Fereeda Mohammed v Rooplal Russell Ramlal (Also called Rooplal Ramlal) and Ramsan Kevin Kanhai (Also called Ramsan Kanhai)

• Jurisdiction: Trinidad & Tobago
• Judge: Madame Justice Margaret Y. Mohammed
• Judgment Date: 26 March 2018
• Neutral Citation: TT 2018 HC 48
• Docket Number: Claim No. CV2017-01816
• Court: High Court (Trinidad and Tobago)
• Date: 26 March 2018

IN THE HIGH COURT OF JUSTICE

Before

the Honourable Madame Justice Margaret Y. Mohammed

Claim No. CV2017-01816

Between

Fareeda Mohammed

Claimant

and

Rooplal Russell Ramlal Also called Rooplal Ramlal Ramsanan Kevin Kanhai Also called Kevin Kanhai

Defendants

APPEARANCES:

Ms. Tynnielle Tuitt instructed by Mr. Rishawn Eccles Attorneys at law for the Claimant.

Mr. Taurean Dassyne instructed by Mr. Sylesh Ramjattan Attorneys at law for the Defendants.

Real property - Adverse possession — Whether claimant was in sole, undisputed and uninterrupted possession for statutory period — Actual use and occupation of property — Intention to occupy.

TABLE OF CONTENTS

the claimant's case	4
the defendants' case	8
reply and defence to counterclaim	13
the undisputed facts	15
issues	16
issue 1: whether the claimant and her father have, since the death of mr latchansingh in 1985, been in sole, undisputed and uninterrupted possession of the disputed property which extinguished the defendant's title by virtue of sections 3 and 22 of the rpla	19
sub-issue: has the claimant provided adequate particulars of the boundaries of the disputed property?	24
sub-issue: Were the Claimant and her father in actual use and occupation of the disputed property since 1985?	28
Sub-issue: Did the Claimant and her father possess the necessary intention to occupy the disputed property	62
Issue 2: If the Defendants' title to the disputed property is extinguished whether the actions of the servants and/or agents of the defendants amount to acts of trespass for which the claimant is entitled to recover damages .	63
Issue 3: Are the Defendants entitled to damages from the Claimant for lodging a caveat against the unexcised disputed property	64
Sub-issue: whether the caveat is frivolous and was lodged without reasonable cause.	66
Sub-issue: Whether in the circumstances of the case, it is fair, just and equitable to remove the caveat or maintain the status quo	69
Sub-issue: whether the title owner has suffered loss and damage arising from the lodging of the caveat	69
Sub-issue: Are the Defendants entitled to all refunds, expenses incurred, reimbursements and claims for damages, interest and costs which they may be required to honour with the agreement for sale?	72
Sub-issue: Are the Defendants entitled to a reimbursement of all expenses incurred in developing the 10 acre parcel?	73
Sub-issue: Are the Defendants entitled to damages for trespass and nuisance	74
Conclusion	77
Order	79

1 The dispute between the parties relates to the entitlement to possession of a 1 ¹/₂ acre parcel of land situated at No 20 Cumuto South Trace, Barrackpore (“the disputed property”). The Claimant's case is that since 1985 she and her father has been in continuous undisturbed possession of the disputed and as such the paper title of the Defendants has been extinguished.

The Claimant's case

2 The disputed land is part of a 10 acre parcel of land (“the 10 acre parcel”). The Defendants became the owners of the 10 acre parcel by virtue of Memorandum of Transfer registered in Volume 5711 Folio 289 Instrument 61 registered on the 1 ^st December 2014 (“the December 2014 Memorandum of Transfer”) and Memorandum of Transfer registered in Volume 5740 Folio 47 Instrument 57 registered on the 23 ^rd March 2015 (“the March 2015 Memorandum of Transfer”). Previous to the Defendants becoming the owners it was owned by Mr. Emerson Ramhit Latchansingh 1 who became the owner in 1952. Mr Latchansingh died on 17 ^th February 1985 2 and after his death, his widow Ms. Sylvia Latchansingh, applied for and obtained the Grant of Letters of administration for his estate which was registered in L5272 of 1985 3. Ms. Sylvia Latchansingh then became the registered owner of the 10 acre parcel by virtue of Memorandum of Assent registered in Volume 3044 Folio 117 Inst No 20 – 24 ^th April 1986 4. Ms. Latchansingh died on 27 ^th June 1988 and Barbara Kanhai and Sandra Britton applied for and obtained a Grant of Probate for the estate of Ms. Sylvia Latchansingh on 14 ^th October 1988 No. 2342 of 1988. 5 By Memorandum of Assent registered in Volume 3301 Folio 467 Inst No. 91 – 14 ^th December 1988 Barbara Kanhai and Sandra Britton became the registered owners of the 10 acre parcel as joint tenants 6.

