Re Rattan, Balgobin
| Jurisdiction | Trinidad & Tobago |
| Judge | Ventour, J. |
| Judgment Date | 28 July 2010 |
| Neutral Citation | TT 2010 HC 216 |
| Docket Number | HCA No. 960 of 2004; CV No. 146 of 2005 |
| Court | High Court (Trinidad and Tobago) |
| Date | 28 July 2010 |
High Court
Ventour, J.
HCA No. 960 of 2004; CV No. 146 of 2005
Mr. Sagar instructed by Mr. Harracksingh for the applicant.
Mr. Kampta for the Interveners.
Real property - Adverse possession — Whether mere possession is enough for a person to acquire title to land — Adverse possession is a necessary requirement for a vesting order under the Real Property Ordinance and the Real Property Limitation Ordinance — Applicant was never in exclusive possession of the subject lands — Applicant could not show possession of the subject land for the statutory required period of 16 years — Applicant's summons dismissed.
There is a large piece of land at the corner of Bejucal Road and the Uriah Butler Highway in Charlieville, Chaguanas measuring 6 Acres 2 Roods and 20 Perches (hereinafter referred to as “the larger parcel of land”). Pursuant to Memorandum of Transfer No. 114 dated 2nd November, 1938 one Kowlaseah transferred his interest therein to Dabie, Mahabir and Soomaria in fee simple as joint tenants. The said parcel of land is described in Certificate of Title registered in Volume 4287 Folio 349.
Those lands were surveyed and sub-divided into two portions in the year 2002 on the instructions of Mr. Balgobin Rattan, the applicant herein. The sub-division plans were approved by the Director of Surveys on the 26th day of September, 2002. The portion to the West marked “A” now measures 1.0874 hectares and the portion to the East marked “B” measures 1.0873 hectares. It is the portion to the East which is the subject matter before this Court.
By an Originating Summons filed on the 8th day of April, 2004, the applicant seeks an Order of this Court:
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(i) Vesting in the applicant, Balgobin Rattan ALL and SINGULAR that piece or parcel of land described in the Schedule below for an estate in fee simple.
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(ii) Directing the Registrar General to cancel the existing Certificate of Title and to issue to the said Balgobin Rattan a new Certificate of Title with respect to the said parcel of land for an estate in fee simple.
In the Schedule referred to in (i) above the applicant described the parcel of land as the portion marked ‘B’ referred to in the approved survey plan (hereinafter referred to as “the subject lands”).
The application of the applicant is made pursuant to sec. 49 of the Real Property Ordinance, Chapter 27 No.11 (the Ordinance). Sec. 49 states:
“A person who claims that he has acquired title by possession of land under the provisions of the ordinance may apply by Summons for an order vesting the land in him for an estate in fee simple or other estate claimed. The summons shall be served on every person appearing in the Register Book to have any estate or interest in the land or in any encumbrance notified on the grant or certificate of title thereto or such of them as can be found.” Emphasis added.
In support of the Application three (3) affidavits were filed. The first of which was sworn by the applicant's brother one Bridgemohan Rattan by virtue of a Power of Attorney registered as No. 17710 of 2000 and filed on the 8th day of April, 2004. The second affidavit filed on the 24th day of February, 2005 in which the applicant sought to exhibit several affidavits sworn and filed by other witnesses in other proceedings before the Court. There were objections to the use of both affidavits on the ground of admissibility. I shall address that issue later in this judgment. The final affidavit by the applicant was filed on the 25th day of February, 2005.
The affidavits in support of the Application were filed pursuant to sec. 50 of the Ordinance. Sec. 50 states:
“Every such summons shall be supported by one or more affidavits deposing to the facts and matters referred to in Form E of the First Schedule.”
On the 11th day of June, 2004 Ramnath Bally Mahabir and his father Gaindu Mahabir Dabie of LP No.51, Ackalloo Trace, Charlieville sought leave of the Court by affidavit to intervene in the proceedings pursuant to sec. 54 of the Ordinance. Sec. 54 of the Ordinance states:
“A person claiming any estate or interest in the land in respect of which any such application is made may before the granting thereof intervene by entering an appearance to the proceedings and filing an affidavit setting out the particulars of his claim.”
