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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
No. CV 2011–01052
Between
TANA GAYADEEN
CURTIS GAYADEEN
Claimants
And
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
Before the Honourable Madame Justice Rajnauth-Lee
Appearances:
Mr. Ramesh L. Maharaj S.C. leading Mr. Rikki A. Harnanan instructed by Ms. Vijaya Maharaj for
the Claimants
Mr. Avory Sinanan S.C. leading Mr. Larry Lalla and Mr. Sarfraz Alsaran instructed by Mrs.
Deowattee Dilraj-Battoosing and Mr. Brent James for the Defendant
Dated: the 17th
April, 2012.
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JUDGMENT
INTRODUCTION
1. By their Fixed Date Claim filed on the 23rd
March, 2011, the Claimants commenced a claim
against the Defendant, the Attorney General of Trinidad and Tobago, seeking certain declaratory
reliefs and claiming inter alia that they were the owners of and entitled to possession of certain
lands. Mr. Sinanan S. C. acting on behalf of the Attorney General has made it clear that it is not
disputed that the Ministry of Works is currently engaged in expansion works on the Churchill
Roosevelt Highway and that the continued occupation by the Claimants of the lands in dispute
constitute an obstruction to the completion of the works. It is also not disputed that notice has been
served on the Claimants calling upon them to vacate and they have not done so.
2. By their Fixed Date Claim, the Claimants claimed the following:
(1) A declaration that the Claimants’ right to the enjoyment of property and not to be deprived
thereof except by due process of law has been and is likely to be infringed by the State in
relation to (a) the lands and buildings thereon occupied by and in possession of the
Claimants comprising 18000 square feet at the corner of Churchill Roosevelt Highway Road
and Tumpuna Road, Arima, bounded on eastern side by Tumpuna Road, on the north by two
recently constructed westbound lanes of the Churchill Roosevelt Highway. on the west by
unoccupied parcel of land and on the south by the land and buildings of Subah (“the said
premises”); and (b) the businesses of a licensed bar and a lotto booth operated by the
Claimants on the said lands; by the State through its servants and/or agents on divers
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occasions including the 15th
October, 2010 and during the period the 9th
March, 2011 to the
date of the filing of the Claim, in breach of undertakings in writing from the Ministry of
Works and Transport, interfering with the Claimants’ possessions of the said premises, and
the Claimants’ said rights are likely to be further infringed;
(2) A declaration that the Claimants’ right to respect for their family and private life as
guaranteed to them by section 4(c) of the Constitution has been infringed by the State in
relation to the said premises which comprise inter alia the residence and family home of the
Claimants and their two children, by the State, through its servants and/or agents on divers
occasions including the 15th
October, 2010 and during the period the 9th
March 2011 to the
present in breach of the undertakings in writing from the Ministry of Works interfering with
the Claimants’ possession of the said premises and that the Claimants’ said rights are likely
to be infringed;
(3) A declaration that the State has no right title or interest in the said premises;
(4) A declaration that the Claimants are the owners of the entitled to possession of the said
premises;
(5) Compensation for the breach of the Claimants’ rights under section 4(a) and 4(c) of the
Constitution to be assessed and paid by the Defendant to the Claimants;
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(6) Alternatively damages for trespass to be assessed and paid by the Defendant to the
Claimants;
(7) Exemplary damages to be assessed and paid by the Defendant to the Claimants;
(8) Costs to be assessed and paid by the Defendant to the Claimants;
(9) Interest;
(10) Such further or other relief as the Court may consider in necessary.
3. On the 29th
March, 2011, the Court made the following conservatory order with the consent
of the parties.
1. The Defendant undertakes that no action of any kind to enforce its asserted rights will be
taken until the determination of the claim herein and that the status quo of the lands purportedly
occupied by and in possession of the Claimants more particularly described in the schedule hereto
and buildings thereon be maintained until the hearing and determination of the claim;
2. The Claimants hereby consent without prejudice to any of their rights that may be
established at the hearing of the matter in respect of the asphalted paved area constituting a lay-by
located to the north east of the said lands, that the said asphalted area, be used for the flow of
vehicular traffic exiting from Tumpuna Road onto the Churchill Roosevelt Highway;
3. The trench dug by the Defendant near to the southern portion of the building occupied by the
Claimants located on the Tumpuna Road be refilled or covered by Monday the 4th
April, 2011 and
the Defendant undertakes that should it become necessary to carry out any further work on that
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location 48 (forty eight) hours notice will be given to the Claimants before hand such
communication to be conducted through the respective legal representatives for the parties.
4. The Claimants filed a Statement of Case on the said 23rd
March, 2011. As to paragraphs 1
and 5 of the Statement of Case and the issue of the Claimants’ occupation and possession of the
lands in dispute, at the trial the Defendant conceded that the Nasser Abdul plan1 depicted the lands
which the Claimants alleged that they occupied. However, the area referred to as the car park [and
shown as the paved area (concrete) on the Nasser Abdul Plan] (“the car park”) was excepted from
that concession.
5. At the trial the Defendant also conceded that save for the car park, the Claimant and their
predecessors have been in occupation of the lands depicted on the Nasser Abdul Plan since 1953.
