republic of trinidad and tobago in the court...

of 24

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

CIVIL APPEAL No P014 of 2013

CV 2011-03854

BETWEEN

WATER AND SEWERAGE AUTHORITY (WASA)

CLAIMANT/APPELLANT

AND

THE MAYOR, ALDERMEN,

COUNCILLORS AND CITIZENS OF

THE CITY OF PORT OF SPAIN

DEFENDANTS/RESPONDENTS

PANEL: A MENDONÇA JA

N BEREAUX JA

G SMITH JA

APPEARANCES:

S Jairam SC, Larry Lalla

appeared on behalf of the Appellant

J Jeremie SC, K Garcia

appeared on behalf of the Respondents

DATE DELIVERED: 2nd

April, 2015.

of 24

I have read the judgment of Smith J.A and agree with it.

A. Mendonça,

Justice of Appeal.

I too, agree.

N. Bereaux,

Justice of Appeal.

JUDGMENT

INTRODUCTION

1. The Appellant (WASA) and the Respondent the (Port of Spain Corporation) are two well

established public authorities that claim a 23 acre parcel of land. The land has immense potential

and value because of its prime location. At present this land is open and unused.

2. Up to around 1980, WASA operated water wells on the land. These wells were used to

augment the water supply to the capital city of Trinidad and its environs. After 1980 WASA

ceased using the wells since the water from its supplying aquifer had become brackish and unfit

for use as potable water. WASA alleged that they were allowing the aquifer to “recharge” with

the hope of using its water at some future date to augment the water supply.

The Port of Spain Corporation wants to use this land for public purposes.

3. WASA claimed that it became the owner of the land from 1st September, 1965 by virtue

of a statutory vesting of lands formerly owned by the Port of Spain Corporation under Section 11

of the Water and Sewerage Act Ch. 54:40 (the WASA Act). The relevant provision of Section 11

of the WASA Act vested in WASA “land... relating to waterworks”.1 This they claim, vested

the entire 23 acre parcel in them because this 23 acre parcel was part of an aquifer, or a well field

1 See Water and Sewerage Act Ch. 54:40: Section 11 (1) (a) (iii)

of 24

that formed part of a composite water producing system and hence, was land used in relation to

waterworks.

4. The Port of Spain Corporation denies that Section 11 vested the 23 acre parcel of land in

WASA. Section 11 vested only a limited amount of land in WASA, that is, only the limited area

of land that was occupied by WASA’s man-made structures. This would include wells, bore

holes and a pump house.

In any event the Port of Spain Corporation claims that any title that WASA had to any of

this land was extinguished by virtue of the Corporation’s adverse possession of the land from

since around 1980.

5. Justice Gobin decided the matter in favour of the Corporation. She dismissed WASA’s

claim and, in respect of the Corporation’s counterclaim, she granted declarations which affirmed

the Corporation’s ownership of the land.

6. WASA has appealed Justice Gobin’s decision. The decisive issue on this appeal is the

meaning of the expression “land...relating to waterworks” in Section 11 (1) (a) (iii) of the

WASA Act. The Appellant has raised a number of other issues on appeal but these are secondary

to the decisive issue.

7. On the decisive issue in this case, we find that Section 11 (1) (a) (iii) did not vest the 23

acre parcel of land in WASA. We affirm the decision of Gobin J and we dismiss this appeal.

BRIEF BACKGROUND FACTS

8. To understand the dispute over this specific 23 acre parcel of land, it is necessary to set

out some of the geography of the area and its historical development.

9. The 23 acre parcel of land lies above a much larger natural underground water aquifer

known as the Diego Martin Gravels. This aquifer extends the length of the Diego Martin valley,

of 24

that is, from River Estate in the north down to the sea in the south. The land space over the Diego

Martin Gravels aquifer, which is the Diego Martin valley, is one of the most densely populated

areas of Trinidad. It is, at a rough estimate, at least 21 square miles. In the early part of the

1900’s, the area at the southern end of the aquifer was swamp land. At present this area which is

now known as Westmoorings, is well developed with a major shopping mall, upscale housing

developments, a school and other modern facilities. Westmoorings lies to the south of the 23 acre

parcel of land. It is separated from the 23 acre parcel by a highway. To the north of this land is

another upscale housing development and related facilities. To the east of the land there is

another highway which penetrates the Diego Martin valley. To the west of the land is a river

which separates the land in dispute from another upscale housing development. The 23 acre

parcel of land in dispute forms part of a larger parcel of land of approximately 33 acres. There is

no dispute that the other 10 acres belongs to the Corporation. This 10 acre parcel is also an open

and unused parcel except for some minor installations.

10. The larger 33 acre parcel of land was a part of what was known as the Cocorite Farm.

The Cocorite Farm was owned and operated by the predecessors of the Corporation. Income

from the Cocorite Farm came by means of the sale of copra and grass, rents, other miscellaneous

receipts, and, the major revenue earner was from “waterworks”, namely the water wells and the

pump house on the farm.2

A report in 1950, known as the Sutton Report, noted significant water production by the

Corporation from wells on the Cocorite Farm.

Under Public Health laws from 1949 and thereafter, Bye-laws were made by the

predecessors of the Corporation to ensure public sanitation practices over a much larger area

surrounding and including the Cocorite Farm, ostensibly to protect the water supplied from the

Cocorite Farm.

