Ali v Tobago House of Assembly

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Kangaloo, J.A.
• Judgment Date: 28 July 2010
• Neutral Citation: TT 2010 CA 33
• Docket Number: CivApp. No. 43 of 2008
• Date: 28 July 2010

Court of Appeal

Kangaloo, J.A.; Stollmeyer, J.A.; Smith, J.A.

CivApp. No. 43 of 2008

Ali

and

Tobago House of Assembly

Appearances:

Mr. M. Campbell and Mr. A. Pascal for the appellant.

Mr. Seunath, S.C. and Mr. Nebar for the respondent.

Real property - Adverse possession accompanied by the requisite intention to possess.

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

H. Stollmeyer

Justice of Appeal

I, too, have read the judgment of Kangaloo, J.A. and agree with it.

G. Smith

Justice of Appeal

Kangaloo, J.A.

1 The litigation in this matter is the result of a running dispute between the respondent and the appellant over the ownership of a parcel of land situate in Tobago comprising approximately one acre and bounded on the north by the Claude Noel Highway, on the south by lands leased to Diamond Estates Ltd on the east by the Orange Hill Road and on the west by lands of the State (hereinafter called “the subject lands”). On 11th February 2008 the trial judge allowed the respondent's claim and granted relief in the form of a declaration that the appellant's title to 7,500 square feet of the subject lands was extinguished by the continuous and undisturbed possession of the respondent from 1969 to 2004, an award of $380,000.00 in special damages, an award of $125,000.00 in exemplary damages and costs. The appellant has appealed.

2 The factual background to the litigation begins in 1969 when the respondent claimed to have entered the subject lands, using the premises to stockpile material in connection with his business as a contractor. These activities continued unabated although in 1996, 1998 and 2002, he was served with notices by the appellant to deliver up possession which he refused to do. His response to the final notice of 2002 came by way of letter dated 13th May 2002 wherein his claim to possessory title was first advanced. Nonetheless the appellant leased a parcel of land including a portion of the subject lands to National Petroleum (NP) on 23rd March 2004 for the construction of a gas station. On the 4th June 2004 the appellant, by its agents or servants, then proceeded to enter that portion of the subject lands and later on the 25th June 2004 seized the equipment and material being stored there. That portion of the lands was subsequently levelled and fenced with “No Trespassing” signs being erected.

3 Consequently the respondent filed a writ on 25th June 2004 and a statement of claim on 12th July 2004 wherein he sought a declaration that he was the owner of the subject lands by “operation of law”, damages for trespass, an injunction restraining the appellant, its servants or agents from entering the subject lands, costs and any further relief (See pg. 33 of the Record of Appeal). The appellant's defence was filed 3rd August 2004 and refuted the respondent's claim to possessory title. The appellant claimed to be vested with the title to the subject lands, certain portions of which were leased to NP and to Diamond Estates Ltd. with the remaining portion being earmarked for the construction of the Scarborough Market. The appellant also averred that the only activities which took place on the subject lands was the transient dumping of garbage, soil and discarded material and commercial waste as well as the occasional grazing of cows andsheep (See pgs. 36-39 of the Record of Appeal). The learned judge ruled that the respondent had successfully established his claim for possessory title to 7,500 square feet of the subject lands because the evidence demonstrated that he was in physical custody and control of that area from 1969 to 2004 (factual possession) and his possession was accompanied by the requisite animus possidendi (intention to possess).

4 The appellant challenged the learned judge's decision by notice of appeal filed on 10th March 2008. Its grounds of appeal centre mainly on the findings of fact made by the learned judge in coming to her conclusion that the respondent had acquired possessory title to the subject lands. To my mind the appellant has failed to show that the findings of fact of the trial judge were not reasonable, given the evidence at the trial.

