Ramnath v Pandohie et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Lucky, J. |
| Judgment Date | 27 November 1998 |
| Neutral Citation | TT 1998 HC 169 |
| Docket Number | No. S2291 of 1987 |
| Court | High Court (Trinidad and Tobago) |
| Date | 27 November 1998 |
High Court
Lucky, J.
No. S2291 of 1987
Mr. Devinadra Rampersad instructed by Mr. Anand Ramlogan for the Plaintiff
Dr. Charles Seepersad for the Defendants
Real property - Title to land — Adverse possession — Application by plaintiff for order to have defendants remove their effects from the land and injunction against entering or remaining on the land — Whether plaintiff entitled to undisturbed possession of the land in question — Whether defendants entitled to possession — Whether the plaintiff has trespassed — Whether defendant had trespassed — Finding by court that the plaintiff did not acquire the land in question by adverse possession as he claimed. No animus possedendi had been established by the plaintiff. The defendant was entitled to possession and the plaintiff was proved to have trespassed. No damages have however been proved.
The plaintiff seeks an order that the defendants remove all bricks, galvanised sheets, steel rods, piles of wood and other materials from the plaintiff's land; an injunction restraining the defendants from entering or remaining on the plaintiff's land; damages for trespass; such other reliefs and costs.
The land in question comprises, approximately, 6ft in width on the western boundary and 3ft in width an the northern boundary of the defendants' land.
A chronology of events will be helpful:
- ) By deed No. 8788 of 1921 a parcel of land comprising 15,000 sq. ft. was conveyed to one Manuel Vasconcellos. 2) By deed No. 771 of 1928 Vasconcellos sold 10,000 sq. ft, of the lands to the plaintiff, his mother and brother.
The plaintiff testified that Vasconcellos' parcel was demarcated by a galvanised fence. The defendant testified that he was not even born at that time but before he bought the land Vasconcellos showed him the boundaries. The boundary pickets were not within the galvanise fence which was partially dilapidated.
3) The defendants purchased 5,000 sq. ft. of land from Vasconcellos in 1970. One Mr. Jardine carried out a survey in 1985 and defined the boundaries.
Prior to the Jardine survey, one Haynes carried out a survey for the defendants and found that they were occupying 4,166 sq. ft. and not 5,000 sq. ft. purportedly sold to them by Vasconcellos.
The dispute is with respect to the difference of $34 sq. ft. which is the total footage of an area 3ft wide slang the northern boundary and 3ft. wide along the western boundary.
The plaintiff sets out in his statement of claim that he and his predecessors in title have been in continuous occupation of a parcel of land since 1921 when same was purchased. The purchased lands were part of a parcel of land comprising 15,000 sq. ft. and are described, in the deed of conveyance (no. 8788/21) as lands comprising 20,000 sq. ft. But, he says, the actual amount of land occupied from 1921 is 10,834 sq. 1t.
The defendants are the adjoining neighbours of a piece of land (which incidentally also formed part of the larger part of 15,000 sq. ft) During the period 1982 to 1983 the defendants broke down a galvanised fence which demarcated the western and northern boundary of the plaintiffs lands and occupied an area in the plaintiff's lands — 3ft. along the northern boundary and 6ft. along the western boundary.
The defendants placed building materials on the occupied of pieces of land, trespassed and continue to trespass on the said lands.
The defendants plead that in 1970 they purchased 5,000 sq ft of land from one Vasconcellos (the person who originally owned the 15,000 sq. ft, parcel and had sold 20,000 sq. ft, to the plaintiff and his predecessors). The land was surveyed in 1985 by one Mr. Jardine and surveyors' irons demarking the 5,000 sq ft were placed. The defendants allege that the plaintiff has on their lands and counterclaim damages for trespass.
The pleadings disclose the following issues:
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(1) (a) Whether the plaintiff has been in undisturbed possession of the land in question;
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(b) if so, is he entitled to possession of the lands;
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(c) if he is the owner, then have the defendants trespassed,
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(2) (a) If the plaintiff has not established adverse possession then is the defendants' title to the full 5,000 sq. ft. which he purchased in 1970 established;
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(b) if this is so then is the plaintiff a trespasser?
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The plaintiff testified that in 1928 by deed no. 771 of 1928 his brother Charles Edward Dolly, Sadar Sookal, an infant of fifteen years, and Chanderdat (the plaintiff aged nine years and his mother Sawkallia purchased a parcel of land as joint tenants from one Vasconcellos. The land comprised 10,000 sq. ft. and was part of a larger parcel comprising 15,000 sq. ft. On the parcel Vasconcellos retained there was a shop. That parcel is bounded by the Chaguanas Main Road on the south, Cacandee Road on the east and on the north and west by the parcel the plaintiff and his family had purchased i.e. the 10,000 sq. ft.
