the republic of trinidad and tobago in the...

of 19

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV 2015-00277

IN THE MATTER OF THE REAL PROPERTY ACT CHAP 56:02 AND IN THE

MATTER OF THE REAL PROPERTY LIMITATION ACT CHAP 56:03

BETWEEN:

IRENE NORIEGA

IRVIN MCLEAN

FELIX HERNANDEZ

RICHARD HERNANDEZ

AUDREY NORIEGA

DIANA NORIEGA

EVANGELIST DE VERTEUIL

JUANITA BURNELY

RITA CASTILLO

HILTON GODEN

Claimants

and

ROSS MC LEAN

Defendant

of 19

Before the Honourable Madame Justice Margaret Y Mohammed

Dated the 20th

day of October, 2015

Appearances:

Mr. Stefan Mungalsingh for the Claimants

Ms. Veena Badri Maharaj for the Defendant

JUDGMENT

1. On the 21st May 2015 the Defendant applied to strike out paragraph 4 of the Amended

Statement of Case on the basis that it was not compliant with pleadings, it was highly

speculative, frivolous, evidential, and an abuse of process. On the 22nd

July 2015 I ruled

that while paragraph 4 was not the best manner of pleading I did not share the

Defendant’s view that it was not a proper pleading. I therefore dismissed this aspect of

the application.

2. The Defendant also sought an order for summary judgment (“the summary judgment

application”) pursuant to 15(2) (b) CPR on the basis that the Claimants have no realistic

prospect of success on the Claim or the issue.

3. The grounds in support of the summary judgment application are: the Defendant has an

indefeasible title of a piece of land situated in Las Cuevas which comprises of five acres,

three roods and thirty four perches which is delineated and coloured pink on the plan

attached to Crown Grant Volume 288 Folio 429 and bounded on the North and East by

Crown Lands on the South by a road and on the west by a road and by the lands of W.

Mc Lean and which is now described in Volume 4289 and Folio 335 (“the lands”)

pursuant to section 37 of the Real Property Act (“the RPA”); the allegation of fraud as

stated in the Amended Statement of Case is not sufficient to succeed in a claim for fraud

to defeat the Defendant’s indefeasible title as contemplated under section 141 of the

RPA; the Claimants gave no particulars as to the specific portion of lands they occupy;

the Claimants are seeking to void a court order which they were not a party to and there is

of 19

no sustainable claim on the facts as leaded of a claim for adverse possession since the

pleadings fall short of the requirements to support a claim of possessory title.

4. In support of the summary judgment application was an affidavit of Ross McLean which

repeated the grounds for the application and in opposition was the affidavit of Irvin

McLean (“the Claimants’ affidavit”) on behalf of all the Claimants. In the Claimants’

affidavit they contend that the Defendant’s indefeasible title obtained pursuant to section

37 of the RPA can be impugned for fraud under section 61 of the RPA and that they have

set out material facts which demonstrate the Defendant’s fraud in procuring his title. The

Claimants also contend that they are living on portions of the land and although the

Defendant has denied their occupation of portions of the lands in his Defence filed 28th

April 2015, there are letters dated 14th

October 2014 addressed to Irvin McLean on behalf

of the Defendant, stating that he was occupying a house spot on the lands and that there

are other letters sent on behalf of the Defendant which demonstrate that the Claimants

were occupying the lands.

The Claim

5. The Claimants’ case is that they have all lived on various portions of the lands. By order

of the Court on the 14th

April 2000 and entered on the 12th

September 2000 (“the vesting

order”), a Certificate of Title dated the 2nd

August 2001 Volume 4289 Folio 335 (“the

Defendant’s CT”) was issued whereby the Defendant became the registered proprietor of

the lands.

6. They allege that the information contained in the affidavits which the Defendant relied on

to obtain the vesting order was untrue; that the Defendant knowingly misled and deceived

the court with the statements made in the said affidavits which taken collectively gave a

false impression to the court and which falsely suggested to the court that he was entitled

to be endorsed as the registered owner.

