THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV2015-03628

BETWEEN

TAIMOON STEWART

ROBERT STEWART

Claimants

AND

ANTHONY RIVAS

Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Date of Delivery: Tuesday 17 November 2020

Appearances:

Ms. Theresa Hadad instructed by Mr. Vikash Indarlal for the Claimants

Mr. Fulton O.J. Wilson for the Defendant

JUDGMENT

A. Background

[1] The Claimants, Taimoon and Robert Stewart are husband and wife. They are also the

legal owners of a parcel of land known as Lot 4 Rivas Road, Off La Pastora Road, Santa

Cruz. Lot 4 was purchased by the Claimants from First Citizens Bank Limited pursuant

to the Bank’s power of sale as mortgagee in possession. That purchase took place in

2007. The Claimants are also the owners of three adjoining lots of land known as Lots

5, 6 and 7 Rivas Road, Off La Pastora Road, Santa Cruz.

[2] The Claimants and the Defendant are neighbours. The Defendant occupies a parcel of

land adjacent to the Claimant’s land. The extent of the land that he possesses is in

dispute by the parties.

[3] On the 30th October, 2015 the Claimants commenced an action against the Defendant

in trespass and nuisance, as well as an application for interim injunctive relief to restrain

the Defendant from entering and/or occupying Lot 4, and from assaulting or

intimidating the Claimants.

[4] The Defendant in defending the Claim asserted that his presence on the land is as a

result of his ownership and/or possession of Lot 4 as he and his family have been in

possession for over fifty (50) years.

B. The Claimants’ Application

[5] The Claimants by their Claim Form and Statement of Case filed on the 30th November,

2015 sought the following relief against the Defendant:

(i) A declaration that the Claimants are the owners of and are entitled to possession

of that piece or parcel of land known as Lot 4, Rivas Road, Off La Pastora Road,

Santa Cruz more particularly described in the schedule to Deed dated the 9th

July 2007 and registered as DE 200701833175 as ALL AND SINGULAR that

piece or parcel of land situate at La Pastora, Santa Cruz in the Ward of St. Ann’s

in the Island of Trinidad comprising SEVEN HUNDRED AND EIGHT

POINT TWO SQUARE METRES (being a portion of the parcel of land

described in the first schedule of the conveyance) and bounded on the North

partly by Lot 1 and partly by Lot 2 on the South partly by a Road Reserve 10.6

metres wide and partly by Lot 6 on the East partly by Lot 2 and partly by the

said Road Reserve 10.06 metres wide and on the West partly by the said Lot 6

and partly by Lot 3 which said piece or parcel of land is delineated coloured

pink and shown as Lot 4 on the Survey Plan annexed to the Conveyance marked

“A” dated the 4th day of March 1998.

(ii) An order that the Defendant deliver up possession of the said Lot 4 to the

Claimants.

(iii) An injunction restraining and/or preventing the Defendant whether by himself,

his servants and/or agents or otherwise howsoever from entering and/or

remaining on or occupying or continuing in occupation howsoever of the said

Lot 4.

(iv) An injunction restraining the Defendant whether by himself, his servants and/or

agents or otherwise howsoever from assaulting, intimidating, threatening or

otherwise interfering with the Claimants or the Claimants’ servants and or

agents and or licensees, heirs or assigns.

(v) Damages for trespass and nuisance.

(vi) Interest pursuant to the Supreme Court of Judicature Act Chapter 4:01 on any

sum found due at such rate and for such period as the Court shall consider fit.

(vii) Costs.

(viii) Such further and/or other relief that the Court may deem fit.

C. Interim Injunction

[6] By Court Order dated 6th November, 2015, the Honourable Madam Justice Dean-

Armorer (to whom the matter was then assigned) granted the Claimants an Interim

Injunction to wit:

1. An injunction restraining the Defendant whether by himself, his servants and or

agents or otherwise howsoever from entering and or remaining on or occupying

or continuing in occupation of that piece or parcel of land belonging to the

Claimants known as Lot 4, Rivas Road, Off La Pastora Road, Santa Cruz

(described in paragraph 5 hereinabove) until further order.

2. A further injunction restraining the Defendant whether by himself, his servants

and or agents or otherwise howsoever from doing the following acts or any of

them until further order, that is to say:

a. Constructing a wall/fence on the Claimants’ property;

b. Trespassing upon the Claimants’ property, and there spraying pesticides,

cutting and clearing by burning the natural vegetation, removing the

Claimants’ plants, removing the Claimants’ boundary marking, digging

holes to erect a fence or otherwise causing damage to the Claimants’

property;

c. Assaulting, intimidating, threatening or otherwise howsoever interfering

with the Claimants’ or the Claimants’ servants and or agents and or

licensees, heirs or assigns.

[7] Those interim injunctive relief were to remain in effect until further order by the Court.

They were not discharged by this Court and in fact they remain in effect to this day.

D. The Defence

[8] The Defendant filed his Defence and Counterclaim on the 4th December, 2015 alleging

that he has been in undisturbed, exclusive possession of Lot 4 for over 16 years and that

prior to him, his family for in excess of 50 years. It is his case that Lots 2 and 4 are

adjacent to each other and that there is no fence or visible boundary markers showing

the distinction between the two parcels.

[9] According to the Defendant, the occupation of Lot 4 began with his father, Hilarian

Rivas, who reared animals on the land. He also alleges that his family also planted crops

on the land and that he continues to rear chickens and plant the land. The land was also

used by the Defendant and his siblings, as well as members of the community, as a

playing field.

[10] The Defendant’s house was built on Lot 2. However, the Defendant insists that Lots 2

and 4 were never viewed as separate lots of land by him or his family. He considers

Lots 2 and 4 to be one parcel of land.

[11] Consequently, the Defendant is adamant that the reason why he uprooted the trees and

plants of the Claimants is because he had a right to do so as the owner of the land.

Moreover, that all of his activities on the land are in keeping with his ownership of same

by way of adverse possession.

[12] The Defendant contended that the Claimant’s alleged right of action, if any, is statute

barred by section 3 of the Real Property Limitation Act Chapter 56:03 and that the

Claimant’s rights, if any, and title, if any, to the disputed parcel of land were

extinguished by virtue of section 22 of the said Act.

