012 the claimant received a letter dated the 2nd November, 2012 from the

defendant’s then attorney at law, Mr. Steadson Jack. By this letter, Mr. Jack on behalf of

the defendants demanded that the claimant cease trespassing on the portion of land

adjoining her one lot of land (the disputed land). The letter also stated that the defendants

were willing to sell to the claimant the lot of land which she was occupying.

51. During cross-examination, the claimant denied that in 2012 she encroached upon land

belonging to the defendants and therefore increased the amount of land she was initially

occupying in 1983. She further denied that in 2012 she hired a tractor to clear lands

belonging to the defendants. She testified that prior to 2012 she did a survey on 181b but

this survey was not provided to the court.

52. On the 13th June, 2013 the claimant and Julien were each served with a court summons of

even date by an officer from the Gasparillo Police Station on behalf of the second

defendant. The court summons demanded the appearance of the claimant and Julien before

the San Fernando Magistrate Court for unlawfully trespassing upon the second defendant’s

land. The claimant testified that on the 23rd October, 2015 the Magistrate dismissed the

matter after being called several times.

53. Sometime in October, 2013 Julien on behalf of the claimant hired Sasha Addo (“Addo”),

a land surveyor to conduct a survey on 181b. On the day Addo visited 181b to conduct the

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survey, Julien and the claimant walked the land with him and the claimant identified the

boundaries of 181b to him. The claimant testified that the boundaries which she identified

to Addo were based upon where she occupied since 1983. Addo prepared a survey plan

dated the 24th October, 2013 to reflect the boundaries of 181b. The claimant testified that

she has reviewed the plan and that it accurately shows the boundaries of parcel of land she

has been in occupation of since 1983. During cross-examination, the claimant testified that

prior to conducting her survey on 181b, she served notices on persons who may have been

affected by her survey. However, the court was not provided with any such notice.

54. The claimant described the lands she occupied at 181b and its environs as follows;

i. To the west of her house, she has a tank stand with five tanks and a shed. The

claimant testified that behind the shed (which is also to the west) was where she

planted all her plants. She testified that she planted crops straight down to the partly

broken down chain link fence which Gibson had erected.

ii. The claimant’s sisters-in-law, Evelina and Angelina Miller now live at 181a which

was formerly occupied by Adina. According to the claimant, 181a is located to the

east of her house and the Gasparillo Caratal Road is located to the east of 181a. The

claimant testified that between Evelina and Angelina’s house and her house there

is a septic tank and a small empty portion of land which they use as a path way and

where the young child sometimes play.

iii. To the north of Evelina and Angelina’s house there is an empty portion of land.

On the east of the empty portion is the Gasparillo Caratal Road, and on the north of

the empty portion is Syls Avenue. The claimant testified that Syls Avenue is really

Sylvester Avenue but the street sign states “Syls Avenue”. To the west of the empty

portion of the land there is a paved walkway that leads from Syls Avenue to the

claimant’s house. This walkway was paved in or around February, 2015 by the

Tabaquite/Talparo Regional Corporation.

iv. To the west of the walkway, there is a portion of land known as #8 Sylvester

Avenue which is owned by Julien. The claimant testified that Julien’s land is on the

northern boundary of her land. To the north of Julien’s land is Syls Avenue and to

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the west there is a chain link fence which separates Julien’s land from land owned

by a Mr. Corbett.

v. To the left of the claimant’s house which is due south, there is a portion of land (the

disputed land). The claimant testified that she has maintained this portion of land

since 1983 by cutting the grass on same approximately once a month. The claimant

would usually instruct Julien and Ina to cut the grass from the south of her house to

the southern boundary of her land. The claimant testified that the south-eastern

boundary of her land is enclosed by a partly broken down fence. She further

testified that along the southern boundary of her land, there is a mango tree that has

been there since the time she occupied the land.

55. As mentioned before, the defendants also conducted a survey. The claimant disputes the

accuracy of the defendants’ survey plan. According to the claimant, there are three errors

on the defendants’ survey plan which are as follows;

i. The portion of land depicted as her residence is actually an empty portion of land;

ii. The area marked as “formerly Albertina Carrington” is Julien’s land where he is

currently building his house; and

iii. The portion of land stated in the plan as occupied by Julien Miller and Janet Charles

is where the claimant’s house is located.