7. The Claimants set out the details of their allegation of fraud at paragraph 4 of the

Amended Statement of Case as:

of 19

“ PARTICULARS OF FRAUD

AFFIDAVIT OF ROSS MC LEAN SWORN ON THE 30TH

NOVEMBER, 1999

AND FILED ON THE 20TH

NOVEMBER, 1999.

i. The Defendant fraudulently and dishonestly represented himself to be a farmer,

when the Defendant at all material times was, and known to all persons in Las

Cuevas and otherwise, as a taxi driver, a hunter, a life-guard, and the proprietor of

the bar located at the Las Cuevas Beach Facility.

ii. The Defendant fraudulently and dishonestly stated that he had lived on the said

Land all his life. The Defendant’s father, Johnny Mc Lean and his mother, Henora

Villoreal were not living on the said Land when the Defendant was born. The

Defendant only came to live on the said Land when the Defendant’s father

became extremely ill. The Defendant’s parents asked the First Claimant’s father,

Errol Mc Lean for permission to live on the said land. Permission was granted by

Errol Mc Lean and the First Claimant, so the Defendant did not spend his

childhood living in Las Cuevas.

iii. The Defendant fraudulently and dishonestly stated that he has cultivated the said

Land. The said Land has never been cultivated and is unsuitable for farming. No

portion of the said land was ever used for agricultural purposes or cultivated by

the Defendant at any time before or after that Defendant’s fraudulent acquisition

of title.

iv. The Defendant fraudulently and dishonestly stated that he has sold crops to

villagers and visitors of Las Cuevas, when he has never been engaged in the sale

of produce.

SUPPLEMENTAL AFFIDAVIT OF ROSS MC LEAN SWORN TO ON THE 6TH

APRIL, 2000 AND FILED ON THE 6TH

APRIL, 2000.

i. The defendant fraudulently and dishonestly stated that the land was free from

encumbrances. The Defendant knowingly misled the Honourable Court by failing

to disclose that the Claimants and/or their predecessors were living on the said

Land.

ii. The Defendant fraudulently and dishonestly stated that he had rented parts of the

land to persons for the purpose of erecting dwelling houses. The Defendant failed

and/or refused to disclose to the Honourable Court that the claimants aver that the

Defendant has never rented any portions of the said Land to any persons living

thereon. The Claimants and/or their predecessors who lived on the said Land at all

material times, never recognized the Defendant as the owner or paid rent to the

Defendant. The Claimants and/or their predecessors, who had rent for their

of 19

occupation of the said Land, paid the rent to Errol Mc. Lean who was recognized

by all as the person entitled to ownership of the said Land. Said Errol Mc Lean is

the father of the First Claimant. True copies of rent receipts issues by the said

Errol Mc lean to occupiers of the said Land are attached herein and marked

“L.C.4”.

AFFIDAVIT OF BONIFACIA HERNANDEZ SWORN ON THE 30TH

NOVEMBER, 1999 AND FILED ON THE 30TH

NOVEMBER, 1999.

i. Ms. Hernandez now deceased, was an alcoholic and lived in the Las Cuevas area.

She frequented the local bar operated by the Defendant. The Defendant

dishonestly induced Ms. Hernandez on the 30th

November, 1999 to swear, the said

Affidavit knowing that Ms. Hernandez did not have the capacity to understand the

contents of the said Affidavit or the consequence of her actions in swearing to the

said Affidavit.

ii. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.

Hernandez to swear, and dishonestly and fraudulently stated therein that the

Defendant was cultivating the said Land and selling the produce.

iii. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.


Defendant was planting and harvesting cocoa, coconuts, and other agricultural

produce from time to time.

iv. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.


Defendant’s house was on the said Land where his parents lived. The house that

the Defendant has occupied at all material times and continues to occupy on the

said Land was the house of Vera Mc Lean, which was abandoned for some time

before the Defendant began occupying same. The Defendant’s parents have never

occupied the house of Vera Mc Lean, presently occupied by the Defendant.

