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IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015-01406

BETWEEN

PANCHAM BHIMLAL

SATROHAN BHIMLAL

DHANRAJ BHIMLAL

LATCHMAN BHIMLAL

ROHAN BHIMLAL

Claimants

AND

BISNATH ARJOON

Defendant

Before The Honourable Madame Justice Margaret Y Mohammed

Dated the 25th July 2016

Appearances:

Mr. Bindra Dolsingh and Ms. Tamara Dolsingh instructed by Mr. Chris Seelochan Attorneys-at-

Law for the Claimants.

Mr. Edwin K. Roopnarine Attorney-at-Law for the Defendant.

JUDGMENT

1. The Claimants instituted the instant action seeking: a declaration that they are entitled to

possession of a portion of land comprising five thousand square feet and bounded on the

North, South and West of lands of the Claimants and on the East by a house of one

Suckchan Arjoon ( “the said lot”) which is part of a larger parcel of land situated at St.

Julien’s Village, Princes Town and more particularly described in Certificate of Title

Volume 3845 Folio 401 (“the said Certificate of title”) comprising Two Acres Three Roods

and Eighteen Perches (“the said lands”). They also seek an injunction restraining the

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Defendant from entering, remaining upon or interfering with the said lands; an injunction

restraining the Defendant from building, continuing to build or erecting any building or

structure whatsoever upon the said lands; a mandatory injunction compelling the

Defendant to demolish and remove the said illegal construction; possession of said lands;

damages for trespass; interest and costs. The Claimants based their claim on three grounds

namely their legal title; acts of possession by them and their predecessors and adverse

possession. During the trial Counsel for the Claimants made it clear that they were only

seeking to recover possession for the said lot which is where the Defendant was

constructing his house.

2. The Claimants pleaded that they are the legal owners of a two thirds undivided interest in

the said lands and the other one third undivided interest is owned by one Sawak who was

the uncle of the Claimants father. In support of the assertion of ownership the Claimants

annexed the said Certificate of Title and a draft survey plan (“the draft survey plan”).

3. According to the Claimants while they were growing up they visited the said lands and

they observed a small wooden house which was owned and occupied by one Toon Arjoon

(“Toon’s house”), the father of the Defendant and one Suckchan Arjoon. According to the

Claimants Toon Arjoon occupied one lot of the said lands and Suckchan Arjoon also

occupies a small house on the same lot (“Suckchan’s house”). After Sawak passed away

the Defendant continued to live in Toon’s house. Toon Arjoon and later the Defendant

purportedly paid rent to one Doodooman. In December 2010 the Defendant served a

Notice of Renewal of a Statutory Lease on Doodooman (“the renewal notice”). However

their position is that the said lot is not covered by the Land Tenants (Security of Tenure)

Act1 (“the Act”) since it was purportedly rented for agricultural purposes and therefore the

notice had no effect.

4. The Claimants also asserted that they and their predecessors have exercised acts of

ownership over all of the said lands since the 1960s. According to the Claimants although

they were born in Gasparillo their father had grown up on the said lands. Their

grandmother, Rajwantie (“Rajwantie”) lived in a small cocoa house on the said lands and

1 Chapter 59:54

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she planted ginger, saffron, petite tambo, cassava, peas, ocra, bodi and lettuce on the said

lands. In 1989 Rajwantie permitted the First Claimant to construct a two story concrete

house in the middle of the said lands. During this time, due to old age, Rajwantie could not

continue with her farming of the said lands therefore the Fourth Claimant took over the

planting of the said lands. In 1993 the Claimants permitted the Third Claimant to construct

a wooden house on stilts on a portion of the said lands which was thirty feet to the west of

the First Claimant’s house. The Third Claimant then began assisting the Fourth Claimant in

the planting of the said lands and the First Claimant also assisted occasionally. In 2005 the

Fifth Claimant was permitted by all the Claimants to construct a flat concrete structure

with a decking on a portion of the said lands which was forty feet west of the Third

Claimant’s house.

5. The Claimants pleaded that they regularly picked mangoes from a mango tree which was

planted by Rajwantie at the rear of Suckchan’s house. They also picked fruits from fruit

trees, cut bamboo from bamboo patches and cut sohari leaves (for their poojas) from the

portion of the said lands which were south of Toon’s house and Suckchan’s house even

before they came to live on the said lands. The First Claimant also picked “ crab eye”

plants to feed his birds three times weekly from various spots on the said lands and that the

Fourth Defendant used to set traps for agouti and other animals before the temporary

hunting ban a few years ago.