11. From 1965, WASA took over the water production function of the Corporation. WASA

continued to operate wells and the pump house on the Cocorite Farm till around 1980. By then,

due to the urbanisation and development of the area and its proximity to the sea, salt water

intrusion caused the water from the aquifer in the area of the Cocorite Farm to become brackish

2 See Receipts from the Corporation from 1954 to around 1969 and See the Witness Statement of Murchison Brown

at [10]

of 24

and unfit for use as potable water. WASA ceased all water production from the Cocorite Farm.

WASA alleged that they wanted that part of the aquifer to “recharge” and perhaps, at some time

in the future, be available for the supply of water.

12. The 23 acre parcel of land, which formed part of the Cocorite Farm and is at the southern

end of the Diego Martin Gravels aquifer, is described as a “well field” by WASA.

WASA alleged that this well field was vested in it in 1965 by Section 11(1) (a) (iii) of the

WASA Act. The Corporation denied WASA’s allegation. The Corporation’s case is that only the

wells and the waterworks (like the pump house) that were in existence in 1965 became vested in

WASA under the Act. This was at best only very small areas of land spread out over various

parts of the Cocorite Farm. They also claim that WASA failed to establish what land was vested

in it in 1965 under the Act, save for the pump house. In any event, the Corporation claims that

the title to any land that was vested in WASA was extinguished by the Corporation’s adverse

possession of the same from since around 1980.

ANALYSIS

A. THE DECISIVE ISSUE

13. The starting point for the analysis of WASA’s claim is the statutory provision which,

WASA alleges, vested the 23 acre parcel of land in it; namely Section 11 of the WASA Act. The

relevant provisions of Section 11(1) of that Act state that

“Upon the commencement of this Act- (1st September 1965)

(a) all land and other property of every kind, including things

in action, vested or deemed to be vested immediately before

the commencement of this Part in-…

(iii) the Port-of-Spain Corporation under the Port-of-Spain

Corporation Ordinance or by any other right or

title and relating to waterworks(within the meaning of

section 40) or the existing sewerage system;…

is hereby vested in the Authority; (WASA) (my emphasis)

of 24

Waterworks has been expansively defined by statute3 as referring to

“all reservoirs, dams, filter-beds, weirs, tanks wells,

cisterns, tunnels, conduits, aqueducts, pipes, fountains,

sluices, valves, pumps, steam engines and all other

structures and appliances used or constructed for the

storage conveyance, supply, measurement or regulation of

water.”

14. While there is some dispute as to the statutory source of the definition of “waterworks”

both parties agree that waterworks refers only to man-made structures.4Therefore it is

unnecessary to delve into any dispute as to the correct statutory source for the definition of

‘waterworks’.

Therefore, when the WASA Act vested “land...relating to waterworks” in WASA, it

vested only the land that related to man-made structures such as wells and the pump house.

15. Neither an aquifer nor a well field is a man-made structure. They are therefore not

waterworks and are not included in the definition, “land...relating to waterworks.”

16. In its plain meaning, Section 11(1) (a) (iii) of the WASA Act did not vest the aquifer nor

the 23 acre well field, of which it is a part, in WASA.

17. Indeed, WASA accepts that the Act did not vest the entire Diego Martin Gravels aquifer

in them.5 This would be too startling a proposition, for it would mean that the entire Diego

Martin valley (and the land over other aquifers even in the capital city) would be the property of

WASA.

It would be incongruous that the same general statutory provision which excluded the

larger Diego Martin Gravels aquifer could yet somehow include the smaller 23 acre well field,

that is part of the same aquifer.

3 See The WASA Act Section 40; and Port of Spain Waterworks Ordinance No13 of 1904 Section 2; and the Water

Conservation Act Ch 54:41 Section 3(4)

4 See Court of Appeal Transcript of 30

th September 2014 at pages 6-11; Court of Appeal Transcript of 27

th

November 2014 at page 19

5 See Appellant’s Written Submissions filed on 30

th April 2014 at [2]-[5]; See Court of Appeal Transcript of 27

th


of 24

18. WASA submitted that the phrase “land...relating to waterworks” should be given an

interpretation other than the plain meaning that I have stated above. WASA stated that “the land

with its clear surface, the wells and the aquifer comprised composite parts of one water-

producing system where interference with one part would necessarily affect the usefulness

of the other two.”6 In short, the aquifer, well field, wells and pump house comprised parts of

one composite water producing unit and together this unit comprised land used in relation to

waterworks.

This interpretation is untenable. I say so for the following 3 reasons;

(i) It is an overly strained extension of the phrase “land...relating to

waterworks”

(ii) It produces unworkable results in respect of land title and ownership

(iii) It cannot be applied to the 23 acre parcel of the Cocorite Farm lands.

(i) An overly strained extension of the phrase “land...relating to waterworks”

19. In its plain meaning, the phrase “land...relating to waterworks” refers to land that

relates to certain named man-made structures. If, as WASA contends, the phrase also includes

the parts of a composite water producing system, it would also now include things that are not

man-made structures but naturally occurring phenomenon.

It could not be Parliament’s intention to create such vague and uncertain interests in land

or to deprive owners of their land by such vague references to naturally occurring phenomenon.

Further, there is no definition of what is a water producing system or a composite part of

a water producing system. Neither is there evidence that such expressions are known terms of

art.