AFFIDAVIT OF JOYCELYN MC LEAN SWORN ON THE 30TH

NOVEMBER,

1999 AND FILED ON THE 30TH

NOVEMBER, 1999.

i. Joycelyn Mc Lean is the wife of the Defendant as stated in the said Affidavit.

of 19

ii. The Defendant through Joycelyn Mc Lean dishonestly and fraudulently stated that

“We have always cultivated and reaped the produce from the said parcel of

land”, when she knew same to be untrue.”

8. The Claimants averred that although they lived on portions of the lands they did not have

notice of the proceedings in the application leading up to the vesting order (“the vesting

order application”) prior to the vesting order being made and they only became aware of

the vesting order application in October 2014 when their attorney received a copy of the

court file.

9. The Claimants also averred that the Defendant attempted to assert his ownership of the

lands by writing to them and/or their predecessors from November 2000. He requested

them to either pay rent or to purchase the portion of the lands which they occupied. The

Claimants admitted that they ignored the letters since they never recognized the

Defendant as the owner. Instead they recognized Errol McLean as the person entitled to

ownership of the lands and after his death the First Claimant was recognized as the

person entitled to ownership of the lands. They had asked the Defendant to produce his

title documents but his servants and/or agents refused to do so. The Claimants first

became aware of the Defendant’s CT in 21st July 2014 when it was attached to a letter

which called upon them to pay rent or buy the portion of the land they occupied.

10. They also pleaded that they have been in undisturbed occupation of their respective

portions of the lands in excess of 16 years.

11. The reliefs which the Claimants seek in their claim are: to declare the Defendant’s CT

void since it was procured by fraud; for the Registrar General to remove the Defendant as

the registered owner of the lands from the Register Book; to declare them as the owners

who are entitled to possession of the respective portions of the lands they occupy and an

injunction to stop the Defendant from obstructing or interfering with their enjoyment of

the lands.

of 19

The Defence

12. The Defendant set out various alternative positions in his Defence. Firstly he pleaded that

the claim is unsustainable since the Claimants are seeking to set aside the vesting order

and they were not a party to the vesting order application. He also pleaded that there is no

cause of action against him. Alternatively, he contends that the receipts which the

Claimants have annexed as proof of their occupation of the lands are with respect to other

lands and not the lands. He relies on a memorandum dated 14th

February 2000 which is

the Field Investigator’s report in the vesting order application1 (“the Field Investigator’s

report”).

13. He admits that he became the registered owner of the land by virtue of the Defendant’s

CT. He has called upon the Claimants to prove their pleaded allegations of fraud. He

pleaded that he and his parents reaped the cocoa planted on the lands and sold same. He

pleaded that he was born and grew up on the lands and his parents were always there. The

lands have always been cultivated and planted with fruit trees, in particular coconut.

14. He denied that Errol McLean owned the lands but instead pleaded that Acty Antoine

owned the lands and that Errol McLean was the owner of lands adjacent to Acty

Antoine’s land which was 6A 2R and 29 P (“the Errol McLean lands”) which Errol Mc

Lean sold in 1974 to Errol Hosein. As proof he exhibited the memorandum of transfer2.

15. He contended that neither Errol McLean nor the First Claimant could have given the

Claimants permission to occupy the lands since they were not the owners after 1974. He

denied the allegations of fraud against Ms. Hernandez and puts the Claimants to strict

proof. He also denied that Vera Mc Lean was the owner of the lands or the house on the

lands in which the Defendant’s parents lived. He pleaded that he and his siblings grew up

on the lands.

1 Exhibit A to the Defence

2 Exhibit E to the Defence

of 19

16. The Defendant also denies the Claimants’ allegation that no notice of the vesting order

application was placed on the lands. He pleaded that Notice was placed upon the lands

for all persons including the Claimants to become aware of the vesting order application

in compliance with the RPA in order to allow them to lodge any objections. He also

pleaded that the vesting order application was advertised in local daily newspapers. He

relies on the letters which were sent on his behalf to the Claimants on the 23rd

November

2000 where he informed them that he became the registered owner of the lands by the

vesting order and the letters dated 2nd

January 2007 and 30th

August 2009 where he called

upon them to regularize their occupation of their respective portion of the lands which

they occupy.