E. The Counterclaim

[13] The Defendant by his Counterclaim sought against the Claimant the following relief:

(i) A Declaration that the Defendant is the owner and entitled to possession of that

piece or parcel of land known as Lot 4, Rivas Road, Off La Pastora Road, Santa

Cruz more particularly described in the schedule to Deed dated the 9th July 2007

and registered as DE 200701833175 as ALL AND SINGULAR that piece or

parcel of land situate at La Pastora, Santa Cruz in the Ward of St. Ann’s in the

Island of Trinidad comprising SEVEN HUNDRED AND EIGHT POINT TWO

SQUARE METRES (being a portion of land described in the First Schedule to

the Conveyance) and bounded on the North partly by Lot 1 and partly by Lot 2

on the South partly by a Road Reserve 10.06 metres wide and partly by Lot 6

on the East partly by the said Lot 2 and partly by the said Road Reserve 10.06

metres wide and on the West partly by the said Lot 6 and partly by Lot 3.

(ii) An injunction restraining the Claimants or any of them and/or their servants

and/or agents from entering upon the said parcel of land and/or remaining

thereon or in any way interfering with the Defendant’s ownership, occupation

and or possession thereof.

(iii) Costs.

(iv) Such further and/or other relief as the Court deems fit.

[14] The Defendant’s Counterclaim was struck out, by consent on 18th February, 2016 by

an order of Madam Justice Dean-Armorer and the Defendant was ordered to pay the

Claimant’s costs in the agreed sum of Three Thousand, Five Hundred Dollars

($3,500.00).

F. Submissions

[15] Attorneys-at-Law for both parties made concise submissions with relevant and

appropriate supporting authorities.

[16] The Defendant’s submissions were filed on 23rd February 2018 while the Claimants

followed on the 11th October 2018.

The Claimant’s Submissions

[17] Counsel for the Claimants, Ms. Theresa Hadad, submitted that the Claimants were

entitled to maintain an action in trespass because in her estimation they had successfully

proved by virtue of their relevant Deeds that they have title to Lot 4 and that by their

acts they intended to possess the land in dispute. Ocean Estates Limited v Norman

Pinder [1969] 2 W.LR. 1359 is authority for the proposition that what is required of

the Claimant who claims that a trespass has occurred on his land, is for him to simply

prove that he has title to the disputed property. He is not required to go beyond that.

Further that “the slightest acts by a person having title to the land or by his predecessors

in title, indicating his intention to take possession are sufficient to enable him to bring

an action for trespass against a Defendant entering upon the land without any title

unless there can be shown a subsequent intention on the part of the person having the

title to abandon the constructive possession so acquired.”

[18] Further, that the Defendant failed to challenge the Claimants’ title whether by his

defence, witness statements or under cross-examination and that he has admitted to

entering unto the said Lot 4 without the Claimant’s permission.

[19] Counsel also expressed similar sentiments in respect of the Claimants’ Claim against

the Defendant for damages in respect of the tort of nuisance. In support of the

Claimants’ disposition Counsel has put forward for this Court’s consideration several

authorities. Counsel also submitted that the Defendant’s interference with the

Claimants’ land was wholly unreasonable and that he has not discharged his burden of

proving that he was reasonable.

The Defendant’s Submissions

[20] Counsel for the Defendant, Mr Fulton Wilson, has directed this Honourable Court to

section 3 of the Real Property Limitation Act Chapter 56:03 which stipulates that a

title owner or the legal owner of property is estopped from exercising his/her right to

recover land either by action or entry after the expiration of sixteen (16) years from the

time when the right to bring the action or make an entry first accrued.

[21] Further, that by virtue of section 22 of the said Act where the person that is entitled

to bring such an action has failed to do so that his right and title shall be extinguished.

I am of the view that Counsel’s submissions in this regard is a true representation of

the operation of sections 3 and 22 of the said Act.

[22] In support of the Defendant’s contention that he has been in possession in excess of 16

years, Counsel relied on the cases of J A Pye (Oxford) v Graham [2002] UKHL 30

and Powell v Mc Farlane (1977) 38 P&CR 452. These cases will be considered later

in this judgment.

[23] Counsel, submitted that the Defendant was in actual possession of the land and that the

Claimants have admitted to this albeit that they have referred to the Defendant’s

presence on the land as trespassing.

G. Issues for Determination

[24] The following issues have been identified for determination by this Court:

A. On the Claimant’s Claim in respect of trespass:

(i) Do the Claimants possess legal title to Lot 4? and;

(ii) Whether the Defendant has unjustifiably interfered with the

Claimants’ possession of Lot 4?

B. Has the Defendant unlawfully interfered with the Claimants’ use and/or

enjoyment of Lot 4 so as to commit the tort of private nuisance?

C. Was the Defendant in continuous undisturbed and exclusive occupation of

the subject parcel of land for the statutory period of time so as to extinguish

title of the Claimants? The following sub-issues to be considered:

(i) Whether the Defendant’s alleged adverse possession lasted for the

prescribed time?

(ii) Did the Defendant exercise a sufficient degree of physical custody and

control over the subject land?

(iii)Whether the Defendant had the intention to exercise such custody and

control on his own behalf and for his own benefit, independently of

anyone else?

(iv) In the event that the Defendant fails to establish his alleged adverse

possession of Lot 4, are the Claimants entitled to damages for trespass

and/or nuisance, and if so, in what measure?

Issue A: Whether the Defendant has unjustifiably interfered with the Claimants’

possession of Lot 4?

[25] The Claimants have made a Claim in trespass against the Defendant whom they have

accused of interfering with their possession of Lot 4.

The Law on Trespass

[26] A Claimant brings a successful claim in trespass where he is able to establish that he is

the owner of the land in question, and that there has been an unjustifiable interference

with his possession of land by the Defendant: Winfield & Jolowicz on Tort, Fifteenth

Edition, Sweet & Maxwell, 1998 at page 472.

[27] The onus is on the Claimants to prove that they are the legal owners of the land or that

they have legal title to lot 4. By Deed of Conveyance dated 21st day of July 1998 and

registered as No. 17319 of 1998 the Claimants purchased Lot 4 from First Citizens

Bank Limited pursuant to the bank’s power of sale as mortgagee in possession. This

Deed is exhibited to the Claimants’ Statement of Case and marked “A”. The Defendant

contends that he is unaware of this transaction or that the land was ever advertised for

sale. The said Deed was later rectified by Deed dated 9th July 2007 and registered as

DE 200701833175. This latter Deed is also exhibited to the Statement of Case and

marked “B”.

