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IN THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
PORT OF SPAIN
C.V. 2011-03561
BETWEEN
THE ROMAN CATHOLIC ARCHDIOCESE OF PORT OF SPAIN
Claimant
AND
LEROY EDWARDS JUNIOR
Defendant
Date of Delivery: Friday 16th November 2018 Appearances: For the Claimant: Mr. Ravi Mungalsingh, Ms. Tara Bhairosingh For the Defendant: Ms. Badri-Maharaj
JUDGMENT
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[1] This action was commenced by Fixed Date Claim Form and Statement of Case filed on
the 19th September, 2011 by which the Claimant sought the following reliefs against
the Defendant:
a) The sum of One Thousand Three Hundred and Twenty Dollars ($1,320.00)
representing arrears in rent for the period 1989 – 2011 at a rate of $60.00 per
annum;
b) A declaration that the Defendant is not entitled to enter or use the Claimant’s
lands;
c) An injunction to restrain the Defendant by himself, his servants and/or agents or
otherwise from entering or remaining on or continuing in occupation of the
Claimant’s lands;
d) That the Defendant remove all backfilling and materials that he has accumulated
and fencing erected on the Claimant’s lands and restore the said lands in such a
manner as it was prior to the acts of trespass at the Defendant’s expense within
twenty eight days;
e) Damages for trespass including aggravated damages;
f) Interest pursuant to the Supreme Court of Judicature (Amendment) Act 2000;
g) Costs;
h) Such further or other relief as the Court deems just;
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THE CASE FOR THE CLAIMANT
[2] The Claimant’s case is that it is the owner of the lands which are described in Deeds
registered as No 262 of 1851 and 595 of 1873 (the subject lands) and that in or around
2006, the Defendant began trespassing on portions of the Claimant’s lands.
[3] The Claimant caused the subject lands comprising 2556 square metres to be surveyed
by one Leslie Akum on the 23 December 2010.He subdivided the land into lots and
delineated said lots on a Plan (the Plan).
[4] In 1988, the Defendant was given permission by the Claimant to occupy, for the
purpose of building a house, the lands situate and described as Lot No. 13 on the Plan
at an annual rent of Sixty Dollars $60.00. The Defendant paid rent for the first year of
his tenancy and none thereafter; he therefore remained in arrears of rent from then
to present.
[5] Lot No. 8 as shown on the Plan was originally leased to Mr. de Freitas, deceased, on
which he built a two-storey wood and concrete house. In or about mid-2004 the top
floor portion of the building was destroyed by fire, leaving the ground floor, which was
rented to one Ms. Hazra Ali and her two daughters. Ms. Ali and her daughters were
later evicted on the 31 August 2006 by one Mrs. Beverly Guevara, one of the
granddaughters of Mrs. Carmen de Freitas, the second wife of Mr. de Freitas. After
the eviction of Ms. Hazra Ali, the house situate on Lot No. 8 remained vacant. The
Claimant contended that the tenancy of Lot No. 8 had been abandoned. Further, by
operation of law, it came to an end on the 30th June 2011 by virtue of the Land Tenants
(Security of Tenure) Act1 as no notice of renewal of the tenancy was served on the
Claimant.
[6] In or about early 2006, the Defendant began to stockpile and/or store materials on
Lot No. 8. The Parish Priest, Father Steve Duncan wrote to the Defendant by letter
1 Cap 59:54 s4 and s10
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dated the 13 July 2006 requesting that he cease his acts of trespass upon church lands.
This letter was sent via Registered Mail and was returned with the notation “refused”.
The Defendant temporarily ceased his actions and Father Steve Duncan wrote by
letter dated the 25 August 2006 thanking him for his co-operation and extending an
invitation for the parties to meet which was not accepted by the Defendant.
[7] In or about late 2007 and early 2008 the Defendant continued his acts of trespass by
installing a water line from the burnt premises on Lot No. 8 to his house on Lot 13. The
Defendant performed further excavation and backfilling, compacting and grading of
the lands situate on Lot No. 8 to the extent that the burnt out dwelling therein was
obscured from view from the road which runs alongside same. He also erected a
galvanise fence to the north of Lot No. 8 running along Lot No. 7, encroaching upon
lands of other tenants of the Claimant.