17. The Defendant also denies that they have been in undisturbed possession of their

respective portion of the lands for at least 16 years. He pleaded that in or about

September or October 2014 the Second Claimant began to clean and construct on another

portion of the land comprising 5000 square feet and he caused his then attorney to write a

letter dated 14th

October 2014 calling upon the Second Claimant to desist from

trespassing and cease construction.

18. The Defendant also averred that he relies on section 37 of the RPA and that the allegation

of fraud pleaded by the Claimants is not of the nature contemplated under section 141 of

the RPA to impeach the indefeasible title of the Defendant.

19. Based on the pleaded case of the respective parties the issues that arise for determination

at trial are:

(a) Who owns the lands which the Claimants admit they are occupying, the

Defendant or Errol Mclean?

(b) If the Defendant owns the 5 acre parcel of land, can his title be impugned?

(c) Have the Claimants been in undisturbed possession of the lands for at least 16

years?

of 19

The law to be applied

20. Rule 15.2(b) CPR empowers the Court to give summary judgment on the whole or part

of the claim if the claimant has no realistic prospect of success on his claim or part of

claim or issue. In Western Union Credit Union Co-operative Society Limited v

Corrine Amman3 Kangaloo JA was dealing with an application for summary judgment

by the Claimant. The learned Judge applied the English approach on applications for

summary judgment and gave the following guidance in dealing with applications for

summary judgment:

“The court must consider whether the Defendant has a realistic as opposed to

fanciful prospect of success: Swain v Hillman [2001] 2 AER 91

A realistic defence is one that carries some degree of conviction. This means a

defence that is more than merely arguable: ED &F Man Liquid Products and

Patel [2003] EWCA Civ 472 at 8.

In reaching its conclusion the Court must not conduct a mini trial Swain v

Hillman [2001] 2 AER 91:

This does not mean that the court must take at face value and without analysis

everything the Defendant says in his statements before the court. In some cases it

may be clear there is no real substance in the factual assertion made, particularly

if contradicted by contemporaneous documents: ED & F Man Liquid Products

v Patel EWHC 122

However in reaching its conclusion the court must take into account not only the

evidence actually placed before it on the application for summary judgment but

also the evidence which can reasonably be expected to be available at trial Royal

Brompton NHS Trust v Hammond (No 5) [2001] EWCA Cave 550

Although a case may turn out at trial not to be really complicated, it does not

follow that it should be decided without the fuller investigation into the facts at

trial than is possible or permissible on summary judgment. Thus the court should

hesitate about making a final decision without a trial, even where there is no

obvious conflict of fact at the time of the application, where reasonable grounds

exist for believing that a fuller investigation into the facts of the case would add to

or alter the evidence available to a trial judge and so affect the outcome of the

case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100

Ltd [2007] FSR 63.

3 CA 103/2006 Kangaloo JA

of 19

21. The Defendant’s application to dismiss the claim is based on four broad grounds. Firstly

that his registered title is indefeasible and the allegations of fraud by the Claimants are

insufficient to defeat his title as contemplated by section 141 of the RPA. Secondly, the

Claimants did not give particulars of the portions of the lands they occupy. Thirdly, the

effect of the relief the Claimants are seeking is to impugn a court order where they were

not a party and lastly the claim for adverse possession is not sustainable since the

pleading fall short of the requirements to support a claim for possessory title.

22. While I am mindful that a Court should be hesitant to shut out a party before the trial the

guidance of Abdulai Contej CJ in Belize Telemedia Limited v Magistrate Usher4 is

also useful as he considered the interaction between striking out under the court’s case

management powers in Part 26 and the power to award summary judgment under Part 15.

His comments on the powers of the Court under Part 26 are relevant to the instant

application. He stated:

“15. An objective of litigation is the resolution of disputes by the courts through trial

and admissible evidence. Rules of Court control the process. These provide for pre-

trial and trial itself. The rules therefore provide that where a party advances a

groundless claim or defence or no defence it would be pointless and wasteful to put

the particular case through such processes, since the outcome is a foregone

conclusion.