56. During cross-examination, the claimant testified that she did receive the notice of the

defendants’ intention to survey the land.

57. By a pre-action protocol letter dated the 21st May, 2014 the claimant’s attorney at law wrote

to the defendants giving them notice of the claimant’s intended claim. By this letter, the

defendants were also informed that claimant has been in continuous, exclusive and

undisturbed possession of 181b from 1983 and that her claim was that as a result of her

possession the legal rights of the registered owner of 181b have been extinguished.

58. By letter dated the 1st July, 2014 the defendants’ attorney at law responded to the claimant’s

above mentioned letter. Based upon the contents of this letter, the claimant’s attorney at

law instructed Mr. Kowlessar Rampersad (“Rampersad”) to execute a deed search on the

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property situated at 181b to determine the registered title of the land. The claimant testified

that Rampersad’s search revealed that the 181b was not state lands but was in fact legally

owned by private persons.

59. By letter dated the 19th November, 2014 the claimant’s attorney at law wrote to the

defendants’ attorney at law indicating that a title search was conducted and that the search

revealed that 181b was not owned by the defendants but was owned Faustina Mitchell,

O’Farrell Williams, Ismay Williams and Laurina George.

60. During cross-examination, the claimant testified that she knew that Yvonne lived at 175

and that in 1998 the first defendant began living with Yvonne. The claimant denied seeing

the first defendant occupying the disputed land.

61. Further during cross-examination, the claimant testified that bordering her land there is a

grass called “bull grass”. She agreed that the bull grass formed a natural boundary between

her land and the defendants’ land.

62. Moreover, during cross-examination the claimant agreed that Chattergoon became ill in

2006 but denied that he died in 2008. She testified that Chattergoon died in 2011. She

further testified during cross-examination that Chattergoon stopped planting crops on the

piece of land he took possession of in 2010 and that the land has been abandoned since that

time.

63. Glenna Bethelmy (“Bethelmy”) a retired URP worker, resides at 184B Caratal Road

Gasparillo. She has lived at that address for the past thirty-six years and has known the

claimant for the past thirty-one years. Bethelmy testified that she visits the claimant’s house

at 181b which is about two minutes’ walk from her house approximately four days a week.

During cross-examination, Bethelmy testified that the claimant is her good friend. Most of

Bethelmy’s evidence was the same as the claimant’s evidence and as such there was no

need to repeat it.

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64. Bethelmy testified that the claimant has always been a respectable, honest and trustworthy

person. During the past thirty-one years, Bethelmy and the claimant’s children have played

together as family.

65. Bethelmy further testified that when she visited the claimant, the claimant would give her

fruits which she picked from the trees around her house. According to Bethelmy, the trees

around the claimant’s house belongs to the claimant.

66. Moreover, Bethelmy testified that during her visits to the claimant’s house, she has never

seen anyone except the claimant and her family use the land and take care of the crops and

fruits trees on the land.

67. During cross-examination, Bethelmy testified that she does not know the boundaries of the

land occupied by the claimant. She further testified that the mango tree which the claimant

spoke of in her evidence is about five to ten feet away from the claimant’s house.

68. For the avoidance of doubt this is the court’s understanding of the claim and counterclaim

in relation to the land is that the claimant alleges that she has been in occupation of 1144.4

metres square of land, which includes the land upon which her house is situated. The

defendants allege that the claimant only occupied 504.7 metres square of the said land but

extended her possession in 2012. The defendants have not set out the extent of the alleged

trespass committed in 2012. The defendants claim is that they have been in possession of

the 639.7 metres square being the balance between the larger parcel claimed by the

claimant and the land upon which the claimant’s house stands. The defendants no longer

rely on paper title. It is also to be noted that the defendants did not plead their own adverse

possession in their defence or counterclaim.

Issues

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69. The defendants accept that the claimant has been in occupation of the one lot of land

(comprising 504.7m2) where her house is located. As such, the issue in this case is the

portion of land comprising 639.7m2 (“the disputed land”) which the defendants’ claim the

claimant encroached upon in 2012. The issues to be determined in this case ate therefore

as follows;

i. Was the claimant in possession of the disputed land from 1983 as claimed or were

the defendants (and their predecessors) in possession of the disputed land from

1972 until disposed by the claimant in 2012 as they claim.

ii. If the claimant was in possession of the disputed land since 1983 was that

possession adverse to those entitled to possession either by way of paper title or by

possessory title.