These lands with the exception of the car park are referred to as “the said premises” in this
judgment. In addition, there is dispute about another portion of land referred to as a triangular
portion which the Claimants contend that they occupied. The Defendant has denied same. That
triangular portion is located directly north east of the said premises; it has been paved by the
Ministry of Works and is being used as a lay-by for vehicular traffic exiting Tumpuna Road onto the
Churchill Roosevelt Highway and will be referred to as “the triangular portion” in this judgment.2
6. On the other hand, the Claimants have conceded that the lands that they allegedly occupy
and possess, that is to say, the said premises, the car park and the triangular portion [altogether
1 Agreed Document 61
2 See para. 2 of the conservatory order set out at para. 3 of the judgment
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referred to as “the said lands”] are situate on the acquired lands, that is to say, the lands described in
Gazette Notice No. 1711 published in the Trinidad Royal Gazette on page 682 on the 6th
December,
1945 (“the acquired lands”).3 The acquired lands are also shown on Plan N.L. 40.
4
7. At paragraph 7 of the Statement of Case, the Claimants averred that the said lands have
never been used by the public or by anyone as a road or as a public right of way and have been used
exclusively as a residence with an adjoining business, firstly a parlour, then a grocery and then a bar
since 1953. The Claimants gave notice that at the trial they would rely on the State Suits Limitation
Ordinance and in particular section 2 and the Real Property Limitation Act Chapter 56:03 and in
particular section 23 to show that they have title to the said lands and the State does not have any
title to the said lands. Accordingly it was contended that there was no power conferred on the
Minister by any law capable of being exercised by him or on behalf of the State against the
Claimants in respect of their possession and occupation of the said lands which were lawfully
owned and occupied by them in respect of which the State had no right, title or interest.
8. The Defendants filed a Defence and Counterclaim on the 15th
April, 2011. At paragraph 1
of the Defence, the Defendant averred:
(a) By virtue of Notice of Acquisition dated the 6th December 1945 published in the Trinidad
Royal Gazette No: 1711 at page 682,5 a parcel of land comprising thirty-eight thousand, four
hundred and twenty-one (38,421) acres was compulsorily acquired for the purposes of the
3 The Notice forms part of Agreed Document 25
4 Agreed Document 60
5 See para. 6 of this judgment
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construction of a highway namely the Churchill Roosevelt Highway (hereinafter referred to as “the
Highway Lands”).
(b) Having been so acquired the Highway Lands as a matter of law became indelibly and
irrefutably impressed as a public right of way and became fixed for that purpose and immune to the
acquisition or accrual of any rights therein in favour of any person which was adverse to the interest
of the State holding the land for that purpose. Accordingly, the Defendant contended that the public
right of way thus created was indefeasible and could not be extinguished by any claim of a
possessory title based on adverse possession commencing after the said acquisition and consequent
creation of the public right of way.
(c) The entire parcel of land allegedly and purportedly in possession of the Claimants since
1953 fell within the boundaries of the Highway lands and accordingly the Defendant contended that
the Claimants could have no right, title or interest therein based on their alleged possession and they
were trespassers. The Defendant gave notice that at the trial of the action herein they would refer to
and rely on certain survey plans, maps and reports full disclosure of which would be made to the
Claimants prior to the said trial.
(d) As a matter of law the undertakings of the nature pleaded in the Statement of Case which
might have been given prior to the commencement of litigation did not give rise to any legal rights
where none existed prior to such undertakings. Accordingly, the Defendant contended that if
(which has been denied) the servants and/or agents of the State did act in breach of any of the
undertakings specified in the Statement of Case, no cause of action arose in favour of the Claimants.
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(e) In the premises, the Defendant contended that the Statement of Case disclosed no cause of
action for breach of any of the Claimant’s constitutional and/or common law rights.
9. By way of Counterclaim, the Defendant sought the following orders:
1) A declaration that the said lands occupied by the Claimants were compulsorily acquired by
the State in 1945 and thenceforth formed part of the Churchill Roosevelt Highway.
2) A declaration that by virtue of the said acquisition a public right of way exists over the said
lands occupied by the Claimants.
3) A declaration that the Claimants have no right, title or interest in the said lands occupied by
them which can defeat or extinguish the reservation of the same as a public right of way.
4) An order that the Claimants do immediately give vacant possession of the said lands to the
State.
5) Costs to be assessed and paid by the Claimants to the Defendant.
6) Such further or other relief as the Court may consider necessary.
10. A Reply and Defence to Counterclaim was filed by the Claimant on the 27th
April, 2010. At
paragraph 4, the Claimant alleged inter alia:
(a) Assuming but not admitting that the said lands were situated within the boundaries of the
parcel of land allegedly compulsorily acquired for the purpose of the construction of a highway as
described in paragraph 1 (a) of the Defence, the Claimants said in reply to paragraph 1 (b) of the
Defence that the publication of a Notice of Acquisition of lands for the public purpose of the
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construction of a highway could not (and did not in this case) make the lands the subject of the said
Notice a public right of way or a highway.
(b) The said lands which the Defendant alleged to be situate within the boundaries of the parcel
of land compulsorily acquired in 1945 for the purpose of construction of the Churchill Roosevelt
Highway were never used by the public as a highway or as a public road or as part of the Churchill
Roosevelt Highway.
