Carol George v Keith Raymond

• Jurisdiction: Trinidad & Tobago
• Judge: C. Pemberton, J.A.
• Judgment Date: 16 July 2018
• Neutral Citation: TT 2018 CA 27
• Docket Number: Appeal No. P398/2017
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 16 July 2018

IN THE COURT OF APPEAL

PORT OF SPAIN

Before:

C. Pemberton, J.A.

IN CHAMBERS

Appeal No. P398/2017

Claim No. C.V. 2016-03171

Between

Carol George

Appellant

and

Keith Raymond

Respondent

Appearances:

For the Appellant: Mr. M. Gayle instructed by Ms. S. Khan

For the Respondent: Mr. N. Ihezue

Civil practice and procedure - Appeal — Whether appeal had a realistic prospect of success — Striking out of appeal.

1 The Appellant's premise for the Application for the Stay rests on the trial judge's failing to determine the matter in her favour on the basis that the trial judge erred in law and in fact.

2 BACKGROUND

This matter arose out of a claim made by the Respondent/Claimant in an application for

The Respondent/Claimant was successful on all counts in that the trial judge found as follows:

• i. Possession;

• ii. Damages for trespassing;

• iii. Injunctive relief; and

• iv. Costs.

• i. That the Defendant was not in continuous undisturbed possession of the property for the requisite 16 year period;

• ii. The Defendant was not in sole exclusive possession of the property during the 9 years that she lived on the property; and

• iii. The Defendant's mother had no proprietary interest in the property after the death of Mr. Michael John.

3 Based on these findings these were the Orders made:

• 1. Possession is granted to the Claimant of ALL AND SINGULAR that piece or parcel of land situate at Light Pole No. 91 Pepper Hill Laventille Road, San Juan in the Ward of St. Anns forming part of the lands described in the First Schedule hereto comprising FIVE HUNDRED AND THIRTY-FOUR POINT ONE (543.1) SQUARE METRES (5,749 sq) FIVE THOUSAND SEVEN HUNDRED AND FORTY-NINE SQUARE FEET and bounded on the North partly by the pumphouse and partly by the Ravine, bounded on the South partly by Baldeosingh now Anjanie Maharajh and partly by Baldeosingh now Anjanie Maharajh, on the East by Pepper Hill and on the West by lands of Baldeosingh now Anjanie Maharajh (hereinafter called the said lands).

• 2. Damages for trespass to be assessed by a Master in Chambers on a date, time and place to be fixed by the Court Office.

• 3. The Defendant has no legal right and/or equitable right and/or interest in the said parcel of land.

• 4. The Defendant to vacate the said lands one month from the date of this Order.

• 5. The Defendant is restrained whether by herself, her servants and/or agents or otherwise howsoever from entering upon, remaining on or carrying on any activities on the said land after the date for vacating.

• 6. The Defendant do pay to the Claimant prescribed costs assessed in the sum of Fourteen Thousand Dollars ($14,000.00).

4 On the Application filed 20 ^th December, 2017, the Appellant applied for a stay of execution of the trial judge's order. The grounds of the Application and the evidence by way of affidavit in support, seem to coalesce around the classic requirements for a successful application for a stay.

• I. That there are good prospects of successfully prosecuting the appeal.

• II. That should the stay be refused, and the trial judge's order take effect:

  • a) Risk of prejudice to the Appellant outweigh risk of prejudice to the Respondent.

  • b) Monies paid under the judgment would not be easily recoverable in the event that the appeal is successful.

• III. That there are special circumstances justifying the stay of execution.

5 In applications such as these, the onus is on the appellant to provide the court with material upon which the matter can be considered. In other words, it does not serve the appellant to simply regurgitate the requirements without providing sufficient evidence and reasons to support its case.

6 What evidence has the Appellant supplied therefore to convince the Court that the requirements for the grant of a stay of execution have been fulfilled by her? To answer that, it may be prudent to set out the relevant portions of the Affidavit. Before doing so, I should make the observation that many of the paragraphs contain the same information and relate to the same issues. I shall not engage in an exercise of repetition. It does not carry Ms. George far.

7 THE AFFIDAVIT

Paragraphs 1 – 3 contain the formal parts of the narrative. We start at paragraph 4.

Paragraph 5 recites how her mother came into possession of the said lands. She acknowledges the fact that her mother's Will has not been probated. In Paragraph 6, Ms. George describes the fact that her mother died Testate; her alleged mental capacity at the date of the execution of her Will; and included a copy of her mother's medical records.

I shall continue,

Paragraph

• 4. My mother lived in the chattel house on the piece of land described at paragraph 1 of the Fixed Date Claim from filed on the 22 ^nd September 2016 in the Court below, of which a true copy is now shown to me and hereto attached and marked “CG1”, herein after called “The Subject Lands”. It was assigned the reference CV 2016 – 03171.

• 7. In or around the 15 ^th October 2007 I entered into occupation of the chattel house on the subject lands. I did so because my mother's health was deteriorating and she required assistance around the clock. In 2009 I got married. My then husband lived nearby and I moved in to cohabit with him, thought I used to regularly attend on my mother as her primary care giver and continuously spent nights there. Therefore I resided in both my matrimonial home and the chattel house on the subject lands.

• 8. I returned to live with my mother upon the breakdown of my marriage and to provide her with round the clock bed-care.

• 9. My mother's state of health had deteriorated over the years and she died on the 16 ^th September 2015 in the Port of Spain General Hospital.

• 10. I continued in occupation of the subject property following her death. I had and have nowhere else to go.

• 11. I am aware that the Claimant/Respondent lives at 2322 Michael Anthony Avenue, Phase 11a La-Horquetta, Arima with his immediate family. Prior to commencing the action in the Court below against me, he informed me that his intention was to sell the Subject Lands. Now produced, shown to me and hereto attached and marked “ CG4” is a true copy of the letter sent to me by my brother in or around November 2015, informing me of his intention to sell the chattel house and the subject property.

• 12. …

• 13. I am advised and verily believe that the proposed Appeal stands a real prospect of success for the reasons set out in the draft Grounds of Appeal in the Applicant/Appellant's Notice of Appeal. A true copy of the Notice of Appeal is now produced, shown to me, hereto annexed and marked “ CG5”.

• 14. Furthermore, if this Honourable Court does not grant a stay of execution, I will be made homeless and I will have nowhere to store my items of personal property. I am therefore in fear of losing everything I own.

• 15. I am advised by my Attorney-at-Law, Sheriza Khan, that if my appeal is unsuccessful the Claimant/Respondent will be able to enjoy the fruits of his Judgment and recover possession of the Subject Lands from me, But that on the other hand, if the Appeal is successful and the stay of execution is not granted, I would not be able to easily enjoy the fruits of success on appeal. This is all the more the case since the Claimant/Respondent has expressly stated his intention is to dispose of the Subject Lands.

• 16. …

• 17. The Order further stated that I have no legal right and/or equitable right and/or interest...