70. In submissions the claimant sought to make an issue of whether the defendants possess

locus standi. This of course was only a relevant issue on the pleadings in relation to the

paper title claimed by the defendants but it is no longer an issue the defendants having

abandoned that aspect of their counterclaim.

Issue 1 - Was the claimant in possession of the disputed land from 1983 as claimed or were

the defendants (and their predecessors) in possession of the disputed land from

1972 until dispossessed by the claimant in 2012 as they claim.

The submissions of the claimant

71. The claimant submitted that neither of the defendants were able to provide any credible or

cogent evidence to establish that they or their predecessors in title had at any stage

personally occupied the disputed land. According to the claimant, the first defendant under

cross-examination admitted that he was born in 1965 and therefore was seven years old at

the time that Yvonne built her house on 175. The first defendant further admitted under

cross-examination that he could not answer as to whether Yvonne in 1972 exercised rights

over the land claimed by the claimant because he was only seven years old at the time. As

such, the claimant submitted that no weight should be place on his evidence as his evidence

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as to the circumstances in which Yvonne came to occupy a portion of the one acre parcel

of land and the amount of land which she occupied was hearsay and ultimately unreliable.

72. According to the claimant, the will of Yvonne dated the 21st September, 1998 is a

contemporaneous document in which Yvonne bequeathed the dwelling house to the first

defendant. The claimant submitted that it was relevant and material that she did not include

in her will any claim to an interest and/or entitlement whether by adverse possession or

otherwise to the one acre parcel of land. The claimant further submitted that it was probable

that no reference was made to the one acre parcel of land in the will because Yvonne was

not in occupation of the one acre and had no entitlement to same save and except for the

house which she erected.

73. The court does not agree with this submission as while it may be advisable that a testator

lists all his property in his will for the avoidance of doubt this is by no means a requirement,

the absence of which would as a matter of course lead a court to draw an inference that the

omission means that the particular property is not included in the estate. Further, having

regard to the facts of this case no such inference can be properly drawn. To do so would be

to speculate.

74. According to the claimant, the photographs adduced and relied upon by the defendants only

showed the outside of the dwelling house constructed by Yvonne. The claimant submitted

that the photographs do not show any other portion of the one acre parcel which the

defendants claimed to have occupied, nor do they show the land claimed by the claimant.

75. The claimant submitted that the first defendant admitted under cross-examination that it

was only when the survey was done by Eversley, he became aware that the claimant was

occupying additional lands. The claimant further submitted that the first defendant

therefore supported her claim that she was in possession of the disputed land before that

time but that the defendants only became aware of same after the lands were surveyed.

Moreover, the claimant submitted that the first defendant’s evidence also undermined the

defendants’ assertion that she only started to trespass on additional lands in 2012. The

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claimant therefore submitted that the survey plan of Eversley does not accurately reflect

the lands which she was occupying at that time.

76. According to the claimant, it was also clear from the Defence and the contemporaneous

documentary evidence provided by the defendants that she was not the only person

occupying portions of the one acre parcel of land. As such, the claimant submitted that her

testimony that she was in possession of her house spot and the disputed land (which is the

adjoining parcel to the south of her lot) was consistent with the general pattern of

occupation of the one acre parcel of land over the years by third parties.

The submissions of the defendants

77. The defendants submitted that they did provide evidence that Yvonne took possession and

control of the one acre parcel of land. According to the defendants, by her application for

planning permission dated the 4th October, 1972, Yvonne stated that she was the owner of

the one acre parcel of land and further stated the boundaries of the one acre which was the

same as the boundaries described in the 1969 deed. The defendants submitted that since

that application form is over thirty years and was a governmental document, it should enjoy

the status of being an ancient document, and be admissible as an exception to the hearsay

rule. According to the defendants, an ancient document is one that may be deemed

authentic without a witness to attest to the circumstances of its creation because it suggests

that it is unlikely to have been falsified in anticipation of the litigation in which it was

introduced.

78. According to the defendants, the disputed land was occupied by Chattergoon until he died

in 2008. The defendants submitted that during cross-examination the claimant agreed that

Chattergoon occupied the land located to the immediate south of her land. As such, the

defendants submitted that logic and common sense would dictate that the claimant could

not have been in occupation of the disputed land since 1983 since she could have only

occupied same after the death of Chattergoon.