6. In 2010 the Princes Town Regional Corporation constructed a drain to the west of

Suckhan’s house and the First Claimant built a retaining wall to the east of his house to

protect it from slippage. In 2010, Toon’s house which was occupied by the Defendant

collapsed causing the Defendant to vacate it. In 2011 the Claimants caused the draft survey

plan to be done for the purpose of showing the dimensions of the said lands and the

structures on it.

7. The Defendant returned in January 2014 and cleared a portion of the said lands but he

ceased after they sent him a letter from their then attorney at law calling upon him to cease

such actions. The Defendant then moved into Suckchan’s house and in January 2015 the

Defendant again began constructing a foundation 15 feet west of Suckchan’s house. The

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Claimants were of the view that the Defendant had trespassed on the said lands since he

entered without their permission and cut down trees and cleared off a portion of it.

8. Based on the aforesaid facts the Claimants also asserted an alternative claim in adverse

possession.

9. The Defendant Defence was based on the following grounds: (a) the Claimants have failed

to establish that they own the said lands; (b) he is a statutory yearly tenant of one acre of

the said lands (“the one acre parcel”); and (c) alternatively his family has been living in

continuous undisturbed possession of the one acre parcel of the said lands for over 50 years

since 1962.

10. The Defendant averred that the Claimants did not partition their two thirds undivided

interest in the said lands therefore they cannot claim that they own a specific portion of the

said lands. He also contended that the draft survey plan is of no assistance and value since

it was never approved by the Director of Surveys. His position was that the said Certificate

of Title which the Claimants relied on to prove their ownership of their two thirds

undivided interest in the said lands was defective since there is no plan attached to it and

the description of the said lands in the said Certificate of Title was not indicative of the

lands which the parties occupy at present. Further the Claimants cannot obtain the relief

for possession of the said lands since all interested persons were not parties to the present

matter, since Sawak’s estate, or the Defendant’s brother Suckchan and his son who also

reside on the said lands were not made parties to the action.

11. The Defendant also pleaded that in 1962 his father Toon Arjoon began renting a one acre

parcel of the said lands from Sawak who was the owner of one third undivided interest in

the said lands. In 1962, Toon Arjoon built Toon’s house and in 1972 Toon Arjoon built

Suckchan’s house. The Defendant resided in Toon’s house until it collapsed in December

2010 and he was rebuilding a new house close to where Toon’s house was located. After

Toon’s house collapsed he moved into Suckchan’s house. As such, he never vacated the

one acre parcel of land which his Toon Arjoon rented from Sawak but he merely began to

mobilize resources to construct his own home.

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12. The Defendant asserted that Doodooman Sankar also called Doodooman Sawak is the

lawful son of Sawak Lall, and that Doodooman continued to accept rent for the one acre

parcel from Toon Arjoon, Somai Arjoon (Toon Arjoon’s wife), the Defendant and

Suckchan after Sawak’s death. On the 18th December 2010 the Defendant served a notice

of renewal of a statutory lease on Doodooman for a further period of 30 years. He therefore

claims that he does not need the permission of the Claimants to continue construction as he

never accepted them as his landlords.

13. Alternatively, the Defendant pleaded a claim for adverse possession of the one acre parcel

of the said lands since his family has been living in continuous undisturbed possession for

over 50 years, since 1962. He claims that in addition to the occupation of Toon’s house and

Suckchan’s house his family used the surrounding lands to grow a kitchen garden, fruit

trees and short term crops and that neither Rajwantie nor the Claimants were in occupation

of the one acre parcel of the said lands.

14. The Defendant asked the Court to dismiss the claim and to award damages for his

inconvenience in restraining him from building/erecting a building/structure on the said

lands, and non-use of the said lands in the sum of $50,000.00; costs for injunctive

proceedings (to be assessed); costs for the High Court Action on the value of the claim as

$400,000.00 for the value of the said lands and house.

15. To the Claimants credit they acknowledged the Defendant’s objection to the draft survey

plan and the Court ruled at the pre-trial review stage that they could not rely on it to prove

their case.

16. The issues to be determined at the trial were:

(a) Did the Claimants establish that they owned the said lands?

(b) Was the Defendant in possession of the one acre parcel of the said lands as a

statutory tenant?

(c) Alternatively, was the Defendant in continuous undisturbed possession of the one

acre of the said lands for more than 16 years?

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(d) If the Defendant was lawfully in possession of the one acre parcel of the said lands is

he entitled to damages?

17. At the trial all the Claimants gave evidence on their behalf. The Defendant did not give

evidence but he only called one witness Ms Parbatee Doodooman on his behalf.