16. An appropriate response in such a case is to move to strike out the groundless

claim or defence at the outset.

17. Part 26 of the powers of the Court at case management contains provisions for

just such an eventuality. The case management powers conferred upon the Court are

meant to ensure the orderly and proper disposal of cases. These in my view, are

central to the efficient administration of civil justice in consonance with the

overriding objective of the Rules to deal with cases justly as provided in Part 1.1 and

Part 25 on the objective of case management.”

4 (2008) 75 WIR 138

of 19

Ownership of the lands occupied by the Claimants

23. The Claimants have admitted that they occupy portions of lands but their position is that

the lands are owned by Errol Mclean and that both Errol McLean and later the First

Claimant gave them permission to occupy the said portions. The proof of ownership of

the Errol McLean lands which they annexed is the Defendant’s CT.

24. They also admit that they were aware since November 2000 that the Defendant became

the registered owner of the lands and that although the Defendant has been asserting his

rights over the land they have chosen to ignore it since 2000 to 2014 since he failed to

provide them with proof of his ownership.

25. The Defendant’s contention is that the lands were never owned by Errol McLean and that

the previous owner was Acty Antoine. He exhibited the same Defendant’s CT which the

Claimants exhibited as proof of ownership of the lands. He also pleaded that the Errol

McLean lands which was south of the lands which was sold to Errol Hosein in April

1974. He annexed the memorandum of transfer to support his assertion. He also averred

that Errol Mclean could not have given them permission to occupy the lands since he

never owned it.

26. For the Claimants to succeed in their claim they first have to prove that the lands which

they occupy was owned by Errol Mclean, and secondly if it is that he and later his

daughter the First Claimant gave them permission to occupy portions of the lands. At this

stage there is no real substance in the Claimants’ factual assertion for the following

reasons.

27. Firstly, based on the undisputed documentary evidence Acty Antoine, not Errol Mclean

owned the lands which the Claimants admitted they presently occupy. Secondly, the

Claimants have not placed any evidence in their pleading or in the Claimants’ affidavit to

contradict the Defendant’s plea that the Errol McLean lands were adjacent to the lands.

The plan attached to the Memorandum of Transfer clearly indicates lands owned by Errol

Mclean which is adjacent to the lands. Thirdly, the Claimants have also failed to refute

of 19

the Defendant’s plea and or the Memorandum of Transfer that the Errol McLean lands

were sold in 1974 to Errol Hosein.

28. On the first issue who owns the lands which the Claimants admit they occupy, the

contemporaneous documents namely the Defendant’s CT which was exhibited by both

the Claimants and the Defendant shows that Acty Antoine and not Errol Mc Lean was the

original owner of the lands and that the lands owned by Acty Antoine are now owned by

the Defendant.

The indefeasible title

29. Section 37 and 45 of the RPA sets out the conclusiveness of the register in the system of

registration under the RPA. Section 37 provides:

“37. Every certificate of title duly authenticated under the hand and seal of the

Registrar General shall be received, both at law and in equity, as evidence of the

particulars therein set forth, and of their being entered in the Register Book, and

shall, except as hereinafter excepted, be conclusive evidence that the person

named in such certificate of title, or in any entry thereon, is seized of or possessed

of or entitled to such land for the estate or interest therein specified, and that the

property comprised in such certificate of title has been duly brought under the

provisions of this Act; and no certificate of title shall be impeached or defeasible

on the ground of want of notice or of insufficient notice of the application to bring

the land therein described under the provisions of this Act, or on account of any

error, omission, or informality in such application or in the proceedings pursuant

thereto by the Judge or by the Registrar General.”