[8] The Defendant broke a portion of the fence to the south of Lot No. 8 belonging to the
occupants of Lot No. 9 which is tenanted to the Joseph family. The Defendant cleared
a portion of the southern side of Lot No. 8 to create a road wherein he erected a sign
with the words “Barack Obama Avenue”. The creation of this road caused a drain
running along the boundary of Lot No. 8 and Lot No. 9 to be covered by soil preventing
the flow of water from Lot No. 9. The Defendant later erected a galvanise fence to
replace the portion of the fence that he destroyed.
DEFENCE AND COUNTERCLAIM
[9] A Defence and Counterclaim on behalf of the Defendant was filed2. By his
counterclaim, the Defendant sought the following reliefs:
a) A declaration that the Claimant’s title to the lands numbered as Lots 5 and Lot
13 on the survey plan of Mr. Leslie Akum-Lum dated the 9th day of May, 2011
has been extinguished due to the Defendant’s open, exclusive, continuous and
2 Defence and Counterclaim filed on 24th November 2011
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uninterrupted occupation of same for a period in excess of sixteen years.
b) A declaration that the Claimant’s title to the Eastern half of Lot 4, the Eastern
half of Lot 7 and the Western half of Lot 8 on the Survey plan of Mr. Leslie
Akum-Lum dated the 9th May, 2011 has been extinguished due to the
Defendant’s open, exclusive, continuous and uninterrupted occupation of
same for a period in excess of sixteen years.
c) A declaration that the Defendant is entitled to possession of the lands
described above.
d) Costs.
e) Such further and/or other orders as the Honourable Court deems fit and
appropriate in the circumstances.
THE AGREED STATEMENT OF FACTS
[10] On the 16th December, 2013, an Agreed Statement of Facts was filed. By the said
statement, the following facts were agreed by the parties:
a) The Claimant is the owner in fee simple of the lands described in the Schedule
to Deed no. 262 of 1851 and the lands described in the Schedule to Deed no.
595 of 1873 (“hereinafter referred to as the Claimant’s lands”).
b) The Claimant caused a survey plan to be prepared by Mr. Leslie Akum Lum to
identify the Claimant’s lands dated the 23rd day of December, 2010
(hereinafter referred to as the “first survey plan”).
c) The Claimant caused a survey plan to be prepared by Mr. Leslie Akum Lum to
identify the Claimant’s lands and more particularly the area of encroachment
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on the same by the Defendant dated the 9th May, 2011 (hereinafter referred
to as “the second survey plan”).
d) The Claimant leased a portion of its lands numbered 8 to Mr. de Frietas,
deceased, wherein a two-storey wood and concrete house was built. In or
about 2004 the top floor portion of the building was destroyed by fire leaving
the ground floor which was being rented to Ms. Hazra Ali and her two
daughters. Ms. Ali and her daughters were evicted on the 31st August, 2006 by
one Ms. Beverly Guevara, one of the granddaughters of Mrs. Carmen de
Frietas, the second wife of Mr. de Frietas.
e) The tenancy with respect to the said Lot 8 was abandoned.
f) The Defendant performed further excavation and backfilling, compacting and
grading of the lands situate at Lot number 8 to the extent that the burnt out
dwelling house therein was obscured from view from the road which runs
alongside same.
g) The Defendant erected a galvanise fence to the north of Lot number 8 running
along Lot number 7 encroaching upon lands of tenants of the Claimants.
h) Lot number 7 is occupied by a house belonging to the Claimant named the
“Scared Heart Villa” which said house is being rented out to Ms. Hazra Ali and
her two daughters.
i) By letter dated the 8th April, 2009 the Chancery of the Claimant wrote to the
Defendant to stop his actions and invited him to meet with the Parish Priest to
resolve the matter but same went un-heeded by the Defendant.
j) The Claimant’s Attorneys-at-Law sent letter dated the 10th January, 2011 to
the Defendant inviting him to a meeting with the Property Management
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Committee of the Claimant and Mr. Leslie Akum Lum, Licensed Surveyor. This
letter went unacknowledged.
