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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2010-01997

BETWEEN

CHANDRABHAN SHARMA

SHANTA SHARMA

CLAIMANTS

AND

MAJORIE ALTHEA HOLDER

DEFENDANT

BEFORE THE HON. MADAME JUSTICE JOAN CHARLES

Appearances:

For the Claimants: Mr. Ronnie Bissessar

Instructed by Mr. Alvin Ramroop

For the Defendant: Mr. Gregory Delzin

Instructed by Ms. Andrea Goddard

Date of Delivery: 17th November 2014

JUDGMENT

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THE CLAIM

[1] By Amended Claim Form and Statement of Case filed on 24th June 2010, the

Claimants claimed that the Defendant’s paper title to lands situate at #12

Sundaree Drive, Longdenville Old Road, Enterprise, Chaguanas (the subject

land) was extinguished by virtue of the Claimants’ undisturbed occupation

from February 1985.

PLEADINGS

[2] The Claimants pleaded that they are the owners of the subject land by virtue

of their continuous and undisturbed occupation of the said lands in excess of

20 years since 1985 or thereabout, and that such continuous occupation and

possession is incompatible with the freehold entitlement of the Defendant.

[3] They also pleaded that the Defendant is recorded as owner of the disputed

lands by registered deed No. DE12011 of 1983.

[4] The Claimants cited several acts as evidence of their animus posidendi:

a) From or about 1988 they dug drains throughout the disputed lands,

b) They continuously maintained the disputed lands by cutting the grass.

c) They levelled and backfilled the land in 1991 and in or about 2007 they

delivered 15 loads of topsoil onto the disputed lands for the purpose of

its upkeep.

d) The Claimants averred that they intended to use the occupied parcel of

land for the planting of fruits and vegetables.

e) In 2006 they erected a chain link and steel support fence and three steel

gates on the disputed lands.

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f) During their occupation of these lands the Claimants continuously

planted flowers and other plants.

g) The Claimants spent over $60,000.00 toward the maintenance and

upkeep of the disputed parcel of land.

[5] The Claimants also pleaded that since 1985 they exercised and continued to

exercise a sufficient degree of custody and control of the subject land and that

at all material times had an intention to exercise such custody and control for

their behalf and benefit over the disputed lands.

[6] They retained a licensed land surveyor to conduct a survey of the disputed

lands in 2006 with the intention of applying to the court for an order vesting

the subject lands in their names pursuant to the Real Property Ordinance.

[7] They further pleaded that on 25th March 2010 the Defendant through her

servants and or agents entered the disputed lands by cutting the lock placed

on the gate which had been erected by the Claimants.

[8] The Claimants also claimed special damages in the sum of $65,000.00 for the

destruction of the chain link fence, trees and a hedge as well as a wooden

storage shed and its contents.

The Defence and Counterclaim

[9] The Defendant denied that the Claimants had been in continuous and

undisturbed occupation of the subject land or that they are entitled to

possession of same. They asserted to the contrary, that the Defendant was and

had been in exclusive possession of the disputed lands at all material times.

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[10] The Defendant further pleaded that even if the acts pleaded in the Statement

of Case in proof of their claim for possession occurred, the exclusive

possession of the subject lands by the Defendant was never ousted. She

averred that the said acts, if they occurred, amount to acts/admission of

trespass by the Claimants.

[11] In the alternative, the Defendant pleaded that if any of the acts of possession

referred to in the Statement of Case did occur they did so within the 16 year

limitation period prescribed by Section 3 of the Real Property Limitation Act

Chap 53:06 (the R.P.L.A.), thereby debarring the Claimant from asserting a

possessory title to the subject lands.

[12] The Defendant pleaded that in or about 1984 she erected concrete structures

on the subject lands with the intention of building her home thereon;

however, the Claimants unlawfully entered the said lands without her

permission and demolished the said structures causing damage to the said

lands, as a result of which the Defendant incurred additional expense to

rebuild the said structures. The Defendant averred that the Claimants in 2008

illegally entered the said lands and erected a chain link wire fence on its

western perimeter.

[13] It was pleaded by the Defendant that in 1985 she allowed one Heeralal

Jaggessar whose house is opposite and to the west of the Defendant’s

premises, to erect a wooden shelter thereon and to park his truck and backhoe

on the said lands. However, in or around 2008 the Claimants falsely

represented to the said Mr. Jagessar that they had acquired the Defendant’s

lands and caused the removal of the said wooden shed and vehicles. The

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Defendant pleaded further that the Claimants never gave her a notice of

survey and neither admitted nor denied the said survey.

[14] The Defendant denied that the Claimants dug drains on the land in 1988,

backfilled the land in 1991 and delivered 15 loads of topsoil onto the said

lands in 2007. She asserted however, that in 2008 the Claimants erected a

chain link fence on the subject lands.

[15] The Defendant admitted that in 2010 she removed the chain link wire fence

that the Claimants had erected on the subject land together with pieces of

lumber and one galvanized iron sheet. The Defendant however, denied

damaging plants and a wooden shed.

[16] The Defendant also denied that she acted unlawfully and maliciously; she

asserted that she acted to protect her property. The Defendant also pleaded

that the Claimants’ filing attorney, Mr. Alvin Ramroop, purported to convey

to the Claimants title to the subject property by deed registration No.

DE200502075798D001 – the same title which they now seek to have the Court

declare in their favour.

[17] The Defendant contended that the Claimants have thereby attempted to

perpetrate a fraud upon the Court.

[18] The Defendant sought Orders declaring that she is rightful owner of the

subject property, damages for trespass, and an Order setting aside the deed,

injunctive reliefs and costs.

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[19] By way of Counterclaim the Defendant sought a declaration that she is

entitled to the sole and exclusive possession of the subject parcel of land and

that her title to the said land has not been extinguished. She also sought

damages for trespass and an Order setting aside Deed of Conveyance

DE200502075798D001, the costs of reinstatement of the structures built by her

on the land and interest.

