Carballo et Al v Paul et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Persad-Maharaj, J. |
| Judgment Date | 24 March 1998 |
| Neutral Citation | TT 1998 HC 31 |
| Docket Number | S Cv. 3879 of 1985 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 March 1998 |
High Court
Persad-Maharaj, J.
S Cv. 3879 of 1985
Mr. W. Greene for the plaintiffs
Mr. D. V. Warner for the defendants
Tort - Trespass to land — Plaintiffs claimed damages for trespass and possession of a parcel of land alleged to be in unlawful occupation of the defendant and injunctive relief — Court held that the defendants were not tenants and no notice to quit was required to remove them — Court declared the defendants to be trespassers and granted the plaintiffs relief sought.
Authorities cited by Mr. D. V. Warner
- Gladys L. Taylor v Agnes Cornelius, C.A. No. 126 of 1992. T and T at 1 to 3 thereof. 2. K. Deonarine v George Paul, Corp. Sieu and A.G. of T and T. C of A No. 168 of 1993.
The plaintiffs in their amended writ of summons and extended statement of claim as amended instituted the above action against the defendants for the following reliefs.
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(a) Damages for trespass to the plaintiffs' land comprising all and singular that parcel of land situate at Diamond Vale in the Ward of Diego-Martin, comprising four thousand, one hundred and eighty-eight superficial feet shown as lot 365 on the plan annexed to Deed of Lease, dated the 17 th November, 1971 and registered as No. 166 of 1972 and bounded on the North by lot No. 366. on the South by lot. No. 364 on the East by Carnelian Gardens and cm the West by lots Nos. 357 and 358 and which piece of land is known as No. 37 Carnelian Gardens, Diamond Vale.
In paragraph 1 of the plaintiffs' statement of claim the plaintiffs pleaded that they became entitled to the said 37, Carnelian Gardens by virtue of Deed of Lease No. 1944 of 1973. For convenience, I will refer to the above lands as the “plaintiffs' land” and at times the “said land” or “the said parcel of land.”
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(b) Possession of the said parcel of land or such part or parts as may be in the unlawful occupation of the defendants.
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(c) An injunction to restrain the defendants by themselves, their servants or agents or otherwise howsoever from entering remaining or otherwise trespassing upon the plaintiffs' lands i.e. 37, Carnelian Gardens.
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(d) An order that the defendants do take steps to remove part of their building as may be situated upon 37, Carnelian Gardens and in occupation of and by the defendants and a further order that the defendants do restore the plaintiff's said lands to its original condition.
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(e) Further or other relief.
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(f) Costs.
By deed of lease dated the 24 th day of October, 1972 and registered as No. 1944 of 1973 and admitted as A.C.1, the plaintiff's were granted a lease for ninety-nine (99) years by the lessor, Her Majesty Queen Elizabeth, the Second commencing from the 24 th October, 1972 in respect to the plaintiffs' land. This lease contains covenants, terms and conditions. This lease would expire in the year 2071.
In paragraph (f) and (g) of A.C.1 it was stipulated that the plaintiff's would erect a dwelling house at a cost, not less than $10,000.00 on or before the 24 th day of October, 1974. And in paragraph 3 (1) (b) thereof it is set out that if the plaintiffs were in default in relation to the erection or completion of the dwelling house on the said land, then the lessor shall refrain from entering the demised premises and would charge additional rent as specified in “A.C.1” and without prejudice to any remedy therein.
In paragraph 3 (a) of “A.C.1” it sets out that where the yearly rent reserved or any part thereof was in arrears or unpaid for twenty-one (21) days after the same shall become due and where the lessees shall fail or neglect to perform or observe any of the other covenants, conditions, or agreements specified in “A.G.1” then the lessor reserved the light to re-enter the said land.
The first named plaintiff admitted that she did not erect any dwelling house on the said parcel of land. That the covenant to build was not obeyed.
