the republic of trinidad and tobago in...

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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


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


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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


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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,



18 Pursuant to section 2 of the Roads Ordinance

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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.


20 See Sauvain’s Highway Law (supra)

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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)

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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

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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

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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

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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

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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,

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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

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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

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