Lloyd Glasgow v Harry Sooklal

• Jurisdiction: Trinidad & Tobago
• Judgment Date: 19 January 2024
• Neutral Citation: TT 2024 HC 23
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV 2014-02195

BETWEEN

Lloyd Glasgow

Claimant

and

Harry Sooklal also known as Harry Deosaran

Defendant

Before:

The Hon. Mr. Justice Christopher Sieuchand

Claim No. CV 2014-02195

IN THE HIGH COURT OF JUSTICE

Appearances:

For the Claimant- Anand Singh instructed by Nisha Persad and Anjanee Seenath of N. K. Persad & Co.

For the Defendant- Hayma Ramdhanie-Seemungal instructed by Vanessa McComie of Ramdhanie-Seemungal and Company

JUDGEMENT

The Dispute

1 . In 1963, the Defendant and his mother purchased a parcel of land comprising 2 lots which was located along the northern side of the Hermitage Road in Claxton Bay. That land had 50 feet of road frontage along the Hermitage Road, and was bounded on the north and on the west by lands of Mungaree, Samilal and Samilal. The lot bounding the Hermitage Road had a residential home situated on it, while the lot to the back had a deep slope. The western side of the Defendant's lot was fenced.

2 . In 2008, the Claimant and his wife purchased a parcel of land in Claxton Bay of roughly 1 acre in area, together with a 10-foot wide right of way that connected the southeastern corner of the parcel of land to the Hermitage Road, which was some 580 feet south of the parcel of land. The 10-foot wide right of way ran along the western boundary of the Defendant's land described above, turned to the east for about 45 feet, and then continued northward to the Claimant's land.

3 . This dispute between the parties relates to an agreement between them made in 2009.

The Claimant's Case

4 . By his amended statement of case filed on November 16 ^th 2015, the Claimant claims that in 2009, while he was in the process of upgrading the right of way leading from the Hermitage Road to his home, he was approached by the Defendant and, after a while, they struck an agreement whereby:

• a. The Claimant would remove the fence running along the western side of the Defendant's property and relocate same 3 feet into the Defendant's property, thereby widening the right of way by 3 feet;

• b. The Claimant would continue to construct a roadway along the now-widened right of way;

• c. The Claimant would backfill the Defendant's back lot which had a pond on it; and

• d. The Claimant would be permitted to use that widened access road.

5 . The Claimant also claims that:

• a. After the Claimant backfilled the Defendant's back lot to a value of $47,200.00 and built the widened access road, the Defendant, in breach of his agreement with the Claimant, placed two posts on the widened access road, thereby impeding the Claimant's use thereof;

• b. The Defendant told the Claimant that the Defendant's brother wanted back the land used to widen the right of way; and

• c. Despite the Claimant sending a pre-action letter to the Defendant to which there has been no response, the Defendant has refused to honor his agreement.

6 . The Claimant sought an injunction restraining the Defendant from moving his chain link fence back on to the widened right of way, damages for breach of the agreement and a declaration that the Defendant has no right to access the right of way.

The Defendant's Case

7 . By his re-amended defence filed on March 9 ^th 2016, the Defendant agrees that the Claimant and the Defendant had discussions in 2009 but describes the agreement arrived at as an agreement for the Claimant to remove the fence running along the western boundary of the Defendant's property to allow the Claimant to have ease of access to develop the road along the right of way, provided that the Claimant replace the fence upon the completion of the construction of the road.

8 . The Defendant pleads that the agreement followed the Claimant's heavy equipment and backhoe damaging some of the Defendant's posts and fence which ran along the western boundary of the Defendant's property.

9 . The Defendant denied that:

• a. He used the right of way to access the back lot;

• b. The back lot was intended for development which required access from the right of way;

• c. There was any agreement between him and the Claimant to backfill the back lot; and

• d. The Claimant backfilled the back lot apart from depositing thereupon rubble and old machinery in order to prevent erosion along the access road.

10 . By his amended counterclaim also filed on March 9 ^th 2016, the Defendant also claimed that:

• a. The Claimant agreed to replace all fencing materials with new material when reconstructing the fence;

• b. The Claimant removed a bearing calabash mango tree without the consent of the Defendant; and

• c. The Defendant incurred expense in returning to and staying in Trinidad to deal with this matter.