k) The Defendant continued his actions into 2011 whereby:-
i. He used a backhoe to perform works on Lot number 8; and
ii. Erected a fence around and planted trees and flowers on Lot number 5
continuing the fence along Lot number 4 and further east of Lot
number 4
l) The Defendant also placed two galvanised sheets to the west of Lot number 7
around the house known as the “Sacred Heart Villa” situate thereon.
m) The Defendant has erected a galvanised fence to the east of Lot number 9
running adjacent to the car park of the Sacred Heart Church.
THE LAW
Adverse Possession
[11] Section 3 of the Real Property Limitation Act Chapter 56:03 provides:
“3. No person shall make an entry or distress or bring an action to
recover any land or rent, but within sixteen years next after the time
at which the right to make such entry or distress, or to bring such
action, shall have first accrued to some person through whom he
claims, then within sixteen years next after the time at which the right
to make such entry or distress, or to bring such action, shall have first
accrued to the person making or bringing the same.”
[12] Section 4 of the Real Property Limitation Act Chapter 56:03 provides:
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“4. The right to make an entry or distress, or bring an action to recover
any land or rent, shall be deemed to have first accrued at such time as
is hereinafter mentioned, that is to say—
(a) when the person claiming such land or rent, or some person
through whom he claims, shall, in respect of the estate or interest
claimed, have been in possession or receipt of the profits of such land,
or in receipt of such rent, and shall, while entitled thereto, have been
dispossessed, or have discontinued such possession or receipt, then
such right shall be deemed to have first accrued at the time of such
dispossession or discontinuance of possession, or at the last time at
which any such profits or rent were or was so received;
(b) when the person claiming such land or rent shall claim the estate
or interest of some deceased person who shall have continued in such
possession or receipt in respect of the same estate or interest until the
time of his death, and shall have been the last person entitled to such
estate or interest who shall have been in such possession or receipt,
then such right shall be deemed to have first accrued at the time of
such death;
(c) when the person claiming such land or rent shall claim in respect of
an estate or interest in possession, granted, appointed, or otherwise
assured by any instrument (other than a Will) to him, or some person
through whom he claims, by a person being in respect of the same
estate or interest in the possession or receipt of the profit of the land,
or in the receipt of the rent, and no person entitled under such
instrument shall have been in such possession or receipt, then such
right shall be deemed to have first accrued at the time at which the
person claiming as aforesaid, or the person through whom he claims,
became entitled to such possession or receipt by virtue of such
instrument; When the right shall be deemed to have accrued.
(d) when the estate or interest claimed shall have been an estate or
interest in reversion or remainder, or other future estate or interest,
and no person shall have obtained the possession or receipt of the
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profits of such land or the receipt of such rent in respect of such estate
or interest, then such right shall be deemed to have first accrued at the
time at which such estate or interest became an estate or interest in
possession; (e) when the person claiming such land or rent, or the
person through whom he claims, shall have become entitled by reason
of any forfeiture or breach of condition, then such right shall be
deemed to have first accrued when such forfeiture was incurred or
such condition was broken.”
[13] In JA Pye (Oxford) Ltd. & Anor. –v- Graham & Anor. ALL ER [2002] the House of Lords
described the two pillars for establishing a claim to adverse possession as follows:-
i. the factual possession which is actual physical possession of the lands to
the exclusion of all others for the statutory period, viz, sixteen years; and
ii. The intention to possess;
iii. The onus is on the party claiming possessory title to prove, on a balance of
probability that he was in continuous possession for the requisite period.
He must prove both elements.