I understand the effect of this section is to empower the Court to consider any evidence adduced by the Intervener in order to determine whether or not to grant to the applicant the relief sought in the Summons and/or to determine whether the Intervener has properly made out a claim for any interest or estate in the subject lands. However the burden is on the applicant to satisfy this Court on a balance of probability that he has, on the evidence, acquired a possessory title to the subject lands in accordance with the provisions of the Ordinance.
Does the law require the applicant to prove to the Court that his possession has been adverse to that of the paper title holder for the prescribed period or is the applicant to merely demonstrate that though not entitled, he is in actual possession and the person who is entitled to be in possession is not? Counsel for the applicant has asked the Court to adopt the latter position. He argues that sec. 49 of the Ordinance uses the word “possession” and that no reference has been made to the phrase “adverse possession” in the relevant provisions.
Counsel for the Intervener disagrees. He contends that though not expressly provided for in the Ordinance, the concept is impliedly incorporated into the section of the Ordinance.
It seems to me that the apparent confusion surfaced as a result of the decision of Chief Justice Wooding in the well known case of Richardson v. Lawrence (1966) 10 W.I.R. 234 where at pages 237-238 the Honourable Chief Justice said:
“Hence, so long as there has been a want of actual possession by the person who might be entitled to it and an actual possession, whether adverse in the old sense or not, on the part of somebody who would not really be entitled to it, and that actual possession continues for the prescribed period, possessory title is acquired under the statute. That was made clear in Smith v. Lloyd (1854) 9 Exch. at page 572 where Parke, B, said:
“The statute applies not to want of actual possession by the plaintiff, but to cases where he has been out of, and another in, possession for the prescribed time. There must be both absence of possession by the person who has the right, and actual possession whether adverse or not, to be protected to bring the case within the statute.”
I understand Chief Justice Wooding to be saying that adverse possession is not a necessary requirement for someone to acquire possessory title to land. In other words title to the land could be acquired by a person who, though not entitled to it, is in possession for the prescribed period while the person who is entitled to it, is not in actual possession. It is my contention that when Chief Justice Wooding used the phrase “adverse possession”, he was referring to the old notions of adverse possession which were part of the common law before the passing of the English Act of 1833.
However, the Privy Council expressed a different view in the case of Goomti Ramnarace v. Harry-Persad Latchman (2001) 59 W.I.R. 511. At page 515 of the Judgment Lord Millett said:
“Neither the Ordinance nor the 1833 Act contains any reference to the concept of adverse possession which became enshrined in the English statute by s. 10(1) of the Limitation Act 1939, but this was no more than a statutory enactment of the case law on the earlier English Limitation Acts (see Moses v. Lovegrove [1952] 2 Q.B. 533 at 539, per Sir Raymond Evershed, M.R.). In these circumstances, their Lordships do not doubt that the concept is incorporated into the Ordinance also.”
It has been said elsewhere that where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than as owner (that is with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Put another way the physical control or possession must be accompanied by the animus possidendi (the intention of excluding the owner as well as all other persons) to satisfy the concept of adverse possession. Proof that the animus possidendi was a necessary requirement for the finding of adverse possession was also accepted by the Privy Council in the case of Sati Bissessar v. Ganase Lail [2004] U.K.P.C. 48.
Sharma, J.A. entertained no doubt in the case of Alphat Mohammed v. A G, Civil Appeal No. 47 of 1994 that the word “possession” used by the Legislature in sec. 49 of the Ordinance was intended to mean adverse possession. At page 4 of his judgment the learned Justice of Appeal said:
“There is no doubt that ‘possession’ under the Real Property Limitation Ordinance, which deals with the extinguishment of the owner's legal title, and possession by an occupier under the Real Property Ordinance must be “adverse possession” in order to obtain a vesting order. Much of modern law, dealing with possessory title and the statute of limitation can be traced back to the Roman Law concept of usucapio (acquisition of ownership by long possession).”
Referring to the decision of Chief Justice Wooding in the Richardson v. Lawrence (supra) case, Chief Justice de la Bastide held a similar view. At page 3 of his judgment (Alphat Mohammed v. AG) the Chief Justice said:
“This judgment gave rise to doubts as to whether adverse possession was a concept which was introduced into the Law of England by the Limitation Act of 1939 and which therefore had no place in our law of prescription. Any such...
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