18. In The Attorney General of Trinidad and Tobago v Anino Garcia2 the Court of

Appeal stated that the initial onus of proof is on the Claimant to prove his version of the

events as pleaded in the Statement of Case and his deviation from the pleaded case

immediately calls his credibility into question.

19. In this matter there were questions of facts to be decided from conflicting evidence. In

determining the version of the events which is more likely to be accepted in light of the

evidence the Court is obliged to check the impression of the evidence of the witnesses

against the: (1) contemporaneous documents; (2) the pleaded case: and (3) the inherent

probability or improbability of the rival contentions. (Horace Reid v Dowling Charles

and Percival Bain3 cited by Rajnauth–Lee J (as she then was) in Mc Claren v Daniel

Dickey4).

Did the Claimants establish that they owned the said lands?

20. The onus was on the Claimants to prove that they owned the said lands and by extension

the said lot which they asserted was part of the said lands. It was not in dispute that the

Claimants owned a two thirds undivided interest in the said lands and Sawak, their father’s

uncle owned the other one third undivided interest. In cross-examination the First

Claimant admitted that he understood that a two thirds undivided interest in the said lands

meant that the said lands were “not divided up”. However despite this understanding all the

Claimants stated in cross-examination that they wanted all of the said lands although they

2 Civ Appeal No. 86 of 2011 at para 31 3 Privy Council Appeal No. 36 of 1897 4 CV 2006-01661

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knew that said Certificate of Title only gave them two thirds undivided interest in the said

lands and they knew that Sawak was an owner of the other one third undivided interest.

21. There was no evidence that the said lands were partitioned. Therefore the Claimants could

not prove that they owned the said lot where the Defendant was constructing his house.

Further, the Claimants did not join the other owner, Sawak or his next of kin as a Claimant

in the action. According to Part 19.4 (a) CPR:

“(a) where a Claimant claims a remedy to which some other person is jointly entitled

with him all persons jointly entitled to the remedy must be parties to the

proceedings, unless the court orders otherwise.”

22. The Claimants did not make an application for the Court to appoint someone to represent

the interest of Sawak in circumstances where the outcome of the instant action affected his

interest in the said lands. Therefore there was no basis for the Claimants asserting legal

ownership of the said lands based on the said Certificate of Title since they only owned a

two thirds undivided interest in the said lands and as a consequence they were not in a

position to prove, in the absence of the owner of the other one third interest joining with

them, that they owned the said lands and by extension the said lot. For these reasons their

action has failed since they were not able to prove ownership.

23. But that was not all. The said Certificate of Title which the Claimants relied on as proof

of ownership of the said lands did not appear to be a complete document which raised

doubt on their claim to the said lands. According to the said Certificate of Title the said

lands are described as “ that piece of land situate in the ward of Savana Grande in the

Island of Trinidad comprising TWO ACRES THREE ROODS AND EIGHTEEN

PERCHES be the same more or less delineated and coloured pink in the diagram attached

to and described in the Crown Grant in Volume 24 Folio 53 and bounded on the North by

lands of Ruttoo on the south by lands of David Albert Rampersad on the East by the

remaining portion of Lot 43 of the Brothers Settlement and on the West by a Trace 20 links

wide and intersected by a Road reserve 40 links wide”.

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24. In his Defence the Defendant place the said Certificate of Title in issue when he stated at

paragraph 1, subparagraph (e) that:

“Defective Certificate of Title.

(e) The said Certificate of Title referred to and produced to the Honourable Court by

the Claimants is defective as the plan stated to be attached to the Certificate of

Title on the said Certificate of title is not attached to the Certificate of Title and

even further, the description of the parcel of land on the Certificate of title is

NOT indicative of the lands in occupation by the Defendant and the Claimants.”

25. The said Certificate of Title referred to a diagram but it was not attached the copy which

was relied on by the Claimants to prove their title. Although the Defendant had put the

Claimants on notice in the Defence, by placing the propriety of the said Certificate of Title

in issue, the First Claimant was not able to provide a reasonable explanation for the

omission of the diagram from the said Certificate of Title since he seemed to confuse it

with the draft survey plan which the Court had struck at the pre-trial stage of the

proceedings. Further he was not able to demonstrate that the description of the said lands

in the said Certificate of Title was the same lands occupied by the Claimants and the

Defendant. In my view such omission did little in assisting the Claimants in proving

ownership of the said lands.

26. For the aforesaid reasons, I have found that the Claimants have failed to demonstrate that

their two thirds undivided interest in the said lands allowed them to lay a claim for the said

lot.

Was the Defendant in possession of the one acre parcel of the said lands as a statutory

tenant?

