Gayadeen et Al v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Rajnauth-Lee, J.
• Judgment Date: 17 April 2012
• Neutral Citation: TT 2012 HC 129
• Docket Number: CV 1052 of 2011
• Court: High Court (Trinidad and Tobago)
• Date: 17 April 2012

High Court

Rajnauth-Lee, J.

CV 1052 of 2011

Gayadeen et al

and

The Attorney General

Appearances:

Mr. Ramesh L. Maharaj S.C. leading Mr. Rikki A. Harnanan instructed by Ms. Vijaya Maharaj for the claimants.

Mr. Avory Sinanan S.C. leading Mr. Larry Lalla and Mr. Sarfraz Alsaran instructed by Mrs. Deowattee Dilraj-Battoosing and Mr. Brent James for the defendant.

Real property - Ownership — Compulsory acquisition — Adverse possession

INTRODUCTION

Rajnauth-Lee, J.

1 By their Fixed Date Claim filed on the 23rd March, 2011, the claimants commenced a claim against the defendant, the Attorney General of Trinidad and Tobago, seeking certain declaratory reliefs and claiming inter alia that they were the owners of and entitled to possession of certain lands. Mr. Sinanan S. C. acting on behalf of the Attorney General has made it clear that it is not disputed that the Ministry of Works is currently engaged in expansion works on the Churchill Roosevelt Highway and that the continued occupation by the claimants of the lands in dispute constitute an obstruction to the completion of the works. It is also not disputed that notice has been served on the claimants calling upon them to vacate and they have not done so.

2 By their Fixed Date Claim, the claimants claimed the following:

• (1) A declaration that the claimants' right to the enjoyment of property and not to be deprived thereof except by due process of law has been and is likely to be infringed by the State in relation to (a) the lands and buildings thereon occupied by and in possession of the claimants comprising 18,000 square feet at the corner of Churchill Roosevelt Highway Road and Tunapuna Road, Arima, bounded on eastern side by Tumpuna Road, on the north by two recently constructed westbound lanes of the Churchill Roosevelt Highway. on the west by unoccupied parcel of land and on the south by the land and buildings of Subah (“the said premises”); and (b) the businesses of a licensed bar and a lotto booth operated by the claimants on the said lands; by the State through its servants and/or agents on divers occasions including the 15th October, 2010 and during the period the 9th March, 2011 to the date of the filing of the Claim, in breach of undertakings in writing from the Ministry of Works and Transport, interfering with the claimants' possessions of the said premises, and the claimants' said rights are likely to be further infringed;

• (2) A declaration that the claimants' right to respect for their family and private life as guaranteed to them by section 4(c) of the Constitution has been infringed by the State in relation to the said premises which comprise inter alia the residence and family home of the claimants and their two children, by the State, through its servants and/or agents on divers occasions including the 15th October, 2010 and during the period the 9th March 2011 to the present in breach of the undertakings in writing from the Ministry of Works interfering with the claimants' possession of the said premises and that the claimants' said rights are likely to be infringed;

• (3) A declaration that the State has no right title or interest in the said premises;

• (4) A declaration that the claimants are the owners of the entitled to possession of the said premises;

• (5) Compensation for the breach of the claimants' rights under section 4(a) and 4(c) of the Constitution to be assessed and paid by the defendant to the claimants;

• (6) Alternatively damages for trespass to be assessed and paid by the defendant to the claimants;

• (7) Exemplary damages to be assessed and paid by the defendant to the claimants;

• (8) Costs to be assessed and paid by the defendant to the claimants;

• (9) Interest;

• (10) Such further or other relief as the Court may consider in necessary.

3 On the 29th March, 2011, the Court made the following conservatory order with the consent of the parties.

1

The defendant undertakes that no action of any kind to enforce its asserted rights will be taken until the determination of the claim herein and that the status quo of the lands purportedly occupied by and in possession of the claimants more particularly described in the schedule hereto and buildings thereon be maintained until the hearing and determination of the claim; 2. The claimants hereby consent without prejudice to any of their rights that may be established at the hearing of the matter in respect of the asphalted paved area constituting a lay-by located to the north east of the said lands, that the said asphalted area, be used for the flow of vehicular traffic exiting from Tumpuna Road onto the Churchill Roosevelt Highway; 3. The trench dug by the defendant near to the southern portion of the building occupied by the claimants located on the Tumpuna Road be refilled or covered by Monday the 4th April, 2011 and the defendant undertakes that should it become necessary to carry out any further work on that location 48 (forty eight) hours notice will be given to the claimants before hand such communication to be conducted through the respective legal representatives for the parties.

