Derrell v Derrell et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Gobin, J. |
| Judgment Date | 11 May 2016 |
| Neutral Citation | TT 2016 HC 167 |
| Docket Number | CV 2014-03223 |
| Court | High Court (Trinidad and Tobago) |
| Date | 11 May 2016 |
High Court
Gobin, J.
CV 2014-03223
Ns. F. H. Masaisai instructed by Mr. I. Jones for the claimant
Ms. S. Cudjoe for the 1st defendant
Mr. F. Wilson for the 2nd defendant
Property Law - Claim for possession of a lot of land on which there were two houses in which the defendants lived — Whether the fact that there were two defendants prevented them from claiming single possession — Whether the defendants had the necessary intention to possess the property.
By this claim Imeru Derrell sought possession of a lot of land situate at No.22 Lloyd Street, off Hunte Road, San Juan, on which there are two houses. The defendants, Elizabeth and Carolyn, each live in one of the houses with their families. They claim they are their respective homes and have been since at least about the time of the death of their father Lloyd Derrell who died on the 24 th January 1988 at Queens Hospital in New York. Imeru is the grandson of Lloyd. His father Rubelto, is one of Lloyd's either 24 or 36 children, depending on which of the witnesses has this number right.
It is accepted that at the date of his death Lloyd was the registered owner of the property including the two houses. Imeru claims title to the property under a Certificate of Title. He inherited it under the terms of the will of his grandfather, probate of which was granted to his grandmother, the executrix, Urscilla Atwell, on the 27th May 2011. Urscilla assented to the property and his ownership was endorsed on the relevant Certificate of Title on the 6th June 2012.
At the time of his death Lloyd was married to Janet Britto. On the defence it emerged that Janet who was domiciled in the USA had appointed one Ulric Joseph under a power of attorney to apply for a grant of letters of administration. Mr. Joseph did indeed obtain a grant on the 6th July 1990, “for the benefit of Ms. Britto until she applied for a grant”. Mr. Joseph's grant pre-dated Urscilla's grant of probate.
The effect of this prior grant was raised on the defence and by the Court, but the parties agreed to proceed to trial accepting Imeru's paper title, indefeasible on the face of it, for a determination of whether the defendants had acquired a possessory title to the property. This avoided the filing of further actions and additional legal costs.
The claimant relied solely upon his paper title. He claimed at all times that the defendants had occupied the subject property in or about 1987 until 2013 “with the consent of the deceased”, that is Lloyd. In 2012 he served a notice to quit and vacate on Elizabeth on the 8th November 2012 and on Carolyn on the 20th September 2013. In his witness statement he confirmed that:
“the defendants have lived rent free for many years because of the kindness of my grandfather, however they are not the beneficiaries to his estate and I am beneficially entitled to same”.
In the course of case management Counsel for the claimant was forced to accept that any License granted to the defendants, as children or family members by Lloyd Derrell, terminated upon his death, and that time began to run against the Legal Personal Representative, the claimant's grandmother Urscilla from the 25th January 1988. This action was filed on the 29th August 2014. Just about twenty-four years had elapsed before it was filed. Indeed the 16 year period had long gone. But that was not the end of the matter. It was agreed that the defendants had to establish that they had acquired a possessory title and that the paper title had extinguished.
It is settled law that in order for them to succeed the defendants had to demonstrate that they were in actual exclusive possession, which involves both a sufficient degree of physical custody and control of the land in issue, accompanied by an intention to exercise such custody and control on their own behalf and for their own benefit to the exclusion of all others — (the animus possidendi).
The claimant's evidence confirmed that he knew little or nothing about the subject property. It established too that his grandmother, the Legal Personal representative appointed under a will dated the 12th September 1987, had shown little or no interest in it when she visited Trinidad almost annually after Lloyd's death though more infrequently in more recent times. The application for probate was filed in 2011. Urscilla did not provide a witness statement nor did she participate in the proceedings in anyway. The claimant explained that she was not enjoying the best of health. In the circumstances Imeru was not left in a position to challenge much of the evidence given by the defendants and their witnesses.
Each defendant has lived in one of the houses since Lloyd's death. I accept that Elizabeth, Carolyn and Debra who was called as a witness by Elizabeth, are sisters and grew up treating each Other as such. As to whether and when each of them may have moved from and returned to the property, while there are some inconsistencies, it is not in dispute that since 1988 Carolyn has been Occupying the front house and Elizabeth the back house. Debra shared the back house until 1994. the houses are shown on a photograph annexed to the statement of case and which was admitted by the defence. Debra confirmed in her witness statement that Elizabeth and her family have been in sole occupation and control of the back house for about 20 years.
It emerged on the evidence that the defendants are not on good terms with each other. Indeed Carolyn has gone so far as to deny that Elizabeth is her sister. That notwithstanding they have agreed on their respective exclusive occupation of the houses as their homes. Their evidence as to their respective exclusive occupation of their homes was also supported by Debra.
Each defendant has since her assuming possession connected at least one utility service. Elizabeth got electricity in 1998. They have done renovations, maintenance and repainted such as they can afford. Elizabeth's evidence was supported by her church pastor Mr. Michael Mc Kenna who has said, and I accept that since he knew her since about 1987 he has known the back house to be her home. He attended two functions there. He blessed her home after some renovations and he attended her daughter's dedication celebration.
In the case of Carolyn she paid WASA bills, the account is in her name as well as the rates and taxes for the property. Receipts were produced in evidence. The property is surrounded by boundary walls on three sides and she erected a gate to the front from the roadside. Carolyn said she planted trees, reared animals and planted crops. Elizabeth maintained the yard around her house. Given that the defendants' occupation since about 1987 is not in dispute, I have found it easy to accept on a balance of probabilities that consistent with their treatment of the houses as their own homes, they did do the things they claimed to have done.
As I see it, this is not the kind of case in which it was necessary to produce supporting witness and documentary evidence to support claims of having maintained the property. The photograph itself which...
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