Defence to Counterclaim

[20] The Claimants denied that the Defendant gave a licence to Heeralal Jagessar

in 1985 to erect a wooden shelter on the subject lands for the purpose of

parking his vehicles. They averred that in or about 2005, without the

consent/approval of the Claimants Mr. Jagessar parked his vehicles on the

said lands; immediately thereafter the Claimants told Mr. Jagessar that he

could not park his vehicles there whereupon he removed said vehicles and

desisted from parking them on the said lands.

[21] They also pleaded that the failure to disclose deed No. DE200502075798D001

which purported to transfer title in the said lands to them does not amount to

evidence of fraud; instead it was mere inadvertence caused by the need to file

this action expeditiously. The Claimants asserted that the deed does not

conflict with their claim to a possessory title and indeed supports their claim

to the said title.

[22] Lastly, the Claimants denied that the Defendant is entitled to maintain an

action for trespass against them.

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EVIDENCE

[23] By witness statement filed on 14th February 2013 the First Named Claimant

testified that he and his wife became the registered owners of Lot #10

Sundaree Drive, Enterprise, Chaguanas in 1983. The Defendant, Majorie

Althea Holder became the registered owner of Lot #12 in 1983 by deed

registered No. 12011 of 1983. Mr. Sharma stated that at the commencement

their occupation of Lot #10, Lot #12 was empty. However, sometime in or

about September 1984, he asserted that “some persons” started construction

of concrete pillars on the subject parcel which lasted for a period of six

months. After the six month period, this construction stopped completely.

The Claimant further stated that barring the said six month period Lot #12

remained unoccupied until 1985 when he began occupation of said lands.

[24] He also testified that in 1988 he dug drains throughout the land, along the

northern boundary (which is common to Lot #10 and #12) and on the eastern

boundary. This was done to help drainage of the land as water was

accumulating on Lot #12 and the pooling of water was a breeding ground for

mosquitoes. The said pooling of water on Lot #12 caused Lot #10 which the

Claimant occupied to become water logged. He indicated that the cost of

digging those drains amounted to $2,500.00. It was also the Claimant’s

testimony that in 1987 he levelled and backfilled Lot #12 in order to hold a

Devi Yagna there. The Yagna was held from 19th to 21st July 1987 and a large

bamboo tent was erected for this purpose on Lot #12. Further, in June 1991

the subject lands were again levelled and a larger bamboo tent erected on it

for a Gyan Yagna ceremony for the Claimants’ son. All the neighbours were

invited to the event which was held from 11th to 15th July 1991.

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[25] The Claimant also asserted that he continuously maintained the said Lot by

cutting the grass.

[26] The Claimant also testified that in 2005 the land was still retaining water and

was waterlogged; as a result of the waterlogged condition of Lot 12, Lot #10

also became waterlogged. In order to address this situation in June 2007 he

caused fifteen loads of topsoil to be delivered to Plot #12 in order to upkeep

the said lands. He further testified he used Plot #12 for planting fruits and

vegetables.

[27] Mr. Sharma testified that in November 2006 he erected a seven foot high

chain link fence and 3 steel gates which included a 20 foot double gate for

vehicular access and a small side gate abutting the entrance to Lot #10 for his

pedestrian access to Lot #12. Posts for the fence were embedded into the

ground. Mr. Sharma maintained that he continuously planted flowers and

other plants during his period of occupation of the said Lot. He claimed to

have spent over $60,000.00 in the upkeep and maintenance of said land.

[28] In October 2006 the Claimant had Lot #12 surveyed. Notice of said survey

was given to all his neighbours including Mr. Heeralal Jagessar. It was

asserted that this survey was done in order to bring the land under the Real

Property Ordinace and to prepare a Deed accordingly.

[29] On 25th March 2010 the Defendant entered the subject lands by cutting a lock

on the gate to the subject property. As a result Pre Action Protocol Letters

were later exchanged between the parties. On 15th May 2010 the Defendant by

her servant/agent entered the disputed lands and destroyed/damaged the

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Claimant’s steel and chain link fence as well as several plants and a storage

shed.

[30] The Claimant denied that the Defendant granted Mr. Heeralal Jagessar a

license to park his truck and backhoe on Lot #12 and to erect a wooden

shelter thereon for his vehicles. It was his testimony that in 2005 Mr. Jagessar,

without the consent of the Claimant, parked his vehicles on Lot #12

whereupon the Claimant told to him to remove his vehicles as well as his

wooden shelter from Lot #1 and Mr. Jagessar did so1. Mr. Jagessar removed

his vehicles and the wooden shed. When the surveyor visited the Lot in

October 2006 there was no wooden structure on the land.

[31] A Pre Action Protocol Letter from attorney Mr. Alvin Ramroop was sent to

the Defendant in which the Claimant alleged that he was in occupation of the

said lands since 1984. He stated therein that he was in occupation and

possession of the subject lands, that he had built drains, maintained the lands

and installed a fence thereon.

[32] In cross examination Mr. Sharma admitted that the twelve pillars on Lot #12

were erected over a 6 month period. He insisted that he did not see the

persons who were erecting the pillars even though he lived next door. He

explained that at the time he worked for 16 hours a day, 7 days a week.

[33] He explained that he planted food crops and vegetables when construction

stopped in March 1985. He also maintained that he dug drains on the land

because water was pooling on the land and it was a source of breeding

mosquitoes. The Claimant admitted that he did not say in his witness 1 Paragraph 28 Witness Statement of Chandrabhan Sharma

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statement that he planted vegetables and that the first time he mentioned

planting vegetables was whilst he was giving evidence in Court. In answer to

Counsel, Mr. Sharma explained that in June 1985 he had been promoted and

so was able to find the time to plant the land.