Section 45 provides:

“Notwithstanding the existence in any other person of any estate or interest,

whether derived by grant from the State or otherwise, which but for this Act

might be held to be paramount or to have priority, the proprietor of land or of any

estate or interest in land under the provisions of this Act shall, except in case of

fraud, hold the same subject to such mortgages, encumbrances, estates, or

interests as may be notified on the leaf of the Register Book constituted by the

grant or certificate of title of such land; but absolutely free from all other

of 19

encumbrances, liens, estates, or interests whatsoever, except the estate or interest

of a proprietor claiming the same land under a prior grant or certificate of title

registered under the provisions of this Act, and any rights subsisting under any

adverse possession of such land; and also, when the possession is not adverse, the

rights of any tenant of such land holding under a tenancy for any term not

exceeding three years, and except as regards the omission or misdescription of

any right of way or other easement created in or existing upon such land, and

except so far as regards any portion of land that may, by wrong description of

parcels or of boundaries, be included in the grant, certificate of title, lease, or

other instrument evidencing the title of such proprietor, not being a purchaser or

mortgagee thereof for value, or deriving title from or through a purchaser or

mortgagee thereof for value.” (Emphasis mine)

30. One of the exceptions whereby the indefeasibility of the title can be challenged is by

fraud within the meaning of section 141 of the RPA. Section 141 provides:

“141. Except in the case of fraud, no person contracting or dealing with or taking

or proposing to take a transfer from the proprietor of any estate or interest shall be

required or in any manner concerned to enquire or ascertain the circumstances

under, or the consideration for which, such proprietor or any previous proprietor

of the estate or interest in question is or was registered, or to see to the application

of the purchase money or of any part thereof, or shall be affected by notice, direct

or constructive, of any trust or unregistered interest, any rule of law or equity to

the contrary notwithstanding, and the knowledge that any such trust or

unregistered interest is in existence shall not of itself be imputed as fraud.”

31. There is no definition of what constitutes “fraud” in the context of section 141 of the

RPA. In Zanim Ralphy Meah John v Courtney Allsop and ors5 Kokaram J examined

the authorities on the nature of fraud as contemplated under section 141 to impeach the

prima facie indefeasible title of the registered owner and he summed up the position,

which I respectfully adopt, as :

“25.The fraud of a purchaser of property therefore under the system of

registration in the context of section 141 means some act of dishonesty. Actual

fraud. It is not constructive or equitable fraud. A deliberate, dishonest trick

causing an interest not to be registered. An object of the transfer to cheat a man of

a known right. Although fraud is fact specific, the litmus test must be an act of

dishonesty, moral turpitude which is more than mere knowledge of an

unregistered interest.

5 CV 2010-04559

of 19

26. Facts which therefore only amount to mere knowledge by the purchaser of

unregistered interests would fail to pass this litmus test. Facts which impute some

further act of dishonesty will not. Under this system of registration of title

therefore if a purchaser acquires land on which exists clear signs of occupation he

is not guilty of fraud.

32. There are two limbs which the Claimants seek to impugn the Defendant’s title on the

basis of fraud. Firstly, the lack of notice of the vesting orders proceedings. It was not in

dispute that the Claimants were not a party to the vesting order proceedings. The

Claimants averred at paragraph 5 of the Amended Statement of Case that although they

lived on the land they did not have any notice of the vesting order application since they

did not see any summons or affidavits prior to 2014. The Defendant pleaded that notice

of the vesting order proceedings was placed on the land in compliance with the RPA and

it was advertised in the local newspapers for persons who wished to raise objection.

33. Section 52 of the RPA provides for notification of the vesting order application by

posting a copy of the summons and affidavit on the lands and by publication in local

newspapers. The rationale is to enable affected persons to be given the opportunity to

raise any objection to the application before the Court makes a determination on the

vesting order application. The Claimants have only pleaded that they did not see any

summons or affidavits prior to 2014. They did not plead that such notification was not

placed on the lands as required by section 52. Neither have they pleaded that the notice

was not published in the newspapers. Even if the Claimants can prove that they did not

see the summons and affidavit on the lands, they still had the opportunity to intervene and

raise objection to the vesting order application since the Defendant pleaded that the

notice was published in the newspapers.

34. On this basis, even if the Claimants are able to prove the alleged lack of notice by posting

of the vesting order application on the lands, this is still insufficient to impugn the

Defendant’s title since they have not disputed the publication in the newspapers.

of 19

35. Secondly, the aforesaid allegations of fraud which the Claimants pleaded are deliberate

acts of dishonesty which they averred were intended by the Defendant to deliberately

mislead the court. In essence the allegation of fraud relates to issues which were before

the judge dealing with the vesting order application and the effect of the instant claim is

to reverse the vesting order application.

