Maharaj v Almorales (a/c Almarales)
| Jurisdiction | Trinidad & Tobago |
| Judge | Seepersad, J. |
| Judgment Date | 29 July 2013 |
| Neutral Citation | TT 2013 HC 152 |
| Docket Number | CV 2771 of 2011 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 July 2013 |
High Court
Seepersad, J.
CV 2771 of 2011
Mr. Seenath Jairam S.C. and Mr. Ian Benjamin for the claimant.
Ms. Shastri Roberts and Ms. Carla Scipio for the defendant.
Real Property - Title — Adverse possession — Whether defendant was in continuous occupation for requisite period — Trespass.
(1) This is a claim in which the claimant seeks an order mandating the defendant Darwin Almorales a/c Garvin Almarales to demolish and remove from his land all structures and items place by the defendant thereon, as well as damages for trespass and an injunction restraining the said defendant, his servant and/or agents from entering upon or remaining or carrying on any work on the said land.
(2) The defendant denied that any structure erected by him stands on lands belonging to the claimant and he contends that he went into possession of the portion of land claimed by the claimant since 1984 and that he has remained in undisturbed possession of the said portion of land for over 16 yearsand further contends that he constructed a chattel house thereon in November 1998.
(3) The defendant therefore denied that he committed any act of trespass or thatthe claimant is entitled to any of the reliefs sought.
(4) The trial of this action took place on the 13th, 14th and 16th May 2013 and the evidence concluded on 13th June 2013, with a locus in quo visit by the Court.
(5) The claimant testified, inter alia, that:
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a. He was one of two fee simple joint owners, ofthe land including, a parcel known as 1C, which is undeveloped, by virtue of a deed dated 7th December, 1990 registered as No. DE199100753005;
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b. By deed dated 4th December 1991 registered NoDE199120219054 he and his cousin (Jit Maharaj) conveyedto him (i.e. the claimant) the said parcel of land known as 1C thereby making him the sole owner of parcel IC;
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c. Parcel 1C includes a strip of land that enables access to and egress from the Mausica Road (the roadway) a portion of which roadway together with the road reserve was shown on the plan adduced into evidence andmarked Court Exhibit “A”;
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d. He had the land re-surveyed in June, 2001 by one of his two surveying witnesses Bhagirathi Maharaj;
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e. The said 2001 survey does not show any structure on the north western strip of land of Parcel 1C (i.e. the area that the defendant is currently in occupation of);
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f. He inspected the land between 2007 and 2008 for the purpose of showing prospective purchasers; these included, Mr. Sirjoo a real estate agent and Ms. Gibson and he said that structures now on the land were not there at that time;
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g. On the 9th and 17th September, 2010 and 8th January, 2011 he again inspected the land;
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h. From the time the larger parcel was partitioned in 1991 until recently there were no structures on the disputed land and no cultivation;
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i. He first noticed the chattel house and other structures on the disputed land in September 2010 and they appeared new; and
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j. He spoke to the defendant and informed him in November 2010 that the chattel house he observed was on his land and the defendant responded that he had applied for the land a long time ago.
(6) The claimant's cross-examination was uneventful and by virtue of his responses he reinforced the evidence contained in his witness statement.
(7) The claimant also adduced into evidence documents from T&TEC and WASA and called two witnesses from the said utilities.
(8) Mr. Rodney Lutchman of T&TEC, testified as to the procedure for obtaining an electricity supply and produced documents which were exhibited to his witness statement as - “RL 1”. The documents contained inter alia:
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a. a signed copy of the defendant's application dated 16 March 2011 together with the electricity supply agreement dated 16 March.
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b. declaration sworn by the defendant dated 15 March 2011 to the effect that he had been on the land for 20 years and that there was no dispute in respect of the land.
(9) Theresa Bailey of WASA also testified and spoke of the procedure for obtaining a water supply from WASA and produced documents which were attached to her witness statement and were exhibited as “TB 1”
(10) Among the documents produced were:
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a. a signed copy of a job card that showed that the defendant's father applied for a new connection on 4 November 2010;
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b. the defendant's written application for a yard tap on 4th November, 2010 which was signed by both his parents granting him permission to get water supply at LP 78 Mausica Road dated 4th November, 2010.