(c) The said lands have instead been used since 1953 by the Claimants and their predecessors in
title exclusively as a residence with an adjoining premises used firstly as a parlour, then a grocery
and bar and later as a bar. Accordingly the title of the State in the said lands could have been and
was extinguished by the adverse possession of the Claimants and their predecessors in title pursuant
to the provisions of the State Suits Limitation Ordinance as amended.
(e) The Defendant never asserted in answer to the claim of the Claimants that the said lands or
any part thereof was ever used as a public right of way or as a highway or as part of the Churchill
Roosevelt Highway.
(f) The Defendant by the admissions made by the Ministry of Works and Transport that the
Claimants and their predecessors in title have been in occupation and possession of the said lands
impliedly admitted that the said lands or any part thereof were never used as a highway or as a
public right of way and were not used as part of the Churchill Roosevelt Highway and did not form
part of the Churchill Roosevelt Highway.
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THE ISSUES
11. Despite other minor issues raised by the parties, there are two central issues for the
determination of the Court:
(1) Whether the State’s title, right or interest in lands which been acquired for the purposes of
a highway can be extinguished or defeated by persons claiming a possessory title based on
adverse possession in relation thereto which said adverse possession commenced subsequent to
the date of the State’s acquisition of the said lands.
(2) Whether the triangular portion paved by the Ministry of Works formed part of the lands in
the purported possession of the Claimants.
12. At the trial, the Attorneys agreed that all the affidavits filed in this claim would stand as
evidence in chief, save for any matters in which there were pending applications to strike out
evidence. These applications were dealt with at the trial.
13. As to cross-examination, Mr. Maharaj S.C. for the Claimants cross-examined Mr. Marvin
Gonzales and Mr. Anton Balfour, two of the Defendant’s witnesses. On the other hand, Mr.
Sinanan S.C. for the Defendant cross-examined the First Claimant, Mr. Cecil Rodriquez, Ms. Janet
Casellano and Mr. David Roddy Bally. Cross-examination of the Claimant’s witnesses, however,
was limited to the issue of the occupation of the car park and the triangular portion which
occupation was in dispute between the parties.
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THE LAW AND ARGUMENTS
ISSUE 1
14. Mr. Maharaj stated the issue thus:
Whether the compulsory acquisition of land for the purpose of the construction of a
highway with nothing more, made the lands of these Claimants (being a part of the
acquired lands) a highway in law.
15. Mr. Maharaj contended that factually and conceptually there was a distinction between
compulsory acquisition of land for the purpose of a highway and the creation of a highway. He
further submitted that a highway must be dedicated to the public use by one of three ways: by user,
by grant express or implied or by proclamation of the Governor. In his written submissions filed on
the 20th
May, 2011, Mr. Maharaj argued that it is self evident from the Claimants’ occupation since
1953 that no highway ran through the lands occupied by them. The conclusion to be drawn was that
the State acquired the lands in 1945 adjoining the existing Churchill Roosevelt Highway for the
public purpose of the continuation and expansion of the highway, in reality to be accomplished by
widening the existing highway. Mr. Maharaj further submitted that it could be presumed that the
acquired lands were not put to use as a highway immediately upon acquisition (which would have
been impossible absent substantial engineering and road works), but merely earmarked for use as a
highway.
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16. In his written submissions, Mr. Maharaj cited the text Highway Law (4th
ed.) by Stephen
Sauvain in some detail. At page 1, paragraph 1, the learned author said:
A highway is essentially a public right to pass over a defined route. The term highway may
be used to refer to the nature of the right but more usually relates to the physical feature
over which the right is exercised.....
The learned author further stated:
This description of a highway contains within it four elements:
(a) The way must be open to the public at large.
(b) The public use must be as of right.
(c) The public right must be primarily for passage.
(d) The public right of passage must follow a defined route.
At page 3, paragraph 1-06, the learned author further stated:
Unless the public at large – rather than a defined section of the public – have the right to
use it, a way will carry a private right of way rather than a highway. It is the essential
attribute of a highway that the right of usage is “common to all the King’s people”.
At page 10, paragraph 1-19 the learned author said:
It is a primary characteristic of a highway that the public right of passage follows a known,
defined line. The common law did not recognize any public right to wander across
countryside (jus spatiendi).
At page 31, paragraph 2-08 the learned author also stated:
Where a highway is created under a statutory process there is generally no need for any
demonstrated acts of acceptance on behalf of the public. The statutory provisions
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themselves will set out the only preconditions for the creation of the highway. If the
authorizing provisions have not been fully complied with, however, it may be necessary for
the status of the constructed road as a highway to be established by evidence of public user.
17. The Court has considered several statutory provisions. By virtue of section 2 of the Roads
Ordinance Chapter 16 No. 1 “public road” is defined as including any highway by land dedicated
whether by user or by grant express or implied or by proclamation of the governor to the public use,
and whether for wheeled, bridle, or foot traffic, up to and including the drains on either side thereof,
and also the surface of any land on the further side of such drains in so far as such land is kept
brushed, opened, or cleared at the public expense, but does not include any highway or street within
the limits of the City of Port of Spain or of any borough, unless included by resolution of the
Legislative Council.