Therefore, WASA’s interpretation would produce uncertain and unintended results. For

example, if as WASA stated, the aquifer comprises parts of one water producing system, then,

the entire Diego Martin Gravels aquifer may be a part of this composite water producing system

since it feeds the coastal aquifer and the 23 acre well field. Did Parliament intend to vest the

entire land area of the Diego Martin Valley in WASA? Even WASA rejects this. Again by way

of example, natural watersheds or the lands over artesian basins may be parts of a water


th April 2014 at [3]

of 24

producing system. Parliament could not have intended to vest all such unascertained and

unidentified watersheds and artesian basins in WASA.

Parliament clearly intended to vest land relating to waterworks, which as the parties agree

were man-made structures, in WASA. To suggest that Parliament had intended to vest land in

other unascertained and unidentified natural phenomenon is a strained interpretation of the

statute that can produce unintended and absurd results.

(ii) Unworkable results in respect of land title and ownership

20. WASA does not purport to lay claim to the entire Diego Martin Gravels aquifer. WASA

only claimed the coastal portion of this aquifer which is referred to as a unique shallow coastal

aquifer. WASA asserts that the “wells and unique aquifer comprised land relating to

waterworks under section 11 of the Act since historically it was a well field”.7

However, this shallow coastal aquifer/well field has not been defined or demarcated as

such. Further, WASA is unable to state from what depth or approximate depth a coastal aquifer

becomes a shallow one. If the composite water producing system is to include this unique

shallow coastal aquifer, its extent and parameters are uncertain.

WASA alleges that the coastal aquifer has been defined by the Public Health Bye-Laws

which demarcate an ascertainable area of land. But this is not the case. The Bye-Laws do not

purport to identify a coastal or any aquifer. They refer to an area (much larger than 23 acres)

over which the Corporation enforced certain public health practices (the protected area). The

Bye-Laws are not proof of a claim by WASA to ownership of the protected area. Further, even if

the protected area may have been included in the coastal aquifer, WASA never laid claim to the

vast majority of this protected area under the 1965 vesting statute. They claimed only 23 out of

the 33 acres that remain undeveloped. There is no suggestion that Westmoorings and the other

surrounding developments which are included in the protected area were ever vested in WASA.

Indeed, if WASA’s interpretation of Section 11 produces the result that WASA has, and since

1965, has always had title to the lands in the protected area it would create great surprise and

havoc in respect of the thousands of land titles that exist in the protected area.


th April 2014 at [5]

of 24

(iii) WASA’s interpretation cannot be applied to 23 acres of the Cocorite Farm Lands

21. In oral submissions, Counsel for WASA stated that it was only the well field or 23 acres

of the Cocorite Farm which may have been vested under the 1965 Act as lands relating to

waterworks. But even this suggestion is untenable.

As I stated before, there were several other activities conducted on the Cocorite Farm,

such as the cultivation of copra and grass and sundry rentals. Cocorite Farm, was not exclusively,

a well field.

Further, WASA failed to identify which parts of the Cocorite Farm were in use as a well

field at the date of the statutory vesting and which parts were put to other uses.8 In fact, the wells

and pump house occupied only a small part of the Cocorite Farm. According to the evidence of a

former mayor of the Corporation one Murchison Brown (whose evidence the trial judge

accepted9), the land area of the Cocorite Farm was “covered substantially by a copra estate.”

10

Therefore the well field was at best, only a small part of the Cocorite Farm and certainly not the

23 acres of land as claimed. There was no intention to vest the 23 acre parcel of land in WASA.

22. It is interesting to note that there were other statutory provisions whereby WASA could

have established the right to extract water or to have this area declared as a water improvement

area.11

This would have allowed WASA the right to protect and control water usage in the

shallow coastal aquifer and the well field. However, WASA has never, to my knowledge,

invoked these powers but instead has only relied on an untenable interpretation of its statutory

acquisition under section 11 of the WASA Act, to pursue its claim.

The case law could not displace the plain meaning of the WASA Act

23. In an effort to add finality to their respective interpretations of the expression “land...

relating to waterworks”, both the Appellant and the Respondent attempted to resort to case law.


th November 2014 pages 4-6

9 See Witness Statement of Murchison Brown at [8],[10]and See also Witness Statement of Winifred David at [17]

10 Judgment of Gobin J at [43]

11 See Part III WASA Act and Water Conservation Act Ch 54:41 Section 3 and Part V

of 24

However, while their analyses of the case law were interesting, the case law could not displace

the plain meaning of the words “land...relating to waterworks” as it is used in the WASA Act.

24. Both parties referred to case law stemming from the case Coverdale v Charlton12

and

culminating in the case Sheffield City Council v Yorkshire Water Services Ltd & Others.13

The

principles emanating from the case law were fully analysed and examined in the Sheffield case

and I will make reference to the cases and principles as they appear in the Sheffield case.

In Coverdale v Charlton (UK)14

the Public Health Act of 1875 vested in an urban

authority “all streets being or which at any time become, highways...and the pavements, stones

and other materials...and all building implements and other things provided for the purposes

thereof...”. It was held that the effect of such a vesting provision was not to vest the whole soil

of the highway but only such parts as were necessary for the discharge of the function of the

highway authority.

In Rolls v St George the Martyr, Southwak (Vestry),15

a similar statutory provision was

considered. Following the Coverdale case it was held that only such part of the land as was

necessary for the discharge of the functions of the public authority became vested in it by that

provision. By an extension of that interpretation, it was also decided that when the ‘street’ that

was ‘vested’ in the public authority ceased being a street, the functions of the public authority in

relation to that street came to an end and it ceased to have any right in the property of the street.

