Kenny Mootoo v Girlie Mootoo
| Jurisdiction | Trinidad & Tobago |
| Judge | A. Mendonça, J.A. |
| Judgment Date | 07 July 2021 |
| Neutral Citation | TT 2021 CA 27 |
| Docket Number | Civil Appeal No. S009 of 2016 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
A. Mendonça J.A.
M. Wilson J.A.
R. Boodoosingh J.A.
Civil Appeal No. S009 of 2016
Claim No. CV 2014-02724
Mr. A. Manwah appeared on behalf of the Appellant
Mr. A. Ashraph instructed by Ms. S. Boodoosingh appeared on behalf of the Respondent
Delivered by A. Mendonça, J.A.
On May 5, 2021 at the hearing of this appeal we made an order allowing the appeal. However, very shortly thereafter we invited further written submissions on certain provisions of the Real Property Limitation Act (the RPLA) which we thought might be relevant to the issues on the appeal and which were not brought to the Court's attention at the hearing. In the meantime, we requested that the order made on May 5, 2021 not be perfected. The parties subsequently filed further written submissions pursuant to the Court's invitation. In view of the further written submissions, we convened an oral hearing where the parties made oral submissions. We now give our judgment in this matter having further considered all of the submissions in the appeal.
The Respondent is the sister of the Appellant and she commenced these proceedings on July 25, 2014 claiming against the Appellant possession of four parcels of land in the ward of Naparima, an injunction restraining the Appellant from, inter alia, entering and remaining upon the parcels of land and other consequential relief. The parcels of land are described in the claim form as follows:
“all and singular those four parcels of land situate in the ward of Naparima in the island of Trinidad being a portion of Marabella Estate (more particularly forming part of 35 acres and 2 roods of land known as the Farley layout described in the eight schedule to Deed registered as No. 3689 of 1953) the FIRST THEREOF comprising 13,686 square feet more or less and bounded on the North by a drain reserve and by Lots 123, 124, 125 and 162 and on the West by Lot 153 and a drain reserve and which said parcel is more particularly described as Lot 156 coloured pink and shown marked Q annexed to Deed registered as no 9329 of 1956 or howsoever the same may be known bounded abutted and described. The SECOND THEREOF comprising 13,357 feet more of less and bounded on the North by drain and by Lot 156 and on the south by Lot 154 and by a road reserved 33 feet wide and on the West by Lot 153 and by drain reserve which said parcel is more particularly described as Lot 155 coloured pink annexed to Deed No. 9239 of 1956 or howsoever the same may be known bounded abutted and described. The THIRD THEREOF comprising 6,705 square feet more or less and bounded on the North by a drain and by Lot 153 and on the South by Lot 153 and a road reserve 33 feet wide and on the West by Lot 153 and by drain reserve and which said parcel is more particularly described as Lot 154 coloured pink annexed to the deed registered as No. 9239 of 1956. The FOURTH THEREOF comprising 7,409 square feet more or less and bounded on the North by a drain and by Lot 154 on the south by road reserve 33 feet wide and on the West by Lot 154 and on the East by Lots 9, 10 and 11, which said parcel is more particularly described as Lot 153 coloured pink annexed to the deed registered as No. 9239 of 1956.”
In her statement of case the Respondent alleged that she is the legal owner of the parcels of land; the lands having been conveyed to her by deed dated May 23, 1977 and registered as number 14610 of 1978 (the 1977 deed). She further averred that the Appellant in March 1985 wrongly entered upon the first parcel of land and the second parcel of land (i.e. lots 155 and 156 as described in the claim form and set out above) and began constructing a house. She referred to previous proceedings begun in 1987 in which she obtained an order for possession of the parcels of land and that a writ of possession was issued on July 7, 1998. The Respondent further alleged at paragraph 4 that “the [Respondent] and the [Appellant] are brother and sister and through one Pastor Gajramsingh, the [Appellant] sought extensions of time to vacate the premises” and that she “granted an extension of time until the 30 th April, 2000 for the purpose of affording the [Appellant] time to vacate the first parcel of land [lot 155] and the second parcel of land [lot 156]”. The Respondent however averred that the Appellant after April 30, 2000 continued to occupy a house to the rear of lots 155 and 156 and committed further acts of trespass on the parcels of land, and that the Appellant made offers to purchase the parcels of land. Annexed to the statement of case are copies of correspondence passing between the attorneys-at-law for the parties in relation to offers for the purchase of the parcels of land
The Appellant filed a defence and counterclaim on December 8, 2014. At paragraph 1(b) of the defence the Appellant set up the defence of adverse possession of the lands. In that paragraph he pleaded “that he has been in undisturbed possession and occupation of the said four (4) parcels of land being claimed by the [Respondent] for a period of over 16 years prior to the commencement of these proceedings and as a result the [Respondent's] right title and interest in the said parcels of land have been extinguished pursuant to sections 3, 4 and 22 of the [RPLA].” The Appellant admitted that the lands were conveyed to the Respondent by the 1977 deed and that the Respondent in 1987 had instituted previous proceedings against him and had obtained an order for possession. Seemingly in response to paragraph 4 of the statement of case the Appellant pleaded at paragraph 4 of the defence:
“the [Appellant] admits that he and the [Respondent] are brother and sister and that one Pastor Gajramsingh sought to mediate in the dispute between them, somewhat unsuccessfully.”