27. Section 2 of the Act defines a tenant as ““any person entitled in possession to the land

under a contract of tenancy, whether express or implied, and whether the interest of such

person was acquired by original agreement or by assignment or by operation of law or

otherwise; and includes a tenant at will and a tenant at sufferance and “Tenancy” shall be

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construed accordingly”. In the same section a chattel house is defined as including “a

building erected by a tenant upon land comprised in his tenancy with the consent or

acquiescence of the landlord and affixed to the land in such a way as to be incapable of

being removed from its site without destruction.

28. Section 4 of the Act provides for the conversions of tenancies existing at the time before

commencement of the Act which was 1st June 1981 to statutory tenancies. It provides that :

“4 (1) Notwithstanding any law or agreement to the contrary but subject to this

Act, every tenancy to which this Act applies subsisting immediately before

the appointed day shall as from the appointed day become a statutory lease

for the purposes of this Act.

(2) A statutory lease shall be a lease for thirty years commencing from the

appointed day and, subject to subsection (3), renewable by the tenant for a

further period of thirty years.

(3) In order to exercise the right of renewal on or before the expiration of the

original term of the statutory lease.

(4) Lease shall be deemed to be renewed for a period of thirty years subject to

the same terms and conditions and to the same covenants, if any, as the

original term of the Upon service of the notice by the tenant under

subsection (3), the statutory lease but excluding the option for renewal.”

29. The Defendant asserted that, even if the portion of the lands which he occupied was

partially owned by the Claimants, he was not a trespasser since one of the reasons for him

being on the said lands was because he was a statutory tenant for the one acre parcel of the

said lands. The Claimants pleaded that the Defendant was not a statutory tenant and even if

he was, his statutory tenancy was illegal since the portion of the lands Toon Arjoon and

later the Defendant occupied were agriculture lands and that Doodooman was not

authorized by Sawak’s estate to act on his behalf to accept rent from the Arjoon family and

therefore the renewal notice served on Doodooman in December 2010 was invalid.

30. The Claimants case was that before Sawak died he appeared to have rented the one acre

parcel of the said lands to Toon Arjoon where Toon’s house was constructed. After Sawak

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died Doodooman Sankar presented himself as Sawak’s representative and collected rent

from Toon Arjoon and issued rent receipts for one acre of the said lands. According to the

Claimants, Sawak had no wife or children and therefore Doodooman was acting

unlawfully. After Toon died the Defendant continued to live in Toon’s house and pay rent

to Doodooman for the rental of one acre of the said lands. Toon Arjoon’s estate was un-

administered and Doodooman acted unlawfully by collecting rent from the Defendant. The

Claimants also asserted that even if Sawak rented one acre of the said lands to Toon

Arjoon, after Sawak died, Doodooman was not authorized to represent the estate of Sawak

since Sawak had no next of kin except them.

31. In support of the aforesaid assertions the Claimants exhibited to their Statement of Case

three sets of documents: a death certificate for Sawak Lall, copies of rent receipts and the

renewal notice. The Defendant did not dispute any of the said documents in his Defence

but instead he relied on them to prove his contention.

32. According to the death certificate, Sawak Lall died on the 12th May 1980. The description

and residence of the informant was stated as “Doodooman Sawak son of St Julien Branch

Road Princes Town.” Therefore based on the death certificate the Claimants were put on

notice that Sawak had a son called Doodooman Sawak who lived in St Julien Branch Road

Princes Town. What evidence did the Claimants adduce to rebut this information? All the

Claimants accepted that Sawak was their father’s uncle and that he owned a one third

undivided interest in the said lands. However they refused to accept that Doodooman was

Sawak’s son or that Doodooman was related to them.

33. During cross examination, at first the First Claimant denied that he knew anyone called

Doodooman instead he said that he knew a person in St Julien’s village called “String”

who lived about 100 feet away from one of his brothers. He later accepted that “String” is

also Doodooman. The First Claimant also admitted that the Claimants are related to Sawak,

he knew that Doodooman lived next to one of his brothers, he knew Doodooman’s

daughter Parbatee Doodooman but he still insisted that Sawak had no next of kin since the

Claimants did not know if Sawak had any family. To his credit he agreed that it was

possible that Sawak could have family whom the Claimants did not know. Based on the

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First Claimant’s evidence, it was clear to me that he was well aware who was Doodooman,

and that Doodooman was related to Sawak although he sought to represent otherwise.

34. This inconsistent position adopted by the First Claimant was reflected by the evidence of

the Fourth Claimant in cross- examination who also accepted that Doodooman lived next

to him but he did not consider Doodooman to be his family. However, he accepted that

Sawak and his grandfather were brothers and that they owned the said lands.