[34] In further answer to Counsel the Claimant outlined that the land was levelled

for the erection of bamboo structures. These bamboo structures were erected

in 1987, 1991 and 1994 for the purpose of facilitating religious ceremonies. The

Claimant further explained that the topsoil delivered to the subject land in

2007 was for the upkeep of the said lands. In further answer to Counsel he

testified that topsoil was delivered for the upkeep of the land prior to 2007 in

the years 1987, 1991 and 1994. The witness agreed that this was not stated in

his witness statement; he had asserted in his evidence in chief that Lot #12

was backfilled because it was waterlogged, a breeding ground for mosquitoes

and as a consequence his Lot #10 was also becoming waterlogged.

[35] One Vishnu Maharaj filed a witness statement in support of the Claimant’s

case. He was not cross examined. His evidence was that he lived ¼ mile away

from the Claimant’s residence and has known them for approximately 19

years. This witness testified that he saw Dr. Sharma cut the grass on the land

and maintained same. He also asserted that in 1994 the Claimant hosted a

Gyan Yagna on Lot #12. A large bamboo tent had been erected thereon and

in 2006 Dr. Sharma erected a fence and gate on Lot #12.

[36] Richard Bharath also filed witness statement in support of the Claimant’s case

and he too was not cross examined. He lived two houses from the Claimants

on Sundaree Drive, Chaguanas and testified that he was familiar with Lot #12

since he passed in front of the subject lands to and from his home. He testified

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to having seen Dr. Sharma and/or workers cutting and maintaining the grass

on Lot #12. He attested to having attended a Gyan Yagna in 1994 on Lot #12

and that a bamboo tent had been erected for this purpose. He also testified

that there was no wooden shelter erected on Plot #12 from the time that he

started living at that address in or about the year 1988. He also asserted that

Dr. Sharma erected a fence around Lot #12 and installed a gate as well. One

year after, he personally observed that topsoil was deposited on the said

lands.

[37] Another witness called on behalf of the Claimant was one Roy Shastri

Rampersad whose witness statement was filed on 14th February 2013. He

stated that he was a general contractor living at No 8 SS Erin Road, Duncan

Village, San Fernando and in or about June 2006 he was contracted by Dr.

Sharma to fabricate and erect a security perimeter fence with two gates.

[38] He explained that pursuant to Dr. Sharma’s instructions he executed the

following works:

(i) The demolition and removal of a incomplete foundation and removal

of rubble for Lot #12.

(ii) The construction of a foundation for the perimeter fencing and four

rolls of chain link fencing. This was erected around the said lot with

proper support.

(iii) The fabrication and installation of two gates with lock

mechanisms – a pedestrian gate and the other a drive in gate.

(iv) The restriction and widening of a drain in order to accommodate

the said gate.

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[39] This witness was cross examined. He testified that on one occasion he

supplied bougainvillea plants to Dr. Sharma. However, he made it clear that

at no time did he assist Dr. Sharma in digging and planting the land. He

insisted that Dr. Sharma maintained Lot #12 for approximately 12 years. This

witness also stated that he never noticed that the pillars on Lot #12 were

overgrown with vines; there was however moss on the said pillars.

[40] In answer to Counsel he stated that when he visited the Claimant over the

years he noticed vines on the chain link fence which he said were saim.

[41] Raj Gosine was another witness who testified on behalf of the Claimants. In

his witness statement filed on 14th February 2013 he testified that he was the

Executive Director of Doc’s Engineering and was a management accountant.

Mr. Gosine asserted that he knew that Dr. Sharma had been occupying Lot

#12 for over 20 years. He stated that Dr. Sharma retained the services of Doc’s

Engineering Works to maintain both Lots 10 and 12 on Sundaree Drive,

Longdenville from 1986 to 2010. Doc’s Engineering Works provided services

which included the cutting of grass, landscaping and cleaning of drains at

both Lots 10 and 12. He also testified that in or about 1987 Doc’s Engineering

Works was retained by the First Named Claimant to backfill Lot #12.

Backfilling was also done on Lot #12 by Doc’s Engineering Works in 1994; the

company also erected a bamboo tent for a Yagna which was held on Lot #12.

[42] In cross examination this witness testified that he only visited the Claimants’

premises twice – in 1987 and 1994. In 1994 he had been invited to attend a

function at the Claimants’ home. In further answer to Counsel he stated that

his knowledge about Lot #12 was based on work orders for work done at Lots

#10 and 12. He agreed that Lot #12 was a vacant lot but could not say

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whether there were concrete pillars thereon because he had never visited Lot

#12. He later stated that when he visited in 1994 it was at night and so he

could not see any pillars. He agreed that the Yagna could not be held on Lot

#10 because there was no extra room on that piece of land so that the only

available space was on Lot #12. He admitted that no work orders had been

tendered into evidence in support of his testimony that Doc’s Engineering

Works had done cleaning, maintenance and landscaping on Lots #10 and #12.

[43] The Defendant, Dr. Althea Holder, filed a witness statement on her own

behalf on 14th February 2013. She testified that she became a fee simple owner

of the subject land by Deed dated 19th May 1983 Registration No. 12011 of

1983. She also testified that in September 1983 she obtained planning

permission to construct a single family residential building on the property.

[44] She began construction on the said land in or about September 1984 and

stopped construction when she ran out of funds in or about three months

later.

[45] The Defendant also testified that Mr. Heeralal Jagessar who lived directly

opposite Lot #12 had been hired by her to transport sand and overburden for

the construction work on her land. She gave him verbal permission to park

his vehicles on the subject land and whenever she visited the said lands she

saw first a truck and then a backhoe belonging to Mr. Jagessar.

[46] This witness testified that she visited the land periodically up until 2006 when

she stopped because of health issues. She was sometimes accompanied by a

handyman but couldn’t say when she stopped taking her handyman with her

during these visits to the subject lands.

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[47] She testified that during her visits to the land she saw no sign of occupation

other than Mr. Jagessar’s parked vehicles. The grass would sometimes grow

quite tall and she saw no signs of occupation by the Claimants. She also

testified to the fact that she did not see any evidence of drains or any work

other than the initial stages of construction of her house and a makeshift

covering for Mr. Jagessar’s equipment.