At paragraphs 5 to 10 of the defence the Appellant pleaded that, inter alia, promises were made by his father (apparently the predecessor in title to the Respondent of the four parcels of land) to convey to him two of the four parcels of land namely lots 155 and 156. Further, the Appellant referred to oral discussions with the Respondent for the sale to him of the lands and admitted that his attorney-at-law had made an offer on his behalf to purchase the lands by letter dated March 20, 2014.
At paragraph 15 of the defence the Appellant pleaded a general denial in the following terms:
“Save for any admissions herein the [Appellant] denies the allegations contained in the Statement of Case as if they were individually set out herein and denied.”
In the counterclaim, the Appellant repeated the paragraphs of the defence and claimed declarations that the title and interest of the Respondent in the parcels of land have been extinguished by operation of the provisions of the RPLA and that the Respondent is not entitled to possession of the parcels of land.
The Respondent filed a reply and defence to counterclaim in which she (1) pleaded that the Appellant having occupied the parcels of land with her licence, consent and permission cannot maintain the defence of adverse possession; (2) denied paragraphs 5 to 10 of the defence; (3) admitted that the Appellant made offers to purchase the parcels of land including the offer by letter dated March 20, 2014 from the Appellant's attorneys-at-law; and (4) contended that the letter of March 20, 2014 constituted an acknowledgement of title under section 15 of the RPLA.
By notice of application filed on April 1, 2015 the Respondent applied to the court for the following orders:
“1. An Order pursuant to CPR, Parts 26.1 (1) (k) and/or under the inherent jurisdiction of the Court, that the [Appellant's] Defence be dismissed.
2. An order pursuant to CPR, Parts CPR, Parts 1.1, 26.2(1) (b) and (c) and/or under the inherent jurisdiction of the Court that the [Appellant's] Defence be struck out as being an abuse of the process of the Court and/or failing to disclose any grounds for bringing/defending a claim.
3. That there be Judgment for the [Respondent] on the [Respondent's] claim.
4. That the [Appellant] do pay to the [Respondent] the Costs of this Application and of the Action as prescribed under CPR and/or as may be prescribed or assessed or fixed or otherwise determined by the Court.”
The main ground in support of the application as set out in the notice of application was that the Appellant's defence and counterclaim disclosed no ground for defending the Respondent's claim or for making a counterclaim. It is fair therefore to say that the application was in essence an application seeking the striking out of the defence and counterclaim on the basis that it disclosed no ground for defending the claim or maintaining the counterclaim and consequent upon such striking out there be judgment for the Respondent.
The application was not supported by an affidavit. In the circumstances, whether the defence and counterclaim did not disclose a ground for defending the claim or maintaining the counterclaim depended entirely on a consideration of the pleadings. It is well settled that the court should consider any reasonable alternative to striking out before doing so and should only strike out a defence or counterclaim where the court is certain that it is bound to fail (see Real Time Systems Limited v Renraw Investments Limited & others [2014] UKPC 6 and Civil Appeal No. P078 of 2017 Maharaj 2002 Limited v Pan American Life Insurance Company of Trinidad and Tobago Limited).
The application was heard before Dean-Armorer J (as she then was). On June 17, 2015 the Judge delivered the first of two substantive rulings on the application. We will refer to this first ruling as the June ruling.
In the June ruling the Judge held that the defence of adverse possession was bound to fail for two reasons. First, the...
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