Dolly v Sookoo
| Jurisdiction | Trinidad & Tobago |
| Judge | Jamadar, J. |
| Judgment Date | 07 July 2006 |
| Neutral Citation | TT 2006 HC 53 |
| Docket Number | HCA No. 1587 of 1997; CV2005-00085 |
| Court | High Court (Trinidad and Tobago) |
| Date | 07 July 2006 |
High Court
Jamadar, J.
HCA No. 1587 of 1997; CV2005-00085
Mr. G. Armorer for the plaintiff.
Mr. K. Sagar for the defendant.
Real property - Ownership — Possession — Possessory title — Plaintiff was fee simple owner of the lands — Defendant claimed plaintiff's title was extinguished by possessory title — Defendant failed to prove adverse possession for the requisite period — Plaintiff's claim allowed.
This case concerns a parcel of land comprising 26,920 sq ft (the plaintiff's land) being a portion of a larger parcel comprising 1 acre 1 rood and 18 perches.
Originally the 1 acre 1 rood 18 perches parcel formed part of a 6 acre parcel owned by the defendant's father (Sookoo Mangroo) and his siblings. On the 3rd January 1961, by deed number 162 of 1961, this 6 acre parcel was partitioned and divided between the defendant's father and his siblings; the defendant's father getting the entirety of the 1 acre 1 rood 18 perches parcel. Then, on the 8th May 1961 Sookoo Mangroo sold to Samdaye (Sandra Samdai Kadan) and Chandardaye (the plaintiff - Chandra Dolly), by deed number 6250 of 1961, the plaintiff's land.
The validity of these transactions is accepted by all parties. However, the defendant contends, by his pleading and witness statement, that at no time prior to the commencement of this action did he have “any knowledge of” deed number 6250 of 1961 or did he know “in the 1960's” that his father had “sold or transferred a portion of the 1 acre, 1 rood, 18 perches to someone else”.
In February 1994 Samdaye died and the plaintiff became the sole owner of the plaintiff's land. In 1972 Sookoo Mangroo died. In 1980 the defendant made an application to the Administrator General for the estate of Sookoo Mangroo. On the 18th October 1984, by deed number 19818 of 1984, the Administrator General conveyed to the defendant the following:
ALL AND SINGULAR that certain piece of land situate at Endeavour, in the Ward of Chaguanas, in the Island of Trinidad comprising ONE ACRE ONE ROOD AND 18 PERCHES less 26,920 Superficial Feet sold to Samdaye and Chandardaye by deed registered as No. 6250 of 1967and bounded on the North by Rodney Road on the South by lands now of Ramdeo Boodu Mangroo on the East by lands of Alex Shaw and on the West by Rodney Road being portion of the parcel of land described in the First Part of the Second Schedule to deed registered as No. 162 of 1961 and delineated coloured pink and marked “A” on the plan annexed to said deed registered as No. 162 of 1961 together with the buildings standing thereon.
That is, the 1 acre 1 rood 18 perches parcel less the plaintiff's land.
In this case there is no dispute that the plaintiff is the fee simple owner of the plaintiff's land. This is clear from the conveyancing history and is admitted by the defendant. What the defendant contends however, is that he together with his father and after his father's death, he together with his family, have since the partition deed in 1961 been in continuous and undisturbed exclusive occupation and possession of the entirety of the 1 acre 1 rood and 18 perches parcel planting sugar cane and crops thereon. Thus, the defendant claims that the plaintiff's title to the plaintiff's land has been extinguished pursuant to the Real Property Limitation Ordinance, Chapter 5 Number 7, of the Laws of Trinidad and Tobago. The onus of proof is on the defendant to establish his possessory title to the plaintiff's land.
On the 5th October, 2005 this matter was brought under the Civil Proceedings Rules, 1998 ( CPR 1998). It was agreed that the evidence in chief be given by way of witness statements. On the 20th June 2006, at the commencement of the trial, leave was granted to the defendant to amend his Defence and Counterclaim to add, inter alia, the following plea.
[T]he defendant and his predecessors in title were in continuous and undisturbed possession of the parcel of land comprising 1 acre, 1 rood and 18 perches……
PARTICULARS
(a) The defendant and his predecessors in title planted and cultivated the lands with crops including sugar cane, rice, sweet potatoes, peas, bodi and cassava.