[28] On the authority of Ocean Estates Limited v Norman Pinder1 (decided by the Privy

Council on appeal from the Court of Appeal of the Bahamas) the Board was of the view

that a party who can prove any documentary title to the land is entitled to possession

against a trespasser, unless the trespasser can establish that the party’s title has been

extinguished by the appropriate period of continuous possession under the relevant

statutes of limitation. Further, that where the defendant made no attempt to prove any

documentary title to the lands in question in himself, (or in any third party by whose

authority he was in occupation of the land), it is not necessary for the plaintiff to prove

each link in his title. It is sufficient if he produces in evidence the conveyance to himself

because where a person has dealt in land by conveying any interest in it to another

person, there is a presumption, until the contrary is proved, that he was entitled to the

estate in the land which he purported to convey.

[29] It is therefore my finding that the Claimants have legal title to Lot 4. In Ocean Estates

the plaintiffs sued the defendant for damages for trespass to land. At the trial of the

action they relied on their documentary title and duly proved the devolution of their

freehold title in the lands in question from a conveyance dated 3rd May 1937. The

defendant claimed a possessory title to the whole of the lands and advanced no claim

to any part of the land as distinct from the whole. The trial Judge held that the defendant

had failed to prove a possessory title to the whole of the lands and gave judgment for

the plaintiffs.

[30] Mendonça JA in the recent Court of Appeal case of Xavier Goodridge v Baby

Nagassar2 stated at paragraph 26 of the judgment that a claimant who relies on his

documentary title to obtain possession of land against a trespasser who does not seek

to prove any documentary title in himself, although he has to adduce some evidence of

ownership of the lands, need not adduce evidence of title to the lands for the same

period as may be required of a vendor by a purchaser under a contract for the sale of

lands.

[31] The Defendant has not challenged the Claimants’ legal title neither has he taken issue

with any of the Deeds exhibited by the Claimants proving their title to Lot 4.

1 [1969] 2 W.L.R. 1359 2 Civ. App. No. 243 of 2011

[32] The Claimants accused the Defendant of entering unto the said Lot 4 without their

consent or permission and committing acts which interfered with their possession of

their land. The Defendant does not deny entering unto Lot 4 and uprooting the trees

planted by the Claimants or cutting the grass, as he stated the land belonged to him. The

Defendant also stated in his Defence that his entry was not occasional as alleged by the

Claimants but that his entry was continuous and that all of his acts on the land are

pursuant to his ownership as an adverse possessor. I will address this defence later in

this judgment.

[33] On the Defendant’s own admission he has committed acts of trespass on the said Lot 4.

Should he succeed in his defence in adverse possession then the issue of trespass will

not arise as the Defendant cannot be said to have committed a trespass against himself.

[34] However, should the Defendant fail in establishing his defence, it is the accepted view

that in a claim for trespass, if the Claimant proves the trespass he is entitled to recover

nominal damages, even if he has not suffered any actual loss. Where the trespass has

caused the Claimant actual damage, he is entitled to receive such an amount as will

compensate him for his loss. In the event that the Defendant has made use of the

Claimants’ land, the Claimant is entitled to receive by way of damages such sum as

should reasonably be paid for that use: Halsbury’s Laws of England, Vol. 97 (2015)

paragraph 591.

Issue B: Whether the Defendant has unlawfully interfered with the Claimants’ use or

enjoyment of Lot 4?

[35] The Claimants also claims as against the Defendant, Damages for nuisance committed

by him.

[36] Private Nuisance is defined in Howard v Walker [1] by Lord Goddard as

“an unlawful interference with a person’s use or enjoyment of land, or

some right over, or in connection with it”.

[37] Rajkumar J (as he then was) articulated in Ramdeo Seewah v Vishnu Siewah3 that a

private nuisance may be and usually is caused by a person doing, on his own land,

something which he is lawfully entitled to do. His conduct only becomes a nuisance

when the consequences of his act are not confined to his own land but extend to the

land of his neighbour by (i) causing an encroachment on his neighbour’s land, when it

closely resembles trespass; (ii) causing physical damage to his neighbour’s land or

building or works or vegetation upon it; or (iii) unduly interfering with his neighbour

in the comfortable and convenient enjoyment of his land.

[38] Like the allegations of trespass made against the Defendant, the Defendant has taken

the position that he committed the alleged acts on land which belonged to him and that

he was doing it as the owner of the land.

[39] The burden of proof lies with the Claimants who must demonstrate that they have an

interest in the land and that the Defendant has unlawfully interfered with their

enjoyment of Lot 4. I have already found that the Claimants possess legal title to Lot 4.

The Defendant does not dispute the commission of the acts by him.

[40] The Claimants accused the Defendant of destroying several of their trees such as

coconuts, cocoa, some of their vegetation, and other mature trees which has resulted in

the land being left bare. In support of those allegations the Claimants exhibited a bundle

of photographs attached to the Statement of Case and marked “K”. The Defendant was

also accused of spraying chemicals and burning the land thereby killing and destroying

the vegetation thereon. In response to this particular allegation the Defendant expressed

that the Claimants could not have suffered any losses as they do not own the land.

Further, that the Claimants reside abroad and could not have been affected by the

spraying of chemicals and the burning of bush over the years. While it is correct that

the Claimants reside abroad, it is accepted that the Claimants left their niece and her

husband in charge of the properties and that they would have been affected by the

chemicals and emission of smoke. Moreover, there is no legal requirement that the

Claimants be personally affected. What is important here is that the Defendant has not

3 CV2009-2498

denied the accusations made by the Claimants. In fact he has admitted committing these

acts on the basis that the land belonged to him.

Issue C: The broad issue is whether the Defendant was in continuous undisturbed and

exclusive occupation of the subject parcel of land for the statutory period of

time so as to extinguish title of the Claimant?

[41] The above issue is further divided into three sub-issues:

(i) Whether the Defendant’s alleged adverse possession has lasted for the

prescribed time?

(ii) Whether the Defendant exercised a sufficient degree of physical custody and

control of the disputed land?

(iii) Whether the Defendant had an intention to exercise such custody and control

on his own behalf and for his own benefit, independently of anyone else?