The later case of Turnbridge Wells Corp v Baird16

adopted the Coverdale interpretation

and applied the reasoning that the limited vesting is consistent with the policy of the legislature

in not taking or expropriating private rights without compensation.

In the Port of London Authority v Coney Island Commissioners17

the principle of limited

vesting as applied to streets was also applied to sewers, drains and public works done under Act

of Parliament such as sea walls. As Brown-Wilkinson VC stated in the Sheffield case, “in

12

(1878) 4 QBD 104

13 [1991] 2 All ER 280

14 See The Sheffield Case at page 287 h – 288 a

15 (1880) 14 CHD 785 and See The Sheffield Case at page 288 b-e

16 (1896) AC 434 and See The Sheffield Case at page 288 e-h

17 [1932] 1 Ch446 and See The Sheffield Case at page 288 h – 289 e

of 24

relation to streets, sea walls and sewerage installations that there is to be taken as vested by a

general Act of Parliament no more than is necessary for the purpose of discharging the

function of the public authority.”18

Therefore, the Coverdale interpretation and its extension seems to favour the

Corporation’s interpretation that Section 11 of the WASA Act vested only a limited area of land

in WASA, such as the well spaces and the pump house. However, the later Sheffield case cast a

different interpretation on some statutory vesting provisions.

25. In the Sheffield case, water and sewerage functions were provided for by local authorities.

In 1974 these functions were transferred from local authorities to newly established regional

water authorities. The property and undertakings used by local authorities for water and

sewerage functions were transferred to the water authorities and there was no provision for

compensation. In 1984 the water authorities were privatised by being transferred to private

companies, the shares in which were held by public companies. The property and undertakings

formerly held by the local authorities was now indirectly owned by private investors. The local

authorities brought an action to determine their property rights in respect of the assets which

were vested in the local water authorities and later transferred to the private companies. The

Chancery Division decided that the local authorities retained no interest in those assets which

had been vested in the local water authorities and later transferred to the private companies. In a

seminal judgment, Browne-Wilkinson VC decided firstly, that the Coverdale principle did not

apply in respect of a vesting of land itself as opposed to things which were not of themselves

“discrete piece(s) of property” such as a street, paving, a sewer or the constituent elements of a

sea wall.19

Secondly, a transfer of assets from one public authority to another public authority

charged with the same public purpose did not necessarily attract the principle against

expropriation without compensation.20

The Sheffield case seems to favour WASA’s expanded interpretation of the statutory

vesting since: (1) land was being vested and (2) this was a transfer from one public authority to

the next (from the Corporation to WASA) for the same public purpose.

18

The Sheffield Case at page 289 f

19 The Sheffield Case at page 289 f - h

20 Ibid at page 291 b – g; especially 291 f

of 24

26. However, the Sheffield interpretation would not apply in the present case for the

following two reasons.

Firstly, the expression “land...relating to waterworks” is a hybrid of the 2 types of

statutory vesting considered in the case law. It is not such a vesting as was covered by the

authorities cited.

In the Sheffield case there was firstly a general vesting of “Any water undertaking of

the transferor authority.”21

This was followed by more specific vesting like (a) public sewers

and related facilities22

(b) the fittings, furniture, stores and equipment of buildings and

specifically23

(c) “all property and liabilities vested in or attaching to an authority”(my

emphasis).24

The vesting of property was an unrestricted and general vesting, and insofar as it

applied to any land, it vested the entirety of the interest of the local authority in the land. In the

present case there was no such general and unrestricted vesting of property, but a specific vesting

of property. In respect of any land that was vested, it was qualified. What was vested was land

relating to waterworks. Those waterworks were admittedly confined to man-made structures and

did not extend to naturally occurring phenomena like aquifers or well fields which form part of

an aquifer.

27. Secondly, according to the evidence, at the time of the statutory vesting, the Cocorite

Farm had several uses. Some of these were unconnected to the water undertaking of the

Corporation. There was, therefore, no vesting of such parts of the Farm as were not in use for the

water undertaking of the Corporation. Even on WASA’s expanded interpretation, there was no

vesting of land in respect of the entire Cocorite Farm or of any identified parcel of land thereon.

WASA’s claim for possession of the 23 acre parcel would have failed in any event.

28. In summary, an analysis of the case law shows that neither the reasoning in the Coverdale

line of cases nor in the Sheffield case was directly applicable here. The reasoning in the

Coverdale line of cases can be distinguished since (a) land was conveyed to WASA and (b) there

was a transfer from one public authority (the Corporation) to another (WASA) for the same

21

Ibid at page 284 j

22 Ibid at page 285 b

23 Ibid at page 285 c

24 Ibid at page 285 f

of 24

public purpose (the supply of water). The reasoning in the Sheffield case is not directly

applicable since (a) this was a limited or qualified vesting of land in WASA by reference to land

relating to (man-made) waterworks and (b) the WASA Act did not purport to vest the entirety of

nor any identified parcel of the Cocorite Farm in WASA.

29. In that case, the plain meaning of the words “land...relating to waterworks” would,

prevail. This means that only the limited areas of land occupied by man-made structures used for

waterworks, such as wells and the pump-houses, would have vested in WASA by the 1965 Act.

The naturally occurring aquifer, “well field” and the entirety of the 23 acre parcel of land were

excluded from this vesting.