35. In my view the Claimants were less than truthful with the Court concerning their

knowledge of Doodooman’s relationship with Sawak and his relationship with them. It was

clear that all the Claimants enjoyed a close relationship; that Doodooman lived close to the

Fourth Claimant and they all eventually admitted in cross-examination that they knew

Doodooman. They knew from the death certificate of Sawak that he had a son called

Doodooman Sawak who was from St Julien, Princes Town. They all knew that

Doodooman lived on a portion of the said lands. There was no evidence that they took any

action to have Doodooman removed from the said lands. In my view, the only reasonable

inference which can be drawn by the Claimants failure to have Doodooman removed was

because they were aware that he was lawfully on the said lands as Sawak’s son and that

he is entitled to Sawak’s one third undivided interest in the said lands.

36. Therefore, apart from making a blanket denial that Sawak had no next of kin the Claimants

failed to produce any evidence to dispute the evidence in the death certificate of Sawak that

he had a son named Doodooman Sawak and a reasonable inference was that Doodooman

was Sawak’s next of kin when he died. Therefore this assertion by the Claimants in their

pleading was contradicted by the death certificate which they produced.

37. On the other hand the sole witness for the Defendant, Parbatee Doodooman stated that

Doodooman Sawak is her father and she produced her birth certificate which stated that her

father was Doodooman Sawak. While Counsel for the Claimants attempted during cross-

examination to impugn the validity of the information in the said birth certificate, in my

view unless the Registrar General amends the said birth certificate to remove the name of

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Doodooman Sawak as the father of Parbatee Doodooman, the record remains that she is his

daughter.

38. It is entirely plausible based on the uncontested information in the death certificate of

Sawak Lall and the birth certificate of Parbatee Doodooman that Doodooman was the son

of Sawak and his daughter is Parbatee Doodooman which makes her a granddaughter of

Sawak.

39. There were copies of six rent receipts dated the July 1961, July 1962, July 1963, June

1970, August 1975 and September 1975 which were annexed to the Statement of Case.

Due to the age of the receipts there were difficulties in reading the information contained in

all. While the Claimants disputed the information in the said rent receipts, during cross

examination Counsel for the Defendant drew to the attention of the First Claimant two of

the receipts which were issued for the years 1961 and 1962. The 1961 receipt stated:

“…7, 1961,

Received from Toon Arjoon of … Julien … of ten dollars … and balance to be paid,

for one acre of land more or less situated at St. Julien Road, near the 2 ¼ mile … for

the year ending July 7, 1962. A dwelling house is to be erected on the said land by

the renter.

(Signature of Sawak Lall)

July….1961

…of $....”

40. The 1962 receipt stated:

“ … Julien Road,

Received from Toon Arjoon of St. Julien Road, the sum of fifteen dollars as rent for

one acre of land … or less situated at … Julien Road, near the 2 ¼ mile post and

taxes … the sum of two dollars as taxes for one dwelling house erected on the same

lands, for the year ending July, 7, 1963.

Sawak Lall

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Witness to Signature

& Payment

(signature of Doodooman)”

41. The First Claimant agreed in cross-examination that the receipts stated that they were

signed by Doodooman and from the receipts the person who signed them received money

for one acre of lands. However he stated that the Claimants only became aware in 2015

that the Arjoon family was paying rent for a portion of the said lands.

42. All the Claimants witness statements mirrored the Claimants’ pleading on this issue.

However, in cross examination a different picture emerged. The First Claimant has lived

on a portion of the said lands since 1989. He admitted that he did not know Sawak but his

father had told him that Sawak was his father’s uncle. He agreed that he did not know

between 1961 to 1975 if Sawak rented one acre of the said lands to Toon Arjoon. The

Second Claimant did not live on the said lands but he visits. He admitted that he did not

know when Toon Arjoon went unto the said lands or if Toon Arjoon rented one acre of the

said lands since he was not there. The Third Claimant also lives on a portion of the said

lands. He said he knew himself in the 1970s. He did not know if Sawak rented Toon

Arjoon the one acre parcel of the said lands and he did not know if after Sawak died rent

was paid to Doodooman whom he knew. The Fourth Claimant who is the eldest of all the

brothers did not live on the said lands but when he visited he would stay at the house of

either the First Claimant or the Fourth Claimant. The Fifth Claimant lived on a portion of

the said lands next door to Doodooman. He said he came of age in the 1970s and by that

time Toon Arjoon already had a house on a portion of the said lands. He admitted that he

did not know that Sawak rented the one acre parcel of the said lands to Toon Arjoon and he

first knew about this in 2015.