[14] In Ian Roach and Marjorie Roach v Hugh Jack and Ors. Civ Appeal No. 132 of 2009
Bereaux JA noted at paragraph 17 that the case of JA Pye (Oxford) Ltd. v. Graham
[2002] W.L.R. 221 is the leading authority on adverse possession. He said:
“In summary, it was held:
(a) that the words “possession” and “dispossession” bore their
ordinary meaning, so that “possession” as in the law of the trespass or
conversion, connoted a sufficient degree of occupation or physical
control coupled with an intention to possess and “dispossession”
occurred where the squatter assumed “possession” as so understood;
(b) that the phrase “adverse possession” was directed not to the
nature of the possession but to the capacity of the squatter. In order
to establish factual possession the squatter had to show absence of
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the paper owner’s consent, a single and exclusive possession and such
acts as demonstrated that he had dealt with the land as an occupying
owner might normally be expected to do and that no other person had
done so;
(c) that the requisite intention was not to own or acquire ownership
but to possess and on one’s own behalf, in one’s own name, to
exclude the world at large including the paper title owner, as far as
reasonably possible; and that it was not therefore inconsistent for a
squatter to be willing, if asked to pay the paper title owner while being
in possession in the meantime.”
22. A claim of adverse possession must be properly pleaded and
proved. In Zanim Ralphy Meah John v Courtney Allsop and Ors
CV2010-04559 Kokaram J noted at para. 34: “Claims of adverse
possession must be carefully drafted and the pleader must make it
clear that this is the case which is being set up in defence of a claim for
possession. In Lystra Beroog & Anor. v. Franklin Beroog CV2008-
004699 I observed that this claim “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”: The facts
relied upon to establish ‘adverse possession’ must be cogent and
clearly stated in the defence. See Nelson v. De Freitas CV2007- 00042
Pemberton J”. [Emphasis mine].
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ANALYSIS & CONCLUSION
LOT 8
The Claimant’s Claim in regard to Lot 8
[15] The Claimant pleaded that in or about early 2006, the Defendant began to stockpile
and store material on Lot 8 and that upon being asked by the Claimant to cease his
actions, the Defendant stopped works on Lot 8 but re-commenced same in or around
late 2007 to early 2008. The Defendant contended however, that he commenced
stockpiling material on Lot 8 from 1984.
[16] The Claimant also pleaded that the Defendant performed further excavation and
backfilling and compacting and grading of Lot 8 and contended that the actions of the
Defendant on Lot 8 constitute a trespass to its lands.
The Defendant’s claim for adverse possession of the Western half of Lot 8
[17] The Defendant sought a declaration that the Claimant’s title to the Western half of Lot
8 as shown on the survey plan of Leslie Akum-Lum has been extinguished due to the
Defendant’s open, exclusive, continuous and uninterrupted occupation of same for a
period in excess of sixteen years.
[18] In support of the relief claimed, the Defendant3 averred that he has been storing
material on the Western half of Lot 8 since he started construction of his two bedroom
house on concrete pillars on Lot 13 in 1984.
[19] The Defendant testified4 that he deposited rubble on the front portion of Lot 8 and
that most of the material was used to form an accessway which he named Barack
Obama Avenue5; further, that the accessway ran along the southern boundary of Lot
3 Para. 20 Defendant’s Counterclaim 4 Para. 4 Defendant’s Witness Statement 5 Para. 5 Defendant’s Witness Statement
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86; he asserted further that there was no objection to him depositing material on the
Western half of Lot 87 by the Claimant.
[20] It has been agreed between the parties8, that the Claimant leased a portion of its lands
numbered 8 to Mr. de Frietas, deceased who built a two-storey wood and concrete
house.
Conclusion
[21] The Defendant admitted under cross examination that his evidence that he started
stockpiling material on Lot 8 in 1983 was untrue. He, however, admitted to depositing
rubble on the Claimant’s land. It was agreed between the parties that Lot 8 was
tenanted to one Mr. Severine de Frietas. The evidence of Mr. Desmond Joseph is that
he knew the Mr. and Mrs. de Frietas were living on Lot 8 since his birth in 1955. Mr.
de Frietas, having erected a house on tenanted lands, before 1981, became a statutory
tenant pursuant to the provisions of the Land Tenants (Security of Tenure) Act9. This
tenancy was not renewed so as at 31st May 2011 title to Lot 8 reverted to the Claimant.
[22] The Claimant was only entitled to bring an action in trespass from the 1st June 2011,
since the heirs of de Freitas had been in possession before that date10.