30. I should mention here that while the trial judge erroneously accepted the Corporation’s

submissions on the case law, it would have no effect on her decision.

The Corporation had advanced the case before the trial judge that the reasoning in the

Coverdale line of cases would apply directly to this present case; therefore, the statute which

expropriated the property of WASA should be narrowly construed. Further, since WASA’s

statutory function of water purveyance had admittedly ceased since the 1980’s, and in keeping

with the Rolls case cited, all interest of WASA in the lands from 1980 ceased.25

As my analysis

showed, the Coverdale line of cases were not directly applicable here. Therefore, Gobin J ought

not to have adopted the Corporation’s application of the case law to the facts of this case.26

Nevertheless, this would not affect the correctness of the trial judge’s decision since, she

also found, correctly, that the 23 acre parcel did not vest in WASA by the 1965 Act since it was

not proved to be land used in relation to (man-made) waterworks.27

31. Given that the statutory vesting in 1965 by the WASA Act was limited only to such land

on which there were man-made waterworks, WASA’s claim for possession of the 23 acre parcel

of land which it claims as part of a naturally occurring aquifer or well field must fail. That 23

acre parcel of land was never vested in WASA and it remained the property of the Corporation.

25

Respondent’s High Court Written Submissions [20]- [35]

26 Judgment of Gobin J at [31] and [41]


of 24

These findings are sufficient to bring an end to the real dispute between the parties since

WASA has maintained that this case was not a claim for wells but for the well field.28

However,

for the sake of completeness I will address the other issues raised on this appeal but in a more

summary manner.

B. WASA FAILED TO PROVE WHAT LAND WAS VESTED IN IT UNDER THE 1965 ACT

32. At the trial, WASA failed to lead evidence to prove what specific areas of the

Corporation’s land was in use for wells as at the date of the statutory vesting (1st September,

1965).

In the first part of her judgment, the trial judge analysed the evidence led by WASA to

prove its claim and concluded that WASA had “failed to discharge the evidential burden in that

regard.”29

The trial judge’s conclusion cannot be faulted.

33. Before reviewing the evidence, two essential facts must be kept in mind; firstly, that

Section 11 of the WASA Act only vested in WASA the land of the Corporation that was land

relating to waterworks at the date of the statutory vesting (1st September, 1965). Secondly and

historically, the wells that were used for water were only transient in nature.

34. The evidence revealed that (a) wells were used then abandoned at various times;30

(b)

there were wells which may have been located outside of the 23 acre parcel;31

and (c) WASA’s

own witnesses testified that even at the peak production period there were only 3 or 4 wells from

the 23 acre parcel that were being used to supplement the water supply from the Diego Martin

Valley.32

WASA failed to prove which of the transient wells on the 35 acre Cocorite Farm was in

28

See Court of Appeal Transcript of 27th



30 See eg the cross examination of Wayne Clement, Judge’s Notes of Evidence page 12

31 See eg the cross examination of Wayne Clement, Judge’s Notes of Evidence page 7 and See Court of Appeal

Transcript of 27th

November 2014 pages 8 and 9

32 See eg the cross examination of Wayne Clement, Judge’s Notes of Evidence page 7

of 24

use for water production at the date of the statutory vesting. Therefore, WASA could not prove

what land or what acreage of land became vested in it by Section 11 of the WASA Act.

35. The evidence that WASA relied on came from the following sources:

i) The 1950 Sutton Report

ii) The Corporation’s receipts relating to land use

iii) Public Health Bye-laws

iv) The evidence of Messrs Clement and Toppin and Bhola

v) A survey plan in 2011

None of these sources could establish WASA’s claim and the trial judge’s conclusion that

WASA failed to prove its case was correct.

36. (i) The Sutton Report of 1950 was a general report on the water supply in Trinidad and

Tobago. In respect of the Cocorite Farm, it noted that there were several wells there at varying

depths and also the varying production levels of these wells.33

However, given the transient

nature of the wells on the Cocorite Farm, water production from wells on Cocorite Farm in 1950

could not be proof of the existence of wells on the Farm in 1965 (some 15 years later). Further,

the Sutton Report did not identify any specific well on any part of the larger 35 Acre Cocorite

Farm; therefore, the 1950 Sutton Report could not establish what part of the smaller 23 acre

parcel was used by WASA in relation to waterworks at the date of the statutory vesting (1st

September 1965). In any event, given the evidence of Mr. Clement that there were only 3 to 4

producing wells to his knowledge (post 1973) on the Farm, WASA’s evidence of the usage of

the 23 acre parcel of land for waterworks in 1965 was woefully inadequate. From the 1950

Sutton Report, WASA could not establish what area of land on the 23 acre parcel was being used

in relation to waterworks in 1965.

37. (ii) WASA proved certain receipts from the Corporation for land use. Specifically there

was a receipt in 1954 which showed a significant contribution from waterworks.34

However, this

was a receipt for the year 1954. Given the transient nature of the unidentified wells on the

33

See page 15 of The Sutton Report at page 695 of the Record of Appeal

34 See Record of Appeal page 1262

of 24

Cocorite Farm, it bore no relation to the 1965 use of land in relation to waterworks. Further, it

did not prove water use in relation to any identified portion of the Cocorite Farm; in fact the

receipt confirmed that this farm was put to other uses as there were receipts for items like the

sale of grass, copra, coconuts, rents and “other receipts.”