[48] Dr. Holder asserted that at no time during her visits to the said lands did she

ever see any crops, drainage works or any structure other than what she had

put down or anything else to indicate that the Claimants or any other persons

were in occupation of her land or was claiming it as their own.

[49] The Defendant testified that in June 2009 she obtained the Deed of Release in

relation to the subject land and planned to resume construction of her house

on Lot #12 and eventually move into same. In January 2010 she went to check

on her property and was amazed to find a wire fence and padlocked gate. She

thought that someone had in advertently enclosed the land so she drove

around in search of someone to talk to. It was early afternoon and no

immediate neighbours could be found. The Defendant eventually spoke to

Mrs. Jagessar who informed her that the Claimants had destroyed her

columns in 2006 and fenced Lot #12 around that time. Mrs. Jagessar and Dr.

Holder exchanged telephone numbers; she later spoke to Mr. Jagessar who he

informed her that the First Claimant had ordered him off the land and

claimed that he was the purchaser of the subject land.

[50] It was her testimony that she sought legal advice and on 25th March 2010 she

visited the land with her brother and a building contractor and instructed the

latter to remove that padlock on the gate erected by the Claimants so as to

enable her to view the damage to her unfinished construction works.

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[51] Her attorney effected a title search which showed nothing recorded after the

Deed of Release. However, a search in the Claimants’ name revealed Deed

dated 24th January 2005 registered as No, DE200502075798D001 prepared by

Mr. Alvin Ramroop which purported to transfer the subject property into the

name of the Claimants.

[52] This witness was cross examined by Counsel for the Claimants. She indicated

that her contractor had erected a small hut on Lot #12 to store his tools and

equipment. Between September 1984 to December 1984 Dr. Holder visited the

land to observe progress of the work practically every day. Initially between

January 1985 to 2006 she visited the land every month/ every few weeks. She

admitted that after some time the periods between visits became longer and

longer and after 2006 she did not visit the land until 2010.

[53] She also stated that when she visited the property between January 1985 to

December 1985 she took along her handyman to clean the property and that

during those periods she saw nothing to excite her suspicion regarding the

land. During this period she went down to the back of the property but only

when accompanied by her handyman. After 1985 Dr. Holder stated that the

grass at the back of the Lot grew much taller.

[54] The Defendant stated that the pillars and the foundation were about 20 to 30

feet from the roadway. The depth of the land from the roadway was

approximately 230 feet. The footprint of the structure is to the front of the lot.

[55] It was the Defendant’s testimony that the rear portion of Lot #12 was not

water logged or overgrown with trees/shrubs in 1985; the grass was low. The

Defendant also stated that in 1985 during her said visits she never met Dr.

Sharma. On most occasions that she visited the lands the neighbours were

already at work so she could not see them to speak to them.

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[56] In answer to Counsel the Defendant stated that Mr. Jagessar contacted her via

the phone to seek permission to park his truck on the land. She could not

recall when he called her and she was not sure if it was a few years after

construction came to an end. Further, the Defendant could not remember any

other telephone conversation with Mr. Jagessar before 2010. She was

uncertain about whether she had spoken to him once or twice before 2010.

She asserted that there had been further calls between herself and Mr.

Jagessar but she could not recall the details of those calls.

[57] When she observed that her property had been fenced and a gate erected

thereon the Defendant didn’t think about going to Mr. Jagessar’s home to

speak to him; however, whilst driving up and down the road she met Mrs.

Jagessar who told her what had happened.

[58] Dr. Holder agreed that Mrs. Jagessar told her that Dr. Sharma had removed

the pillars in 2008. She was not certain if Mrs. Jagessar told her about the

erection of the fence by the Claimants. The Defendant accepted that the

Claimants removed the pillars from the subject lands in 2006.

[59] The Defendant also stated that Mr. Jagessar told her that he had been ordered

off the land in 2008.

[60] It was put to the Defendant that apart from a visit in 2004 to 2005 no further

visits to the land took place until 2010. She responded by saying that she was

not sure but that probably could be true.

[61] The Defendant testified that she never saw a backhoe on the land at the time

when she visited the land. Paragraph 8 of her witness statement was read to

her where she had said that sometimes when she visited the land she saw a

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truck and later a backhoe. The witness explained the discrepancy by saying

that she must have seen the backhoe - “it’s sometime now”.

[62] The Defendant testified that in 2010 she noticed flowers on the land. She had

never seen any flowers on the land before that.

[63] Heeralal Jagessar was the sole witness called by the Defendant in support of

her case. In his witness statement filed on the 14th February 2013 Mr. Jagessar

stated that he lived at 4 Peyton Place Avenue, Longdenville Old Road,

Longdenville for about 28 years with his wife and 6 children. He stated

further that he had owned his house lot about 4 years prior to building his

home thereon. It was Mr. Jagessar’s testimony that his house was situate

obliquely opposite the Claimants’ whom he had known since 1983. He knew

the Defendant, Dr. Holder, since 1983 when she introduced herself to him and

his wife around the time she bought Lot #12 and intimated that she would be

building soon. In 1984 the Defendant began construction of her home and she

hired Mr. Jagessar to transport sand and gravel to her site.

[64] Mr. Jagessar asserted that after a few months, construction on the Defendant’s

Lot#12 came to a halt; only the foundation and a few vertical columns had

been erected. About a year and a half after construction halted Mr. Jagessar

explained that he telephoned the Defendant and sought her permission to

park his truck on the property every day after work. The Defendant gave her

permission and Mr. Jagessar parked his truck on said land until 1988 when he

purchased a backhoe. Thereafter, he parked the backhoe on the Defendant’s

land and the truck on his property.

[65] Mr. Jagessar noted that neither Claimants objected to his parking of his

truck/backhoe until 2006. When he purchased his backhoe in 1998 he

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installed rafters atop the Defendant’s pillars and with galvanized iron sheets

created a makeshift shelter for the said backhoe.

