Re Shyroon Mohammed
| Jurisdiction | Trinidad & Tobago |
| Judge | Deyalsingh J. |
| Judgment Date | 29 May 1981 |
| Neutral Citation | TT 1981 HC 49 |
| Docket Number | No. 1128 of 1980 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 May 1981 |
High Court
Deyalsingh, J.
No. 1128 of 1980
Mr. K. Hudson Phillips S.C. and Mr. S. John for Applicant.
Miss A. Tiwarie for Respondents.
Constitutional Law - Fundamental rights and freedoms — Right to enjoyment of property and not to be deprived thereof except by due process of law.
This is an Originating Motion under Sec. 14 of the Constitution of the Republic of Trinidad and Tobago of 1976 for inter alia:
(1) A declaration that the destruction on the 14th December, 1979 by servants and/or agents of the State of a wooden house owned by the applicant and standing at Dalloo Road, Happy Hill, Gasparillo, constituted a contravention in relation to the applicant of her right to the enjoyment of property and the right not to be deprived thereof except by due process of law.
(2) A declaration that the demolition of the aforesaid property by servants and/or agents of the State without the order of the court is unconstitutional and the violation of the aforesaid rights of the applicant.
The following affidavits were filed:
(1) affidavits of the applicant sworn to on the 27th March, 1980 and 24th April, 1980 in support of the Motion.
(2) affidavit of Zenora Mohammed sworn to on the 27th March, 1980 in support of the Motion.
(3) affidavit of Randolph Joseph sworn to on the 6th May, 1980 in opposition to the Motion.
(4) affidavit of Kenneth Largen sworn to on the 6th May 1980 in opposition to the Motion.
(5) affidavit of Ramkrishnan Segulam sworn to on the 6th May, 1980 in opposition to the Motion.
There was no cross-examination on the affidavits and the court must, if it can, resolve any issue of facts on the affidavits as they stand.
The case for the applicant is as follows: Sometime in or around February, 1977 she erected a wooden dwelling house on State Lands at Dalloo Road, Gasparillo and took up residence in the said house with her daughter and son. She says that one Leon harles told her that he was in occupation of the land and gave her permission to erect the dwelling house thereon. She was subsequently served with three notices between the period Junes 1978 to November, 1979 by the Commissioner of State Lands, to vacate the said lands. She did not comply with the notices. On the 14th December, 1979, an officer of the State Lands Department, one Ramkrishnan Segulam, accompanied by a party of uniformed officers of the Defence Force and the Police Service and a Demolition Unit of the State Lands Department went to Dalloo Road. The Police and Defence Force Officers surrounded the dwelling house and the Demolition Squad demolished it. Some of the galvanize sheets and other personal effects of the applicant were damaged.
The respondents admit the demolition of the said dwelling house. They contend that the dwelling house was unlawfully erected on State lands in about June 1978, that several notices were given to the applicant to vacate the said lands failing which the said house was demolished. They deny that the applicant's galvanize or other personal effects were damaged.
The facts generally are not in issue. It is quite clear that the applicant was a trespasser an State Lands, that she was given notice to vacate, that she failed to vacate within the time given to do so and that the State, acting through the State Lands Department, demolished the applicant's dwelling house.
Matters of conflict arising on the affidavits are:
(i) When did the applicant erect the dwelling house.
(ii) Was the dwelling house a moveable building resting an wooden round posts standing on the ground (as the applicant says) or was it a wooden house standing on wooden pillars embedded in the earth (as the respondents say). The legal issue here is whether the building was a chattel or a fixture.
(iii) Was the galvanize and other personal effects of the applicant damaged during the demolition of the said house.
As indicated earlier there was no cross-examination on the affidavits. I cannot without more, resolve the primary facts and therefore make no finding of fact on these issues.
Counsel for the applicant made three submissions viz. (i) the dwelling house was a chattel in law. (ii) The State's servants were guilty of forcible entry under the Forcible Entry Acts. (iii) The respondents were in breach of the State Lands Ordinance Ch.27 No. 5, sec. 21 which provides for the removal of squatters from State Lands Lands by an order of the magistrate. Counsel submitted that the effect of these submissions if resolved in the applicant's favour, amounted to a violation of the applicant's right to the enjoyment of property and her right not to be deprived thereof except by due process of law under sec.4(a) of the Constitution.
