David and David v Basanta and Basanta
| Jurisdiction | Trinidad & Tobago |
| Judge | Malone, J. |
| Judgment Date | 11 January 1969 |
| Neutral Citation | TT 1969 HC 2 |
| Docket Number | No. 897 of 1965 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 January 1969 |
High Court
Scott, J.
No. 897 of 1965
Damages - Trespass
Tort - Nuisance
In this action the plaintiffs claim for Damages for:
- Trespass to a parcel of land of which the plaintiffs are leaseholders, situate at Field No. 109 St. Augustine, in the Ward of Tacarigua, in the County of St. George, in the Island of Trinidad, known as Lot 39, comprising 7,315 superficial feet and bounded on the North by Lot No. 38, on the South by Lot No. 40 in the occupation of the defendant, on the East by Mc Donnell Street 25 feet wide and on the East by lands of James Lobin and lands of Guyadin and Dowleteah. 2. An injunction restraining the defendants, their servants and/or agents and/or workmen and each and every of there from entering upon the said parcel of land or any part thereof and from interfering with the plaintiffs' possession and enjoyment of same. 3. Damages for nuisance caused by the depositing of waste cotton and the discharge of sewerage effluence and other foul matter on the said parcel of land and an injunction therefor.
(c) An Order:–
- Requiring the defendants to demolish and remove the offending portion of the eaves of their building hanging over the plaintiff's land; 2. Requiring the defendants to demolish and remove the fence erected upon the said parcel of land and to restore the plaintiffs' land to its former condition; 3. Such further and/or other relief as the nature of the case may require. 4. Costs.
By consent:
The following documents were admitted into evidence:
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(1) a medical certificate in respect of the plaintiff Omar Parbatee David indicating her inr: bi.7_ity to attend the hearing which was marked “A”
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(2) Deed 3238 of 19th Octobers 1963 under which the plaintiffs purchased the leasehold interest in the parcel of land situate at Field No. 109, St. Augustine, in the lest of Tacarigua in the County of St. George known as lot 39 was marked “B”;
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(3) Deed 3780 of 1949 by which George Basanta acquired lot 40 from his wife Fedora Basanta was marked “C”;
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(4) Certificate from Nursing Council of Trinidad and Tobago that at the material time Fedora Basanta was a Registered Nurse marked “D”;
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(5) Copy of letter dated 21st November, 1963 from plaintiffs' solicitor to defendant George Basanta was marked “E”.
The case for the plaintiff was that in 1950 he and his wife had acquired lot 39 and they had planted a vegetable garden on the lot and had gone there twice weekly. On the south of his lot 39 was lot 40 and when he had first gone to his lot, there were 2 half inch galvanize pipes on the boundary on the southern side, one on the east, the other on the west. He had with the help of Paul Fabien his builder, erected wooden posts and run a wire fence from East to West along that Southern boundary and had also planted on that Southern boundary wild cedar trees. To his south on lot 40 was a building unfinished and unoccupied. Some 2 years later the defendants came to live on lot 40 and carried on a Nursing Home there, at which time the unfinished house on lot 40 had been completed. The Nursing Home grievously affected the house and his property as noxious stuff was continually being thrown on his land. The eaves of the defendants' house overhung his boundary and water from those eaves fell onto his land affecting his land. He had made several complaints to the defendant but to no avail whatever and plans, which he had drawn up and had passed for the purpose of building a house on his land could not be carried out due to the stench, which was caused by the noxious stuff thrown on his land by the defendants. He subsequently in 1963 had to build a smaller house not on the site originally planned, but on a site some 100 feet to the back sand away from the eastern end of the boundary. Despite building at this distance he had been on several occasions compelled to leave his home due to the stench caused by noxious stuff thrown from the Nursing Home on to his land.
The Plan in respect of the original building contemplated by the plaintiff, which was submitted to the Local Health Authority was admitted into evidence and marked G.D.1. together with his application dated 16th November, 1962 to erect a new building, which was approved by the Local Health Authority on the 29th November, 1962.