18. Section 3(1) of the Roads Ordinance provides:
No claim of public or private right of way over or through Crown or waste lands in the
Colony shall be allowed by any court of justice by reason of the public or private user of such lands
or any part thereof as a public or private way, or by reason of such lands having been, or being now
or hereafter to be, brushed, cleared, or maintained for the accommodation of the public or of
adjacent land-holders at the public expense, it being hereby declared that each brushing, clearing,
sand maintenance are and will be intended for temporary public and private accommodation until
such time as the Crown or waste land over which such public or private way has been, is, or shall
have been dedicated to the public as a public road under the provisions of this Ordinance any law,
rule, or Ordinance in force in the Colony to the contrary of what is hereby enacted notwithstanding.
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19. Section 2 (1) of the Highways Act Chapter 48:01 defines a highway as meaning the whole
or part of any road, thoroughfare, street, trail, trace or way maintainable at the public expense and
dedicated to the public use whether by way of express or implied grant, or by proclamation of the
President or by a declaration made by a local authority or by the Minister in accordance with the
provision in that behalf in Part IX, and includes bridges, culverts, footways, sidewalks and the
adjoining reserves accessory to a highway. The Highways Act came into effect on the 3rd
October,
1973, and was enacted with the intention of consolidating with amendments certain laws relating to
highways, streets and bridges in Trinidad and Tobago.
20. Section 118 (1) of the Highways Act provides that the Minister may acquire by agreement,
or subject to subsection (3), compulsorily, land required for the construction of a main road, and any
highway authority may acquire by agreement, or, subject to the said subsection (3), compulsorily,
land required for the construction of a highway which is to be a highway maintainable at the public
expense, other than a main road. By virtue of section 118(2), a highway authority my acquire by
agreement, or subject to subsection (3), compulsorily, land required for the improvement of a
highway, being an improvement which it is authorised by this Act to carry out in relation to the
highway.
21. The Land Acquisition Ordinance Chapter 27 No. 10 was also cited to the Court. At
section 2(4), it was provided:
For the avoidance of doubt it is hereby declared that the expression “public purposes” in this
Ordinance shall include the purpose of fulfilling any obligation of the Government, or of His
Majesty’s Government in the United Kingdom, under any treaty or agreement made by the
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Government or by His Majesty’s Government, as the case may be, with the Government of any
other country, territory or place, and any purpose pertaining or ancillary thereto.
22. Section 5 subsections (1) and (2) of the Land Acquisition Ordinance provided:
(1) On the acquisition of land for public purposes being decided upon by the Governor
with the approval of the Legislative council, it shall be lawful, whether a notification in the Royal
Gazette in relation to that land has been published under section 3 or not and, if a notification has
been so published, whether all or any of the powers conferred by that section have been exercised or
not, for the Governor, by notification published in the Royal Gazette, to declare the land to have
been acquired for public purposes.
(2) A notification published in the Royal Gazette under the preceding subsection shall
describe the land with precision, either in words or by reference to a map or plan which shall be kept
at the office of the Director of Surveys and shall be open to inspection by the public, and shall be
conclusive evidence that the land is required for public purposes and upon the publication of the
notice as aforesaid, the land shall vest absolutely in the Crown free from all encumbrances.
23. The Gazette Notice No. 1711 referred to at paragraph 6 of this judgment read in part as
follows:
Gazette Notice No. 1711
THE LAND ACQUISITION ORDINANCE, 1941.
(Notice required by Section 5.)
The acquisition, for public purposes, of several parcels of land containing in the aggregate 65.53
acres more or less situate between the western boundary of Fort Read and the eastern boundary of
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O’Meara Road in the Ward of Arima in the County of St. George described in the Schedule hereto
and more particularly shown and delineated and coloured raw sienna on a plan of survey signed by
the Director of Surveys, dated 25th
October, 1945, and filed in his office, having been decided on by
the Governor with the approval of the Legislative Council of the Colony of Trinidad and Tobago by
resolution of the 23rd
November, 1945, it is hereby declared in pursuance of Section 5 of the Land
Acquisition Ordinance, 1941, that the said lands have been acquired for the following public
purposes: The Churchill-Roosevelt Highway Section A.
24. The Gazette Notice set out a Schedule which described in detail the lands so acquired. The
Gazette Notice also made reference to the 1945 Survey Plan signed by the Director of Surveys and
filed in his office, which plan has already been referred to at paragraph 6 of this judgment.6
25. Mr. Maharaj both in his written and oral submissions further contended that the acquisition
of land with the intention of creating a highway is not sufficient. According to him, the highway
must be dedicated to the public use by one of the ways contemplated by the definition of public road
in the Roads Ordinance7 – by user, by grant express or implied or by proclamation of the Governor
for public use. According to Mr. Maharaj, these did not include the acquisition of land for the
purpose of constructing a highway.
26. Mr. Maharaj also cited the case of John A. Gumbs v Attorney General of Anguilla, Privy
Council Appeal No 35 of 2008 and the judgment of their Lordships of the Judicial Committee of the
6 Plan N.L. 40 [Agreed Document 60]
7 supra.
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Privy Council. While Mr. Maharaj conceded that the case was not on point, in his words, it gave us
an idea as to how the courts were thinking. The issue in Gumbs was whether there was a public
right of way, and if there was, the extent of that way, over a parcel of land at Little Bay, Anguilla.