[23] While a lease is in existence, adverse possession runs against the tenant. Time does
not run against the reversioner until the lease comes to an end whether or not the
lease is registered11.
6 Para. 6 Defendant’s Witness Statement 7 Para. 19 Defendant’s Witness Statement 8 Para. 4 Agreed Statement of Facts 9 Cap 59:54 s. 4 10 Real Property Limitation Act Cap 56:03 s. 4(a) 11 Halsbury’s Laws of England 5th Ed Vol 68 para 1084, Hughs v Griffin and anot 1969 AER 460
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BARACK OBAMA AVENUE
[24] I accepted the Claimant’s evidence that the Defendant began trespassing onto Lot 8
by grading, stockpiling material thereon from 2006. He also admitted in cross
examination that he only wanted a pathway over the land, not to occupy it.
[25] Mr. Williams, the photogrammetrist who produced a photogrammetric report with
respect to the subject lands, confirmed under cross examination that the access to Lot
13 occupied by the Defendant was between Lot 7 and 8.
[26] The Defendant, under cross examination, confirmed that the access to his house on
Lot 13 was between Lot 7 and Lot 8. The survey plan of Mr. Leslie Akum-Lum and the
photogrammetric report prepared by Mr. Paul Williams support this fact.
[27] Having regard to the evidence on this issue, I hold that the Defendant trespassed onto
Lot 8 belonging to the Claimant in creating the roadway Barack Obama Avenue
thereon.
[28] The Defendant also stated in cross examination that he never intended to occupy Lot
8; his intention was to create an accessway between Lots 8 and 9. He has therefore
failed to establish both factual possession and the intention to possess the western
half of Lot 8. I therefore hold that he is not in adverse possession of Lot 8. I also hold
that the Defendant has trespassed onto Lot 8 and is liable in damages for trespass to
the Claimant. I award the sum of Fifteen Thousand Dollars ($15,000.00) as damages in
trespass to the Claimant.
LOT 13
The Claimant’s claim in regard to Lot 13.
[29] The Claimant pleaded12 that the Defendant was a tenant of the Claimant having
obtained permission from the Claimant to construct a house on Lot 13 and reside in
12 Para. 8 Reply and Defence to Counterclaim
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same. The Claimant further contended13 that the Defendant agreed to an annual rent
of $60.00 for the said Lot 13.
[30] By her witness statement filed on the 21st February, 2014, Rosemarie Sinanan testified
that the Defendant was a tenant of the Claimant’s lands. Under cross examination,
the witness was questioned as to how she could say with certainty that the Defendant
was a tenant; Ms. Sinanan was unable to produce rent receipts in respect to this
testimony and sought to rely on assessment records from the District Revenue Office.
The Defendant did not put to her that he was not a tenant of Lot 13.
The Defendant’s claim in regard to Lot 13.
[31] The Defendant sought a declaration that the Claimant’s title to Lot 13 had been
extinguished by his open, exclusive, continuous and uninterrupted occupation of Lot
13 for a period in excess of sixteen years.
[32] With respect to his claim for Lot No 13, the Defendant averred14:
a) In or around 1984, he obtained permission from his grandmother Carmen De
Freitas to build his house on Lot 13;
b) The structure was completed in or about 1988; and
c) He did not pay any rent to the Claimant for his use and occupation of Lot 13.
[33] The Defendant testified that as regards Lot 1315:
a) that shortly after he joined the Trinidad and Tobago Defence Force in or around
the 12th day of April, 1983, he approached his grandmother, Carmen De Freitas
and told her that he was interested in building a house for himself;
13 Para. 9 Reply and Defence to Counterclaim 14 Para. 5 Defence and Counterclaim 15 Paras. 3 and 8 Witness Statement of Defendant
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b) that she told him that there was an area that she had previously used for gardening
that he could use to build his house; and
c) that he began building his house in 1984 and completed same in or around 1988.
Conclusion
[34] The Defendant’s case is that he went into possession of Lot 13 with his grandmother’s
permission. At the time of his entry onto the land, his grandmother was the
wife/widow of the Claimant’s tenant and therefore entitled to possession of Lot 8.