43. Again, apart from the Claimants denial of the Defendant’s assertion that Toon Arjoon

rented the one acre parcel of the said lands none of the Claimants were in a position to

challenge the rent receipts nor the Defendant’s assertion that Toon Arjoon rented the one

acre parcel of the said lands from Sawak.

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44. The basis for the Claimants challenging the validity of the renewal notice was because

Doodooman was not related to Sawak. The renewal notice stated that it was given to

Doodooman Sawak from the Defendant as tenant for the one acre parcel of land situated

at 2 ¼ mm St Julien Branch Road, Princes Town. While the Claimants disputed the effect

of the renewal notice, they were not in a position to dispute the fact that the Defendant had

served it on Doodooman in December 2010. Having failed to demonstrate that Doodooman

was not related to Sawak the basis for them challenging the validity of the renewal notice

also failed.

45. In light of the death certificate of Sawak, the birth certificate of Pabatee Doodooman, the

rent receipts, the renewal notice and the failure by the Claimants to adduce any or

sufficient evidence to challenge the information contained in the said documents, on a

balance of probabilities, I have found that Toon Arjoon and his family including the

Defendant went into possession of the one acre parcel of land situate at St Julien Road,

Princes Town as a tenant of Sawak also known as Sawak Lall who was the brother of the

Claimants grandfather. I have also found that Toon Arjoon erected Toon’s house between

1962 and 1963; Doodooman is the son of Sawak and the present landlord of the Defendant

since Doodooman continued to collect rent from the Arjoon family as a representative of

Sawak’s estate for the one acre parcel of the said lands. Parbatee Doodooman is a

granddaughter of Sawak Lall. The Claimants father Bhim Lall and Doodooman were first

cousins and Parbatee Doodooman and the Claimants are second cousins.

46. In light of the aforesaid findings I have concluded that Toon Arjoon and his family were

statutory tenants and that pursuant to section 4 of the Act, the Defendant having served the

renewal notice on his landlord, Doodooman within the period of the original lease, the

statutory lease has been deemed to be renewed for a further period of 30 years. The

Defendant was not a trespasser on any part of the one acre parcel of the said lands.

47. Counsel for the Defendant in his closing submissions asked the Court to order that the

Defendant is entitled to possession as a yearly tenant of the one acre parcel of the said

lands. However, I am unable to make such an order for two reasons namely the Defendant

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did not seek such a relief in his Defence and all the persons who are the owners of the said

lands are not a party to the action.

48. Although I have found that the Defendant was a statutory tenant of the one acre parcel of

the said lands and therefore he was not a trespasser of the said lot, I will still address the

next issue to determine if it was a valid alternative defence raised by the Defendant.

Was the Defendant in continuous undisturbed possession of the one acre parcel of the

said lands for more than 16 years?

49. A person may acquire possessory title to private property after being in continuous

exclusive possession for sixteen years5. In the According to the House of Lords in JA Pye

(Oxford) Ltd v Graham6 in order to establish possession a Claimant must show:

“A sufficient degree of occupation or physical control coupled with an intention to

possess;… to establish factual possession the squatter had to show absence of the

paper owner’s consent, a single and exclusive possession and such acts as

demonstrated that in the circumstances, in particular the nature of the land and the

way it was commonly used, he and dealt with it as an occupying owner might

normally be expected to do and that no other person had done so’ that the requisite

intention was, not to own or acquire ownership, but to possess and on one’s own

behalf on one’s own name to exclude the world at large, including the paper title

owner, so far as was reasonably possible”7.

50. Halsbury’s Laws of England (Limitation Periods) 8 explains:

“For the Claimant’s possession of the land to be adverse, so as to start time running

against the owner, the factual possession should be sufficiently exclusive and the

Claimant should have intended to take possession on his own behalf and for his own

5 Section 3 Real Property Limitations Act Chapter 56:03 6 [2002] 3 WLR 221 7 Supra at page 223 8 Vol 68 [2008] para 1078

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benefit. Where the occupier’s possession of the land is by permission of the owner,

that possession cannot be adverse.”

51. In Powell v Mc Farlane9 Slade J described the legal requirements for establishing a

defence of adverse possession as:

“(1) In the absence of evidence to the contrary, the owner of land with paper title is

deemed to be in possession of the land, as being the person with the prima facie

right to possession. The law will thus, without reluctance, ascribe possession

either to the paper owner or to persons who can establish a title as claiming

through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no

paper title to possession, he must be shown to have both factual possession and

the requisite intention to possess (‘animus possedendi’).”