The land in question was registered at the Anguilla Land Registry in the name of Gumbs. The
majority of their Lordships in a judgment delivered by Lord Neuberger of Abbotsbury concluded
that the public right of way which existed over the path when the 1974 Ordinance was introduced
was lost as a result of not being shown on the demarcation index map, the Crown not being recorded
as the owner of the path in the adjudication record, and the registration of the heirs of the appellant’s
grandfather, as opposed to the Crown, as the owner of the land which included the path.8
27. The majority of their Lordships also made the point that no reliance was placed by either
party on the English authorities relating to the interrelationship of highways and land registration or
to the effect of public rights of way not being shown on maps statutorily required to be maintained
by local authorities, presumably because English legislation was differently structured and
expressed, and because, in England, there had been no adoption of a Cadastral system of
registration, and there was no automatic vesting of highway land in the Crown or any governmental
body.9 The same, of course, can be said of the law in this jurisdiction.
28. Mr. Maharaj also pointed to the concurring judgment of Lord Scott of Foscote who also
allowed the appeal but for reasons which were different from those of his colleagues. Lord Scott in
his concurring judgment considered some well-recognised principles of statutory construction. He
8 Paragraph 27
9 Para. 29
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cited the case of Colonial Sugar Refining Co. Ltd. v Melbourne Harbour Trust Commissioners
[1927] A.C. 343 and the dictum of Lord Warrington of Clyffe at page 359 who said that in
considering the construction and effect of this Act, the Board was guided by the well-known
principle that a statute should not be held to take away private rights of property without
compensation unless the intention to do so is expressed in clear and unambiguous terms. According
to Lord Scott, the presumption that the 1973 Ordinance was not intended to take way private rights
of property without compensation, that is, the appellant’s property rights in the thirty-two foot wide
strip of land, was fortified by a further presumption, that the legislator does not intend absurd
consequences. His Lordship went on to discuss the presumption against absurdity. 10
29. Mr. Maharaj further contended that the Land Acquisition Act was not a highway creating
statute but a statute for the acquisition of land for public purposes. He also submitted that should it
be sufficient to contend that a proclamation for public use under the Land Acquisition Act would
amount to the dedication of the land for a highway, then private property would be easily
confiscated by the State. He further submitted that the State ought not to ask the Court to construe
the acquisition for public purposes under the Land Acquisition Act as amounting ipso facto to the
creation of a highway. In that case, Mr. Maharaj argued, private property rights could be infringed
without compensation and there would be a serious infringement of the enjoyment of the rights of
the public.
10 See Bennion on Statutory Interpretation (5
th edn.) at page 969 et seq, referred to by Lord Millett in R (Edison First
Power Ltd) v Central Valuation Officer [2003] 4 All E.R. 209
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30. On the other hand, Mr. Sinanan on behalf of the Attorney General, argued that if the Court
upheld the contentions advanced on behalf of the Claimants, an absurd consequence of such a
statutory interpretation would be that the State would have to pay double compensation, should the
State be required to acquire the said lands from the Claimants, there being no dispute that the said
lands were acquired in the year 1945 and compensation paid.
31. Mr. Sinanan has also submitted that the Court should dismiss the Claimants’ case since,
before any occupation of the disputed lands by the Claimants or their predecessors, the disputed
lands were compulsorily acquired in 1945 for the public purpose of the Churchill Roosevelt
Highway. Accordingly, he contended, upon such acquisition, a public right of way was established
over the disputed lands. This right of way was indefeasible and could not be extinguished by the
Claimants’ claim of a possessory title based on adverse possession, the Claimants’ occupation
commencing as it did after the said acquisition and consequent creation of the public right of way.
In essence, argued Mr. Sinanan, the Defendant’s case could be encapsulated in the maxim “once a
highway always a highway” as enunciated in the case law. Mr. Sinanan observed that the Claimants
had contended that after acquisition in 1945, a public right of way was not established over the
disputed lands since the disputed lands were never used as a highway. He argued that this
contention was without merit since it was not a pre-condition for the establishment of a public right
of way for lands which have been acquired to be (a) actually used by the public, or (b) deployed
immediately upon acquisition for the purpose.
32. Mr. Sinanan also contended that as at the date of the acquisition, that is the 6th
December,
1945, the acquired lands became a highway and a public right of way was established over same.
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He therefore submitted that nothing further was required to be done in law to make the acquired
lands a highway.
33. Mr. Sinanan further submitted that by virtue of section 5(2) of the Land Acquisition
Ordinance, the notification published in the Royal Gazette11
was conclusive evidence that the
acquired lands were required for purposes public and upon such publication, the acquired lands
were vested absolutely in the Crown free from all encumbrances. Mr. Sinanan therefore argued that
there was a statutory requirement that lands should be acquired for a specific public purpose, that
being the clear intention of Parliament. Accordingly, he argued, once the lands are so acquired, the
notion of a public trust arises, that is, that the lands are impressed with a public trust.
34. Mr. Sinanan therefore contended that once lands are acquired under the Land Acquisition
Ordinance for the specific purpose of a highway, a highway has been created - a public right of
way or passage, that is to say, an incorporeal right, and accordingly, the rights of the public are
preserved and are immune from any claim of possessory title.