36. In Thomas v Stoutt and Ors6, a decision on the Court of Appeal of the Eastern

Caribbean Supreme Court Byron CJ (as he then was) confirmed that for a judgment to be

set aside the “alleged fraud came to light since the hearing which it sought to impugn.

Such an action would normally be stayed or dismissed as being vexatious, unless it is

founded on a discovery of new and material evidence since the judgment.”7 Byron CJ

also went on to state that :

“The requirement that there must be a reason other than mere falsehood for

setting aside the judgment, was referred to in Flower v Lloyd (1879) 10 Ch D 327

at pages 333 and 334:

‘Assuming all the alleged falsehood and fraud to have been substantiated,

Is such a suit as the present sustainable? That question would require very

grave consideration indeed before it is answered in the affirmative. Where

is litigation to end if a judgment obtained in an action fought out adversely

between two litigants sui juris and at arm’s length could be set aside by a

fresh action on the ground that perjury had been committed in the first

action, or that false answers had been given to interrogatories, or a

misleading production of documents, or of a machine, or of a process had

been given? There are hundreds of actions tried every year in which the

evidence is irreconcilably conflicting, and must be on one side or the other

wilfully and corruptly perjured… Perjuries, falsehoods, frauds, when

detected, must be punished and punished severely; but in their desire to

prevent parties from obtaining any benefit from such foul means, the court

must not forget the evils which may arise from opening such new sources

of litigation, amongst such evils not the least being that it would be certain

to multiply indefinitely the mass of those very perjuries, falsehood and

frauds”8

6 (1997) 55 WIR 112

7 Supra at page 119

8 Supra at page 120

of 19

37. The procedure to set aside an order obtained by fraud was elucidated by the Privy

Council in Boodoosingh v Ramnarace9 which stated:

“There is no doubt that a judgment obtained by fraud can be set aside either by

order made in afresh action brought in fraud to impeach it or on appeal to the

Court of Appeal by adducing fresh evidence sufficient to establish the fraud.

Sometimes the more appropriate remedy will be by original action…. Certainly an

appeal rather than a fresh action in fraud is the appropriate course where part only

of a judgment is being impugned. A fresh action, if well-founded, is apt to set

aside a judgment10

.

38. While the Claimants state that they only became aware of the information in the

affidavits which they allege are fraudulent, in October 2014, the facts which they seek to

impugn the vesting order are not new and certainly were available during the vesting

order application. In this regard, the issue of notice and the allegations of the fraud are

inextricably bound.

39. In my view at best the Claimants may have an arguable case based on the allegations of

fraud but they have set out no grounds to warrant a fuller investigation of the allegations

at trial given the circumstances arising from the pleadings for the following reasons.

Firstly, there was no dispute that there was an opportunity given to affected parties to

intervene in the vesting order application since there was a publication of the vesting

order application. Secondly, the affidavits which the Claimants seek to impugn were

available since 1999 to 2000. Thirdly, the Claimants have not been able to establish on

their own pleading that the lands were owned by Errol McLean as they averred. And

fourthly, the Claimants have not challenged the contents of the Field Investigator’s report

in the Claimants’ affidavit.

40. I therefore find that while the Claimants may have an arguable case, there are no

reasonable grounds presented for a fuller investigation which would add or alter the

evidence available at trial given the documents.

9 All England Official Transcripts (1997-2008)

10 Paragraph 18

of 19

Adverse possession

41. The plea for adverse possession was not an alternative plea. I understand the Claimants’

case to be that the land is not owned by the Defendant for two reasons namely; it is

owned by Errol Mclean and if the Defendant is the registered proprietor, he procured

ownership through fraudulent acts. At the hearing of the summary judgment application I

pointed out to Counsel for the Claimants that based on the Claimants’ pleading if they

succeeded in setting aside the Defendant’s title it did not necessarily mean that they

would have extinguished the rights of the paper title owner since their case was that the

paper title owner was Errol Mclean and that neither Errol Mclean nor the person entitled

to his estate were joined in a capacity to defend an action for adverse possession.