11 . The Defendant consequently claimed damages for trespass, the cost of replacing 200 feet of fencing along the western boundary of his property, damages for the loss of the Mango tree, travel and living expenses and aggravated damages.

12 . The Claimant filed a defence to the amended counterclaim on February 3 ^rd 2017 by which he denied the counterclaim.

13 . On November 30 ^th 2015, the Defendant filed a reply to the Claimant's defence to the unamended counterclaim filed on November 18 ^th 2015 which stood in reply to defence to the amended counterclaim. By that reply, the Defendant averred that:

• a. The fence was temporarily relocated in 2009, not simply dismantled, because the Claimant considered it necessary to prevent intruders from entering the Claimant's property;

• b. The Defendant requested the Claimant to return the fence to its original position in 2014 following the Claimant's completion of the access road and consequent upon the Defendant's desire to pave the yard of the front lot;

• c. Following the Claimant's failure to return the fence to its original position, the Defendant erected three steel poles along the original location of the fence, which said poles were subsequently removed by an unidentified person.

The Evidence

14 . The Claimant filed a list of documents on January 7 ^th 2016 which included the documents attached to his statement of case, a supplemental list of documents on November 9 ^th 2018 which included a copy of a pre-action letter and various photographs, and a bundle of photographs on January 14 ^th 2019. The Defendant filed his list of documents on November 30 ^th 2015 and a list of un-agreed documents on January 15 ^th 2016 which identified the Defendant's documents. The Claimant file a notice to prove on August 28 ^th 2020 calling upon the Defendant to prove all of his documents.

15 . The Claimant filed four witness statements on November 9 ^th 2018 in respect of himself, Royston Glasgow, Wayne Frederick and Jerome Bonaparte. The Claimant filed a supplemental witness statement on January 7 ^th 2019.

16 . The Defendant filed two witness statements on October 18 ^th 2018, one of his own making and the other of his brother, Rabindranath Sooklal. The Claimant requested further and better particulars of the Defendant on December 31 ^st 2018 and such particulars were filed on January 30 ^th 2019.

17 . The trial of this action took place on July 24 ^th 2023, at which the Claimant and his three witnesses, and the Defendant and his brother, all testified.

18 . Following the trial, the Defendant filed his principal submissions on October 13 ^th 2023 and the Claimant filed his principal submissions on October 16 ^th 2023. The Defendant filed his submissions in response on November 10 ^th 2023 and the Claimant filed his submissions in response on November 14 ^th 2023.

The Issues

19 . The parties agree that they entered into an agreement in 2009 which required the fence located on the western boundary of the Defendant's property to be taken down, and the fence was subsequently moved into the Defendant's property. The parties disagree on the circumstances leading to that agreement and the nature of that agreement.

20 . The parties also agree that the Claimant constructed a road along the right of way leading from the Hermitage Road to the Claimant's property, part of which road ran along the western boundary of the Defendant's property.

21 . The issues which then arise for determination in this case are as follows:

• a. Did the 2009 agreement require the Claimant to relocate the fence to its preagreement location after the construction of the road along the right of way had been completed;

• b. Did the 2009 agreement require the Claimant to backfill the Defendant's back lot;

• c. Did the Claimant perform backfilling works on the Defendant's back lot;

• d. Did the 2009 agreement require the Defendant to have access to the road constructed along the right of way;

• e. Did the Claimant destroy the Defendant's mango tree; and

• f. In the event that the either party breached their obligations under the 2009 agreement, to what reliefs are the other party entitled.

Analysis of the Evidence

22 . The first five of the issues identified above are pure questions of fact. In determining them, I am required to assess the evidence of both parties and conclude, on a balance of probabilities, which of the parties' evidence I prefer. In assessing the evidence, I am mindful of the following dictum taken from the decision of the Privy Council delivered by Lord Ackner in Horace Reid v. Dowling Charles and Percival Bain Privy Council Appeal 36 of 1987 at page 6:

“Mr. James Guthrie, in his able submissions on behalf of Mr. Reid emphasised to their Lordships that 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 judges 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...