Mokesh Dowlat v Gerald Gunness

• Jurisdiction: Trinidad & Tobago
• Judge: Carol Gobin
• Judgment Date: 16 August 2024
• Neutral Citation: TT 2024 HC 189
• Docket Number: Claim No. CV2022-00516
• Court: High Court (Trinidad and Tobago)

Between

Mokesh Dowlat

Claimant

and

Gerald Gunness

Defendant

Before the Hon. Madam Justice Carol Gobin

Claim No. CV2022-00516

IN THE HIGH COURT OF JUSTICE

(Sub Registry - SAN FERNANDO)

Appearances:

Mr. Andre Rajkumar instructed by Mr. Michael Matthews Attorneys at law for the Claimant

Mr. Irshaad Ali instructed by Ms. Keisha Manohar-Gokool Attorneys at law for the Defendant

REASONS

The Parties/History

1 The parties to this action are owners of neighbouring parcels of land which on all relevant plans show them to be separated by a road reserve measuring 10.6 metres wide. The Claimant and his brother are owners of lands measuring four acres three roods and eight perches located south of what is shown as the road reserve. The Defendant and his brother, Stephen Gunness, are the registered owners of the parcel measuring four acres three roods and six perches located to the north of the road reserve.

2 This case concerns the Claimant's claim to a right of way through a gravel road, a portion of which traverses part of the Defendant's lands close to the western boundary thereof. The location of the road is shown on a plan produced by licensed surveyor Mr Reynold Bhikarry dated 25 February, 2022 which is mere days after this claim was filed. The plan confirms that at that date, the gravel road ran from the Claimant's parcel northward along an area close to the western boundary of the Defendant's parcel until it met a gravel road 3.20 meters wide located about midway along said boundary. Insofar as the matter of the general location is concerned the plan is more or less consistent with Mr Ganeshdath Ramcharitar, the Claimant's plan. On the evidence, I understand that the gravel road branches off the Defendant's parcel and leads to a more established road way Seemungal Trace, which affords sufficient access to the way in dispute, by vehicle and foot.

The Claimant's Case

3 The Claimant's case simply is that the roadway has been in existence since about the 1970's when his parents purchased the southern parcel and went into possession and occupation of their lands. The Claimant's father constructed the way with the assistance of the National Self-Help Committee and the Siparia Regional Corporation and it has since then been the only means of ingress and egress from Seemungal Trace (the more established road, which leads to a main road). This is how they get to and from their home and about their daily lives. The Defendant and his brother purchased in 1981 almost a decade after they had been enjoying their access via the road.

4 The Claimant's case is that up until the year 2019 he and his family (parents who were his predecessors in title), his visitors, licensees enjoyed full use of the access road without objection from the Defendant. Among other things, the Claimant's predecessors during their occupation built a two storey house transporting materials such as sand, gravel, cement blocks and galvanised sheets, along the road. Sometime between 2004 and 2006, together with his wife, he constructed a small wooden house, twelve by twenty feet with one bedroom, kitchen and living room. In and around the year 2007, he and his wife constructed a concrete house approximately twenty six by forty feet with two bedrooms, two toilet and bathrooms, living room and porch. The materials for this house such as blocks, cement, sand, gravel, steel, galvanized sheets, wood, windows and doors were purchased from various hardware stores in Penal and transported to the site with trucks from Seemungal Trace via the gravel road to their property.

5 The Claimant claimed T&TEC used the access road to install poles for supply to both his and the Defendant's properties without objection from the Defendant. His parents funeral procession in October 2008 and March 2021 passed from their home along the road to Seemungal trace. He has had truck borne water supplied by the relevant agencies, delivered through the use of the said road.

6 The Claimant claimed that for the first time on the 02 August, 2020 he was at his home when he saw an excavator on the gravel road close to the Defendant's lands. That he, his mother and wife walked out to the scene to see what was taking place and came across the Defendant who was complaining about the drainage being blocked from his lands and wanting to cut a channel across the gravel road from East to West which they used to get to and from their houses. The Claimant claims that they objected to that as it would have prevented them from getting to and from their houses. He claims that he called the Penal Police Station and paid the excavator driver TT$800.00 to open up the blocked drain. He claims that after this incident the Defendant raised no issue or complaint about their use of the gravel road until the 30 day of May, 2021.