[66] He testified further that in 2006 his son purchased two bundles of steel for the

construction of his home. Steel was delivered to the Defendant’s land for

temporary storage until his son was ready to use it. The First Claimant spoke

to Mr. Jagessar after the steel was delivered and asked why he was storing the

steel on his land. The Claimant told him that he had acquired the land and he

had to make other arrangements for storage of the material and asked Mr.

Jagessar to remove the steel. The First Named Claimant ordered Mr. Jagessar

off the land and he left. Mr. Jagessar testified that at that time he had lost the

Defendant’s telephone number and did not know how to contact her.

[67] The witness further stated that after he was ordered off the disputed lands he

removed some of the rafters and galvanize iron sheets he had placed on the

Defendant’s pillars. The Claimants then demolished the Defendant’s pillars

and his container of truck parts which he wasn’t given an opportunity to

remove from the said Lot. The witness further stated that at this time there

was no fence to the front and the back of the Defendant’s property.

[68] About one month after the pillars were destroyed the Claimants fenced the

Defendant’s property to the front. They had planted flowers one year before

the demolition of pillars on the Defendant’s land close to the boundary fence.

[69] In March 2010 the Defendant spoke to his wife; he later spoke to her by

telephone and informed her that after she left officers from the Cunupia

Police Station visited and spoke to both the First and Second Named

Claimants and himself. The First Claimant told the police that Lot #12

belonged to him; Mr. Jagessar on the other hand told the police that the said

lands belonged to the Defendant. When the police asked the First Named

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Claimant for his deed he indicated that it was at his bank. The police officer

then asked that the Defendant bring her deed to the Cunupia Police Station.

[70] Under cross examination Mr. Jagessar stated that he had two houses in the

area – one opposite the Claimants’ house and another two houses away but

on the same side with the Claimants and he currently resides there.

[71] Mr. Jagessar insisted that he had had several telephone conversations with

the Defendant however he could not say how many telephone conversations

he had had with her from 1985 to present. He took no note of it. He indicated

that after 1986 he telephoned the Defendant but sometime later he lost her

phone number.

[72] This witness went on to state that between 1st January 1985 to 31st December

2006 during telephone conversations with the Defendant, there were no

discussions about the land because they had no problems at the time.

[73] In answer to Counsel Mr. Jagessar also stated that he telephoned the

Defendant to ask her permission to park his vehicles. He could not however,

remember when he asked her for permission; when it was pointed out to him

that in his witness statement he had said that he sought her permission to

park his vehicles about 1 ½ years after construction had stopped, he agreed

with what he said in the witness statement. He could not remember when

construction on Lot #12 had come to an end. He stated that he parked his

vehicle between the columns erected on the lands. He explained that whilst

he could drive between the columns he never went beyond the footprint of

the house.

[74] Mr. Jagessar could not remember when Dr. Sharma told him to remove his

vehicles, truck parts and a shed that he had built on Lot #12. When it was

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pointed out that he had stated in his witness statement that this happened in

2006, he replied that ‘it could be but he took no note.’ He wasn’t sure whether

it was 2005 or 2006 that Dr. Sharma told him to leave Lot #12. Again he

insisted that he took no notes regarding this matter.

[75] This witness also stated that whilst he remembered seeing the Defendant on

her property between 1985 to when the Claimant told him to leave, the only

time that he saw Dr. Sharma on Lot #12 was when he was breaking down the

columns. He could not give the date when that took place. Mr. Jagessar

pointed out that the land was open and the Claimant could have walked in or

out of the property at any time. He was adamant that that the only time he

saw the First Named Claimant on the land was in November 2006 because ‘it

is then he started around there’.

[76] This witness admitted that he attended both Yagnas held by the Claimants;

however, he had at first stated that one was on Lot #10 and the other on Lot

#12 but could not remember the dates. He later agreed that the first Yagna

was actually on Lot #12 and that the Claimants had created an opening

between the properties for easy access between Lots #10 and #12 during the

Yagna.

[77] He disputed that the opening thus created was a pedestrian gate and

described it as an opening in the wire fence between the properties.

[78] This witness further testified that he could see to the back of Lot #12, the

subject property from his house and that the pillars did not obstruct his view.

He explained that he had clear sight to the back of Lot #12 from the gallery of

his two storey house. He also indicated that from his other house on Lot #8

where he currently resides he could see the back of Lot #12 because his home

is longer than the Claimants’ home.

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[79] This witness insisted that there were no crops at the back of the subject

property (Lot #12). The only place he could see the back of Lot #12 is from the

gallery of his home situate obliquely opposite the Claimants’ property.

[80] He admitted that he had built a shed in front of his home on Lot #4 opposite

the disputed land though he could not remember the year in which it was

built. Mr. Jagessar denied that he was ever parked his backhoe in front of his

home. He accepted that prior to 2005/2006 he had shelter at Lot #4 and Lot #8

and so had no need to park at Lot #12.

THE LAW AND ANALYSIS

[81] By Section 3 of the Real Property Limitation Act Chap 56:06 it is provided:

“No person shall make an entry of distress, or bring an action to recover any

lands or rent, but within sixteen years 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…”

[82] Section 3 of the Real Property Limitation Act Chap 56:03 bars any action for

recovery of any land that may have accrued by an entry on land by an

unauthorized third party after 16 years of uninterrupted possession. Section

22 of the said Act extinguishes the title of the owner of the land after the lapse

of 16 years from the date of the accrual of the right to action if no action for

recovery was brought.

[83] The net effect of these two sections is that adverse possession for more than 16

years prevents the ouster from the land of the adverse possessor by the

owner. It creates in effect a right of possession. Nothing in the legislation

grants or creates a title to the adverse possessor. It creates a bar for recovery

22

by action. The Claimant could not transfer title in the subject property to

themselves. In the circumstances I hold that deed dated 24th January 2005

registered as No. DE200502075798D001 is hereby set aside and the Registrar is

the directed to expunge it from the records.