52. On factual possession Slade J in Powell went on to say this10:

“Factual possession signifies an appropriate degree of physical control. It must be a

single and [exclusive] possession though there can be a single possession exercised

by or on behalf of several persons jointly. Thus an owner of land and a person

intruding on that land without his consent cannot both be in possession of the land at

the same time. The question what acts constitute a sufficient degree of exclusive

physical control must depend on the circumstances of the case in particular, the

nature of the land and the manner in which land of that nature is commonly used or

enjoyed. Everything must depend on the particular circumstances, but broadly, I

think what must be shown as constituting factual possession is that the alleged

possessor has been dealing with the land in question as an occupying owner might

have been expected to deal with it and that no one else has done so”.

9 [1977] 38 P&CR 452 at 470 10 At page 470-471

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53. Slade J in Powell v Mc Farlane described the “ necessary intention to possess” as:

“3. ‘intention, in one’s own name and on one’s own behalf, to exclude the world at

large including the owner with paper title if he be not himself the possessor, so

far as is reasonably practicable and so far as the processes of the law will allow.”

54. For the Defendant to succeed with the defence of adverse possession he had to demonstrate

that Toon Arjoon and later the Arjoon family went into possession of the one acre parcel of

the said lands with the intention to treat it as their own at least 16 continuous years before

the action was instituted.

55. The Claimants pleaded that they have been possession of the said lands for more than 26

years. They stated that although Toon Arjoon occupied one lot of the said lands Rajwantie

and later they occupied all of the lands. They also pleaded that the Defendant’s father Toon

Arjoon and his family have been in occupation of at least one lot of land since the 1970s

which they observed when they visited the said lands as children. They knew that the

Defendant was Toon Arjoon’s son and that he lived in Toon’s house until 2010 when it

collapsed. While Rajwantie was alive she planted the remainder of the lands with ginger,

saffron, petite tambo, cassava, peas, ocra, bodi and lettuce. In 1989 the First Claimant

constructed a house in the middle of the said lands, in 1993 the Third Named Claimant

constructed a house to the west of the First Claimant’s house in 2005 the Fifth Claimant

constructed a flat concrete structure with decking 40feet to the west of the Third

Claimant’s house.

56. Based on the Claimants pleading they admitted that at minimum that Toon Arjoon and his

family were in factual possession of one lot of the said lands since the 1970s which was

long before when they said that they were in possession of the said lands. Further while

they were aware of the possession by the Arjoon family they were unaware if the Arjoon

family was an owner, a statutory tenant, or trespasser. Therefore the Claimants pleadings

established the Arjoon family’s factual possession of at least one lot of the said lands.

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57. The Claimants evidence highlighted the inconsistency in their case. The Claimants stated

that Rajwantie planted fruit trees and on all of the said lands and cultivated all of the said

lands. They also stated that in 1989 when Rajwantie was still alive the First Claimant built

a house on the said lands which was west of the portion of lands occupied by the Arjoon

family. The First Claimant built his house where Rajwantie house was and while he does

not know the boundary line for the said lands in 2010 he built a wall 75 feet by 7 feet high

in east of his house. The wall ended right after the First Claimant’s house and it did not

extend to the back. In 1993 the Third Claimant constructed a wooden house west of the

First Claimant’s house. In 2005 the Fifth Claimant constructed flat concrete structure with

decking forty feet to the west of the Third Claimant’s house. The Fourth Claimant set traps

to catch agoutis on all the lands, they would cut bamboo and sohari leaves from the lands

south of Toon Arjoon house and Suckchan house and the First Claimant would pick bird

seed from the lands south of Toon Arjoon and Suckchan house.

58. The Defendant contended that the Arjoon family did not object to Rajwantie picking fruits

from the fruit trees on the portion of the said lands which they occupied. The First

Claimant agreed that the Arjoon family did not stop the Claimants from picking fruits at

the back of Toon’s house and Suckchan’s house. The Second Claimant admitted in cross-

examination that the Defendant and Suckchan’s house was east of the said lands and that

the Defendant started to build close to Toon’s house which was fifteen feet away from

Suckchan’s house. The Fourth Claimant in cross examination admitted that after 1961 the

only reason the family went on the lands east of the wall was to pick fruits and that none of

the Claimants built on the portion of the said lands where the Arjoon family occupied. He

also said Rajwantie never occupied any of the said lands in the eastern side. In cross-

examination the First and Second Claimants admitted that the Claimants stopped the

Defendant from building his house on the same spot that Toon’s house was situated and

that it was after this the Defendant moved to the next spot which was fifteen feet away

from Suckchan’s house.

