Moses v George
| Jurisdiction | Trinidad & Tobago |
| Judge | Charles, J. |
| Judgment Date | 24 June 2011 |
| Neutral Citation | TT 2011 HC 195 |
| Docket Number | Cv 4869 of 2008 |
| Court | High Court (Trinidad and Tobago) |
| Date | 24 June 2011 |
High Court
Charles, J.
Cv 4869 of 2008
For the claimant: Mr. Martin George
For the defendant: Ms. Deborah Moore-Miggins
Real Property - Possession — Whether there was a statutory tenancy or a bare licence — Adverse possession — Evidence of factual possession and intention to possess.
In or about the year 1930, Dorothy Moses (“the Deceased”), the claimant's mother, sold to Daisy McKenzie, a wooden structure situated on the land, that is the subject of these proceedings, as a private dwelling house; she was also granted a non-exclusive right to occupy the said land as a bare licensee. Thus, while in occupation Daisy McKenzie was never liable for payment of rent for the structure or the payment of land and building taxes in respect of the said land or the wooden structure.
In 1963, Daisy McKenzie died and the wooden structure was then occupied by her daughter, Erica McKenzie, who is now deceased, and subsequently, her granddaughters, one of whom is the defendant in these proceedings.
The Deceased offered to sell the land situate in the Parish of St. Andrew, in the Island Ward of Tobago comprising 675.6 sq. m. more or less and bounded on the North by lands of Martin Francis, on the South partly by lands of H. Bobb and partly by lands of Cudjoe, on the East by Lambeau Village Street and on the West by lands of Jerome Moses as shown and coloured pink in the Survey Plan dated 28th November, 2008 (“the disputed land”) to the defendant by letter dated the 18th December, 1997 but there was no response by the defendant.
The Deceased died on the 28th September, 1998 and the claimant was issued a Grant of Letters of Administration to her estate on the 7th April, 2000. The claimant then sent a letter to the defendant and her sister, Marietta Mitchell, on the 12th July, 2000 offering the disputed land for sale. The defendant responded via telephone that she was interested in purchasing the said land.
On the 8th November, 2000, the claimant's Attorney-at-Law wrote to the defendant purporting to close off negotiations between the parties for the sale of the said land for $40,000.00 as the agreed price. The defendant did not respond to this letter, nor did the claimant receive payment or any part of the agreed price.
On the 21st June, 2001, the claimant again wrote to the defendant and her sister making three proposals to them for the sale of the disputed land. The defendant's sister responded to this letter on the 9th July, 2001, indicating that she was no longer interested in purchasing since the defendant's son was residing on the disputed land. She further noted that all future communications should be sent directly to the defendant.
The claimant then sent a letter on the 26th July, 2001, to the defendant offering the same proposals to her as the letter of 21st June, 2001. This letter was never responded to or acted upon by the defendant.
Five years later on the 5th April, 2006, the defendant's Attorney-at-Law wrote to the claimant seeking to reopen negotiations for the purchase of the said land. The claimant responded by letter dated the 5th June, 2006 agreeing to reopen negotiations. This resulted in the claimant furnishing copies of requested documents to the defendant via letter on the 10th April, 2008 but received no response thereafter.
The claimant, having waited almost nine (9) months for a response from the defendant, contended that the defendant has effectively broken off or discontinued negotiations for the purchase of the said land and as a result filed a Fixed Date Claim form on the 15th December, 2008 seeking:
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i. A Declaration that the claimant in his capacity as the Legal Personal Representative for the Estate of Dorothy Moses, deceased, is the only person entitled to possession of the said land;
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ii. A Mandatory Order compelling the defendant to pull down and remove the mobile structure situated on the said lands and all other structural devices comprising part of the said building which has encroached and trespassed upon the said land;
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iii. An Order for possession directed against the defendant for the claimant to have possession of the entire parcel of the said land;
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iv. Damages for trespass to the said parcel of land; and,
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v. The defendant's occupation is not subject to any Statutory Restriction.
The defendant concedes that the Deceased sold to Daisy McKenzie the wooden structure on the said land, but denies that the disputed land was owned by the Deceased. The defendant argues that the original owner of the said land was Daisy McKenzie's mother, Susannah Jordan. Therefore, the defendant submitted further that Daisy McKenzie was never granted a non-exclusive right to occupy the disputed land by the Deceased; she occupied the disputed land as of right being the child of Susannah Jordan and remained there undisturbed until her death in or around 1963.
The defendant admitted that Daisy McKenzie never paid any rent for the said land but asserted that she did pay the land and building taxes from 1930 until her death in 1963. Thereafter, Erica McKenzie, her daughter, continued to pay said land and building taxes until 1972 when the Deceased transferred the said lot of the land to her son, Jerome Moses. No documentation was provided to the court in support of this claim.
Shortly after the transfer of the said lot of land, the Deceased sought to evict Erica McKenzie and the defendant's sister from the disputed land; however Erica McKenzie refused to acknowledge the title of the Deceased and refused to vacate. There were no further attempts at eviction until the Deceased's correspondence in or around 1997 offering the disputed land for sale.
Erica McKenzie was born on the said property in 1918 and lived on the said land in undisturbed possession until her death in 1997. The defendant and her sister were born on the property some fifty-eight (58) years ago and remained in possession for over forty (40) years. The disputed land is now...
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