[84] Section 4 of the Act provides:

“The right to make an entry… or to bring an action to

recover any land… shall be deemed to have first accrued as

such time as is hereinafter mentioned, that is to say –

a) when the person claiming such land shall in respect of the

estate or interest claimed have been in possession of such land

and shall while entitled thereto, have been dispossessed then

such right shall be deemed to have first accrued at the time of

such dispossession or discontinuance of possession…”

[85] Section 11 of the Act provides,

“No person shall be deemed to have been in possession

of any land within the meaning of this Act merely by reason

of having made an entry thereon…”

[86] The issue that falls for my determination is whether the Claimants has

established on a balance of probabilities sufficient acts of dispossession for an

uninterrupted period of sixteen years that can operate to extinguish the title

of the Defendant. Put another way, the Claimants must establish on a balance

of probabilities a sufficient degree of physical custody of and the intention to

possess the subject lands such as to extinguish the Defendant’s title. It is to be

23

noted at the outset that a mere entry on the disputed lands will not be enough

to establish possession by the non title holder.

[87] The test as to what constitutes “possession” for the purposes of Sections 3, 4,

11 and 22 of the R.P.L.A. was clearly articulated in the case of JA Pye

(Oxford) v Graham et al [2002] 1 AC 419 pages 435. The Court explained it

thus:

39 What then constitutes “possession” in the ordinary

sense of the word?

40 In Powell’s case 38 P & CR 470 Slade J opined:

(1) In the absence of evidence to the contrary, the owner of

land with the 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 possidendi).

Counsel for both parties criticized this definition as being unhelpful since it used

the word being defined ‘possession’ in the definition itself. This is true but Slade J

was only adopting a definition used by Roman law and by all judges and writers

in the past. To be pedantic the problem could be avoided by saying there are two

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

custody and control (factual possession) (2) an intention to exercise such

24

custody and control on one’s own behalf and for one’s own benefit

(intention to possess)What is crucial is to understand that without the

requisite intention in law there can be no possession. Remarks made by

Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P &

CR 494, 499, “It is not perhaps immediately obvious why the authorities have

required a trespasser to establish an intention to possess as well as actual

possession in order to prove the relevant adverse possession”, provided the

starting point for a submission by Mr. Lewison for the Grahams that there was no

need in order to show possession in law, to show separately an intention to

possess. I do not think that Clark LJ was under any misapprehension. But in any

event there has always, both in Roman law and in common law, been a

requirement to show an intention to possess in addition to objective acts of

physically possession. Such intention may be, and frequently is, deduced from the

physical acts themselves. But there is no doubt in my judgment that there are two

separate elements in legal possession. So far as English law is concerned intention

as separate element is obviously necessary. Suppose a case where A is found to be

in occupation of a locked house. He may be there as a squatter, as an overnight

trespasser or as a friend looking after the house of the paper owner during his

absence on holiday. The acts done by A in any given period do not tell you

whether there is a legal possession. If A is there as a squatter he intends to stay as

long as he can for his own benefit. His intention is an intention to possess. But if

he only intends to trespass for the night or has expressly agreed to look after the

house for his friend he does not have possession. It is not the nature of the acts

which A does but the intention with which he does them which determined

whether or no he is in possession.

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Factual possession

In Powell’s case Justice Slade opined,

(3) 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 constituted 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. 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.”

I agree with this statement of the law which is all that is necessary in the present case.

The Grahams were in occupation of the land which was within their exclusive

physical control. The paper owner, Pye, was physically excluded from the land by the

hedges and the land of any key to the road gate. The Grahams farmed it in

conjunction with Manor Farm an in exactly the same way. They were plainly in

factual possession before 30th April 1986.

26

[88] This case was applied in the Court of Appeal decision of Manzoor Ali v The

Tobago House of Assembly Civ App 43 of 2008. Kangaloo JA opined that

factual possession is:

“…a degree of exclusive physical custody and control and the question of

whether the acts of the squatter are sufficient to meet this test must depend on

the circumstances of the case.

Moreover, in relation to the intention to possess, it means:-

“…an intention in one’s own name and on one’s own behalf, to exclude the world at

large, including the owner with the paper title so far, as is reasonably practicable, and

so far as the processes of the law will allow”

[89] This definition of factual possession and the intention to possess was also

applied in a decision of the Caribbean Court of Justice Toolsie Persuad

Limited v Andrew James Investments Limited and others (2008) 72 WIR

292. In that case:

The appellant sought a declaration that under the Title to Land (Prescription and

Limitation) Act Chap 60:02 of the Laws of Guyana, it had acquired prescriptive

title to a tract of land on the east coast of Demerara, Georgetown by undisturbed

adverse possession for over 12 years, adding it own adverse possession of the land to

earlier adverse possession of the Republic of Guyana. The tract comprised areas owned

respectively by the first respondent, the second respondent and the State. The tract

had been the subject of a compulsory acquisition order (CAO) in 1977 and in 1987

the State had contracted to sell the whole tract to the appellant. The appellant delayed

taking possession until 1988. In 1989 both the first and second respondents filed

constitutional motions to have the CAO and the State’s acquisition of title declared

27

invalid. In 1990, in the first respondent’s case, High Court judge declaring the CAO

to be of no effect and enabling her to have title back in her name. At first instance, the

judge dismissed the appellants’ petition; the dismissal was upheld by the Court of

Appeal to the Caribbean Court of Justice. Three issues arose for the Court:

(i) whether the State had the necessary intention for its possession to be

adverse when that possession was based on the belief that it as the owner under

a CAO which was subsequently declared invalid,

(ii) whether it was possible for the State to acquire land by adverse

possession and

(iii) whether a landowner’s right of action to recover land acquired from

him by the State under an invalid CAO only arose when the CAO was

declared to be invalid by a court upon a constitutional motion brought by the

landowner.