The Law on Adverse Possession

[42] The Defendant has in his defence to the Claimants’ Application sought to take the

position that he has been in possession of the subject parcel of land for more than sixteen

(16) years. In resistance to the Claimants’ Application the Defendant relies on section

3 of the Real Property Limitation Act Chapter 56:03 which stipulates:

“3. 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 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.”

[43] I have summarized the law as it applies to claims in adverse possession in Trinidad and

Tobago.

[44] Quite recently, the Judicial Committee of the Privy Council in a judgment delivered by

Lord Justice Leggatt in the matter of Lares v Lares and others [2020] UKPC 19 from

the Court of Appeal of the Republic of Trinidad and Tobago, reiterated the status of the

law as it pertains to adverse possession in our jurisdiction to wit:

“It is common ground that the concept of adverse possession is the

same in Trinidad and Tobago as in England and Wales, and that the

law has been authoritatively stated by the House of Lords in JA Pye

(Oxford) Ltd v Graham [2003] 1 AC 419. In particular, as there

explained by Lord Browne-Wilkinson at para 40, there are two

elements necessary for legal possession: (1) a sufficient degree of

physical custody and control (“factual possession”); and (2) an

intention to exercise such custody and control on one’s own behalf and

for one’s own benefit (“intention to possess”). Possession is not

“adverse” so as to be capable of barring a right to recover land if it is

enjoyed as a lawful owner or with the consent of the owner(s): see

paras 35-37; and Buckinghamshire County Council v Moran [1990]

Ch 623, 636.”

[45] In Ocean Estates Ltd v. Pinder (1968) 2 AC 19 at 25A-B, Lord Diplock said at p. 9:

“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… 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”.

[46] Lord Diplock went on to say at p. 25 G- H:

“Put at its highest against the plaintiffs it is clear law that the

slightest acts by the person having title to the land or by his

predecessors in title, indicating his intention to take possession,

are sufficient to enable him to bring an action for trespass against

a defendant entering upon the land without any title unless there

can be shown a subsequent intention on the part of the person

having the title to abandon the constructive possession so

acquired: see Bristow v. Cormican (1878) 3 App.Cas. 641, Lord

Hatherley at p. 657, and Wuta-Ofei v. Danquah [1961] 1 W.L.R.

1238, PC.”

[47] This Court is of the view that in actions for the recovery of land that the Claimant’s

pleaded case must clearly and with full detail set out his title to the land claimed. In

Powell v McFarlane [1977] 38 P & CR 452 Slade J traced his way successfully

through a number of Court of Appeal judgments which were binding on him in an

attempt to restore a degree of order to the subject and to state clearly the relevant

principles. Slade J’s classic judgment has been highly considered in all the leading cases

in this area of the law and as Lord Browne-Wilkinson in JA Pye (Oxford) Ltd. v.

Graham [2002] 3 All ER 865, HL at 873 b-c said, it cannot be improved upon.

[48] In order to determine whether the acts of user do or do not amount to dispossession of

the owner, the character of the land, the nature of the acts done upon it, and the intention

of the squatter fall to be considered. One must look at the facts and circumstances and

determine whether what has been done in relation to the land constitutes possession.

The Prescribed Time and Factual Possession

[49] Section 3 of the Real Property Limitation Act purports to prevent the party who has

legal title to the land (sometimes referred to as the paper title owner) from exercising

his/her right to recover lands either by action or entry within 16 years from the time

when the right to bring the action or make an entry first accrued. Further, where the

party who has legal title to the land fails to bring an action for the recovery of the land

or fails to enter and recover the land after the stipulated period of sixteen (16) years, his

title to the land shall be extinguished.

[50] It is the Defendant’s case that his family has been in possession of the disputed parcel

of land for over 50 years and that he has lived on the land for eighteen (18) to twenty

(20) years. In both instances if the Defendant’s case is to be accepted by this Court, he

would have been in possession of Lot 4 for the statutory period.

[51] In order for the Defendant to succeed in a claim to land by adverse possession, the onus

is on the him to prove on a balance of probabilities that he (and any necessary

predecessor) had, for the requisite period, a sufficient degree of physical custody and

control of the claimed land in the light of the land’s circumstances (“factual

possession”).

[52] While the Defendant has mounted a defense of adverse possession, he has no

counterclaim in respect of same as his counterclaim was struck out by consent on 18th

February, 2018. It is passing strange that he did not see it fit to amend his counterclaim

but that is now water under the bridge. Further, the Defendant did not define any area

of land in his pleadings. Instead, he asserted that the land was never viewed as separate

lots prior to the Claimants entering unto the land.

[53] The Defendant by his Defense and witness statement alleged that he has been living at

53 Rivas Road (later corrected in his oral testimony as being 52 Rivas Road) for over

50 years. According to him the possession of the subject parcel of land commenced in

his father, Hilarian Rivas, who reared animals on the disputed land. After his father’s

death in 1995 his mother, Matilda Rivas continued to live on the land. She died in 2005.

Thereafter, the Defendant and his siblings remained on the subject parcel of land. It is

his case that some family members moved out, occupied and planted other parts of the

land. In addition to those activities, the subject land ‘was also used as a playing field

where football and cricket were played without permission from anyone’. According to

the Defendant, he together with the assistance of others erected a chain link fence on

the boundary to prevent the ball from going into the road and bamboo.

[54] By his own admission he built his house on of the subject land around 18 to 20 years

ago. I have calculated this time to be up until the filing of his Defence on 13th January,

2017. That means his possession would’ve commenced around 1999 or 2001 as the

case may be. The Claimants who are for all intents and purposes the legal owners of

the land purchased the subject parcel of land in 2007 from First Citizens Bank Limited.

This is approximately eight to ten years into the Defendant’s alleged possession.

[55] While the Defendant has sought by his evidence, which was insufficiently corroborated

by his witnesses, to prove sufficient acts of factual possession, the Court is minded to

inquire against whom the Defendant’s time began to run and whether the Defendant’s

time was interrupted by the Claimants.

[56] By his own evidence the Defendant alleged that the subject parcel of land was possessed

by him and his family members. While the law recognizes the establishment of the

accrued period through a series of continuous adverse possessors, it remains the duty

of the Defendant to establish that the possession was continuous and that the chain of

possession was not interrupted or broken.