On the said 20th June, 2006 it was also agreed that leave be granted to read and use the plaintiff's sworn witness statement filed on the 16th May, 2006, even though she was not present and could not attend for cross examination because she was out of the jurisdiction and unwell (subject to the weight to be given to this untested evidence). The Court was also informed that the defendant only intended to rely on his witness statement filed on the 13th December, 2005 and not on the statements of two other witnesses which had also been filed on his behalf.
Thus, evidentially this case is to be determined on the untested sworn testimony of the plaintiff and the evidence of the defendant (his witness statement and his cross examination) and on the agreed documents in the context of the pleaded cases.
In these circumstances this Court is guided by the advice of the Privy Council in Reid v. Charles P.C. Appeal No. 36, at page 6, to wit:
Where there is an acute conflict of evidence between neighbours, particularly in rights of way disputes, the impression which their evidence makes upon the trial judge is of the greatest importance. This is certainly true. However, in such a situation, where the wrong impression can be gained by the most experienced of judge if he relies solely on the demeanour of witnesses, it is important for him to check that impression against contemporary documents, where they exist, against the pleaded case and against the inherent probability or improbability of the rival contentions, in the light in particular of facts and matters which are common ground or unchallenged, or disputed only as an afterthought or otherwise in a very unsatisfactory manner.
Unless this approach is adopted, there is a real risk that the evidence will not be properly evaluated and the trial judge will in the result have failed to take proper advantage of having seen and heard the witnesses.
The issue to be determined, is whether the defendant has, on a balance of probabilities, demonstrated a possessory title to the plaintiff's land as required by the Real Property Limitation Ordinance (RLPO).
Richardson v. Lawrence (1966) 10 W.I.R. 234 is often cited as authority for the proposition, that with the passage of the RLPO the pre 1833 English notion of ‘adverse possession’ was not relevant to determining whether a legal owner's title had been extinguished by reason of an occupier's possession (for the statutory period of 16 years).
The often quoted passage of Wooding, C.J. (at pages 237-238) is as follows:
Hence, so long as there had been a want of actual possession by the person who might be entitled to it and an actual possession, whether adverse in the old sense or not, on the part of somebody who would not really be entitled to it, and that actual possession continues for the prescribed period, possessory title is acquired under the statute. That was made clear in Smith v. Lloyd [1854], Exch. At p. 572] where PARKE, B., said: “The statute applies not to want of actual possession by the plaintiff, but to cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession, whether adverse or not, to be protected to bring the case within the statute.”
Whatever may have been the intention of the Court of Appeal in Richardson v. Lawrence, the Privy Council in two subsequent decisions has stated quite unequivocally that the concept of adverse possession, though not expressly incorporated, has been incorporated by implication into the RPLO.
First, in Goomti Ramnarace v. Harrypersad Lutchman (2001) 59 W.I.R. 511, Lord Millett stated, at page 515:
Neither the Ordinance nor the 1833 Act contains any reference to the concept of adverse possession which became enshrined in the English statute by s.10(1) of the Limitation Act, 1939, but this was no more than a statutory enactmenf of the case law on the earlier English Limitation Acts (see Moses v. Lovegrove [1952] 2 Q.B. 533 at 539, per Sir Raymond Evershed, M.R.). In these circumstances, their lordships do not doubt that the concept is incorporated into the Ordinance also.
Lord Millett also stated at pages 515h and 516d:
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(i) Generally speaking, adverse possession is possession which is inconsistent with and in denial of the title of the true owner. Possession is not normally adverse if it is enjoyed by a lawful title, or with the consent of the true owner.
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(ii) The effect of s 3 and 8 of the Ordinance taken together is that, if no action is taken by the true owner, his title is extinguished after the expiration of seventeen years from the commencement of the tenancy even though the possession of the occupier is permissive throughout; see Lynes v. Snaith [1899] 1 Q.B. 486. It was the deliberate policy of the legislature that the title of owners who allowed others to remain in possession of their land for many years with their consent but without paying rent or acknowledging their title should eventually be extinguished.
Second, in Sati Bissessar v. Ganase Lail [2004] UKPC 48, the Privy Council in upholding the judgment of the Court of Appeal on “the issue whether the acts of occupation and possession of the land…. had been of a character and duration sufficient to establish a possessory title” (at paragraph 5), accepted that proof of “the necessary animus possidendi” was a relevant consideration. At first instance Archie, J. had found that there was not “the necessary animus possidendi”. In the Court of Appeal Permanand, J.A. opined that there was “the necessary animus possedendi”, which the Privy...
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