5 It is well established that a litigant who challenges the findings of fact made by a trial judge is faced with an onerous task. Where the finding of fact is based on the credibility and demeanour of a witness the Court of Appeal will not intervene merely because it takes a different view of the evidence. Rather it will only interfere with the finding if it is demonstrated that the trial judge wasted the advantage of having seen and heard the witnesses by having failed to weigh in the balance matters of substantive evidence or having overlooked or misunderstood some material evidence which relates to the credibility of the witness. When the challenge relates to inferences drawn by the trial judge from the facts, an appellate court will only interfere if it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. This approach has been set out in a number of recent authorities, most notably in Verlene Douglas v. David Scipio (CA Civ 114 of 2009 per Menconca, J.A. at para 37), Simon Ramdath v. Telecommunication Services of Trinidad and Tobago Limited and another (CA Civ 126 of 2006 pr Mendonca, J.A. at para) and Gavin Simonete and Allison Demas v. Marjorie Ahoy (CA Civ 156 of 2005 per Warner, J.A. at para. 26). It is to be noted that the appellant has limited its appeal to the findings of fact made by the trial judge based on the credibility of the witnesses as opposed to any inferences which necessarily arise from the facts.

6 This case hinges on a finding of adverse possession and as such the main issue which fell to be resolved at the trial was an issue of fact, namely whether the respondent was in possession of the subject lands with the requisite intention from 1969, so that by the time of entry on the lands by the appellant in 2004, its title was already extinguished. In this regard the learned judge considered the evidence of the respondent to be more reliable on a balance of probabilities. She accepted the respondent's evidence that he stored materials on the subject lands for 35 years without interruption during which time he maintained the land and placed loads of rotten rock on it to harden the surface. She was also impressed with the evidence of his two supporting witnesses: Mr. Neckcheddi, who worked in the respondent's business since 1981 and had direct knowledge of the storage activities which took place on the lands and Mr. Azard Mohammed, a businessman who at one time sought an assignment of the lease from Diamond Estates. The judge held that Mr. Mohammed was highly credible because as he had no interest to serve and was also intimately familiar with the respondent's use of the land.

7 The evidence led by the appellant however was not favourably viewed. The main evidence was that of Mr. Achille, a Licensed Land Surveyor who did a survey of the lands in connection with the proposed establishment of a gas station and a market on the site in 2003. His evidence was found to be particularly unhelpful mainly because he imposed in 2006 (for the purpose of this litigation) certain markings on his survey plan of 2003 and made certain observations regarding the use of the site as a dumping ground only from what he recalled having seen when he visited the lands back in 2003. He also failed to disclose his connection to the appellant as a person in their employ as the Manager of State Lands in the THA; a point which was only brought to light upon cross-examination. The learned judge expressed serious reservations about the reliability of the evidence of the appellant's other four witnesses, all of whom she observed were connected in some way with the appellant or a government department: Mr. Seusankar was a Surveying Assistant, Mr. Sandy was the Secretary in the Division of Infrastructure and Public Utilities in the Tobago House of Assembly and Mr. Henry was a Permanent Secretary in the Office of the Prime Minister.

8 Mr. Seusankar was found to be unreliable as he vacillated when asked about the location of the respondent's trailer which the appellant had seized. Similarly the learned judge doubted the credibility of Mr. Sandy because his testimony that the respondent's claim was limited only to the materials stored on the site and the circumstances surrounding the seizure of the respondent's trailer was contradicted by the documentary evidence in the case, namely the various notices sent to the respondent, the respondent's letter of 13th May 2002 and the photograph showing the respondent's trailer stored at the back of the Works Compound in Tobago. In relation to the evidence of Mr. Henry, the learned judge held that it contradicted that of the appellant's other witnesses in that he recalled the respondent's activities on the land from 1989/1990 or thereabouts. As such his evidence bolstered the respondent's claim that the land was used by him for the storage of materials.

9 To my mind the learned judge's assessment of the evidence was thorough. The appellant has not demonstrated that the trial judge failed to consider matters of substantive evidence or overlooked or misunderstood some material evidence which relates to the credibility of the witnesses. Counsel for the appellant has argued that the learned judge erred in her conclusion that the evidence of the respondent and his witnesses was reliable. In this regard it was strongly urged upon us that the imprecise dimensions, and necessarily location, of the lands claimed ought to have weighed against the respondent's claim of adverse possession. Indeed as the trial progressed the respondent's original claim of one acre was whittled down to about 21,000 square feet and was eventually assessed as amounting to 50 x 150 square feet. I...