(11) The claimant also called as witnesses, two licensed land surveyors. The first
surveyor called was Mr. Bhagirathi Maharaj. The gist of his evidence is as follows:
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a. On the claimant's instructions (through his son) he surveyed the 1C parcel in 2001 and prepared a plan which was put into evidence as Agreed document #16 attached to Trial Bundle;
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b. This witness also testified, that the plan prepared by him reflects what he saw on the land when it was surveyed and that what he saw was the remains of a burnt-out shed on the boundary line. He said there wereno structures such as an outhouse and latrine on the roadway and said that there was no evidence of farming nor did he see any water tanks. He said further that if he had seen water tanks he would have outlined them on the sketch he had prepared; and
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c. The witness testified that the structures nowstanding on the roadway, and shown on the survey plan marked court exhibit “A” prepared by Mr. Asim Ali, did not exist when he surveyed the land in 2001.
(12) The second surveyor, Mr. Asim Ali, testified, inter alia, that:
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a. He surveyed the 1C parcel in June 2011 and prepared a survey plan. The plan which was marked “A” shows the chattel house, the outhouse, water tanks etc. on the roadway; and
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b. He said he never visited the land prior to 2011 and during his 2011 visit he said he spoke to the defendant and observed that the shed on the roadway was incomplete. He was of the view that the chattel house that stood thereon appeared to be of recent construction and he stated that subsequent to his visit to survey the land in 2011 the said incomplete shed was completed.
(13) The defendant testified and he called his father, Frankie Almarales, Marcel Martin and Sheldon Pascal as his witnesses.
(14) The defendant testified that since he was a boy his family moved unto a portion of land at Mausica and that the portion of land in dispute in this matter was always under his family's possession and control since they moved to Mausica. He said that during the 1980's there was a shed on the area where his chattel house now stands and he would spend time there and tools were stored in same.
(15) He also said that around the late 1990's the shed was converted into achattel house and he moved into same and continues to date to reside there. He testified that his parents got a lease from the State for a large portion of the land that they had occupied and they eventually assigned (sold) the lease to Kallco Ltd. (this company was initially a party to this action and on the 17th July, 2012 a judgment was granted in favour of theclaimant, thereafter the action continued against the instant defendant only).
(16) The defendant further said that he was of the view that the land upon whichhis chattel house now stands belongs to the State and said that he never knew the claimant to be the owner of the said piece of land. The defendant also testified that he initially got a supply of electricity to hishouse which he called ‘juice’ from his parents house and that he subsequently got his own supplyof electricity. The defendant further testified that since the 1980 s there was an outhouse on the disputed land and that water tanks were also placed by his family on same.
(17) The defendant testified that a bridge was built over a section of the disputed area of land since 1992 and pictures of the said bridge were adduced into evidence.
(18) The cross-examination of this witness was eventful and several of his responses were inconsistent with and contradicted his evidence in chief. Detailed reference would be made to the inconsistencies and contradictions later on in this judgment.
(19) This witness, who is the defendant's father, testified that his familymoved ontothe lands at Mausica when the defendant was a little boy. He said the family planted the lands and occupied a large piece of land which includes the landsin dispute. He said he built a tool shed on the disputed land and that the defendant first stayed in a shack on the disputed portion of land and then built the current dwelling house thereon.
(20) He testified that around 1992 with the assistance of a self help grant, he and his family constructed a bridge across a drain to the north of the property he occupied and the said bridge leads unto thedisputed portion of land. This witness said that he began planting the lands at Mausica around 1982 and at the time the lands were overgrown andhe had to clear same and he built a small dwelling house in the middle of the land. He said overthe years he planted more of the land and he eventually got a lease for a substantial portion of the land he occupied and planted and thereafter he sold/assigned the leased land to Kall Co. Ltd.
(21) He testified that there was a tool shed/shack on the area of the land in disputeand that the defendant used to stay there at times and eventually with his permission he built a dwelling house in the area where the tool shed stood. The cross-examination of this witness was also eventful and detailed reference would be made to his...
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