35. Mr. Sinanan also cited the case of Regina (Smith) v Land Registry (Peterborough) [2010]
3 W.L.R. 1223. In that case Lady Justice Arden of the Court of Appeal was at pains to point out
that the maxim “once a highway always a highway” could not be taken as an absolute and universal
rule. She pointed out that there were some circumstances in which a highway could cease to be
such on a permanent or temporary basis. One of the ways in which that might occur was under
11 See para. 23 of this judgment
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licence from the local authority under some statutory power.12
Lady Justice Arden made it clear
that the highway was not just the surface of the physical property to which the right attached, but it
was also the right of passage over that land.13
In dealing with the issue of the extinction of the
public right of way, Lady Justice Arden stated that she had made the point earlier in the judgment
that the highway had two components: a physical element and an incorporeal element, namely a
public right of passage. She had also explained when dealing with adverse possession that a
squatter could only acquire the title of the owner whom he had dispossessed. Accordingly, she
concluded that there was no means in law by which as a result of occupying land forming part of a
highway, Mr. Smith or any squatter could bring to an end the public’s right of passage.14
36. As to Mr. Maharaj’s submission that the Land Acquisition Ordinance was not a highway
creating ordinance, Mr. Sinanan contended that the highway was created pursuant to section 2 of the
Roads Ordinance, by proclamation of the Governor to the public use.15
According to Mr. Sinanan,
there was nothing in the Roads Ordinance or any other law which required that the proclamation
be made only under the Roads Ordinance.
37. Mr. Sinanan further argued that the Gazette Notice set out at paragraph 23 of this judgment
satisfied the requirement of the term “proclamation” used in section 2 of the Roads Ordinance.
According to Mr. Sinanan, Black’s Law Dictionary (8th
edn.) defines “proclamation” as a formal
public announcement made by the government. The Court has also looked at the Dictionary of
12 Page 1226, para. 3
13 Page 1228, para. 14
14 Page 1232, para. 38
15 See para. 17 of this judgment
Page 22 of 31
English Law by Earl Jowitt (published in 1959). The word “proclamation” is defined there as a
publication by authority; a notice given of anything whereof the sovereign thinks fit to advertise his
subjects. In addition, the Oxford Dictionary of English (Second Edition, Revised) defines
“proclamation” as a public or official announcement dealing with a matter of great importance; the
public or official announcement of an important matter; a clear declaration of something.
38. The Court is of the view that Mr. Sinanan is correct. In my judgment, Gazette Notice No.
1711 published on the 6th
December, 1945 has the effect in law and could properly be described as a
“proclamation of the governor to the public use”. In my view, Gazette Notice No. 1711 satisfies
the statutory requirement for the creation of a highway set out in section 2 of the Roads
Ordinance.16
The Gazette Notice is in substance a proclamation. In the Court’s view, there is no
requirement in law that it must be a proclamation in form as well as in substance. In addition, the
Gazette Notice has the authority, not only of the Governor who made the decision for the said
acquisition pursuant to section 5 of the Land Acquisition Ordinance but the approval of the
Legislative Council of the Colony of Trinidad and Tobago was also granted to the said acquisition.17
39. The Court if also of the view that the lands allegedly occupied by the Claimants – the said
premises, the car park and the triangular portion - the subject of this claim, were dedicated by
proclamation of the governor to the public use by Gazette Notice No. 171118
and that nothing was
required to be done by way of any further dedication contrary to Mr. Maharaj’s argument. Indeed,
16 See para. 17 of this judgment
17 See para. 23 of this judgment
18 Pursuant to section 2 of the Roads Ordinance
Page 23 of 31
in the Court’s judgment, by virtue of section 5 of the Land Acquisition Ordinance and section 2 of
the Roads Ordinance, the effect on the publication of Gazette Notice No. 1711 was twofold:
(i) The lands so acquired were vested absolutely in the Crown free from all
encumbrances for the specific public purpose of the Churchill Roosevelt Highway
Section A; and
(ii) The public of Trinidad and Tobago was granted an incorporeal right, that is to say, a
public right of passage over the acquired lands.
40. The Court has considered the Plan N.L. 4019
referred to in Gazette Notice No. 1711 and the
Court is satisfied that Gazette Notice No. 1711 fulfilled a primary characteristic of a highway that is
to say, that the public right of passage should follow a known, defined route. The Court is also
satisfied that the highway having been created under a statutory process there was and is no need for
any demonstrated acts of acceptance on behalf of the public of Trinidad and Tobago.20
41. In my judgment, it would be an absurd consequence indeed for the Court to conclude that
the acquisition of the acquired lands by Gazette Notice No. 1711 for the specific public purpose of
the Churchill Roosevelt Highway Section A did not create a highway and that having paid
compensation for the acquired lands, the State must once again pay compensation to the Claimants
who occupied in 1953 subsequent to the said acquisition.
19 Agreed Document 60
20 See Sauvain’s Highway Law (supra)
Page 24 of 31
42. Accordingly, in my judgment, even though that portion of the Churchill Roosevelt Highway
occupied by the Claimants was never constructed or used as a highway, the right of passage of the
public of Trinidad and Tobago over the acquired lands shown on Plan N.L. 40 and described in the
Schedule to Gazette Notice No. 1711 could not be brought to an end by the alleged occupation by
the Claimants of the said premises, the car park and the triangular portion, albeit since 1953. In the
Court’s view, Lady Justice Arden has correctly observed that such an incorporeal right cannot be
determined by mere occupation. 21
I also agree with Mr. Sinanan that the public right of passage
cannot be lost by non-user of a portion of the lands acquired for the Churchill Roosevelt Highway
Section A or by effluxion of time. 22
43. Accordingly, I conclude that the Churchill Roosevelt Highway Section A having been
dedicated a highway by proclamation of the governor to the public use, no possessory title of the
Claimants could extinguish the title of the State [the lands having been acquired for the public
purpose of a highway by Gazette Notice No. 1711]. In addition, it is my view that section 2 of the
Crown Suits Limitation Ordinance Chapter 5 No 2 [renamed the State Suits Limitation
Ordinance] conferred no right on the Claimants to bring to an end the public’s right of passage over
