Nazrun Ali v Nazimool Ghany
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Robin N. Mohammed |
| Judgment Date | 25 October 2023 |
| Neutral Citation | TT 2023 HC 332 |
| Docket Number | CV2015-02087 |
| Court | High Court (Trinidad and Tobago) |
The Honourable Mr. Justice Robin N. Mohammed
CV2015-02087
IN THE HIGH COURT OF JUSTICE
Mr. Rennie K. Gosine for the Claimant
Mrs. Mohanie Maharaj-Mohan for the Defendant
By Claim Form and Statement of Case filed on June 22 nd 2015, the Claimant commenced proceedings against the Defendant and sought the following reliefs:
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(i) An Order that the Claimant is the lawful Statutory Tenant of ALL THAT parcel of land comprising approximately 2 1/2 lots of land situated at No. 234 Sum Sum Hill, Claxton Bay, in the Island of Trinidad and bounded on the North by a river, on the South by Cedar Hill Road, on the East by the lands tenanted to Abdool Ghany and on the West by the lands tenanted to Zohora Ali and standing on tenanted lands of Caroni (1975) Limited under Tenancy No. 12 (hereinafter referred to as the “subject lands”).
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(ii) An Order that the Defendant has unlawfully entered and/or trespassed upon the northern portion of the subject lands. The area of encroachment measures approximately 81 feet in depth running in a north to south direction by 55 feet in width (hereinafter referred to as the “area of encroachment”) and is depicted in the sketch marked “E” and annexed to the Statement of Case.
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(iii) An Order compelling the Defendant to remove the galvanize fence wall encompassing the area of encroachment.
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(iv) An Order prohibiting and/or restraining the Defendant from entering and/or encroaching upon the subject lands.
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(v) Damages for trespass.
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(vi) Any further and/or other relief as this Honourable Court may deem just.
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(vii) Costs.
In response thereto, the Defendant on October 30 th 2015 filed a Defence and Counterclaim, amended on May 2 nd 2016. He contended that the Claim Form and Statement of Case disclosed no reasonable cause of action and further that he had been in occupation of the area of encroachment for over thirty-five (35) years ago and built a concrete and steel shed thereon. Accordingly, the Defendant counterclaimed for possession of the area of encroachment.
The Claimant filed a Defence to the Counterclaim on May 19 th 2016 wherein she denied the existence and construction of a concrete shed by the Defendant and argued that the area of encroachment is covered in bush. In support of this argument, she exhibited a sketch of the lands.
Thereafter, the Claimant filed an application to join the Commissioner of State Lands in the action to assess the location of the said parcel of land in relation to the existence of the alleged trespass. This application was however withdrawn on June 28 th 2016. However, leave was granted by Pemberton J (as she then was, the judge to whom this matter was docketed at that time), to serve the Commissioner of State Lands with these proceedings within twenty-eight (28) days of the date of her order.
Additionally, the parties sent a joint letter to Caroni (1975) Limited to ascertain the nature and, more particularly, location of the subject lands. By letter dated June 27 th 2017, the parties received the following response from Caroni 1975 Limited:
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(i) Tenancy No. 39/12/004 is in the name of Noordin Ali. The size of the tenanted parcel in accordance with our Master Register of records is 6,500 square feet.
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(ii) Tenancy No. 39/12/005 is in the name of Nazmool/Afrose Ali. The size of the tenanted parcel in accordance with our Master Register of records is 13,000 square feet.
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(iii) Please note we are not in a position to confirm whether the lots are side by side. We however can confirm that these tenancies fall under the Security of Tenure Act 1981 as of June 2006.
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(iv) In addition we are not in a position to confirm whether the parcels have been surveyed since these tenancies files are lodged at the Office of the Commissioner of State Lands.
On January 19 th 2018, the parties filed witness statements. The Claimant filed a witness statement in her own behalf and one for Mr. Wade Ali. In respect of the Defendant's case, witness statements were filed for the Defendant, Alimool Ghany, Suzanne Ghany, Sandra Rampersad, Curtis John and Ryan Mohammed.