There were other receipts from 1966 up to a few years thereafter. Significantly, these

receipts omitted any reference to waterworks or to water production, but confirm receipts for the

other uses of the land by the Corporation.35

The receipts were not of probative value to determine

the location or area of land occupied by wells or the well field at the time of the vesting and/or

whether any area was so occupied.

38. (iii) As I stated before, Public Health Bye-laws from 1949 and 1950 only indicated a

much larger area of land over which certain public health practices were to be enforced.36

These

Bye-laws never identified specific wells, a well field, or a coastal or other aquifer. Certainly they

did not identify any land used in relation to waterworks in 1965. They were of no probative value

to WASA’s claim for any land vested in 1965. At best, they may provide evidence of WASA’s

authority to restrict the contamination of the water supply. The Bye-Laws provide no evidence of

any land owned by WASA.

39. (iv) Wayne Clement, Leon Toppin and Doodnath Bhola were senior employees of

WASA whose evidence was led to bolster WASA’s claim for the 23 acre parcel of land.

However, they could not assist the court on the crucial issue of what land became vested in 1965.

This was because none of these witnesses could give any evidence of the land use on the 23 acre

parcel of land in 1965. Mr. Toppin began employment at WASA in 1972, Mr. Clement in 1973

and Mr. Bhola in 1974. None of these witnesses could identify the location or even the existence

of any wells in 1965. In fact, the evidence about the transient nature and location of the wells as

well as the use of the larger area of the Cocorite Farm for wells and the limited use of 3 to 4

wells from the 23 acre parcel, emerged from the cross examination of these witnesses. Their

evidence was not of probative value in determining what land was vested in WASA in 1965.

35

See Record of Appeal pages 1270-1310

36 See Record of Appeal pages 1254-1266

of 24

40. (v) WASA produced a plan and survey report of 2011 from one Colvin Blaize in an

attempt to identify land that was vested in it. However Mr. Blaize’s plan and report did not and

could not prove land usage in 1965 (some 45 years earlier), especially so with regard to the

location of these transient wells. Mr. Blaize’s evidence was limited to the 23 acre parcel of land

and omitted any reference to other wells outside of this area. Therefore, its effect was rendered

even more tendentious with respect to establishing the extent of the wells, the well field and the

coastal aquifer in 1965. Worse still, Mr. Blaize was not called as a witness at the trial; the

probative value of his testimony was lessened. At best Mr Blaize’s evidence showed some

abandoned well sites on the 23 acre parcel of land in 2011. A far cry from proof of the

waterworks in 1965 which were vested in WASA.

41. The trial judge severely criticised WASA’s failure to call Mr. Blaize as a witness at the

trial. She viewed this as a “fatal omission which went to the root of its (WASA’s) case.”37

She

found that Mr. Blaize’s plan and report, which formed the backbone of WASA’s claim was not

even admitted in evidence.38

WASA has contended on appeal that the plan and report were in evidence and that the

judge was wrong to find otherwise. It is not necessary to make a decision on this contention for

even if the trial judge was wrong to say that Mr. Blaize’s plan and report were not in evidence, it

would not have affected the outcome of the case. As I stated before Mr. Blaize’s plan and report

were of very minimal probative value. It did not and could not assist with the proof of the use of

the land in 1965 and hence the effect of the 1965 vesting in WASA.

42. The evidence that WASA relied on could not and did not establish that the disputed 23

acre parcel of land became vested in WASA by virtue of Section 11 of the WASA Act.

C. THE CORPORATION’S COUNTERCLAIM FOR A DECLARATION OF OWNERSHIP OF THE 23 ACRE

PARCEL OF LAND

37

Judgment of Gobin J at [16]

38 Judgment of Gobin J at [15] and [16]

of 24

43. WASA has failed to establish its case for the vesting of the entire 23 acre parcel of land

in itself. Therefore, the 23 acre parcel has always been the property of the Corporation. Section

11(1) (a) (iii) of the WASA Act did not divest the Corporation of this 23 acre parcel of land.

There is no reason to deny the Corporation’s counterclaim for a declaration of ownership of this

parcel of land.

44. WASA’s only potential claim for any property rights in the 23 acre parcel of land which

related to waterworks was in respect of (a) the limited land area around the well sites and (b) the

land occupied by the pump house.

45. With respect to (a), the limited land area around the well sites, as I indicated earlier in

this judgment, WASA failed to prove which of the transient wells were vested in it in 1965 in

keeping with Section 11 of the WASA Act. Further, Counsel for WASA never sought to pursue a

claim for the well sites; as he indicated in oral submissions, “our case is not a case for wells, it

is a claim for a well field”.39

Therefore, on the facts led and the case advanced by WASA, the

potential claim for the land surrounding well sites was not a claim which would have affected the

Corporation’s entitlement to a declaration of ownership.

In any event as I will indicate later in this judgment,40

the Corporation’s alternative case

of adverse possession is a complete answer to this potential claim by WASA. The Corporation’s

counterclaim for a declaration of ownership will not be affected.

46. With respect to (b), the land occupied by the pump house; once again, Counsel for

WASA did not specifically pursue a claim for this limited land space as an alternative to the

claim for the entire 23 acre parcel. In any event, the Corporation’s alternative case of adverse

possession is a complete answer to this potential claim by WASA. The declaration of ownership

in favour of the Corporation will not be affected.