the acquired lands.23
21 Regina (Smith) v Land Registry (supra).
22 Turner v Ringwood Highway Board (1870) L.R. 9 Eq. 418 at p. 422
23 See the judgment of Mummery LJ, para. 59, in Regina (Smith) v Land Registry (supra)
Page 25 of 31
ISSUE 2 - Whether the triangular portion paved by the Ministry of Works formed part of the
lands in the purported possession of the Claimants.
44. Whilst admitting that there were inconsistencies in the evidence given in the cross-
examination of the Claimants’ witness, Mr. Bally, Mr. Maharaj submitted on behalf of the
Claimants that:
(i) The Court should consider the totality of Mr. Bally’s evidence on a balance of probabilities;
(ii) Although the evidence of one of the Claimants’ witnesses is inconsistent that does not mean
that the Claimants’ case cannot be relied on;
(iii) There has been no contradiction or dispute of the Claimants’ title or extent of the
Claimants’ occupation by any allegation and/or evidence advanced on behalf of the
Defendant, and that cross-examination of the Claimants’ witnesses could not change that.
(iv) Paragraph 3 of Mr. Gonzales’ affidavit that the Claimants were not in occupation of the
lands used to create the filter lane was a conclusion without supporting facts or an assertion
disguised as a statement of fact. His evidence, therefore, could not create a factual dispute,
since his evidence was of no probative value.
(v) In addition, Mr. Gonzales had only joined the Ministry of Works in 2009; his evidence was
only opinion evidence and of no probative evidence.
45. In the recently decided case of the Attorney General of Trinidad and Tobago v Oswald
Alleyne & 52 Others Civ. App. No. 52 of 2003, Bereaux J.A. made the point that the contention of
the respondents’ Attorney as to the duty of the appellant to disclose ignored the fact that the onus of
Page 26 of 31
proof rested on the respondents.24
He therefore found that the Judge’s criticism of the insufficiency
of the evidence was well-founded. Further, in considering the duty of candour or its applicability to
constitutional motions, Bereaux J.A. stated:
[20] On the face of it, there appears to be no reason why public authorities should not be
required to be similarly candid in matters affecting the fundamental rights and freedoms of
the individual. Public authorities should therefore disclose all that is pertinent to the issue
which a court has to decide in a constitutional matter and which meets the justice of the
case. But that duty of candour does not and cannot displace the onus of proof placed on a
litigant who alleges constitutional breaches, to prove his case. It surely could not be
sufficient in a constitutional matter for a litigant merely to make an allegation and then sit
back and depend on the state to disclose, in the expectation that the disclosure will prove his
case.
[21] He must first and foremost, discharge his initial burden by the production of cogent
and sufficient evidence which then shifts the burden to the state to disprove.............
[22] But that cannot mean that the public authority must be called upon to produce
evidence to plug gaps in the claimant’s case. It is for the claimant, who alleges, to prove
his case. The public authority’s duty of candour cannot displace that burden. [emphasis
mine]
46. Bereaux J.A. also cited the recent decision of the Privy Council in Dennis Graham v Police
Service Commission and the Attorney General of Trinidad and Tobago 2011 UKPC 46 where
Sir John Laws, delivering the decision of the Board, said of the duty of candour in judicial review
24 Para. 16
Page 27 of 31
proceedings, that the existence and rationale of the duty were not to be equated with procedural
rules and practices concerning the burden of proving facts or leading evidence.25
47. In the unreported case of Andre Marchong v Trinidad and Tobago Electricity
Commission et al CV 2008-04045, Jones J. made the point that Part 10 of the Civil Proceedings
Rules, 1998, (as amended) did not obviate the need for a claimant to prove by credible evidence
the facts which a claimant was required to prove in support of the damages claimed. She further
observed that the claimant was required to satisfy her as to the validity of his claims despite the fact
that the allegations made by him might be undisputed.26
[emphasis mine]
48. Mr. Sinanan in effect adopted the principles set out in the above cases. He observed that it
was the Claimants’ submission that having put forward a positive case, in the absence of rebuttal by
the Defendant, the Claimants were bound to succeed. Mr. Sinanan made the important point,
however, that the onus of proof was on the Claimants in the circumstances of this case. Having
examined the principles set out in the above authorities, it is the Court’s view that the duty lies on
the Claimants to prove that the triangular portion of land fell within the lands occupied by the
Claimants.
49. Mr. Sinanan further submitted that if the Court accepted his initial submission that the lands
allegedly occupied by the Claimants constituted a highway, the Claimants would fail on this second
issue also, since, according to him, the State would have broken no law and breached no
25 Para. 19 of the Graham judgment
26 Para. 25
Page 28 of 31
constitutional rights when it paved the triangular portion. Mr. Sinanan submitted however that if the
Court did not rule in the State’s favour on the first issue, then the Court was obliged to determine as
an issue of fact whether the triangular portion fell within the lands occupied by the Claimants. He
argued that the Court should find on a balance of probabilities, having regard to all the evidence,
including the cross-examination of the Claimants’ witnesses, that the triangular portion did not fall
within the lands occupied by the Claimants.
