Debra Nelson v Clive Sirju; Rita Omriah Sirju
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Robin N. Mohammed |
| Judgment Date | 26 October 2020 |
| Neutral Citation | TT 2020 HC 284 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | CLAIM NO. CV2013-02916 |
| Date | 26 October 2020 |
IN THE HIGH COURT OF JUSTICE
COURT OFFICE, SAN FERNANDO
Before the Honourable Mr. Justice Robin N. Mohammed
CLAIM NO. CV2013-02916
In The Matter of The Real Property Ordinance Chap: 27 No: 11 (Tt)
and
In The Matter of an Application by Debra Nelson for an Order Vesting in Her All That Piece and Parcel of Land Which is The Subject of This Action and Which is Herein Described as “The Area of Occupation”
Mr Everard Davidson for the Claimant
Mr Hendrickson R M Seunath SC instructed by Mr Shastri Maharaj for the Defendants
The case at bar involves a claim for adverse possession by the Claimant for an abutting Parcel of land belonging to the Defendants. The Defendants counterclaim seeking an order that they are the owners of the said Parcel of land including the portion occupied by the Claimant. The Claimant's Parcel of land is known as the “Nelson Plot” or “Parcel 3,” whereas the Defendants' Parcel is known as “Parcel 4”. Prior to sub-division, both Parcels formed part of a larger piece of land owned by Motiechand Maharaj.
The Claim Form and Statement of Case were filed on 12 July 2013 by Jeselle Nelson as the lawful attorney for her mother, Debra Nelson, who is the Claimant. The Defence and Counterclaim were filed on 25 October 2013. The First Defendant acted on behalf of the Second Defendant by virtue of a Power of Attorney registered as No. DE201402214773 and dated 23 September 2014. The Defence to Counterclaim was filed on 26 November 2013. An Amended Claim Form and Statement of Case was filed on 9 May 2014. An Amended Defence and Counterclaim was filed on 16 June 2014. An Amended Defence to Counterclaim was filed on 11 July 2014. A Re-Amended Claim Form and Statement of Case was filed on 16 May 2014. A Re-Amended Defence and Counterclaim was filed on 21 January 2015.
The trial was held on 30 July and 21 September 2018 after which the Court directed that closing submissions be by way of written submissions. Parties filed and exchanged submissions by the 26 October 2018 and whilst both parties were permitted to file replies to any new matters raised in each other's submissions, only counsel for the Claimant utilised this facility and filed on 6 December 2018.
The Claimant seeks the following relief against the Defendants:
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(i) A declaration that the Claimant has, by virtue of the exclusive and or uninterrupted and or continuous and or undisturbed occupation and or possession of herself and or her predecessors in occupation and or possession and or title, acquired a possessory title to ALL AND SINGULAR that piece or Parcel of land comprising 106.8m2 and bounded on the North by Lot 2 on the West by lands of the Defendants on the East by lands of Debra Nelson and on the South by Potters Lane (hereinafter, “the area of occupation”) and which said area of occupation is more particularly described in paragraph 3 of the Statement of Case and shown on and shaded in grey on the survey plan dated 18 February 2013 which is annexed thereto and marked “ C.”
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(ii) A declaration that any Estate and or right and or title and or interest which the First and Second Defendants may have or may have had in the area of occupation is extinguished.
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(iii) An order vesting the area of occupation in the Claimant for an Estate in fee simple or such other Estate as may have been acquired by her, free from all encumbrances.
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(iv) Damages for trespass to the area of occupation.
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(v) An injunction restraining the First Defendant, whether by himself or through his servants and or agents or otherwise howsoever from entering, remaining and or crossing the area of occupation and or from doing any act or thing thereon.
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(vi) An injunction restraining the First Defendant whether by himself or through his servants and or agents or otherwise howsoever from interfering with, harassing, molesting and or threatening the Claimant.
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(vii) Such further and or other reliefs as to the Court may be just in the circumstances.
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(viii) Costs.
The Claimant acts through her lawful attorney, Jeselle Nelson, who was appointed by virtue of Power of Attorney dated 26 September 2011 and registered as DE201102518303.