59. Parbatee Doodooman’s evidence supported the Defendant’s case that the demonstrated that

the Defendant and the Arjoon family had exclusive possession of the one acre parcel of the

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said lands and they treated it as their own. According to Parbatee Doodooman the

Defendant’s father, mother, brothers and uncle all cultivated the said one acre parcel of the

said lands.

60. Therefore, Rajawantie did not cultivate all of the said lands but only the portion of the said

lands which were not occupied by the Arjoon family and that the Arjoon family who

occupied the one acre parcel of the said lands cultivated it.

61. In the circumstances I find that the Defendant and the Arjoon family were in possession of

more than the one lot of the said lands which the Claimants pleaded and that the Arjoon

family was in possession of the one acre parcel of the said lands. It was clear that while the

said lands were not partitioned, the Claimants only used the areas west and south of the

lands occupied by the Arjoon family. If it was otherwise, they would have built their

houses east of Rajwantie’s house and not to the west. In my view, a reasonable inference to

be drawn by the Claimants actions was that they did so since they knew that the Arjoon

family was in possession of the portion of the said lands east of the First Claimant’s house

and while they did not know the basis for the Arjoon’s being in possession they recognized

their possession.

62. The Defendant’s intention to continue to possess the one acre parcel of the said lands and

in particular where Toon’s house was situated can be gleaned from the Claimants evidence.

Although the Claimants asserted that after Toon’s house collapsed the Defendant

abandoned the said lands, in cross-examination, the First Claimant admitted that he knew

that after Toon’s house collapsed in 2010 the Defendant was living in Suckchan’s house

and after four years he started to construct a house on the spot where Toon’s house was

situated. Therefore, contrary to the Claimants case, based on the First Claimant’s evidence,

the Defendant did not abandon the one acre parcel of the said lands which the Arjoon

family occupied.

63. Even if the Defendant was not a statutory tenant of the one acre parcel of the said lands, the

Claimants evidence was that Toon Arjoon, the Arjoon family which included the

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Defendant and Suckchan have been in continuous undisturbed possession of a portion of

the said lands east of the First Claimants house since at least the 1962.

64. However it must be noted that while the Defendant asserted an alternative Defence of

adverse possession he did not seek any declaration to that effect since one aspect of his

Defence was that all the owners or the persons who have the paper title to the said lands

are not a party to the instant action. In this regard, the Defendant recognized that while the

Court can make certain findings on this issue it cannot grant any such relief.

65. Further, although the Claimants had made a claim for adverse possession in my view such

a claim was inconsistent with their main assertion that they are the owners of the said

lands. In any event Counsel for the Claimants did not make any submissions on this claim

which I understood to mean that they abandoned this ground.

If the Defendant was lawfully in possession of the one acre parcel of the said lands is

he entitled to damages?

66. In the Defence the Defendant sought damages for his inconvenience in restraining him

from building/erecting a building/structure on the said lands, and non-use of the said lands

in the sum of $50,000.00 which he repeated in the closing submissions. However, there

was no evidence adduced by the Defendant during the trial to support this claim for

damages. In the absence of any evidence the Court would not be in the position to make

any award for damages since to do so would be based purely on speculation.

Disposition

67. The Claimants have failed to demonstrate from their paper title that they are the owners of

the said lands including the said lot. Although the Claimants made a claim for adverse

possession this claim was inconsistent they owning two thirds undivided interest in the said

lands. In any event Counsel for the Claimants did not make any submissions on this claim

which I understood to mean that they abandoned this ground.

68. Assuming that the said lands are the lands described in the said Certificate of Title, the

Defendant and the Arjoon family have been in occupation of the one acre parcel of the said

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lands since 1962 as statutory tenants. While I have made such a finding I am unable to

order that the Defendant is entitled to possession as a yearly tenant of the one acre parcel of

the said lands since the Defendant did not seek such a relief in his Defence and all the

persons who are the owners of the said lands are not a party to the action.

69. Even if the Defendant was not a statutory tenant, the Arjoon family including the

Defendant have been in continuous undisturbed possession of the said one acre parcel of

the said land since 1962. While the Defendant asserted an alternative Defence of adverse

possession he did not seek any declaration to that effect since one aspect of his Defence

was that all the owners or the persons who have the paper title to the said lands are not a

party to the instant action. No order is made awarding damages to the Defendant since

there was no evidence to support his claim.

Order

70. The Claimants claim is dismissed.

71. The Claimants are to pay the Defendant costs of the action. Pursuant to Part 67.5 (2) (c)

costs is assessed in the sum of $14,000.00.

Margaret Y. Mohammed

High Court Judge

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