42. On the other hand, if the Claimants failed to set aside the Defendant’s title then their plea

of adverse possession was limited to paragraph 1 of the Amended Statement of case

where they pleaded that they have been in occupation of the land, paragraphs 7 , 8 and 9

where they admitted to being in receipt of correspondence since November 2000 to July

2014 wherein the Defendant indicated that he was the owner of the lands and that he has

been calling upon them to either pay rent or purchase the portion of the lands which they

occupy. They also admitted that they ignored all the correspondence except the July 2014

letter since the Defendant failed to provide proof of ownership and he first did so in July

2014. Their last plea to ground their claim in adverse possession was paragraph 14

which stated: “Each and every Claimant and/or their predecessors, has been in

undisturbed occupation of their respective portions of the said land in excess of 16

years.”

43. In Bernard v Seebalack11

the Privy Council reiterated the importance of a proper

pleading as: “Pleadings are still required to mark out the parameters of the case that is

being advanced by each party. In particular they are still critical to identify the issues

and the extent of the dispute between the parties. What is important is that the pleadings

should make clear the general nature of the case of the pleader...”

11

77 WIR 455

of 19

44. There has been no shortage of case law emanating from this jurisdiction on the extent and

clarity which is required in pleading a claim for adverse possession. In Nelson v De

Freitas12

Pemberton J opined that the facts relied upon to establish ‘adverse possession’

must be cogent and clearly stated in the defence. In Lystra Beroog & Anor. v Franklin

Beroog13

Kokaram J observed that a claim for adverse possession “pits the rights of

persons in occupation against the title owners of the property. It is a short hand

expression for the type of possession which can, with the passage of years, mature into a

valid right. It is therefore a very serious and significant claim where that type of

occupation will trump a legal right. The claim must therefore be carefully scrutinized to

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

of the occupier. The onus of establishing the defence of adverse possession is on the

Defendant who put it forward”.

45. The pleading must establish that the entry on the land was unlawful; that the possession

was for a period of at least 16 years; and the intention to dispossess. Anything short of

establishing this will not suffice. See Atkins Court Forms Volume 25(1).

46. In my view, the Claimants pleading fall very short in establishing such a claim. The only

facts which the Claimants have pleaded are that they have been in occupation of their

respective portion of the lands for over 16 years. They have failed to plead when or how

they came unto the land. They have failed to plead any facts to support an assertion of

their intention to dispossess the title owner, the Defendant. Indeed their pleading is that

they were aware that the Defendant was asserting his rights of ownership since 2000,

some 15 years before they mounted their claim for adverse possession.

47. Further, even the Claimant’s factual assertion of being in undisturbed possession of their

respective portions of the lands for 16 years is contradicted by the Filed Investigator’s

report which the Court is entitled at this stage to examine. The Field Investigator’s report

12

CV 2007-0042 13

CV 2008-04699

of 19

was done by an independent third party from the Chief State Solicitor’s Department

during the vesting order application. The Field Investigator’s report named the persons

who were in occupation of portions of the lands, who were the Defendant’s children and

relatives namely: Solomon Mc Lean, Ricardo Mc Lean, Theresa McLean, Dianne Mc

lean and Aldywn McLean. Notably absent is any mention of any of the Claimants. In my

view the Filed Investigator’s report is a contemporaneous document which was important

and would have been considered by the Court before granting the vesting order.

48. For the aforesaid reasons I am not satisfied that the Claimants have any realistic prospect

of proving a claim for adverse possession.

Order

49. Summary judgment is granted against the Claimants.

50. The Claimants are to pay the Defendant’s costs of the summary judgment application.

51. Pursuant to Part 67.5 (2) (c) I have assessed the costs in the sum of $7,700.00 which is

55% of $14,000 since the claim was not for a monetary sum.

Margaret Y Mohammed

High Court Judge

the republic of trinidad and tobago in the...

Documents