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79. The defendants submitted that in 2012, the claimant attempted to expand the land she was

occupying by encroaching upon the disputed land which was formerly occupied by

Chattergoon. The defendants further submitted that they immediately reacted to the

claimant’s trespass on the disputed land as seen by letter dated the 2nd November, 2012.

80. The defendants submitted that after they conducted their survey on the land, the claimant

conducted her survey on 181b in secret. According to the defendants, the claimant did not

give them notice that she was going to conduct her survey notwithstanding the fact that her

land is bounded by lands owned by them. The defendants submitted that to ignore the best

practice of conducting a survey by not giving notice renders a survey plan flawed. The

defendants further submitted that the claimant’s survey is classified as a draft and therefore

no weight should be attached to it.

81. Moreover, the defendants submitted that since the claimant was given notice of their survey

prior to same being conducted, she cannot now claim that their survey is inaccurate since

she was offered the right to be present and to be heard and interviewed during the surveying

process. Therefore, the defendants submitted that the true boundaries of the land occupied

by the claimant since 1983 is as reflected in the survey plan prepared by Eversley.

The claimant’s submissions in reply

82. The claimant submitted that the application for planning permission of Yvonne should be

given minimal or no weight for two reasons; 1) it is a hearsay document and 2) Yvonne

has died and it was therefore not possible to cross-examine her as to the reasons why she

stated that she was the owner of the one acre parcel of land. According to the claimant, any

inference to be drawn from that statement would be purely speculative particularly in light

of the fact that Yvonne did not state that she was the owner or that she had possessory title

of the one acre in her will or expressly purport to bequeath the land to anyone.

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83. The claimant submitted that in any event, assuming, but not admitting, that such evidence

was relevant, it did not fill the evidential gap in this case namely that there was no credible

evidence to show that Yvonne physically occupied the one acre parcel of land either

continuously for more than sixteen years or that any such alleged occupation was adverse

to the rights of the legal owners. Furthermore, the claimant submitted that no evidence was

led to show that Yvonne planted crops or maintained the lands claimed by her (the

claimant).

84. According to the claimant, the defendants have inaccurately submitted that the evidence

shows that Chattergoon was occupying the parcel of land south of her dwelling house (the

disputed land) which she claimed to have been occupying since 1983. The claimant

submitted that under cross-examination she expressly denied that Chattergoon occupied

the parcel of land south of the lands she occupied. The claimant further submitted that she

identified that Chattergoon in fact occupied lands located to the east of her lands.

Moreover, the claimant submitted that her evidence in this regard was consistent with the

location of the land that Chattergoon was shown to be occupying in the defendants’ survey

plan. According to the claimant, her responses as to the locations of the lands occupied by

Barnett and Henry were also consistent with the parcels shown to be occupied by them in

the defendants’ survey plan.

85. The claimant submitted that her survey plan prepared by Addo was done for the sole

purpose of illustrating the area of land which she has been occupying since 1983.

According to the claimant, having regard to the purpose of the survey plan of Addo it was

therefore irrelevant as to whether or not the survey plan stated draft.

Findings

86. It is clear to this court that Yvonne went into occupation of the one acre parcel of land in

1972. This is supported by her application for planning permission dated the 4th October,

1972 and further supported by the admission of the claimant that Yvonne lived at 175.

Further, the court finds that the character of Yvonne’s occupation of the one acre parcel of

land, namely whether it was adverse or with permission of the paper title owner is not an

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issue in this case. It is to be noted that the defendants have not pleaded their own adverse

possession in this case.

87. The issue however is whether subsequent to 1972, Yvonne and/or the defendants were in

possession and occupation of the entirety of the one acre parcel of land which includes the

disputed land.

88. The defendants’ evidence as to the occupation and possession of the one acre parcel of land

(which includes the disputed land) is that subsequent to Yvonne building her house at 175

in 1973, she permitted Winston (the claimant’s common law husband), Henry, Barnett and

Chattergoon to each occupy one lot of the one acre parcel of land. In 2006, the defendants

asked Henry, Barnett and Chattergoon to desist from any further use of the lots of land and

in 2007 the defendants brought a tractor onto 181b. According to the defendants,

subsequent to conducting their survey of the one acre parcel of land in 2011, they attempted

to put down fence posts on the southern boundary of the claimant’s land.