The plaintiff Ramnath says:
“The shop was barred around with a galvanised fence. The fence ran on two sides on the north of my land, the land is a triangle.” …
(The plaintiff is 78, in 1928 he would have been 8 years old.) He said did he planted crops on the land in question. While Vasconcellos occupied the land he never came across to the plaintiffs land.
In 1984 Pandohie, the first defendant, broke down the fence and occupied the lands in question Sawkalfia, Charles and Sadar Sooklar are deceased. The plaintiff is the sole survivor.
When cross-examined on the issue of adverse possession he said:
“Vasconcellos had the land surveyed. I was a small boy when the survey was done. I got the figures from that survey.
The defendant occupies 2 ft. on the northern side and, 6 ft on the western side. I did not measure it the surveyor did. I don't know his name.”.
In the light of the above evidence, which does not include any plan, the plaintiff's description of what he occupied is vague. He continues:
“I am entitled to 10,000 sq. ft The letter from Mr. Lutchmedial (the defendant's lawyer) said Pandohie is only occupying 4, 166 sq ft so I assumed the 834 sq ft is my land.”.
This apparently is the plaintiff's first real knowledge of the area of land he was claiming. He said:
“I discovered as I was growing older that we had more land than 10,000 sq. It. I discovered haw much more when I got Mr. Lutchmedial's letter. The deed of 1928 only gave us 10,000 sq. it “… I believed but did not know we were occupying more than 10,000 sq. ft. I got to know in 1984, I never had a survey done because the land was barred around.”.
The plaintiff does not say upon what evidence he based his discovery, he continues:
“In 1928 I did not intend to take lands from Vasconcellos.”.
He said Yaseancellos placed the fence around the shop but there is no evidence that it was intended to be a boundary.
The defendant's witness Godfrey Jardine, a licensed land surveyor testified that at the defendant's request he surveyed the defendant's parcel of land in October 1984. He used the plan which was attached to the “parent” deed of the defendant's deed of 1970, which recites that he purchased 5,000 sq. ft. of land. Using evidence that was on the ground, i.e. surveyor's pickets and irons, he demarcated boundaries and produced a plan. On the northern boundary of Ramnath's land he saw a fence which seemed to be a fence separating Raamnath from his neighbour. But he says:
“I can't recall if there was a fence to the north of Pandohie's land. It is a surveyor's practice to represent a fence by a broken line with dots in between. There is no such line in the plan on the north of Pandohie's land. If there was a fence I would have put a broken line on the plan.”.
It seems to me that there is no real evidence of any fence on the northern boundary of the defendants' land or on the western boundary. The plan reflects this fact.
During cross-examination Mr. Jardine said the following, which I also find helpful. Having been referred to the Haynes survey plan he said:
“There were no lines on that plan indicating a fence. It there was evidence that Terrence Ramnath had occupied about 6ft in width of land on the western boundary I would have shown it on my plan. If trees formed part of the survey I would have shown it.”.
This contradicts Ramnath's evidence that he had mango, coconut, zabocca and soursop trees there. Mr. Jardine is a licensed surveyor and an independent and expert witness. He said as far as he knew there was no contention over the boundary: “while the survey was being done if there was contention over trees and land I would have shown it on my plan”.
I find that Mr. Jardine was fair to both sides. He was cogent, articulate and confident. I accept his evidence as the truth.
The defendant, Pandohie, testified that his wife, the second defendant has since died. In 1970 he purchased 5,000 sq. ft: from Vasconcellos who shored him the boundaries. Ramnath was present (Ramnath denied that). Mr. Haynes carried out a survey in 1979. On the north there was a broken pailing.
Haynes found the area to be 4166 sq. ft. Haynes did not return although he was asked. The plaintiff then asked Mr. Jardine to carry out the survey. He said Ramnath planted mango, cherry and sapodilla trees after the house was built. Pandohie told him he was planting trees on his property.
Mr. Haynes conducted the survey in 1979. Although he purchased the land in 1970 he did not have sufficient funds to hire a surveyor at that time. Apparently, Haynes used the galvanise fence as the boundary.
He admitted that unfit 1981 he was occupying less than 5,000 sq ft, but was not happy about it. Vasconcellos showed him the boundary outside the...
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