The Court held that a Claimant to land by adverse possession had to show

that for the requisite period he (and any necessary predecessor) had (i) a

sufficient degree of physical custody and control of the claimed land in the

light of the land’s circumstances (factual possession) and (ii) an intention to

exercise such custody and control on his own behalf and for his own benefit,

independently of anyone else except someone engages with him a join

enterprise on the land (intention to possess). The factual possessor was not

merely the landowner’s licensee or tenant or trustee or co-owner but was

independently in possession so that it was obvious to any dispossessed true

owner (or any true owner who had discontinued possession of his land) that

he needed to assert his ownership rights in good time if he was not to lose

them. Intention to possess thus extended to a person intending to make full

use of the land in the way in which an owner would, whether he knew he was

not the owner or mistakenly believed himself to be the owner eg due to a

28

misleading plan or a forged document or a compulsory acquisition order

subsequently held to be ineffective to vest the land in the State, as in the

instant case.

[90] In Wilson and another v Martin’s Exors, Estates Gazette June 19 1993 [1992]

24 EG 119 CA:

In 1941 a Mr. Martin purchased all or part of the Isenhurst Estate, Healthfield,

Sussex. Part of the land was Sunset Farm. In 1947 Mr. Martin retaining the rest of

the land, sold Sunset Farm to a Mr. Crouch who, in 1961, the farm to Mr. John

Howitt. Mr. Howitt remained in possession of Sunset Farm until 1985 when he sold

it to the plaintiffs. Throughout that time Mr. Martin was in occupation of the estate

lands until his death in 1981 and thereafter, the defendants, his executors, were in

occupation. The land owned by the executors includes the OS No. 1770 the disputed

area, a piece of woodland of about 2 acres-plus. On May 21st 1989 the defendants

went on to the disputed land and fenced it. In upholding the plaintiffs’ claims for a

declaration and damages for trespass Judge Norrie in Eastbourne County Court

found that the following acts of Mr. Howitt constituted dispossession of Mr. Martin

within the meaning of the Limitation Act 1939: walking the boundary in 1962,

cutting chestnut in 1961 and 1962 to mend fences, clearing fallen timber for firewood

in 1963, repairing a wire fence in 1963 to 1964 and cutting trees for sale in 1979. The

Judge was satisfied that Mr. Howitt had always regarded the disputed land as his

land and when he sold it to the plaintiffs he conveyed “such rights title and interest as

he as transferor may have acquired by adverse possession”. On appeal it was

contended on behalf of the defendants that the judge was wrong in law in declining to

apply the presumption laid down in Smirk v Lyndale Developments Limited and

second, that there was no sufficient evidence on which the judge could find that Mr.

Howitt was at all material times in adverse possession of the disputed land.

29

Held allowing the appeal - It is irrelevant for the purposes of the Limitation Act in

1939 in the absence of concealed fraud that the true owner is ignorant that he had

been dispossessed. There was no evidence in this case that Mr. Martin ever knew or in

probability must have known of Mr. Howitt’s claim to the disputed land. The acts

found by the judge to have been done by Mr. Howitt before 1979 failed to

amount in law to adverse possession. The repairing of an existing fence was

insufficient to make it perfectly plain to the world at large that Mr. Howitt

intended to exclude Mr. Martin as best he could. The acts of cutting chestnut

for the purposes of repairing fences were of no significance whatsoever and

the act of taking fallen timber for firewood was of no greater significance.

The concept of adverse possession is that of a landowner who fails to take

legal action to enforce a cause of action to recover possession of land

wrongly taken by a trespasser. The acts of Mr. Howitt which the judge found

to have been done by him did not make it plain to the world at large that he

has been intending to exclude Mr. Martin from the two acres plus of his

woodland.

[91] In Maitland v Steele Civ App No 4 of 2001 the Court opined:

“[25] The evidence in the instant case does not support that the appellant had

exclusive possession of the land for a period of 12 years. His putting of vehicles, water

tanks and planting of seasonal crops on the land through Mason cannot in my

judgment given him exclusive possession.”

[92] From the evidence before me, the Claimant dug drains on the subject lands in

1988 in order to allow water which had accumulated on the said lot to drain

off. His reason for so doing was to prevent his own lot from becoming

waterlogged since water from Lot 12 was flowing on to his land. The pooling

30

of water on Lot #12 made it a breeding ground for mosquitoes; his health and

that of his family made it necessary to drain off the water. In my view this act

cannot amount to physical custody of the land nor was there an intention to

possess the land at the time that the drains were dug.

[93] The fact that the Claimant maintained the land by cutting the grass cannot,

whether by itself or together with the digging of drains, amount to adverse

possession of the said lands. Given that Dr. Sharma stated that Lot #12 was

becoming a breeding ground for mosquitoes, it made sense that he would cut

the grass for the better enjoyment of his own property. This act did not

announce to the world that he intended to oust the title holder of the

premises. In any event, I do not accept that the Claimants continuously cut

the grass and maintained the subject Lot from 1985 to 2010. I accept the

Defendant’s evidence that she visited the land with her handyman for several

years after construction stopped and he cut the grass. I note her evidence that

she stopped taking the handyman with her after sometime and the grass at

the back of the premises grew to be quite high. If the Claimant maintained the

Lot but cutting the grass, it was sometime after 1985.

[94] The Claimants made use of Lot #12 by hosting several Yagnas thereon. In

order to facilitate this event on two occasions, once in 1987 and again four

years later in 1991, the subject Lot was levelled and backfilled and bamboo

tents erected thereon. The fact that the Claimants used a vacant neighbouring

lot to host these events and backfilled the said lot for this purpose is not

evidence of an intention to possess the land to the exclusion of the title holder.

His act of backfilling and levelling the land was done with the sole intention

of creating a comfortable space for his guests who attended the Yagna.

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[95] The Claimant pleaded that in 2007 he delivered fifteen loads of topsoil on to

the land for its upkeep and that he intended to plant fruit trees and vegetable

crops thereon. He also pleaded that in 2006 a chain link fence with three gates

were erected on the subject lands. It is agreed that these two actions can

amount to evidence of adverse possession but only if they occurred within the

sixteen year period that is from 1994.

[96] In the course of cross examination, Dr. Sharma indicated that he planted food

crops and vegetables when construction on the subject land stopped in 1985.