D. THE CORPORATION’S CASE FOR ADVERSE POSSESSION

39

See Note 27 above

40 See Section D below especially [56]

of 24

47. The corporation has also counterclaimed for a declaration of ownership of the 23 acre

parcel based on its adverse possession of the same. This is an alternative basis for its

counterclaim for a declaration of ownership of the 23 acre parcel. It also provides a reason for

rejecting any potential claim for the wells and the pump house that WASA may have operated.

Since this is only an alternative basis for the Corporation’s entitlement to the declaration of

ownership, I will address this issue of adverse possession in a more summary manner.

48. It is accepted that WASA ceased water production on the Cocorite Farm since around

1980.41

The Corporation has also led evidence that they have exercised all rights of ownership

over the 23 acre parcel since the 1980’s. Hence they claim to have been in adverse possession of

the 23 acre parcel for more than the required statutory minimum 16 years, and have acquired the

possessory title to the 23 acre parcel of land.

WASA, contends that they have not abandoned the 23 acre parcel of land. They were

merely allowing the aquifer to recharge from fresh water sources. Further, they have maintained

a presence on the 23 acre parcel after 1980 by establishing 2 monitoring wells, as well as by their

miscellaneous acts of possession like the storage of materials.

49. Gobin J accepted the case and the evidence presented by the Corporation on the issue of

adverse possession. Specifically, at paragraph 43 of her judgment she referred to the

unchallenged evidence that: (a) the Corporation leased part of the land to another utility;

(b) Engaged in negotiations with another Corporation and the Ministry of Education for the

construction of structures on the land; (c) Evicted squatters from the land “with the requisite

animus as owners of it”.

She also accepted the evidence of one Murchison Brown, a former mayor of the

Corporation as to the activities carried on the land by the Corporation.

She found that the Corporation remained in possession of the Cocorite Farm and

concluded that WASA did in fact abandon the land from the early 1980s, so that any title that it

may have held was extinguished by the time the parties began their open dispute (2010).

50. On the other hand Gobin J rejected WASA’s defence on the issue of adverse possession.

At paragraph 38 of her judgment she summarised her findings by stating that:

41

See eg [10] of WASA Amended Statement of Case

of 24

(a) She did not believe WASA’s contention that it merely suspended its operations on the land

since 1980 and (b) based on WASA’s conduct and the lack of documentary evidence she found

that WASA actually abandoned any operations on the 23 acre parcel with no intention to return

thereto.

Earlier, in the judgment Gobin J had examined WASA’s defence on the issue of adverse

possession and rejected the same;42

she was unimpressed by (a) the lack of documentary

evidence which should have been available for WASA to prove its case; (b) the failure of WASA

to prove the location of the 2 monitoring wells (c) the lack of cogency in the evidence of

WASA’s witnesses; (d) the extremely lengthy period (over 30 years) that the well field did not

recharge, a fortiori, given her personal knowledge of the rainfall in the Diego Martin area; (e) the

silence of WASA and/or its omission to act when other entities sought to occupy part of the land.

51. Given her assessment of the evidence, Justice Gobin’s finding that the Corporation had

proved its case for adverse possession of the 23 acre parcel of land cannot be faulted. I cannot

find that she was plainly wrong to accept the Corporation’s case and to reject WASA’s

allegations to contrary.

An appellate court should be “slow to reverse a trial judge’s evaluation of the facts”.43

I also would defer to “the advantage that (the) judge at first instance had in seeing the

parties and other witnesses when deciding questions of credibility and primary fact.”44

Especially in this case where the greater part of the Corporation’s evidence on adverse

possession went unchallenged.

52. With respect to the evidence of adverse possession, WASA has specifically criticised the

trial judge’s assessment of Murchison Brown’s evidence; they suggest that Mr. Brown could not

have given credible evidence of the Corporation’s acts of ownership based on his travelling past

the land on a daily basis and/or his twice monthly visits to the land while he was the Mayor of

the Corporation. However, the trial judge had the advantage of seeing Mr. Brown testify and she

cannot be faulted in her assessment of Mr. Brown’s credibility. Her decision to accept his

evidence which buttressed the other unchallenged evidence of the Corporation’s possession of

42

Judgment of Gobin J at [32] – [38]

43 See Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 at [16]

44 Ibid

of 24

the 23 acre parcel as mentioned above, was sufficient to prove that the Corporation had both the

possession and the necessary animus or intention to occupy this parcel of land as its own.45

53. WASA has also argued that the trial judge’s finding that WASA abandoned the 23 acre

parcel since around 1980 is irrational due to the unchallenged evidence of Wayne Clement in

relation to the monitoring wells that WASA drilled in the 1980’s. The wells were allegedly used

to monitor the water quality up to 2010.

This argument is untenable for the following 3 reasons:

(i) Contrary to WASA’s assertion, the evidence of Wayne Clement on this issue

was challenged by the Corporation in cross examination. While Counsel did

not use the worn expression “I put it to you..”, he did interrogate Mr. Clement

on the issue of abandonment of all wells. This also followed extensive

questioning from the trial judge on the same issue.46

(ii) Having observed Mr. Clement in the witness box the trial judge noted that the

exact location of the monitoring wells was not established. She also formed the

view that “it has not been established by reliable evidence, that the

monitoring wells were on the subject parcel.”47

(my emphasis)The trial

judge’s conclusions were based on the facts as presented and on her impression

of the credibility (or lack of credibility) of Mr. Clement. The trial judge was

best placed to draw these conclusions and as an appellate court we cannot say

that her conclusions were plainly wrong.