89. Consequently, there is no evidence before this court whatsoever of any acts done by the

defendants which could lead the court to find that they were in occupation and control of

the one acre parcel of land between 1973 and 2007 and thereby possessed it. A reasonable

conclusion that can be drawn from the paucity of the defendants’ evidence is that between

1973 and 2006, Yvonne and/or the defendants paid little or no attention to the one acre

parcel of land and therefore did not attempt to occupy or control the disputed land until

they brought a tractor thereon in 2007 and then tried to install fence posts in 2011. In that

regard there are two wide gaps in the evidence of the defendant.

90. According to the evidence of the defendants, the lots occupied by Henry, Barnett and

Chattergoon were used for agricultural purposes. Those lots were re-possessed by the

defendants. The court notes however that the claimant and Winston built their house on the

lot which Yvonne allegedly permitted them to use. The defendants have agreed to give the

claimant that lot of land where her house is located. The court is left to ask a common sense

question, namely, why would Yvonne permit some persons only to use the land in a

temporary manner but yet permit the claimant and her family to use the land in a more

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permanent manner. The answer is simple, it must be that Yvonne was not the one who

permitted Winston and the claimant to occupy any portion of the one acre parcel of land

and the court so finds. The court therefore accepts the claimant’s evidence that it was in

fact her mother-in-law Adina who told Winston and her to build their house on 181b in the

year 1983.

91. During cross-examination, the first defendant admitted that it was only when the survey

was done by Eversley, that he first became aware that the claimant was occupying

additional lands. The court agrees with the submission of the claimant that this admission

by the first defendant supported her claim that she was in possession of the disputed land

before the survey was conducted. The court further agrees that that admission undermined

the defendants’ claim that the claimant only began trespassing on the disputed land in 2012.

92. It must be noted that the court does not agree with the submission of the defendants that

during cross-examination the claimant agreed that Chattergoon occupied the disputed land

which is located to the immediate south of the claimant. During cross-examination, the

claimant testified that in 1980, Chattergoon took possession of a piece of land located to

the east of her land and began cultivating crops such as cassava and dasheen on same. This

evidence is consistent with the position of the properties articulated by all parties.

93. The defendants have submitted that Chattergoon occupied the disputed land until his death

in 2008 and so logic would dictate that the claimant could not have been in occupation of

same since 1983. The second defendant in his witness statement testified that the land used

by Chattergoon bordered the lot of land now possessed by the claimant. As submitted by

the claimant, the defendants’ survey plan depicts that the land occupied by Chattergoon

was to the east of the land occupied by the claimant. The court therefore finds that

Chattergoon was not in occupation of the disputed land.

94. Consequently, the court finds that the evidence of the claimant is more reliable and

certainly more accurate than the evidence of the defendants. As such, the court finds that

the claimant has been in occupation of the disputed land since 1983.

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Issue 2 - If the claimant was in possession of the disputed land since 1983, was that possession

adverse to those entitled to possession either by way of paper title or by possessory title

Law

95. 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 as follows;

“…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.”

96. 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) in our jurisdiction. At

paragraph 57 of the judgment Rampersad J in giving his decision, opined that the decision

in Ocean Estates was a turning point with respect to the issue of proof of title in actions for

possession moving from a requirement for absolute title to one of relative title instead, his

Lordship stated as follows;

“57. It is this court's respectful view that the decision of the Privy Council in Ocean Estates

was a major turning point in respect of this issue of the proof of title in actions for

possession in our jurisdiction – moving from a requirement for absolute title to one of

relative title instead. This court finds it rather difficult to understand the correlation

between an action for possession and the imposition of the proof of title required under the

Conveyancing and Law of Property Act (formerly Ordinance). In fact, the Privy Council

confirmed this quite clearly when Lord Diplock said: In their Lordships' view the 17

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question of what documentary title a vendor is entitled to insist on forcing upon a purchaser

has no relevance to the present action.”

97. The claimant is claiming that she has adversely possessed 181b which includes the disputed

land since 1983. In relation to the principle of adverse possession, Section 3 of the Real

Property Limitation Act Chapter 56:03 provides as follows;

“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 14 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.”

98. Further, Section 22 of the Real Property Limitation Act provides as follows;

“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.”

99. 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 supra, 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.”: See JA Pye supra, Lord Browne-

Wilkinson, paragraph 43.