On May 28 th 2018 the Defendant filed the subject Notice of Application supported by the affidavit of Milinda Mohan, seeking the following reliefs:
By this application, the Defendant contends that the Claimant's claim is prejudicial to him since the location of parcel of land owned by the Claimant is unknown as outlined by Caroni 1955 Limited and as such it is unclear whether the Defendant trespassed on it. Nevertheless, he further contended that he has been in occupation of the lands for more than forty years and the Claimant has failed by her pleadings to establish actual possession of the land.
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1. An Order pursuant to Part 15(2) of the Civil Proceedings Rules 1998 as amended that this Honourable Court grant summary judgment as the Statement of Case and Claim Form filed on 22nd day of June 2015 has no realistic prospect of success on the Claim.
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2. That this Honourable Court exercises its jurisdiction pursuant to Part 15.6(1) and (2) of the Civil Proceedings Rules 1998.
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3. Or in the alternative that the Statement of Case and Claim form filed on the 22 nd day of June 2015 be struck out under Part 26.2 Civil Proceedings Rules 1998 as amended as there is no documentary supporting evidence of the reliefs sought by the Claimant.
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4. Any further orders that this Honourable Court may deem fit in the circumstances.
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5. That the Claimant bear all costs including the costs of this application.
The Defendant filed written submissions on the application on July 5th 2018, and the Claimant filed a reply on August 8 th 2018.
The Claimant was the wife of Nazmool Ali (the deceased) who died on January 16 th 2012. It is the Claimant's position that the deceased was a Statutory Tenant of the subject lands and prior to his demise, he was in occupation of the subject lands for more than 50 years.
By Deed of Assent No. DE201400824213 dated March 16 th 2013 the Claimant obtained the tenancy rights with respect to the subject lands.
The Claimant asserts that the Defendant occupied ALL THAT parcel of land comprising approximately 13,000 square feet and bounded on the North by a river, on the South by Cedar Hill Road, on the East by lands occupied by Mohammed and on the West by the subject lands.
She contends that in or about April 8 th 2013, the Defendant by himself, his servant/or agent, entered upon the subject lands without her permission and caused an area of the subject lands to be cut and cleared (the area of encroachment). This area of encroachment is situated on the northern-most portion of the subject lands and measures approximately 81 feet in depth running in a north to south direction by 55 feet in width. In depicting the description of the subject lands, the Defendant's lands and the area of encroachment, the Claimant attached a handwritten sketch of the area.
Thereafter, in or around April 16 th 2013, the Defendant whether by himself, his servant/or agent entered upon the subject lands and caused a fence wall comprising fence posts and galvanize sheets to be built encompassing the area of encroachment.
The Claimant avers that despite making requests to the Defendant to desist from trespassing on the subject lands and remove the fence wall he has refused and failed to give any substantive response to her Pre-Action letter.
It is the Defendant's pleaded case that the Claimant's Statement of Case discloses no reasonable cause of action.
He denied the deceased was in possession of the extent of lands described as the subject lands. He contended that the deceased was a tenant of a smaller portion and that about forty years ago there existed a river running on the subject lands. The river was later filled up and diverted to another position. On the excess parcel of land (the area of encroachment) he constructed his concrete and steel shed on one part and on the other part he cultivated short crops such as cassava, peas and corn together with fig and plantain trees for some thirty-five years or more.
The Defendant further contended that on the western end of the subject lands he constructed a galvanise fence which still exists to date as well as the fig and plantain trees. He argues that he, together with his deceased father, Abdool Ghany, have been in undisturbed occupation of the area of encroachment without permission of the Claimant for the period of 35 years. He also denied the Claimant was ever in occupation of the two and half (2 1/2) lots as claimed. In support of his claim, he attached photographs depicting the fence on the western side of the land and the fig and plantain trees thereon and named several persons he intended to call as witnesses at the trial to confirm their awareness of the claimed cultivation for more than thirty-five years.
The Defendant advanced that in or around February 2013, the Claimant began bringing loads of overburden on the area of encroachment. This caused him to place a barricade to avoid any further trespass to the lands of which he had been in undisturbed occupation.
Accordingly, the Defendant counterclaims for possession of the area of encroachment on the basis of adverse possession in accordance with section 3 of the Real Property Limitation Ordinance as he contends that he has been in undisturbed possession of the alleged encroached area well in excess of sixteen (16) years.
In response to the Defendant's counterclaim, the Claimant admitted that there was a river running across the...
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