7 Early on the morning of the 30 day of May 2021, the Claimant says he was at home when he heard the sound of machinery operating on the gravel road. When he looked out, he saw an excavator and a backhoe on the gravel road removing dug up material. He saw the Defendant directing the excavator driver to dig a long trench along the middle of the road. The rubble that was dug out from the gravel road was dumped in a drain between the Defendant's land and the river which is the same drain that he had paid the excavator monies to open back that was previously blocked. He claimed that during the destruction of the gravel road the Defendant's pickets were removed by the excavator. Further, that there was a lot of heavy rainfall that evening and the gravel road was filled with water causing him and his family to be stranded in their homes for approximately three weeks.

8 The Claimant detailed the serious hardship he suffered as a result of the destruction of the road. He was unable to go to work and lost income every day. He actually lost his job with the company because the company's truck was stranded at his home. He was unable to obtain groceries or supplies for his family, including an infant. That he was unable to attend medical appointments to treat his swollen blood vessel in his eyes. The trench in the gravel road prevented any vehicles from passing and it caused him and his family a significant deal of stress. He claims that people from the area had to get goods to him and his family and that he had to walk through the flooded gravel road to collect it. He felt embarrassed and humiliated.

9 On the 13 day of June, 2021 he was able to start working on reconstructing the destroyed gravel road so as to get to and from his lands. He had to purchase material such as gravel, backfill and pay for the transport of the material to be used to reconstruct the damaged gravel road and for a backhoe. On the 18 day of June, 2021 the Defendant parked his motor vehicle in the middle of the gravel road to prevent him from passing, forcing him to drive through a part of the gravel road that was still muddy and waterlogged. Following that event his family, himself and his visitors continued to use the gravel road to get to and from the subject parcel of land. He claimed he incurred special damage in the sum of TT$39,500.00, being monies spent to rebuild the road to make it passable.

10 The Claimant claimed that on the 12 February, 2022, he left home early to go to work around 5:50 am and the gravel road was clear. He claimed that when he got back home that evening he saw a tent on the corner of the Defendant's land by the gravel road. He saw the Defendant and workmen, rolls of chain link fence, load of gravel and cement and fence posts and boards. He also saw the workmen erecting fence posts and chain link wire fence on the posts on the Eastern side of the Defendant's lands and fence posts were placed on the Southern side of the Defendant's lands up to the gravel road. The workmen continued work for a few days and fence posts were erected on the Northern, Southern and Eastern side of the Defendant's lands and on the Western side of the gravel road. The Claimant feared that the Defendant was going to enclose the road to once again to prevent access to and from his lands. He filed these proceedings and obtained injunctive relief.

The Defendant's Case

11 The Defendant's case is that the Claimant at all times had access through the road reserve shown on all relevant plans, which separates their respective parcels. He claimed that the alleged gravel road was not a road built by the Claimant to afford access, rather it was a lagoon bank built by him in or about 1984 to facilitate his rice planting operations. He ceased residing on the lands in the year 1986 but visited regularly to look after crops he had there. Even after he stopped rice cultivation, the lagoon bank was maintained to prevent flooding and to protect other crops.

12 He claimed he never saw the Claimant, his visitors or anyone crossing on his lagoon bank. He did not object to T&TEC during the lagoon bank during the exercise to erect poles because he was unaware of their activities. He denied that the National Self-Help Committee and the Siparia Regional Corporation assisted in the construction of the alleged road. Indeed, he showed that the Self-Help Committee was not existing in the 1970's. He said that at the time of his purchase, the Claimant's parents and family “were observed to be using or passing across lands which belonged to Boodran located on their eastern boundary”. This is all he actually observed but he maintained that the road reserve on the Claimant's northern boundary, their designated and only access. There was no road leading from the Claimant's lands, running across from his and branching off into Seemungal Trace.

13 He said that on the few occasions when the Claimant or his family were seen on his lands, they were stopped by him and they immediately ceased their trespass. Any works carried out by an excavator he explained were for repairing and...