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Findings

100. The court must be satisfied that the nature of the claimant’s occupation of the

disputed land is that which leads to the inference that she was in factual possession of the

land with an intention to occupy same to the exclusion of all others and thereby be in

possession which is adverse to those entitled to possession either by way of paper title or

by possessory title.

101. The claimant testified that she maintained the disputed land by cutting the grass on

same once per month. During cross-examination, the claimant testified that she did not

cultivate any crops on the disputed land.

102. The claimant submitted that in the following legal authorities, it was held that the

act of cutting grass was sufficient evidence of factual possession;

i. In Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94,

one of the acts of the squatter held to constitute actual possession was cutting the

disputed land for hay and silage and later cutting the grass.

ii. In Cadija Umma v S Don Manis Appu [1939] AC 136, the cutting and selling of

grass was held to be an act of possession.

iii. In Trustees of Michael Batt Charitable Trust v Adams (2001) 82 P & CR 406, it

was held that taking two cuts of hay per year from pasture land, which was divided

from the true owner’s adjoining land by a fence constituted possession.

103. The defendants submitted that all of the above mentioned authorities can be

distinguished from this case since in those cases there was some contextual purpose for the

cutting of the grass. Therefore, the defendants submitted that if the claimant did cut the

grass on the disputed land, same would not have been sufficient in the circumstances of

this case to prove factual possession. The court agrees with this submission of the

defendants.

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104. In The Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at page 288, Lord

O'Hagan stated the following in relation to the type of acts of use and enjoyment which

will amount to possession;

“As to possession, it must be considered in every case with reference to the peculiar

circumstances. The acts, implying possession in one case, may be wholly inadequate to

prove it in another. The character and value of the property, the suitable and natural mode

of using it, the course of conduct which the proprietor might reasonably be expected to

follow with a due regard to his own interests - all these things, greatly varying as they

must, under various conditions, are to be taken into account in determining the sufficiency

of a possession.”

105. The court finds that the claimant’s evidence does not establish that in the period

from 1983 to 2007 her use of the disputed land constituted possession. The claimant’s use

of the disputed land was akin to keeping and/or maintaining the surroundings of her house

considering the residential nature of the property and the fact that it does not appear that

she enclosed it or at the least placed markers at the boundaries so that a clear indication

could be given to the world at large that she was the occupier of those lands to the exclusion

of all others. In the context of the circumstances of this case, such evidence may have gone

a long way in assisting the claim. The evidence in this case suggests that the claimant did

not have the necessary animus possidendi to justify an inference that her possession was

adverse.

106. Consequently, the court finds that the claimant’s occupation of the disputed land

does not amount to adverse possession. Further, the defendants have not proven any

entitlement to the disputed land. They have not pleaded or proven adverse possession or

proven possession simpliciter. Their case was not predicated on a paper title and indeed

they do not possess one. Neither of them are Legal Personal Representatives of the estate

of Clement nor of Faustina Mitchell. Further they have not pursued the claim in court or in

submissions on the basis of paper title or beneficial title. The counterclaim will therefore

be dismissed.

https://www.lexisnexis.com/uk/legal/search/enhRunRemoteLink.do?A=0.8208883496707735&service=citation&langcountry=GB&backKey=20_T27051117329&linkInfo=F%23GB%23APPCAS%23vol%255%25sel1%251880%25page%25273%25year%251880%25tpage%25288%25sel2%255%25&ersKey=23_T27051110279

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107. Finally, it is to be noted in relation to the issue of costs that the claimant is legally

aided.

Disposition

108. The judgment of the court is therefore as follows;

i. It is declared that the claimant is the owner and entitled to possession of that piece

and parcel of land situate at 181B Caratal Road, Gasparillo, comprising of 504.7

square metres (“the subject land”);

ii. The defendants, their servants and/or agents are restrained from entering and/or

trespassing upon the subject land;

iii. The defendants, their servants and/or agents are restrained from interfering with the

claimant’s quiet use and enjoyment of the subject land;

iv. The counterclaim is dismissed.

v. Each party shall bear his own costs.

Dated the 23rd January, 2018

Ricky Rahim

Judge

Download - REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/LibraryJud/Judgments/HC/rahim/...Page 6 of 29 17. According to the first defendant, Yvonne permitted Mr. Patrick Henry (“Henry”),

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