[57] The Defendant has tried to have the Court accept that both he and his family members

have been in possession of the subject parcel of land for over fifty (50) years. However,

apart from stating that the land was possessed by his parents up until their deaths, he

has not shown us how his parents came to be in possession or occupation of the land. It

was not until during the cross-examination of the Defendant’s older brother that it was

brought to the Court’s attention that the subject parcel of land was a part of a one acre

plot of land which was previously owned by the Defendant’s uncle, McDonald Ignatius

Rivas. MacDonald Ignatius Rivas was the Defendant’s father’s brother and he had sold

the said one acre of land around 1953 to Dalton Montantaine and Oliver Boothman.

Interestingly, the Defendant’s brother and witness indicated during cross-examination

that he recalled hearing at one time that the land was sold to Oliver Boothman but that

he did not know him. He also mentioned that the wife of his uncle, MacDonald Rivas,

had brought a claim against him to get him off the land on which he was living.

[58] Moreover, in or around 2007, the Defendant’s sister, Mary Rivas, attempted to lease

the subject land, which is Lot 4, to Andy and Hazel Jackson for a period of Nine

Hundred and Ninety Nine (999) years. The Defendant denied having any knowledge of

this and claimed that the lease only came to his attention when he saw it in the Claimants

filed documents. Thus, while the Defendant would like to have the Court believe that

he viewed Lot 2 and 4 as being an undivided parcel of land, it is clear that his sister

Mary did not share the same view because in that Deed of Lease registered as DE2007

030971 990001 dated 13th day of July, 2007 and registered on 6th December, 2007 Mary

declared that it was she who possessed the property. More importantly, that it was is

she, Mary, who was the owner of the said Lot 4. Moreover, the survey plan which was

prepared by Colvin Blaize under the authority of Mary’s lessees and annexed to the

said deed identified Lot 4 as a separate parcel of land. Surprisingly, when pressed on

whether he knew that Lot 4 was surveyed by Colvin Blaize, he appeared to be ignorant

of this fact. Additionally, the Defendant claimed that he did not receive any notification

of the proposed survey by Colvin Blaize. He also remembers a ‘Red guy’ visiting him

about ten years ago in respect of the land but could not remember about what he spoke

to him.

[59] It is curious that the Defendant could not trace or provide this Court with the details of

how his family came to be in possession of the land for over fifty (50) years. While he

has stated under cross-examination that he is defending the Claimants Application on

behalf of his family and that his family has been in occupation of the land for over fifty

(50) years, none of his relatives or family members are co-defendants in this matter. It

would have been prudent to add Mary to the proceedings as she too was laying claim

to the land. Who did his parents dispossess? It is for the Defendant to provide the Court

with those details and not for the Court to speculate as to how the Defendant and, more

so his relatives, came to be in possession. Those are details that he must have.

[60] Further, as was explained by Slade J in Powell v McFarlane4 at page 471:

“… 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.”

[61] The Defendant avers that he has been in possession of the land between 18 to 20 years.

However, he found himself faced with the inescapable fact, as put forward by the

Claimants, that his sister, Mary, also claimed Lot 4 as hers. And that is not the only

land that she claimed. Mary had previously laid claim to Lots 5, 6, and 7 of the

Claimant’s land. Robert Stewart, by his evidence-in-chief, testified that he had received

a letter from E.V. Emmanuel & Co., Attorneys-at-Law, dated 29th December 1992

(exhibited as “R.S.11” to his witness statement) informing him that they were acting on

4 (1970) 38 P&CR 452

behalf of Magdalene Rivas (Mary) who claimed that he (Robert) was trespassing on

lands possessed and occupied by Mary and other members of her family without her

permission. The said letter called upon him to immediately remove himself from the

land and cease acts of trespass.

[62] By response letter dated 13th January, 1993, Andrew Clifford Johnson, Attorney-at-

Law of De Nobriga, Innis and Co., wrote to Mary indicating that the Claimants were in

fact the legal owners of the land and attached a copy of Deed registered as No. 17999

of 1990 showing proof of the Claimants’ purchase of the land from the previous owners,

Stephen and Sumintra Ramjattan. In that correspondence it was noted as well that

Robert Stewart had interviewed a male member of the Rivas family who told him that

the property belonged to his father. Further, that one of Mary’s family member had

informed Robert Stewart that the land on which he was constructing a shed belonged

to the Rivas family. The letter also called upon Magdalene Rivas to produce

documentary proof of her ownership but no such evidence of ownership was ever

produced. It is the Claimants’ case that after their Attorneys responded to Mary’s letter

no further claims were made in respect of Lots 5, 6, and 7 “until around 2012 when the

Defendant began making allegations that he and members of his family owned the

entire hill5.”

[63] However, in 2007 the Claimants were again subjected to allegations of ownership by

Mary, but this time the allegation was in respect of Lot 4. According to the Robert, in

2007 it came to his attention that pursuant to Deed of Lease DE2007 030971 99D001

Mary attempted to lease Lot 4 to Andy and Hazel Jackson. It is the Claimants’ case that

they became aware of this after the Jacksons attempted to take possession of Lot 4.

However, when the Jacksons were presented with the Claimant’s Deed of Conveyance

dated 21st July 1998, they immediately vacated Lot 4.

[64] While the law recognizes that there can be a single possession exercised by or on behalf

of several persons jointly, the possession must be single. Therefore, in a situation where

you have a third party claiming ownership of the same parcel of land it diminishes a

prospective adverse possessor’s claim. This position was explained by Slade J in Powell

5 Paragraph 12 of the witness statement of Robert Stewart lines 4-5

v McFarlane and subsequently approved by Lord Browne-Wilkinson in J A Pye

(Oxford) Ltd v Graham where he stated:

“Factual possession signifies an appropriate degree of physical

control. It must be single and conclusive 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. 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.”

[65] Based on the foregoing dicta and the circumstances of this case, vis-a-vis (i) the survey

of Colvin Blaize conducted in 2007 the plan of which is exhibited to the Deed of Lease;

and (ii) the visit by the ‘Red Man’ who spoke to the Defendant concerning ‘something

about land’ around the same time that Mary leased the land to the Jacksons, I find it

highly improbable that the Defendant had no knowledge of his sister’s claim of

ownership to the land. I therefore reject the Defendant’s evidence that he has been in

sole possession of the land for about 18 to 20 years.