By virtue of Certificate of Title Volume 3905 Folio 285, Raymond Emmanuel Joseph Nelson (hereinafter called “Raymond”), the Claimant's father, became seised in fee simple in possession in or around 1959 of that piece of land situate in the Ward of Siparia in the island of Trinidad comprising EIGHT THOUSAND FOUR HUNDRED AND FORTY SEVEN SUPERFICIAL FEET to be the same more or less delineated and coloured pink in the plan registered in Volume 1539 Folio 123 and drawn in the margin of and described in the Certificate of Title in Volume 1539 Folio 129 being portion of the lands described in the Crown Grant in Volume 260 Folio 377 and also described in the Certificate of Title in Volume 1364 Folio 127 and shown as Lot 3 in the General Plan filed in Volume 1539 Folio 117 and bounded on the North by 2 drains on the South by a Street 33 feet wide on the East by a drain and by Lot 71 and on West by Lot 4 and by a drain (hereinafter “the Nelson plot”).
Upon becoming seised and possessed of the Nelson plot, Raymond in 1959, constructed his family home on the southern portion of the Nelson plot (hereinafter “the first house”) within its boundaries. However, he also occupied areas along its western boundary but beyond its boundary line, upon which he cultivated two garden plots and assumed possession thereof. Up to 2008, such occupation and or possession and or title was exclusive and uninterrupted and or continued undisturbed.
One garden plot was located on the lands to the southwest, beyond and abutting the south-western boundary of the Nelson plot. The second garden plot was located on the lands to the northwest, beyond and abutting the north-western boundary of the Nelson plot. Raymond also cultivated several fruit trees and a coconut tree along the aforesaid lands abutting the western boundary of the Nelson plot. For the purposes of the instant matter, the contentious area is known as the “area of occupation.”
The Claimant avers that after becoming the owner of the Nelson plot, Raymond laid water lines within the area of occupation to connect to the water main. This was done without any protest or complaint of encroachment. Motiechand Maharaj, the predecessor in occupation to the Defendants, assisted in the laying of these pipes.
In 1984, Raymond's daughter, the Claimant, constructed another house on the northern portion of the Nelson plot to the back (north) of the first house (“the second house”). A portion of the second house was built on the area of occupation. Up to the point that the second house was built, and thereafter, the area of occupation had been occupied by Raymond and persons claiming through him without disturbance, with the consequence that the second house had been built in the position in which it stands without any complaint.
On 2 August 2001, Raymond died and by virtue of his Last Will and Testament dated 6 July 1998, appointed the Claimant as executrix. He bequeathed the first house to Carole Nelson, Anthony Nelson, Debra Nelson, Susan Nelson and Portia Nelson together with the land on which it stood. He also bequeathed the land on which the second house stood to the Claimant, but she maintains that the second house was always hers and did not form part of the bequests.
Following Raymond's death, the Claimant and her successors in occupation, up to 2008, have continued to occupy and cultivate the area of occupation exclusively to present.
In May 2003, the Claimant left Trinidad to reside abroad leaving her daughter, Jeselle Nelson, to continue to reside in the second house, and her son, Kerry Nelson, to occupy the first house.
Since 1959 up to 2008, the Claimant by virtue of her father, Raymond, herself and then her daughter have remained in exclusive and continuous possession of the area of occupation and they exercised rights of dominion over and cultivated same.
Over time, the Claimant developed the area of occupation by placing her water tanks thereon on concrete stands, planting decorative plants as well as continuing to cultivate same, and generally utilising the space and having a day-to-day presence thereon.
In April 2008, the Defendants dumped a truckload of rubbish onto the area of occupation, destroying the decorative plants as well as the Claimant's garbage holder and water pipe line, which ran through the area of occupation. The Claimant avers that in so doing, the Defendants trespassed upon the area of occupation. The Claimant further avers that she protested to the dumping of the rubbish to the Defendants, but no response was forthcoming.
The Claimant avers that the dumping of the rubbish was the first act of interference by anyone against Raymond and his successors. Thereafter, the second act of interference occurred in January 2011, when the First Defendant unlawfully entered into the area of occupation and uprooted some banana suckers growing thereon, thereby trespassing. The Claimant enquired as to why this was done and protested such action being done without her permission. A couple days thereafter, the First Defendant asserted for the first time that the area of occupation fell within his boundaries and that he was entitled to same.
In June 2011, the First and or Second Defendants conducted a survey and the First Defendant then asserted that the area of occupation was his and fell within his boundaries and asked...
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