50. I have examined the evidence advanced on behalf of the Claimants including the cross-
examination of the Claimants’ witnesses. I agree with Mr. Sinanan that the Claimants’ evidence as
to their occupation of the triangular portion was unsatisfactory. Mrs Gayadeen’s only explanation
as why the triangular portion was not concreted/paved unlike the car park, having been shown the
photographs that were tendered into evidence, was that in the year 2001 or 2002 WASA [the Water
and Sewerage Authority] had dug up the triangular portion and it had not been repaired. Mr.
Sinanan also pointed out that it was curious that Mrs. Gayadeen’s position was that the triangular
portion was part of her car park, yet WASA was not only allowed to dig it up, but no evidence was
produced on the Claimants’ part of any request or demand for WASA to repair what the Claimants
considered to be their lands. Mr. Sinanan also argued that if the triangular portion was part of the
car park that was for the use of the Claimants’ customers, and WASA was dilatory in repairing it,
the Claimants themselves would have repaired it.
51. Mr. Sinanan went on to observe that Mrs. Gayadeen could not explain the derelict wall
which was shown in the photographs tendered and marked M1, M2 and M3. It was pointed out that
the derelict wall was in line with the northern-most post of the garage gate. Mr. Sinanan observed
Page 29 of 31
that that derelict wall demarcated the area of occupation and noted that the triangular portion was
north of that. He therefore submitted that it was highly improbable that the Claimants would not
remove the derelict wall, yet would go beyond that derelict wall and use that area for parking. Mr.
Sinanan therefore asked the Court to reject Mrs. Gayadeen’s evidence on a balance of probabilities.
52. As to the other three witnesses, Mr. Sinanan submitted:
(i) the witness Mrs. Casellano was of no assistance; her evidence was not cogent.
(ii) Mr. Bally contradicted Mrs. Gayadeen.
(iii) Mr. Rodriguez also contradicted Mrs. Gayadeen.
According to Mr. Sinanan both Mr. Rodriguez and Mr. Bally contradicted Mrs. Gayadeen as to
whether the Claimants were in possession of that triangular portion. According to Mr. Rodriguez
the triangular portion was in bush a long time. He never remembered it being concreted. As to Mr.
Bally, his evidence was that the triangular portion had rubble and bush there; it had no car park
there, he said. According to his evidence, the lands on the inside of the broken down (derelict) wall
constituted the area of the car park.
53. Having considered all the evidence and the submissions advanced on behalf of the parties, I
do not accept the contentions advanced on behalf of the Claimants. In my judgment, the Claimants
have failed to prove by credible evidence and on a balance of probabilities that they were in
possession of the triangular portion prior to the paving works carried out by the Ministry of Works.
54. The Claimants have therefore failed on the two central issues before the Court. Accordingly,
in my judgment, there is no breach of any of the constitutional rights of the Claimants. In addition,
Page 30 of 31
it is not necessary for the Court to determine other issues which have been raised in this matter,
including abuse of power, self-help and the effect of the undertakings given to the Claimants. In the
circumstances of this case, the Defendant has proved its right to possession and the Court will grant
the reliefs sought by the Defendant in the Counterclaim.
55. On the last day of addresses, Mr. Sinanan sought permission to use the affidavit of Duane
Murray filed on behalf of the Defendant on the 6th
July, 2011, just two days prior to the final
addresses in this matter. I am of the view that, whilst there is always a continuing duty to disclose
on the part of the State, no good reason has been advanced by Mr. Sinanan as to why the
information contained in Murray’s affidavit could not have been made available to the Court before.
In the circumstances, permission to use the affidavit of Duane Murray filed on the 6th
July, 2011 is
refused.
ORDER
IT IS HEREBY ORDERED THAT the Claimants’ claim is hereby dismissed.
IT IS HEREBY DECLARED THAT
1. The lands comprising 18,000 square feet situate at the corner of the Churchill Roosevelt
Highway and Tumpuna Road, Arima [“the said lands”] bounded on the north by two recently
constructed westbound lanes of the Churchill Roosevelt Highway, on the south by lands and
buildings of Subah, on the east by the Tumpuna Road and on the west by an unoccupied parcel of
Page 31 of 31
land, have been compulsorily acquired by the State in 1945 and thenceforth formed part of the
Churchill Roosevelt Highway.
2. By virtue of Gazette Notice No. 1711 published in the Trinidad Royal Gazette on the 6th
December, 1945, a public right of way exists over the said lands.
3. The Claimants have no right, title or interest in the said lands which can defeat or extinguish
the dedication of the said lands as a public right of way.
IT IS HEREBY FURTHER ORDERED THAT
1. The Claimants do immediately give vacant possession of the said lands to the State.
2. The Claimants do pay to the Defendant costs of the claim and counterclaim certified fit for
two Advocate Attorneys to be assessed by the Court on a date to be fixed.
3. A stay of execution of six weeks from today’s date is hereby granted.
..........................................................
MAUREEN RAJNAUTH-LEE
JUDGE