By virtue of paragraph 2 of the defendant's defence, they pleaded as follows:
By deed of lease dated the 11 th November, 1970 and registered as number 1508 of 1971 and by deed of rectification, dated 1 st March, 1972 and registered as no. 285 of 1975 the defendant became the lessee of the state in respect of all and singular that parcel of land comprising five thousand superficial feet be the same more or less shown as lot no. 366 on the plan annexed to deed of lease dated the 17 th November, 1971 and registered as no. 166 of 1972 and thereon colored pink and bounded an the north by lot no. 367 and by lot no. 355 an the south by lot no. 365 and on the east by lot no. 367 and by Carnelian Gardens and on the west by lot no. 356 and lot no. 357 and which said parcel of land is known as no. 39, Carnelian Gardens, Diamond Male. Paragraph 2 of the statement of claim in part also describe the first named defendant's land. Exhibit A.C.3 was admitted by consent. This is a lease from Her Majesty Queen Elizabeth the second to the lessees Ronald and Joan Thomas in relation to lot 127. The plan marked ‘.A’ exhibited to A.C. 3 also shows four (4) parcels of land surveyed by Mr. Lionel F. Weeks with due authority in June, 1965 and which was signed by Mr. Weeks on the 23 rd October, 1971 and approved by the Director of Surveys, Mr. G.A. Farrell an the 27 th October, 1871 and by virtue of a survey order no. 163 of 65. The plaintiffs' deed of lease, A.C.1 recites and relies on this plan and showing the plaintiffs land (365). The first defendant's deed of lease also recites and relies on this plan and showing the first named defendant's land as lot 366.
The first named defendant's deed of lease dated the 11 th November, 1970 and registered as no. 1508 of 1971 and the deed of rectification dated the 1 st March, 1972 and registered as no. 285 of 1975 corrected the size of the first named defendant's lot 366 from 4444 superficial feet to 5000 superficial feet. The first named defendant's deed of rectification was admitted by consent and marked “A.G.4”. I shall hereinafter refer to the land described in the schedule to “A.G.4” and also set out in paragraph 2 of the defendant's defence as the first defendant's land.
It was not in dispute that the plaintiffs postal address to lot 365 (the plaintiffs' land) is known as 37, Carnelian Gardens and the first defendant's postal address to lot 365, the first defendant's land is known as 39, Carnelian Gardens.
It appears also that plaintiffs are entitled to possession or occupation of 4188 superficial feet of the plaintiffs land and the first named defendant is also entitled to 5000 superficial feet of the first defendant's land; that the plaintiffs northern boundary is the first named defendant's southern boundary.
Mr. Warner for the defendants relied on a no-case submission after the plaintiffs had closed their case.
In essence Mr. Warner submitted that the plaintiffs have grounded their action in trespass to land; that there was no evidence by the first named plaintiff or the plaintiffs' witnesses that the plaintiffs were in possession of the plaintiffs' lands when the trespass was alleged to be committed and that the plaintiffs' statement of claim did not disclose or plead that the plaintiffs were in possession of the plaintiffs' land at the time of the alleged trespass. Further Mr. Warner submitted that the first named plaintiff gave no evidence that she went on the plaintiffs' land or cultivated or planted same or did any acts thereon. As such the plaintiffs' claim must fail.
This court asked the defence attorney if he was relying on his no case submission and whether he would be calling evidence in support of the defence.
Mr. Warner answered that he would be calling no evidence for the defence and would be calling no witnesses and that he would stand or fall by his no case submission.
In keeping with the decision of Young v Rank [1950] 2 K.B. 510 — Storey v Storey [1961] p. 63 and Alexander v Rayson [1936] 1 K.B. 169. I put the defence attorney to his election. Both Mr. Warner and Mr. Greene agreed that the court has adopted the proper course.
I referred Mr. Warner to H.C.A. no. 3914 of 1978 by T.A. Lee J on the 26 th November, 1980, where the learned judge exercised his discretion and deferred the no case submission until all the evidence was taken. However, Mr. Warner relied on his submission and the cases sot out in nos. 1 and 2 above.
I am aware that De La Bastide C.J. said in the cases set out in Nos 1 and 2 above that it is a fundamental element in a claim for trespass to land that the plaintiffs must plead that they were in possession of the land at the material lime of the alleged trespass.
I am aware that trespass to land is a possessory action and only to be brought by the person in possession and from the time of possession thereof. (See Stangnought v Cousins 94 E.R. 1002)
I must therefore look at the plaintiffs' statement of claim in respect to the possession as pleaded. In paragraph 1 of the statement of claim. The plaintiffs state. “The plaintiffs were at all material times the owner and entitled to possession of all and singular ….” The plaintiffs then went on to plead the boundaries, the size of the plaintiffs' land and then further pleaded as follows. “The plaintiffs became entitled to the said 37, Camelian Gardens by virtue of deed no. 1944 of 1973.” I have said above that this deed of lease of the plaintiffs was admitted into evidence as “A.C.1”.
On the basis of the above plan, can the plaintiff on their pleadings maintain an action for trespass to the plaintiffs' land?
I have read and re-read the case of Eligon v Bahadoorsingh 6 W.I.R. 299 B where the head — note reads as follows. Trespass to land — possession claim in trespass not maintainable by person not in or entitled to possession. At p. 302 Hyatali, J.A. (as he then was)...
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