[66] At this point it is equally important to consider the manner in which the land was being

used or the nature of the land. I return to the guidance provided by Slade J in Powell v

McFarlane where he stated in respect to the nature of land and adverse possession that-

“The question what acts constitute a sufficient degree of exclusive

physical control must depend on the circumstances, in particular the

nature of the land and the manner in which land of that nature is

commonly used or enjoyed. In the case of open land, absolute physical

control is normally impracticable, if only because it is generally

impossible to secure every part of a boundary so as to prevent

intrusion.”

[67] Similar sentiments were previously explained by Lord Wilberforce in West Bank

Estates Ltd. v. Arthur6 where he stated that-

“What is a sufficient degree of sole possession and user must be

measured according to an objective standard, related no doubt to the

nature and situation of the land involved but not subject to variation

according to the resources or status of the claimants”.

[68] It is the Defendant’s case that both he and his family used the land to plant crops, reared

animals, construct their homes, and on occasions it was used by members of the

community to play football. But from his evidence I’ve deduced that the Defendant

used the land mainly for farming while he constructed his home on what is known as

Lot 2. While the Defendant’s three witnesses were consistent in their evidence in

respect of the land being used for the playing of football, only the Defendant alleged

that it was used for the planting of crops and that he continues to plant crops on the

land.

[69] The Defendant must be able to prove that his use of the land was consistent with use of

the land or the nature and characteristic of the land. In that regard, Defendant claimed

that the land was used by his parents for the rearing of animals and the planting of crops.

The Claimant has out rightly denied the above assertion of the Defendant. Additionally,

the survey plan submitted by Mr. Paul Williams, deceased, does not indicate the

presence of crops on the land, neither did the survey of Colvin Blaize. Further, as

counsel for the Claimant has rightly pointed out, the Defendant has not made a claim

in damages against the Claimants for damage to his crops. The Defendant has also failed

to produce any photographs depicting the crops planted by him.

[70] It is the finding of this Court that the Defendant has failed to adduce any conclusive

evidence of his possession which signifies an appropriate degree of physical control of

the land. Furthermore, in the face of Mary’s claim to the land, it is my finding that the

Defendant has failed to show that he 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.

6 [1967] AC 665, 678, 679; [1966] 3 WLR 750, PC

[71] The Defendant, while under cross-examination, appeared to be clueless as to what has

been happening in respect of the land over the years. The only aspect of his evidence

that he was firm and settled on was his claim that if anyone ever tried to take possession

of the land he would’ve “run them”. Interestingly though, the Defendant did not run

the Jacksons, or Colvin Blaize when they presented themselves on the land. It was his

own evidence under cross-examination that he did not know that the land was sold in

1953, could not recall what the ‘Red Man’ said to him in respect of the land but would

like to have the Court believe that he could recall with accuracy facts from well over

twenty years ago.

The Defendant’s Intention to Possess

[72] All that the Defendant is required to prove is that he intends to possess the land or that

he intends to exercise such custody and control on his own behalf and for his own

benefit, independently of anyone else except someone engaged with him in a joint

possession on the land (“intention to possess” or the “animus possidendi”).

[73] This latter requirement serves to make it clear that the Defendant is not merely the

landowner’s or the legal owner’s licensee or tenant or co-owner or a person occupying

with his permission or consent, but is independently in possession, so that it is obvious

to the Claimants (or any true owner who has discontinued possession of the land) that

they need to assert their ownership rights in good time if they are not to lose those

rights.

[74] Intention to possess would extend to the Defendant where he intends to make full use

of the land in the way in which the Claimants or the true owner would, whether he

knows he is not the owner or mistakenly believes himself to be the owner.

[75] The state of mind or intention of the Claimants is irrelevant. However, the Court in

determining the Defendant’s animus possidendi, ought to approach the Defendant’s

assertion of his intent to possess with some degree of caution as the Defendant’s

statements can easily be classified as being self-serving. As the Court of Appeal put it

in Prudential Assurance Co. Ltd v Waterloo Real Estate Inc.7:

7 [1999] 2 EGLR 85 at p. 87

“The Claimant must, of course, be shown to have the subjective

intention to possess the land, but he must also show by his outward

conduct that that was his intention.”

[76] Therefore, if the Defendant seeking title to land was to be established by adverse

possession, the claim had to be unequivocal only in the sense that the intention to

possess was clear to the world and which would ordinarily include the Claimants herein,

and is totally unnecessary for the dispossessed party to know of the title he lost.

[77] Earlier on in this judgment I expressed my concern in respect of the Defendant’s lack

of information as it pertains to the person who his ‘family’ would have allegedly

dispossessed over fifty (50) years ago. The Defendant did not express in his Defence or

witness statement that he was defending the Claim on behalf of his family. By and large

the documents revealed that it was solely his defence. It was not until the trial that he

sought to state that he was defending the Claimant’s application on behalf of his family.

[78] I have also addressed the conduct of the Defendant in respect of Lot 4 and my finding

that his conduct was not such as to demonstrate to this Court that on a balance of

probabilities he has been dealing with Lot 4 as an occupying owner might have been

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

[79] While the law does not require a Claimant to show that he intended to acquire title to

the land, I am of the view that a Claimant who is aware that from time to time various

persons had laid claim to the land that the Defendant would’ve taken steps to ensure

that the land that he is laying claim to is regularized, or at the very least fenced. But he

has not done so. Instead he claimed that there were remnants of a fence but the only

fence identified on the land was the one constructed by the Claimants. The Defendant

claimed that he paid the Land and Building Taxes but on the evidence it is the Claimant

and his predecessors in title who would’ve done so. The Defendant did not even know

that the land was advertised for sale by First Citizens Bank Limited. He was simply

oblivious to that fact and choose not to put his house in order.

[80] A perusal of the various Deeds of Conveyance shows that the land comprising 1 acre

was originally owned by the Defendant’s uncle who then sold it to Oliver Boothman

and Dalton Montantine. Thereafter, it seems that the land was subdivided into various

lots and sold and the Defendant stated that he had no control over that. I am of the view

that the reason why the Defendant had no control over the subdivision is because he

and his family never really had the required intention to possess the land. Here again,

the Defendant was clueless of these facts including his sister’s alleged ownership of the

land.

[81] A description of the land that the Defendant claims is an important aspect of his case.