Having complained to the defendants about their breaking down the fence and erecting a fence on his land in 1960 he had gone to the Sub-Intendent of Lands. As a result Mr. Flemming a licensed land surveyor of the Lands & Surveys Department had visited his land Lot 79, and re-defined the boundaries. From the Sub-Intendent he had gone to his solicitor and had caused letter Ex. E to be written to the defendants.
In cross-examination the plaintiff George David admitted that he had obtained no plan in respect of the house, which he had erected in 1965, and asserted that for some 11 years noxious matter had been thrown on his land from the Nursing home and that for 11 years the eaves had been projecting over his land but he had not sought legal advice as he was then financially embarrassed. He admitted that he had written to the Sub-Intendent complaining about the defendants' encroachment but had made no mention of noxious matter being thrown on his land. He did not deny that no prosecution was ever instituted against the defendants by the Local Health Authority in respect of the noxious matter thrown on his land or that no person in the vicinity had complained of the smells from the noxious matter. After Flemming's visit Basanta had interfered with the fence, breaking down 12 feet on the Western boundary and placing it in its proper position. Rambarran Nyack according to the plaintiff had been his agent and had bid for him at the sale as he the plaintiff was at the time in the employ of Grel1 & Company. He however, accepted that the lease had been trade in his and his wife's name as a result of a letter written by Nyack to the Sub-Intendent dated 3rd March, 1959. He had waited for some years to obtain the lease in his and his wife's name as Nyack had been ill and unable to transact business and had actually paid $230 in his name towards arrears of rent 17th October, 1959.
His sole complaint in respect of the fence at the present time was in respect of his eastern boundary as after Flemming's visit the defendant hd replaced the Western boundary.
John Gerard Flemming licensed land surveyor of the Lands & Surveys Department testified that in September 1963, he had received written instructions from his head of Department and as a result had gone to Field 109 St. Augustine, in which was situate lands leased by the Crown, to re-define the boundaries of Lot 39. He had done this in the presence of the plaintiffs and Mrs. Basanta and no objections were registered. He produced a plan in conformity with the re-defined boundaries, which was marked J.G.F.1. When he re-defined these boundaries he had used the plan attached to Ex. B Deed 3238/1963. He was satisfied that the line he had drawn and shown was the southern boundary of Lot 39. In respect of the plan attached to Deed 1501/44, which was marked “Y” for identification he expressed the view that both were the same distance and direction. He stated that on re-defining the boundaries he found a definite encroachment on his plan showing 1' at Western boundary and 1'9 at the Eastern boundary.
Paul Martin Fabien a carpenter was also called on behalf of the plaintiffs. He supported the plaintiff as he swore that he had assisted in erecting his fence in 1950 and that at that time there was an unfinished house on the lot to the south, which was unoccupied until sometime in 1960 for 1962. In 1950 when he had assisted the plaintiffs in erecting the fence he would see plaintiffs planting a kitchen garden on their land. He was aware that there were differences between the parties and had been informed by the plaintiffs about noxious matter being thrown on plaintiffs' land from the Nursing Home. He also knew of the eaves projecting over plaintiffs' land. He was aware of the plan G.D.1 and had intended to build but was unable to do so because of what he termed — the hindrances. He had eventually constructed the shack on plaintiffs' land and seen another fence built about 2 feet inside plaintiffs' land after he had assisted plaintiffs in constructing their fence in 1950. He had been totally oblivious of any School being carried on, on that lot 40 south of lot 39.
In cross-examination the witness admitted he was 78 years old and that he was actually the brother-in-law of George David, having married David's sister in Martinique. He had seen an unfinished building on that lot south of plaintiffs but was unable to say which was lot 39 and which was lot 40. In 1950 that unfinished house had no roof and as a builder he would not have expected the Chief Electrical Inspector to have issued a certificate in respect of that unfinished house. No plans had been necessary for the shack as it had been built for the purpose of storing materials and not as a dwelling house and had only been used by plaintiffs as a dwelling house when a family dispute arose and the plaintiffs had been turfed out of Hazack's house.
Joseph Greenidge, a witness for the plaintiff admitted his wife and defendant's wife were not on friendly terms. He had lived on lot 41 since 1947 and that lot was south of lot 40 and next to defendant's lot....
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