This had neither been pleaded nor proffered in his witness statement. Whilst

he did say in his witness statement that Lot #12 was used for planting fruit

trees and vegetables, he did not specify that this took place in 1985 when the

construction stopped. In his Statement of Case the Claimant had pleaded that

they “intended to use the…land for the planting of fruit and vegetables”. I do

not accept the Claimant’s evidence that he planted fruit trees and vegetable

crops on the land in 1985 or at all. By his own pleading and evidence he has

maintained that the land was waterlogged and retaining water to such an

extent that the pooled water was flowing on to his lot. Even as late as the year

2007 by his own evidence the land was still waterlogged. In the

circumstances, it would have been difficult if not impossible to cultivate

vegetable crops and fruits trees on the said lot. In my view this evidence was

no more than an attempt by the Claimant to bolster his evidence of

occupation and control of the subject lot.

[97] Dr. Sharma testified that although he was aware of concrete pillars erected on

Lot #12 by “some persons” he never saw those persons on the land because

he worked sixteen hours a day, seven days a week. When asked how he

would have found the time to plant crops on the land he stated that he got a

32

promotion on June 1985 and so had more free time thereafter. I find this

explanation to be very convenient, especially as noted before, the Claimant

had not pleaded this fact in his Amended Statement of Case nor included it in

his witness statement.

[98] In cross examination the Claimant asserted that topsoil was delivered for the

upkeep of the land in 1987, 1991 and 19942. In his witness statement and

Statement of Case he had indicated that prior to 2007 the land had been

backfilled because it was waterlogged and a breeding ground for mosquitoes.

Additionally, this was the first time that he claimed that the land had been

backfilled in 1994. He agreed that he had not said this previously. I am of the

view that the Claimant attempted to alter his evidence with respect to the user

of the land between 1987 to 1994 in order to buttress his evidence of physical

possession of same from 1985 to 2006.

[99] In my view the other acts relied upon by the Claimant in support of his case

for adverse possession do not amount in law to adverse possession. The

digging of drains on the subject parcel do not make it plain to the world at

large that the Claimant intended to exclude the Defendant. The hosting of the

Yagnas on two occasions four years apart cannot amount to the physical

custody and control together with the animus possidendi required to oust the

title holder. Even if it were the case that the Claimant planted fruit crops on

the land that fact together with the draining of the land, if that took place,

would still not amount to adverse possession.

[100] The testimony of the Defendant and her witness Heeralal Jagessar was vague

in parts especially where the dates of certain events were concerned. I found

2 Claimant’s cross examation 7th January 2014, p23, line 27-28

33

the Defendant to be an honest witness who readily admitted that she could

not remember events even when they were important to her case. Mr.

Jagessar appeared to have memory problems as well insofar as dates were

concerned; however, there were some aspects of the evidence of these

witnesses that I accepted. I accept that the Defendant did give to Mr. Jagessar

permission to park his trucks on the subject lands and that he did so until

ejected by the Claimant in 2006. Neither party was firm on the date that this

permission was granted save that it was sometime after construction ceased

on Lot #12. There were several inconsistencies in their evidence, but on the

facts of this case, they are of no moment given my decision that the Claimant

on his case has not established that his activity on the land amounted to

adverse possession so as to extinguish the Defendant’s title.

[101] In the circumstances I hold that the Claimants’ entry onto the Defendant’s

land amounted to a trespass upon such lands. Their destruction of the

concrete pillars and foundation erected by the Defendant was therefore

unlawful and the Defendant would have to pay to the Claimant the cost of

replacement of the said foundation and pillars.

[102] The Defendant as rightful owner of the subject property whose title was not

extinguished, was entitled to oust the trespasser and take such action as was

necessary to protect her interest in the subject lands. In the circumstances, I

hold that her removal of the chain link fence erected by the Claimants was

lawful and the Claimants are not entitled to compensation from her for same.

I note that the Defendant has denied that there was a storage shed on the

subject land; however, even if there was one, she was entitled to remove it

and is therefore not liable to replace same.

34

[103] An issue arose during the course of these proceedings about whether I should

take into account photographs which purported to depict the subject land

during the 1990s. I had struck those photographs out of evidence pursuant to

an order made on evidential objections. At the trial Counsel for the

Defendant submitted that pursuant to CPR 29.1(8) the photographs ought to

have been admitted. I allowed cross examination on the photographs de bene

esse and ruled that I would determine at the end of the trial as to what weight,

if any, I would attribute to the evidence. Having regard to the decision to

which I have arrived, it did not become necessary for me to consider the

evidence in the photographs. As such I did not take them into consideration.

[104] In the circumstances I hold that the Claimant has not made out a case for

adverse possession of the Defendant’s parcel of land. I therefore give

judgment for the Defendant against the Claimant on the Defendant’s

counterclaim. The Claimant to pay the Defendant’s costs of the action

including the Defendant’s costs on the counterclaim to be assessed in default

of agreement.

[105] I therefore grant the following reliefs:

a) A declaration that the Defendant is entitled to the sole and

exclusive possession of the said parcel of land described in deed

No DE12011 of 1983 (the subject parcel) herein and that her title

disclosed in the said deed has not been extinguished and that

she is entitled to the enjoyment of her property in the said parcel

of land.

35

b) Damages for trespass to the subject land to be assessed by a

Master in Chambers.

c) An Order setting aside Deed of Conveyance No.

DE200502075798D001.

d) An Order directing the Registrar General to expunge the said

deed from the Records of the Land Registry.

e) The cost of reinstatement of the structures constructed by the

Defendant in accordance with the estimate annexed to the

Defence and marked ‘B’ in the sum of $119,013.20.

f) Interest at the rate of 6% from the date of the filing of this claim

to 17th November 2014 to be paid by the Claimants to the

Defendant.

g) The Claimants to pay the Defendant’s costs of the action

including the cost of the counterclaim to be assessed by the

Master in default of agreement.

Joan Charles

Judge