Phillip v Fletcher and Every Other Person in Occupation of No.1 Oropuche Road in the Ward of Siparia
| Jurisdiction | Trinidad & Tobago |
| Judge | Mohammed, J. |
| Judgment Date | 17 January 2017 |
| Neutral Citation | TT 2017 HC 4 |
| Docket Number | CV2015-01289 |
| Court | High Court (Trinidad and Tobago) |
| Date | 17 January 2017 |
High Court
Mohammed, J.
CV2015-01289
Mr. Darrel Allahar instructed by Mr. Kern Saney Attorneys at Law for the claimant.
Ms. Asha Watkins-Montserin and Ms. Jacqueline Chang holds for Mr. Keith Scotland Attorneys at Law for the defendants.
Property law - Application for leave to appeal — Whether leave should be granted — Possession of property — Stay of execution of the order pending the determination of the appeal — Adverse possession — Whether the requirements for adverse possession were satisfied — Whether the defence had a realistic prospect of success — Whether the divorce proceedings bestowed any proprietary interest in the property on the defendant — Section 38 (2) of the Supreme Court of the Judicature Act — Sections 3 and 22 of the Real Property of Limitation Act.
On the 18th October 2016 (“the instant application”) the defendant applied for permission to appeal the order made by this Court on the 11th October 2016 (“the said order”) whereby judgment was granted to the claimant against the defendant for vacant possession of the property situated at No. 1 Oropuche Road, Siparia (“the property”) and for the defendant to pay the claimant's costs in the sum of $14,000.00. A stay of execution of 42 days was also granted. By amended notice of application filed on the 6th December 2016 (“the amended notice of application”) the defendant also sought an order for a stay of execution of the said order pending the hearing and determination of the appeal. The defendant sought costs of the instant application.
The affidavit of Margaret Fletcher which was filed in support of the instant application almost verbatim repeated the grounds which were:
“a. The learned judge erred in granting the relief sought at paragraph 1 of the Fixed Date Claim filed on 22nd April 2015, by the respondent/claimant.
b. The learned judge erred in finding that in 2011, the applicant's ex-husband Curt Fletcher was still in occupation/possession of the subject property as evidenced by the Magistrate Court Protection Order made by consent on 22nd November 2011.
c. The learned judge erred in finding that the applicant/respondent admitted by virtue of letter dated 2nd March 2011, that ex-husband Curt Fletcher was still in occupation/possession of the subject property in 2011.
d. The learned judge erred in finding that the applicant/defendant admitted by virtue of her affidavit filed in matrimonial proceedings case reference no. SM224 of 2008 that her ex-husband Curt Fletcher was in possession/occupation of the subject property in 2011, and as such has not crossed the hurdle of undisturbed possession and control of the subject property for the period she has claimed.
e. The learned judge erred in finding that based on the applicant/respondent's affidavit evidence she did not discharge her duty that she has been in continuous undisturbed possession for the period that she has claimed.
f. The learned judge erred in that she proceeded to give her judgment when the applicant's/defendant's attorney-at-law had not yet completed her oral submissions in reply to the respondent's/claimant's oral submissions.
g. The learned judge erred in failing to hear the remainder of the applicant's/defendant's oral submissions in reply which said reply was pertinent and necessary particularly with respect to the aforementioned factual issues raised by the respondent/claimant and which the learned judge considered when she determined the matter and gave judgment against the applicant/defendant.
h. The learned judge erred in law and was plainly wrong in the exercise of her discretion in determining the matter on the merits at the pleadings stage thus depriving the appellant/defendant of the opportunity to lead relevant and probative evidence in her behalf which exercise of discretion has resulted in a substantial miscarriage of justice. And/or the learned judge erred in law when arriving at the conclusion and/or exercising a discretion in determining that this was a matter that ought properly to be determined summarily.
i. The learned judge erred in dealing with the matter summarily without having proper regard to the several disputed facts which touched and concerned the issues raised by the applicant/defendant and which ought properly to be dealt with at a trial of the matter.
j. The learned judge erred in dealing with the matter summarily when there were issues of law to be determined namely whether (a) letter dated March 2011 (exhibited CF 5 to the affidavit of Curt Fletcher); (b) affidavit filed by the applicant/defendant in case reference No. SM-224 of 2008 and (c) Magistrate Court Protection Order made by consent on 22nd November 2011, were tantamount to an admission by the applicant/defendant that she was not in undisturbed possession and/or occupation of the subject property in 2011.
k. The learned judge erred in law in granting the order for possession as she failed to consider the applicant's/defendant's interest in the building standing upon the subject property which she was awarded by the learned judge in matrimonial proceedings case reference No. SM-224 of 2008 and which she deposed to making financial and other contributions towards since 1986 to date.
l. Based on the foregoing the applicant/defendant has a reasonable prospect of success.”
The additional grounds in the amended notice of application in support of the request for the stay of execution were:
“m. For the applicant to satisfy the order would render the appeal nugatory.
n. If the stay of execution is not granted, the applicant and her family would suffer real prejudice as they would become displaced. The applicant would be required to vacate her home which she presently resides in with her daughter and granddaughter and which she has resided in and considered her home for the last 30 years. Additionally, at present she has no other alternative accommodation where she can relocate to.
o. The respondent will suffer no real prejudice as he is not and has not been in occupation of the property including the structure standing thereupon since 1997, nor through his claim has he asserted any immediate and/or urgent request or need to obtain possession and/or occupation of same.”
To place the instant application in context it is necessary that I briefly set out the background to the said order. At the hearing of the substantive matter on the 11th October 2016 the documents which were before the Court were the Fixed Date Claim Form filed on the 22nd April 2015, the affidavit of Teresa Phillip filed on the 22nd April 2015, the affidavit of the Sampson Phillip filed on the 22nd April 2015, the Defence filed on the 25th June 2015, the affidavit of Margaret Fletcher filed on the 5th May 2016 (“the Margaret Fletcher affidavit”), the affidavit of Sampson Phillip filed on the 1st June 2016, the affidavit Theresa Phillip filed on the 1st June 2016 and the affidavit of Curt Fletcher filed on the 6th June 2016 (“the Curt Fletcher affidavit”).
Based on the documents before me at the hearing of the substantive matter I understood the defendant's Defence to be one of adverse possession and that in the alternative she asserted an interest in the house based on an order in the divorce proceeding SM 224 of 2008 between the defendant and her ex-husband Curt Fletcher.
According to sections 3 and 22 of the Real Property of Limitation Act, Chapter 56:03 the paper title owner is prevented from the right to recover lands either by action or entry within 16 years from the time when the right to bring the action or make an entry first accrued. After the expiration of the said limitation period of 16 years if the paper title owner has not brought an action or made an entry for the recovery of the land his right and title to the land shall be...
To continue reading
Request your trial