Carmen and Severine de Freitas has clearly encroached onto Lot 13 belonging to the
Claimant and had been using it for gardening purposes. Since the survey took place
years later, (2006), it appears that Severine and Carmen were paying rent for the land
they occupied – Lots 8 and 1316.
[35] On the Defendant’s case, once this statutory tenancy ended in 2011 by operation of
law, both lots reverted to the Claimant. If Carmen was in adverse possession of Lot 13,
then her estate would be entitled to pursue a claim against the Claimant. However,
the estate is not a party to these proceedings. The Defendant, in my view, cannot
succeed in his claim for adverse possession against the Claimant, who only regained
possession in 2011 of Lots 8 and 13.
[36] The Claimant, however, has asserted that the Defendant is a tenant in arrears of rent
of the subject lot. I hold that the Defendant is a tenant of the Claimant, the Claimant
having acknowledged him as tenant. I accepted the Claimant’s case that the
Defendant entered Lot 13 as a tenant. No evidence was adduced before me as to the
term of the tenancy, but a claim has been made for arrears of rent. I therefore hold
16 Halsbury’s Laws of England 5th Ed Vol 62 para 189 “Where, during the currency of his tenancy, a tenant encroaches upon, or without title to do so takes possession of, other lands, there is a presumption that the land so taken becomes annexed to the demised premises, whether or not it is immediately adjacent to the demised premises, and whether or not it belongs to the landlord or to a third person, and on the determination of the tenancy that land must be given up to the landlord together with the demised premises.” (Kingsmill v Millard (1855 11 Exch 313; Tabor v Godfrey (1895) 64 LJQB 245; Smirk v Lyndale Developments Lts [1975] Ch 317, 1974 2 AER 8; JF Perrott & Co Ltd v Cohen [1951] 1 KB 705, [1950] 2 AER 939)
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that the Defendant is the Claimant’s tenant. The Defendant, having entered Lot 13
pursuant to a tenancy cannot be in adverse possession of Lot 13.
LOT 7
The Claimant’s Claim in regard to Lot 7
[37] The Claimant has pleaded17 that the Defendant has encroached on lands owned by
the Claimant and occupied by other tenants; the Sacred Heart Villa which was rented
out to Hazra Ali and her daughters is situate on Lot No. 7. A copy of the Lease
agreement dated the 15th June, 2007 and made between the Claimant and Hazra Ali
was annexed to the Claimant’s Statement of Case as exhibit “F”. The issue regarding
the occupation is not in dispute, the parties having agreed that18:
“Lot number 7 is occupied by a house belonging to the Claimant’s
named the “Scared Heart Villa” which said house is being rented out
to Ms. Hazra Ali and her two daughters.”
[38] Significantly, under cross examination the Defendant admitted that he had trespassed
upon Lot No. 7 of the Claimant’s land.
The Defendants Claim in regard to Lot 7
[39] The Defendant has sought a declaration19 that the Claimant’s title to the Eastern half
of Lot 7 has been extinguished due to the Defendant’s open, exclusive, continuous and
uninterrupted occupation of the Eastern half of Lot 7 for a period in excess of sixteen
years.
17 Para. 9 Statement of Case 18 Para. 8 Statement of Agreed Facts 19 Relief 2 of the Defendant’s Counterclaim
17
[40] The evidence in support of the Defendant’s pleading in regard to the Eastern half of
Lot 7 is outlined hereunder20:
a) that in or around 2010, he built a ten (10) feet wide by twenty (20) feet
storage area to the Northern side of Lot 7, next to the Sacred Heart Villa,
which he used to store wood and other building materials.
b) that he planted fig trees along on the boundary between Lots 6 and 7 since
1999 in an East to West direction and the same is grown on Lot 7 in a North
to South direction occupying half the said Lot; and
c) That he was not told to cease his actions when he erected galvanise fences
along the Southern boundary of Lot 7.