4 The claimants filed a Statement of Case on the said 23rd March, 2011. As to paragraphs 1 and 5 of the Statement of Case and the issue of the claimants' occupation and possession of the lands in dispute, at the trial the defendant conceded that the Nasser Abdul plan1 depicted the lands which the claimants alleged that they occupied. However, the area referred to as the car park [and shown as the paved area (concrete) on the Nasser Abdul Plan] (“the car park”) was excepted from that concession.

5 At the trial the defendant also conceded that save for the car park, the claimant and their predecessors have been in occupation of the lands depicted on the Nasser Abdul Plan since 1953. These lands with the exception of the car park are referred to as “the said premises” in this judgment. In addition, there is dispute about another portion of land referred to as a triangular portion which the claimants contend that they occupied. The defendant has denied same. That triangular portion is located directly north east of the said premises; it has been paved by the Ministry of Works and is being used as a lay-by for vehicular traffic exiting Tumpuna Road onto the Churchill Roosevelt Highway and will be referred to as “the triangular portion” in this judgment.

6 On the other hand, the claimants have conceded that the lands that they allegedly occupy and possess, that is to say, the said premises, the car park and the triangular portion [altogether referred to as “the said lands”] are situate on the acquired lands, that is to say, the lands described in Gazette Notice No. 1711 published in the Trinidad Royal Gazette on page 682 on the 6th December, 1945 (“the acquired lands”). The acquired lands are also shown on Plan N.L. 40.

7 At paragraph 7 of the Statement of Case, the claimants averred that the said lands have never been used by the public or by anyone as a road or as a public right of way and have been used exclusively as a residence with an adjoining business, firstly a parlour, then a grocery and then a bar since 1953. The claimants gave notice that at the trial they would rely on the State Suits Limitation Ordinance and in particular section 2 and the Real Property Limitation Act, Chapter 56:03 and in particular section 23 to show that they have title to the said lands and the State does not have any title to the said lands. Accordingly it was contended that there was no power conferred on the Minister by any law capable of being exercised by him or on behalf of the State against the claimants in respect of their possession and occupation of the said lands which were lawfully owned and occupied by them in respect of which the State had no right, title or interest.

8 The defendants filed a Defence and Counterclaim on the 15th April, 2011. At paragraph 1 of the Defence, the defendant averred:

• (a) By virtue of Notice of Acquisition dated the 6th December 1945 published in the Trinidad Royal Gazette No: 1711 at page 682, a parcel of land comprising thirty-eight thousand, four hundred and twenty-one (38,421) acres was compulsorily acquired for the purposes of the construction of a highway namely the Churchill Roosevelt Highway (hereinafter referred to as “the Highway Lands”).

• (b) Having been so acquired the Highway Lands as a matter of law became indelibly and irrefutably impressed as a public right of way and became fixed for that purpose and immune to the acquisition or accrual of any rights therein in favour of any person which was adverse to the interest of the State holding the land for that purpose. Accordingly, the defendant contended that the public right of way thus created was indefeasible and could not be extinguished by any claim of a possessory title based on adverse possession commencing after the said acquisition and consequent creation of the public right of way.

• (c) The entire parcel of land allegedly and purportedly in possession of the claimants since 1953 fell within the boundaries of the Highway lands and accordingly the defendant contended that the claimants could have no right, title or interest therein based on their alleged possession and they were trespassers. The defendant gave notice that at the trial of the action herein they would refer to and rely on certain survey plans, maps and reports full disclosure of which would be made to the claimants prior to the said trial.

• (d) As a matter of law the undertakings of the nature pleaded in the Statement of Case which might have been given prior to the commencement of litigation did not give rise to any legal rights where none existed prior to such undertakings. Accordingly, the defendant contended that if (which has been denied) the servants and/or agents of the State did act in breach of any of the undertakings specified in the Statement of Case,...