3 By Memorandum of Transfer registered in Volume 3505 Folio 377 Inst No 70 – 5 ^th December 1991, there was a severance of the joint tenancy whereas Barbara Kanhai and Sandra Britton also called Sandra Julia Britton continued to hold the property as tenants in common in equal shares 7. Barbara Kanhai and Sandra Britton also called Sandra Julia Britton transferred the 10 acre parcel to the First Defendant on 16 ^th October 2014 by Memorandum of Transfer registered in Volume 5711 Folio 289 Inst No 61.

4 The Claimant averred that in 1970 her father obtained permission and entered into an agreement with one Mr. Singh to build a dwelling house (“the dwelling house”) on the disputed land and to cultivate rice. In exchange, the Claimant's father agreed to pay rent to Mr. Singh for use and occupation of the disputed property. The Claimant assisted her father and family in cultivating the rice and tending to the crops. In the mid-1980s, the Claimant's father planted various long term and short-term fruit trees and vegetables on the disputed land which they sold to the general public. The Claimant's father completed various renovations to the dwelling house. Following Mr Latchansingh's death on the 17 ^th February 1985, the Claimant's father stopped paying rent but he continued in occupation of the disputed property. The Claimant's siblings and her mother moved out of the disputed property leaving the Claimant and her father living on and cultivating it.

5 After the death of the Claimant's father on the 18 ^th November 2006, the Claimant along with her family continued to occupy the disputed property and she continued to renovate dwelling house on it after 2006. In 2011, the Claimant planted additional long-term fruit trees which provided an additional source of income.

6 In June 2013, the First Defendant visited the Claimant and indicated to her that he wanted to purchase the 10 acre parcel and he asked her if she knew the boundaries. The Claimant pointed out the boundaries of the disputed property but she indicated that she was not interested in selling. Thereafter the Claimant sought advice from the Basdeo Panday Foundation about her right to the disputed property and by letter dated the 21 ^st August 2013 (“The First Panday Letter”) the foundation wrote to the First Defendant indicating that the

Claimant was in occupation of the disputed property for a period exceeding 16 years and she had possessory title.

7 On another visit by the First Defendant to the Claimant in September 2013 he indicated that he had purchased the 10 acre parcel. The Claimant informed him that she and her family lived and occupied the disputed property exclusively for more than 16 years and she therefore continued her renovation works to the disputed property and repainted the dwelling house.

8 On the 6 ^th May 2014, the Claimant noticed the First Defendant and other persons on the 10 acre parcel and which borders the disputed property, doing works to fill up a lagoon to create an access road. The Claimant informed the First Defendant to refrain from trespassing unto the disputed property since she was in exclusive possession for more than sixteen years. Similarly on the 13 ^th May 2014, the First Defendant and his workmen entered unto a small portion of the disputed property and began filling up the area with soil using heavy equipment. The Claimant averred that one of her avocado trees and other small fruit bearing trees were destroyed in the process. The First Defendant failed to restore the disputed property.

9 The Claimant instructed Ms Mickela Panday, attorney at law to send a pre-action letter dated the 8 ^th May 2014 (“the Second Panday Letter”) to the First Defendant calling upon him to refrain from trespassing on the disputed property since she was in exclusive possession of it for a period exceeding 16 years.

10 Again on the 13 ^th April 2015, the Claimant saw the First Defendant and his workmen trespass on to the disputed property using heavy machinery and other equipment to destroy her trees. The First Defendant also excavated and backfilled a small portion of the disputed property with dirt and other material and as a result the disputed property became waterlogged.

11 The Claimant conducted a search in June 2016 at the Land Registry, which revealed that the disputed property was transferred to the First Defendant on the 16 ^th October 2014 and the First Defendant transferred an undivided half share to the Second Defendant on the 23 ^rd March 2015. The Defendants are still actively engaged in clearing and excavating the larger parcel for construction thereby encroaching on the disputed property.

12 As a result of the Defendants actions the Claimant instituted the instant action against the Defendant seeking the following reliefs:

• i. A declaration that the Claimant is entitled to the sole and exclusive possession of the disputed property by virtue of her adverse possession for a period exceeding sixteen (16) years;

• ii. A declaration that the Defendants' title over the disputed property has been extinguished by virtue of the Claimant's exclusive and undisturbed possession of for a period exceeding sixteen (16) years pursuant to sections 3 and 22 of the Real Property Limitation Act (“the RPLA”);

• iii. An interim injunction to restrain the Defendants whether by themselves, their servants and/or agents and/or employees from:

  • a) Going onto, entering unto, using, parking on with or without...