It was his attorney-at-law who in his submissions stated that: “in order for a squatter

to unequivocally indicate an intention to possess land, that land must be clearly

demarcated from other land which the squatter does not possess.” In citing from the

case of Prudential Assurance Co. Ltd v Waterloo Real Estate Inc.8 (supra), attorney-

at-law for the Defendant referenced Gibson LJ where he stated:

“It is of course important, as the judge recognized that there should be

clear and defined physical division between that part of the wall

possession of which the claimant claims and that part of the wall

possession of which it does not claim.”

[82] Counsel for the Defendant also went on to submit that there is no question that the

subject parcel of land being claimed by the defendant is clearly demarcated. I must

respectfully disagree with Counsel as the Defendant by his own evidence admitted that

the parcel of land claimed by him was never separated. He also failed to provide this

Court with a description of the land, its measurements or size, boundaries and so on.

[83] While it is my finding that the Defendant may have desired to possess Lot 4, he has

nonetheless failed to establish the necessary intention to possess Lot 4 whether by his

outward conduct or otherwise.

In the event that the Defendant fails to establish his adverse possession of Lot 4, is

the Claimants entitled to damages for trespass and/or nuisance, and if so, in what

measure?

8 [1999] 2 EGLR 85 at p. 88

[84] The Defendant having failed to establish adverse possession of Lot 4 but in the process

having admitted to committing acts amounting to trespass to property and private

nuisance, the question thus arises as to whether the Claimants are entitled to damages

and if so, in what measure.

[85] Halsbury’s Laws of England on Remedies for Trespass9 states

“In a claim of trespass, if the Claimant proves the trespass, he is entitled to

recover nominal damages, even if he has not suffered any actual loss. If the

trespass has caused the Claimant actual damage, he is entitled to receive such

amount as will compensate him for his loss.”

[86] Generally, the measure of damages for a private nuisance is compensation for the loss

or injury sustained or the diminution of property value caused by the nuisance: Howard

v Walker [1]10 per Lord Goddard. See also Ramdeo Seewah v Vishnu Siewah11 per

Rajkumar J.

[87] I must make it clear at this juncture that the Court has been given very little assistance

by attorneys for the Claimants and none from counsel for the Defendant on the question

of damages and the measure to be awarded thereof. It is also to be noted that there was

no order by this Court for a split trial of liability and quantum. It was therefore

incumbent upon the Claimants to lead cogent evidence of their loss in the nature of a

valuation report from an approved expert so as to assist the Court in quantifying the

loss or diminution in the value of the property.

[88] There is clear admitted evidence that the Defendant unjustifiably interfered with the

Claimants’ possession as well as unlawfully interfered with their use and enjoyment of

Lot 4 by uprooting and destroying coconut, cocoa and other mature trees and vegetation

as well as spraying chemicals and burning the land, killing and destroying vegetation

causing the land to be bare. However, in the absence of evidence as to the value of the

loss, this Court is not allowed to speculate as to the value of the loss to be compensated:

see Sookdeo Ramsaran & Ors v Lorris Sandy & Anor12.

9 Tort Vol 97 (2015) 591 10 Cited in Ramdeo Seewah v Vishnu Siewah CV2009-02498 11 CV2009-02498 12 Civ. App. No. 55 of 2003

[89] Despite the lack of evidence to support actual damage, I believe this is an appropriate

case for an award of nominal damages for trespass, which would serve as a vindication

of the Claimants’ rights. Trespass, unlike nuisance, is one of the torts that is actionable

without proof of loss. In fact, damages for trespass are available without any proof of

loss. It is irrelevant that the Defendant believed he was the “owner” of the subject

property and that he was destroying his own property. Deliberate entry is sufficient to

constitute trespass, whether or not the Defendant honestly believed the land belonged

to him: Conway v Wimpey13. In this case actual loss has been shown in relation to both

trespass and nuisance but there is no measurable evidence before the Court by which

those losses could be quantified.

[90] In Jacob & Polar v Samlal14, Pemberton J (as she then was) accepted that nominal

damages will be awarded in two circumstances: (i) In recognition of an infraction of a

legal right giving the successful party judgment in which case there is no need to prove

actual loss; and (ii) Where damage is shown but its amount is not sufficiently proved.

This Court is therefore minded to award nominal damages for trespass and nuisance for

the admitted acts of destruction and interference with the enjoyment of the Claimants’

property.

[91] In Mano Sakal v Dinesh Kelvin15, Donaldson-Honeywell J awarded $30,000.00 in

nominal damages since the Claimant established loss but the value was not adequately

quantified. In Ann Edwards v Neomi Hinds16, the Claimants had established that they

suffered loss as a result of the water emitted from the pipes, which were laid by the

Defendant. They had established that the nature of the loss was slope instability. An

award of nominal damages in the sum of $30,000.00 was awarded. And in Debra

Nelson v Clive Sirju & Anor17, there were several acts of trespass by the Claimant

onto the Defendants’ land, both deliberately and indirectly. A burst water line caused

the Defendants’ land to become waterlogged creating a depression which resulted in

plaintain trees and other crops being destroyed. Additionally, the Court found that the

Claimant’s tank stand and a portion of her house had encroached onto the Defendants’

13 Conway v George Wimpey & Co (1951) 2 KB 266 14 CV2005-00454 15 CV 2015-00748 delivered on 22 March 2016 16 CV 2017-02552 delivered on 16 November 2018 per Margaret Mohammed J 17 Cv2013-02916 delivered on 26 October 2020 per Robin Mohammed J

land. The Defendants were unable to lead cogent evidence of the value of the loss and

thus the Court awarded nominal damages for trespass in the sum of $30,000.00.

[92] In light of the awards granted in very recent cases for similar acts of trespass where

actual damages have not been sufficiently proved, I am minded to award the Claimants

the sum of $30,000.00 as nominal damages for the acts of trespass committed by the

Defendant. I shall also award nominal damages for nuisance in the sum of $15,000.00.

Entitlement to Interest

[93] The Claimants, in their Claim and Statement of Case, claimed interest on damages

pursuant to the Supreme Court of Judicature Act Chapter 4:01 on any sum found due

at such rate and for such period as the Court shall consider fit. In light of the recent

Court of Appeal decision delivered by Mendonça JA in Republic Bank Limited v Tri-

Star Caribbean Limited18 which applied the Court of Appeal decision in Attorney

General v Brown19 and approved the High Court decisions in Lett v SM Jaleel & Co.

Ltd20 and Holder v Attorney General21, I propose to award interest at the rate of 2.5%

per annum on the damages awarded.