Lot 7
[41] The Defendant admitted that he trespassed onto Lot 7 in cross examination. However,
none of the acts relied upon by the Defendant satisfy the requirement of sixteen (16)
years’ unopposed occupation. He admitted in cross examination that he had adduced
no evidence of occupation of Lot 7 prior to 1999. While he stated that he had fenced
one area in 1997, this did not satisfy the sixteen (16) year requirement.
[42] I therefore hold that the Defendant’s claim for adverse possession of the eastern half
of Lot 7 must fail. Having admitted to trespassing on Lot 7, I therefore hold that the
Defendant is liable to the Claimant in damages for trespass onto this Lot in the sum of
Fifteen Thousand Dollars ($15,000.00).
20 Paras. 9, 12, 19 Witness Statement of Defendant
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LOT 6
The Claimant’s Claim in regard to Lot 6
[43] The Claimant pleaded21 that the Defendant erected a fence and placed materials
around Lot 7 and into Lot No. 6. Lot No. 6 is occupied by Kathy Ann and Cherisse
Fletcher who are tenants of the Claimant.
[44] The Defendant did not answer the Claimant’s plea with respect to Lot No. 6 and made
no averments on this claim. He, however, admitted under cross examination that he
had deposited material between Lots Nos. 6 and 7.
[45] He is therefore liable in trespass to the Claimant. I award nominal damages in the sum
of Fifteen Thousand Dollars ($15,000.00).
LOT 5
The Claimant’s Claim in regard to Lot 5
[46] The Claimant averred22 that the Defendant trespassed onto its lands by erecting a
fence around and planted trees and flowers on Lot 5. The Claimant claimed damages
for trespass as against the Defendant and an order that the fence erected by him, be
removed.
[47] During cross examination, the Defendant admitted that he had trespassed onto
church lands by erecting fences shown on Lot 5 on the survey plan of Mr. Akum Lum
in or around 2009/2010.
21 Para. 14 Statement of Case 22 Para. 13 Statement of Case
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The Defendant’s Claim in regard to Lot 5
[48] The Defendant sought a declaration23 that the Claimant’s title to Lot 5 as shown on
the survey plan of Leslie Akum-Lum has been extinguished due to the Defendant’s
open, exclusive, continuous and uninterrupted occupation of same for a period in
excess of sixteen years.
[49] In support of the relief claimed, the Defendant pleaded24 that since 1991, he has used
Lot 5 and approximately half of Lot 4 as a garden and has planted crops such as
patchoi, dasheen, thyme, coconut, tomatoes, cassava, figs, peas and sorrel in his
garden. He also pleaded25 that he erected a fence around Lot 5 between 2009 and
July, 2010.
[50] The Defendant testified26 that he tirelessly moulded and graded Lot 5 to make it
suitable to grow and cultivate crops in 1991; that he used Lot 5 and approximately half
of Lot 4 as a garden and has planted crops such as patchoi, dasheen, thyme, coconut,
tomatoes, cassava, figs, peas and sorrel in his garden; and that he erected a fence
around Lot 5 between 2009 and July, 2010.
[51] In response to the Defendant’s Claim27 the Claimant denied that the Defendant
occupied Lot 5, and averred that Lot No. 5 was cultivated by Ms. Ryan, who grew short
term crops on same.
[52] The Defendant admitted that he fenced Lot No. 5 sometime between 2009 and July,
2010 during his cross examination, in contradiction to his pleading on the issue. He
admitted further that he trespassed on the Claimant’s land by erecting those fences.
23 Relief 1 Counterclaim 24 Para. 12.2 Defence 25 Para. 12.3 Defence 26 Paras. 11, 12, 13 Witness Statement of Defendant 27 Para. 28 Reply and Defence to Counterclaim
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Lot 5
[53] There was no evidence adduced in support of the claim that the Defendant planted
crops on Lot 5 from 1991. There were no photographs or witnesses to support his
case. I did not consider the Defendant a creditworthy witness having regard to the
inconsistencies in his evidence and the discrepancies between his pleaded case and
evidence highlighted throughout this case. He asserted during cross examination that
the crops he planted were for sale as well as personal use; however, no evidence of
such sales including testimony from his customers was adduced in court. He also
revealed that he fenced the land in 2009-2010 because his crops were being stolen
and that persons freely entered Lots 4 and 5. He admitted that he did not exercise
full/exclusive control over the lots:
i. he was not in exclusive occupation of the Lot to the exclusion of all others;
ii. he did not possess the intention to possess the land for sixteen (16) years.
