Dingwall et Al v Wilson

• Jurisdiction: Trinidad & Tobago
• Court: High Court (Trinidad and Tobago)
• Judge: Boodoosingh, J.
• Judgment Date: 08 April 2013
• Neutral Citation: TT 2013 HC 84
• Docket Number: CV 3945 of 2011
• Date: 08 April 2013

High Court

Boodoosingh, J.

CV 3945 of 2011

Dingwall et al

and

Wilson

Appearances:

Mr. Samuel Saunders for the claimants.

The defendant In Person.

Real Property - Ownership — Tenants in common — Whether defendant's occupation was with consent of co-owners.

Boodoosingh, J.

1 An oral judgment was given on 26 November 2012. The claimants are co-owners of a parcel of land comprising five acres, more or less, at La Brea Trace, Erin Road, Siparia. The defendant is a co-owner in respect of a one-ninth share in the lands. The claimants’ sister, Rita Lon, was the owner of the defendant ‘s share and she transferred her share to him by Memorandum of Transfer of 3 July 2008. The defendant obtained a Certificate of Title in respect of it. The defendant has constructed a building on the land. That building has been made into apartments and he has rented out certain of these apartments.

2 In consequence of this, the first claimant asserted on her own behalf and on behalf of the other claimants that they have been dispossessed of the portion of the lands on which the defendant has erected this building. They say that they are all entitled to a share in the land and the defendant has gone and occupied, exclusively, this portion of the land by putting up this building and renting out parts of the building. By doing this, he has dispossessed them.

3 The defendant asserted that he did this but that the claimants and other persons entitled to the possession of the lands were aware of his actions and in fact consented to it. The first claimant denies that it was with her consent and the defendant also did not advance any supporting evidence of the consent of other persons in any form of admissible evidence.

4 The essential issue therefore is whether the claimants are entitled to the same rights to the portion of land as the defendant.

5 Mr Saunders submitted a Court of Appeal authority from St Lucia in the matter of Ulysses v. Estephane, Magisterial Civil Appeal No. 4/1975. At page 2 of the decision the learned Justice of Appeal St. Bernard stated as follows:

“Tenants in common have unity of possession and each tenant is as much entitled to possession of any part of the land as the others. Their occupation is undivided and neither party can point to any particular part of the land as his own to the exclusion of the others. It seems to follow therefore that one co-owner cannot rent a particular part of the land to the exclusion of the others without their consent, but, he may, in my view, transfer his rights in the common property to another and the transferee stands in his shoes and may do all such things on the land as the co-owner is able to do. This issue was not raised in lower Court but the facts are that the respondent was working the land as agricultural land for eight years and the appellant stated he had been on a portion of the land “all his life.” It is not unreasonable to find that in the present case Luciana Cherie who placed the respondent on the land, whether as tenant or licensee, did so with the consent of the...