Entitlement and Quantification of Costs

[94] The general rule is that the Court must order the unsuccessful party to pay the costs of

the successful party: CPR Part 66.6(1). However, under the CPR, this general rule that

costs follow the event is just a starting point: A.E.I Rediffusion Music Ltd v

Phonographic Performance Ltd22 since in exercising its discretion as to who should

pay costs, the Court is mandated to consider all the circumstances of the case including,

but not limited to: (a) the conduct of the parties (both before and during proceedings);

(b) whether the party has succeeded on particular issues even if not wholly successful;

(c) the manner and reasonableness in which a party pursued the proceedings, a

particular allegation or issue; and all other factors provided for in CPR Part 66.6 (5)

and (6): Islam v Ali23.

18 Civil Appeal No. P-266 of 2018 delivered on 9 September 2020 19 Civil Appeal No. 251 of 2012 20 CV2014-00112 per R. Mohammed J 21 CV2011-00489 22 [1999] 1 W.L.R. 1507, CA 23 [2003] EWCA Civ. 612]

[95] In taking all the circumstances into account including all the factors mentioned in CPR

Part 66.6 (5) and (6), I can find no justifiable reason to depart from the general rule,

since the Claimants have been the outright successful party on all the issues canvassed

by this Court. The Claimants shall therefore be entitled to recover their costs of the

Claim as well as costs incurred as a result of seeking interim injunctive relief on their

application filed on 30th October 2015 which was granted on the 6th November 2015

before Madam Justice Dean-Armorer (as she then was).

[96] In relation to costs of the Claim after trial, the Claimants are entitled to costs on the

prescribed scale. This requires the Court to ascertain the “value” of the Claim which is

provided for in this case by CPR Part 67.5 (2). The Claim being substantially a non-

monetary Claim (that is, the dominant relief being for a declaration of ownership and

possession), the value of the Claim will be determined by applying CPR Part 67.5 (2)

(c) which stipulates that if the Claim is not for a monetary sum then it is to be treated

as a Claim for $50,000.00, the prescribed costs of which are quantified in the sum of

$14,000.00 in accordance with Appendix B of Part 67.

[97] In relation to costs consequent on the grant of the interim injunctions, such costs are

costs in the cause and are reserved until determination of the matter to be assessed in

accordance with CPR Part 67.11. This would require the Claimants to file a Statement

of Costs for assessment taking into account the hourly rate charged by attorneys-at-law

relative to the date of call to the bar as set out in the Second Practice Guide to the

Assessment of Costs issued by the Chief Justice on 20th October 2015.

H. Disposition

[98] It is the finding of this Court that the Claimants have discharged their burden of

establishing their title to Lot 4 as well as their claims against the Defendant for trespass

and nuisance. Consequently, the Defendant is liable in damages for his unjustifiable

actions on the said Lot 4 and interference with the Claimants’ peaceful enjoyment of

their property.

[99] Accordingly, in light of the pleadings, evidence, submissions, analyses and findings

above, the order of the Court is as follows:

I. Order:

1. This Court declares that the Claimants are the owners of and are entitled to

possession of that piece or parcel of land known as Lot 4, Rivas Road, Off La

Pastora Road, Santa Cruz more particularly described in the Schedule to

Deed dated the 9th July 2007 and registered as DE 200701833175 as ALL AND

SINGULAR that piece or parcel of land situate at La Pastora, Santa Cruz in

the Ward of St. Ann’s in the Island of Trinidad comprising SEVEN

HUNDRED AND EIGHT POINT TWO SQUARE METRES (being a portion

of the parcel of land described in the First Schedule to the Conveyance) and

bounded on the North partly by Lot 1 and partly by Lot 2 on the South partly

by a Road Reserve 10.06 metres wide and partly by Lot 6 on the East partly

by the said Lot 2 and partly by the said Road Reserve 10.06 metres wide and

on the West partly by the said Lot 6 and partly by Lot 3 which said piece or

parcel of land is delineated coloured pink and shown as Lot 4 on the Survey

Plan annexed to the Conveyance marked “A” dated the 4th day of March 1998.

2. That the interim injunction granted on the 6th November, 2015 restraining the

Defendant whether by himself, his servants and or agents or otherwise

howsoever from entering and or remaining on or occupying or continuing in

occupation of that piece or parcel of land belonging to the Claimants known

as Lot 4 and more particularly described in clause 1 of this order, be and is

hereby made a permanent and final order of this Court.

3. That the further interim injunction granted on the 6th November, 2015

restraining the Defendant whether by himself, his servants and or agents or

otherwise howsoever from doing the following acts or any of them, that is to

say:

a. Constructing a wall/fence on the Claimants’ property;

b. Trespassing upon the Claimants’ property, and there spraying

pesticides, cutting and clearing by burning the natural vegetation,

removing the Claimants’ plants, removing the Claimants’ boundary

marking, digging holes to erect a fence or otherwise causing damage to

the Claimants’ property;

c. Assaulting, intimidating, threatening or otherwise howsoever interfering

with the Claimants or the Claimants’ servants and or agents and or

licensees, heirs or assigns,

be and is hereby made a permanent and final order of this Court.

4. That the Defendant do deliver up possession of the Lot 4 to the Claimants

forthwith.

5. That the Defendant shall pay to the Claimants the sum of $45,000.00 as

nominal damages for trespass ($30,000.00) and nuisance ($15,000.00) together

with interest at the rate of 2.5% per annum from the date of filing of the Claim

(30th October 2015) to the date of this judgment (17th November 2020).

6. The Defendant shall pay to the Claimants prescribed costs of the Claim

quantified in the sum of $14,000.00 pursuant to CPR Part 67.5 (2) (c) and

Appendix B of CPR Part 67.

7. The Defendant shall also pay to the Claimants assessed costs of the Application

for injunctive relief filed on the 30th October 2015 to be quantified in

accordance with CPR Part 67.11, in default of agreement. In the event that

there is no agreement, the Claimants’ attorneys to file a Statement of Costs

for assessment within 3 months of the date of this order.

8. The Defendant to file objections to items on the Statement of Costs, if

necessary, within 21 days of service of the said Statement of Costs.

9. Quantification and decision on the assessed costs of the injunctive proceedings

to be determined and delivered without a hearing.

___________________

Robin N. Mohammed

Judge