(iii) Further, the trial judge was unimpressed by the lack of any documentary

evidence supporting the alleged “monitoring” which WASA conducted after

1980.48

Again this was a matter that she could properly consider when

assessing the credibility of Mr. Clement and it was also an additional matter

that affected the reliability of the evidence led by WASA in defence to the

issue of adverse possession.

45

As to the fact of possession and the intention to possess, see Manzoor Ali v Tobago House of Assembly CA 43 of

2008 at [14]- [21] accepting the House of Lords decision in Pye v Graham [2002] UKHL 30

46 See Transcript from the High Court pages 31-37



of 24

54. The trial judge’s conclusion that the Corporation had made out its counterclaim for

adverse possession of the 23 acre parcel of land was not plainly wrong. It cannot be faulted on

this appeal. It was a proper, alternative basis for granting the declaration of ownership of the 23

acre parcel of land in favour of the Corporation.

55. Further, the Corporation’s adverse possession of the land was a complete answer to an

“alternative” potential claim by WASA in respect of (a) the limited land spaces around any wells

that existed since 1965 and (b) the pump house. WASA admittedly carried on no water

extraction on the land after 1980. There is no disputing that the water wells and the pump house

were abandoned. In fact, as the trial judge49

and this court noted,50

the pump house had fallen

into ruin.

Given the trial judge’s acceptance of the Corporation’s evidence of possession of the

entire 33 acre parcel since 1980, the Corporation’s case for adverse possession is even stronger

in respect of the limited land spaces surrounding the wells and the pump house that may have

passed to WASA under the statutory vesting in 1965.

E. WASA’S BELATED ALLEGATION OF ADVERSE POSSESSION

56. In oral submissions in reply at the Court of Appeal, Counsel for WASA for the first time

tried to advance a case that WASA itself may have acquired adverse possession of the 23 acre

parcel of land.51

In reliance on this submission Counsel referred to paragraphs 6 and 7 of the

Amended Statement of Case where there is an allegation that WASA has been operating the

Cocorite Farell Well Field since 1965. This was a wholly unmeritorious submission. I say so for

the following 5 reasons.

49

Ibid at [34]


th November 2014 at page 61

51 Ibid at page 59

of 24

(i) In its written submissions on appeal, WASA specifically declared that it was not

claiming adverse possession of the 23 acre parcel of land but relying on its paper title.52

(ii)WASA defined the issues in the case as (a) the effect of section 11 of the Act and (b)

the abandonment of possession by WASA “allowing the Respondents (the Corporation) to

acquire adverse possession thereto”;53

No mention is made of a claim for adverse possession by

WASA as an issue in the case.

(iii) No such case was raised before the trial judge to allow an adjudication on it. Given

the hotly disputed facts on the issue of possession/abandonment of this parcel of land, it would

be wrong for a Court of Appeal to venture into this new untried case at this stage.

(iv) Even if the Amended Statement of Claim could probably have supported a claim for

adverse possession by WASA, WASA never claimed any declaratory relief or any relief to that

effect. Further, while the Corporation raised the claim for adverse possession in its Counterclaim,

WASA never raised any issue of adverse possession in its Reply or Defence to the Counterclaim.

(v) In any event, even if WASA did operate the Cocorite Farrell Well Field from 1965,

the undisputed evidence is that the majority of the land area of the Cocorite Farms, of which the

well field was part, was also used by the Corporation for other purposes such as the cultivation of

copra, grass, rents and other miscellaneous revenues.54

This itself would contradict the exclusive

use of the 23 acre parcel of land by WASA, and hence any claim to adverse possession.

57. This attempt by WASA to raise a claim for adverse possession was a mere afterthought

that had no merit or foundation in fact either before the trial judge or on this appeal.

F. THERE WAS NO UNFAIRNESS IN THE CROSS EXAMINATION

52

See Appellant’s Written Submissions filed on 30th

April 2014 at [69]

53 Ibid at [1]

54 See Notes 1 and 8 above

of 24

58. Counsel for WASA contended that the judge so severely restricted cross examination that

it resulted in an unfair determination of this case. This contention is without merit. It is a wholly

inaccurate representation of the proceedings at trial.

59. At the start of the trial, Gobin J in addressing what Counsel for WASA categorised as

“Housekeeping matters”, asked both Senior Counsel what oral evidence was needed.55

Both

Senior Counsel agreed that the oral evidence needed would be very brief and would be for

clarification of issues for the judge.56

Counsel for WASA even suggested that at most there

would be “one or two questions” for witnesses.57

Given this agreement and the exchange between experienced Senior Counsel and the

bench, it is disingenuous for Senior Counsel to now complain about the judge’s “restriction” of

cross examination. A fortiori where, in any event the actual cross examination that the judge

allowed was much more extensive than the brief, limited “one or two questions” as Counsel

suggested. The transcript reveals over 200 pages devoted to the cross-examination of witnesses

and issues related thereto.

CONCLUSION

60. This Appeal is dismissed. The Appellant shall pay 2/3 of the Respondents’ costs below.

.............................

G. Smith,

Justice of Appeal.

55

See Transcript of the High Court at page 2

56 Ibid at pages 3 and 4

57 Ibid at page 5

republic of trinidad and tobago in the court...

Documents