Khan et Al v Ibrahim et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Rahim, J.
• Judgment Date: 01 July 2013
• Neutral Citation: TT 2013 HC 132
• Docket Number: CV 3068 of 2011
• Court: High Court (Trinidad and Tobago)
• Date: 01 July 2013

High Court

Rahim, J.

CV 3068 of 2011

Khan et al

and

Ibrahim et al

Appearances:

Mr. S. Mohammed for the claimants

Mr. K. Kamta for the defendants/ancillary claimant.

Mr. K. Sukdeo for the ancillary defendants.

Civil practice and procedure - Pleadings — Striking out of parts of Statement of Case — Application for summary judgment.

Rahim, J.

1 On the 18th June 2013, the court made the following order on an application made by the claimants on the 11th August 2011:

• “1. The following are struck out:

  • a) Claim number 4 of the Claim Form filed on the 11th August 2011.

  • b) The word “were” appearing at paragraph 4 of the Statement of Case

  • c) Paragraphs 4(d), 8, 10, and relief 4 of the Statement of Case.

  • d) Particulars of Special Damage appearing at paragraph 13 of the Statement of Case.

• 2. The application for Summary Judgment is dismissed.

• 3. The defendants are to file and serve their amended Defence and Counterclaim by the 15th July 2013.

• 4. The Defence to counterclaim is to be filed and served by 31st July, 2013.

• 5. The claimants are to pay to the defendants 60% of the costs of the Application assessed in the sum of $6, 000.00.”

2 These are the reasons for the decision in so far as they relate to the aspects of the court's order which have been appealed only.

3 This is a claim commenced by way of ordinary claim form by which the claimants allege that they were on a certain date forcibly dispossessed by the third defendant acting on instructions of the first and second defendants. The claimants first came to court on an application for an injunction which resulted eventually in an undertaking being given by the defendants and the claimant being restored to part only of the two story premises. The first claimant is the husband of the second claimant and the father of the third and fourth claimants. The first and second defendants are the sisters of the first claimant and the third defendant is a bailiff. The ancillary defendants are lawyers and are their cases are not relevant to the substance of the order in respect of which there lies the present appeal.

4 This matter has been fraught with palatable acrimony between the parties and their attorneys. Numerous efforts have been made by the court to have the parties arrive at an amicable settlement but to no end. There have been numerous interlocutory applications despite several attempts to settle. It is because of these attempts to settle that this application was only determined on the 18th June 2013, there now being no chance whatsoever of an amicable resolution to this claim. As a consequence directions have been given for trial.

5 By way of the ordinary claim form the claimants have sought, in addition to their claim for a declaration that the defendants are not entitled to possession and a declaration of trespass and damages, “a declaration that the last will and testament dated 20th August 2010 purported (sic) executed by the (sic) Moontanjan Khan was procured by undue influence or is otherwise void and of no effect”.

6 Therefore at relief 3 of the statement of case the claimants clearly seek damages for trespass. The claimants have however not clearly stated whether the trespass complained of is that of trespass to property (in respect of their personal items which were removed) or trespass to their part of the premises. In that respect the statement of case appears to be of poor construction and falls somewhat short of properly articulating the claimant's case. Nonetheless what is clear is that as drafted, the action complained of is alleged to have occurred on residential premises. Rule 8.1(4) (a) (i) mandates that proceedings for possession of proceedings which are occupied for residential purposes are to be begun by fixed date claim. So that if the claim was one for possession it ought to have been brought by fixed date claim. This in the court's view makes it clear that the claim is one for trespass and not possession.

7 In addition however the claimants seek an order of the...