Although as indicated, the court is unable to determine the primary facts aforesaid, I consider that I have sufficient evidence to determine whether the house was or was not a chattel and whether there has been a breach of the Statutes of Forcible Entry, for these are matters of inference from admitted facts. The third submission is one of law. As these matters have been argued at same length before me, I shall determine them although I do not think that it matters in the final analysis.
The house would clearly be a chattel if it was standing on wooden posts which rested an the ground as the applicant contends. I will however, assume that it was standing on wooden posts which were embedded in the ground as the respondents say. What is the position in law? Prima facie it is a fixture. In Baptiste v Supersad & Montrose (1968) 12 W.I.R. p. 140, the plaintiff's house “stood on wooden pillars let into the ground.” That was a case of landlord and tenant and Wooding C.J. held that the house was a fixture………and I agree with him. In considering whether a building is a chattel or fixture the court has to consider inter alia not only the degree of annexation but the object of the annexation. It is a question which must depend on the circumstances of each case as the courts have frequently held. In Mitchell v. Cowie (1964–65) 7 W.I.R. 118 C.A. the question was reviewed. Wooding C.J. at p. 121 outlined six principles which I accept as the law relating to “chattel houses.” He said: “From this statement of the common law, which by enactment is deemed to be in force in Trinidad and Tobago, the applicable principles may in my judgment be summarised thus:
1.1. A house may be a chattel or a fixture depending upon whether it was intended to form part of the land on which it stands. But the intention is to be determined objectively rather than subjectively, that is to say, according to the circumstances as they appear and by the application of rules such as are set out hereunder.
2. To distinguish chattel from fixture, a primary consideration is whether or not the house is affixed to the land.
3. If the house is not affixed to the land but simply rests by its own weight thereon, it will generally be held to be a chattel unless it be made to appear from the relevant facts and circumstances that it was intended to form part of the land, the onus for so doing being upon him who alleges that it is not a chattel.
4. If the house is affixed to the land, be it however slightly, it will generally be held to form part of the land unless it be made to appear from the relevant facts and circumstances that it was intended to be or continue as a chattel, the onus for so doing being upon him who alleges that it is a chattel.
5. Specifically as regards a house affixed to land by a tenant thereof, a circumstances of primary importance is the object or purpose of the annexation.
6. To ascertain the object or purpose of the annexation, regard must be had to whether the affixation of the house to the land is temporary and for use as a chattel or is permanent and intended to be for the better enjoyment of the land. But for this purpose it must at all times be borne in mind that the intention or right of the tenant to remove the house from the land on the cesser of his interest as tenant with the result that no improvement will accrue to the landlord's reversionary interest does not make the affixation (albeit that it is in one sense) temporary. The critical consideration, therefore, is whether the tenant in affixing his house to the land has manifested a purpose to attach it thereto so that it becomes and remains a part thereof coterminously with his interest as tenants.” (Emphasis mine)
In this case the applicant was a squatter on State lands. She knew she was a squatter and she must have known that she could be directed to quit the lands in which case she would have to take her house and go. The affixation of her house to the land must therefore, have been temporary and for use as a chattel building. It could not have been permanent or for the better enjoyment of the land since she had no rights at all in the land. Considering all the circumstances, and particularly the object of the annexation, I hold that the house was a chattel in law. It follows that the general rule expressed in maxim “quicquid plantatur solo, solo cedit' does not apply.
Issue (2): Did the action of the State's servants constitute a forcible entry?
Two questions immediately come to mind:– What is a forcible entry and can there be a forcible entry by an owner of lands against a squatter? Both Counsels accept the position that the English Statutes of Forcible Entry apply locally and I proceed on this basis. The present state of the law as to what constitutes forcible entry can be summarised thus: a person having a right to the possession of land must not affect his entry with force, otherwise he will render himself liable under the Statutes of Forcible Entry, the first of which provides “that none shall make entry into any lands and...
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