[54] I therefore hold that the Defendant trespassed onto Lot 5 of the Claimant’s land and
he is liable to the Claimant for damages for trespass to Lot 5. I also award the Claimant
the sum of Fifteen Thousand Dollars ($15,000.00) as damages for trespass of Lot 5 by
the Defendant.
LOT 4
The Claimant’s claim in regard to Lot 4
[55] The Claimant pleaded28 that the Defendant “erected a fence around and planted trees
on Lot 5 and continued the said fence into Lot 4 and further East of Lot 4”.
[56] Under cross examination the Defendant admitted that he erected the fence in or
around 2009/2010 and that he trespassed onto the Claimant’s lands.
28 Para. 13 Statement of Case
21
The Defendant’s Claim in regard to Lot 4
[57] The Defendant sought a declaration29 that the Claimant’s title to the Eastern half of
Lot 4 as shown on the survey plan of Leslie Akum-Lum has been extinguished due to
the Defendant’s open, exclusive, continuous and uninterrupted occupation of same
for a period in excess of sixteen years.
[58] The Defendant pleaded30 that since 1991, he has used Lot 5 and approximately half of
Lot 4 as a garden and has planted crops such as patchoi, dasheen, thyme, coconut,
tomatoes, cassava, figs, peas and sorrel in his garden. He further pleaded31 at
paragraph 16 the Defendant states that he used and occupied approximately the
Eastern half of Lot 4 as his own lands without the permission or authority of the
Claimant.
[59] He testified32 that when he first settled upon Lot 4, the lands were “virgin lands”; that
he made the area suitable to walk about; and that he has been growing crops such as
patchoi, dasheen, thyme, coconut, tomatoes, cassava, figs, peas and sorrel in his
garden at Lots 4 and 5.
Lot 4
[60] The Defendant agreed in cross examination that the fencing on Lot 4 was erected in
1997, on the land of the church and that this amounted to trespass. The Defendant
pleaded that he used one half of Lot 4 since 1991 to cultivate a garden. In cross
examination, however, he accepted that one Ena Glasglow occupied Lot 4 since the
1980s; that Glasglow also planted Lot 4; that other persons entered Lot 4 to take
whatever produce they wanted. He asserted that he planted, graded on half of Lot 4
while Glasglow was in occupation without objection from her. Very importantly, he
29 Relief 2 Counterclaim 30 Para. 12.2 Defence 31 Para. 16 Defence 32 Para. 11, 12, 13 Witness Statement of Defendant
22
admitted that he did not have full control of Lot 4. His claim for adverse possession
must therefore fail since he has not established on a balance of probabilities, exclusive
possession of Lot 4, for sixteen (16) years or at all.
[61] I therefore hold that the Defendant has trespassed onto Lot 4 and must pay to the
Claimant damages for said trespass in the sum of Fifteen Thousand Dollars
($15,000.00).
CONCLUSION
[62] I therefore make the following Orders:
a) that the Defendant be restrained whether by himself, his servants and/or
agents from entering and/or remaining on the Claimant’s lands;
b) that the Defendant remove all backfilling and materials that he has
accumulated on and fencing erected on the Claimant’s lands and restore the
said lands in such a manner as it was prior to the acts of trespass at the
Defendant’s expense within twenty eight days (28) of the date of this order;
c) that the Defendant pay to the Claimant damages for trespass to the said lands
in the sum of ($75,000.00);
d) that the Defendant pay to the Claimant mesne profits in the sum of Five
Thousand Dollars ($5,000.00);
e) that the Defendant’s counterclaim is dismissed, and
f) that the Defendant pay to the Claimant prescribed costs of the claim and
counterclaim in the sum of Twenty Eight Thousand Dollars ($28,000.00)
g) Stay of Execution Forty Two (42) Days.
Joan Charles Judge