Robert Gormandy v Trinidad and Tobago Housing Development Corporation

• Jurisdiction: Trinidad & Tobago
• Judge: G. Lucky JA,V. Kokaram JA,P. Rajkumar JA
• Judgment Date: 20 July 2020
• Neutral Citation: TT 2020 CA 35
• Date: 20 July 2020
• Docket Number: Civil Appeal No. S-375 of 2018 Claim No. CV2017-01145 Claim No. CV2017-01152
• Court: Court of Appeal (Trinidad and Tobago)

IN THE COURT OF APPEAL

Panel:

P. Rajkumar JA

G. Lucky JA

V. Kokaram JA

Civil Appeal No. S-375 of 2018

Civil Appeal No. P-376 of 2018

Claim No. CV2017-01145

Claim No. CV2017-01152

Between

Robert Gormandy

Shaun Sammy

Appellants/Claimants

and

Trinidad and Tobago Housing Development Corporation

Respondent/Defendant

Robert Gormandy

Shaun Sammy

Junior Sammy Contractors Limited

Appellants/Defendants

and

Trinidad and Tobago Housing Development Corporation

Respondent/Claimant

Appearances:

Mr. Ramesh Lawrence Maharaj SC leads Mr. Ronnie Bissessar, Mr. Alvin Ramroop, Ms. Vijaya Maharaj instructed by Ms. Varin Gopaul-Gosine, Attorneys at Law for the Appellants.

Mrs. Deborah Peake SC leads Mr. Ravi Heffes-Doone instructed by Mr. Andre Rudder, Attorneys at Law for the Respondent.

I have read the judgment of Kokaram JA and I agree.

Peter Rajkumar

Justice of Appeal

I too agree.

Gillian Lucky

Justice of Appeal

TABLE OF CONTENTS

	Page No.
Introduction	4
Part A Background and Context	9
Core Facts	9
The “4.6 Acre Parcel”	16
The Decision of the Trial Judge	21
The Grounds of Appeal	25
The Approach on Reviewing Findings of Fact	26
Part B Principles of Adverse Possession—Rotational Farming	32
Adverse Possession, History and the Rule of Law	33
• Onus of Proof	35
• The Acts of Possession	36
• Identifying the boundaries	37
• “Possession of Part is Possession of the Whole”	38
Part C Analysis of the Issues on this Appeal	47
C(I)—The Pleading Issue	48
C(II)—The Judicial Notice Issue	54
C(III)—Findings of Fact/Material Evidence	63
• Gormandy Cultivated 4.6 Acres- A False Premise	64
• The “Occupational Survey”- A Well-Defined Area?	67
• The Use of Photogrammetry	71
• Possession of Part is Possession of the Whole?	76
• Defined Boundaries	78
• Status of G2	81
Other Considerations	83
The Ministry's Letter	83
Cultivation as a Hobby	84
Failing to Conduct a Site Visit	85
Overall Assessment of the Evidence	86
Creative Relief- Bridging the Gap	87
Sammy's Agreement	89
Conclusion	90

“Land therefore has something of a sacred character and rights over land are more jealously treasured than any other form of rights.”-C.K. Meek 1

1 Many disputes concerning land in this territory are intractable and hard fought. Similarly, in this dispute, the parties have jealously treasured their rights to ownership of land. For the Respondent, the Trinidad and Tobago Housing Development Corporation (HDC), they guard their legal title to their land. For the Appellants, Robert Gormandy (Gormandy), and Shaun Sammy (Sammy) they strongly assert their claim to that land by the doctrine of adverse possession pursuant to sections 3 and 22 of the Real Property Limitation Act Chapter 56:03. The battle of competing rights in the Court below and in this appeal has been keenly contested.

2 Gormandy claims to have tilled the soil of approximately 3 acres of land since the 1980s which land is now earmarked for a housing development for members of the public by its owners, the HDC. Over the years while the HDC left the land fallow, Gormandy seized an opportunity. He began cultivating the land. He became a farmer. He said he established boundaries by planting trees 2. He claims he rotated the cultivation of traditional short crops. He claims he invested a considerable period of his life in that soil even though he knew he did not own it. Sammy took the risk of purchasing the majority of this land from Gormandy without any paper title. Sammy levelled the land, destroyed any boundary trees alleged to have been planted and removed any sign of Gormandy's cultivation. After the dust settled, when all tell-tale signs of agricultural occupation had vanished and historical boundaries destroyed, the Appellants' commissioned

survey revealed the land to comprise not 3 acres but 1.8662 hectares, approximately 4.6 acres of land (the “4.6 acre parcel”) 3. Much like William Cowper's “marooned islander” 4, the Appellants have claimed, as “monarchs of all that they survey” 5, the entire 4.6 acre parcel as occupiers by adverse possession. While HDC ran the risk that by their inactivity over the years they may lose their title to 4.6 acres of valuable land, Gormandy and Sammy must also accept that if they are unable to establish sufficient historical acts of occupation and user to this 4.6 acre parcel, Gormandy's energy for all these years and Sammy's investment, on the faith of Gormandy's representation, will all be for nothing

3 The law in this jurisdiction in proving adverse possession is well settled. JA Pye (Oxford) Ltd and another v Graham and another [2003] 1 AC 419 places the markers on an examination of factual possession and an intention to possess. Factual possession can exist in a variety of circumstances. In this case there are two competing values which are inherent in the concept of adverse possession as it arises on this appeal. The value of the productive use of land by farming against the value placed on one's investment and ownership of it. To the extent that the limitation period of 16 years prescribed by our legislation prevents the owner from reclaiming possession of land where there has been continuous usage with the requisite intention to possess by another person in possession, the law recognises the greater attachment to the land as the one who made the better use of the land. The owner simply has missed its chance to reaffirm its own attachment to the land. This idea of an intimate attachment to land is indeed a familiar concept for the Caribbean which emerged from largely agricultural societies.

4 There is no dispute that in this case Gormandy intended to possess the land which he made use of for his own purpose of cultivation. The main issue to be determined, though not the only one, is whether he did make use of the entire 4.6 acre parcel: Can Gormandy establish his association with 4.6 acres of land for 16 years through his acts of usage to extinguish HDC's title by virtue of sections 3 and 22 of the Real Property Limitation Act Chapter 56:03? The linchpin of this claim to possession therefore rests on the shoulders of Gormandy to identify clearly his historical acts of possession.

5 One of the main features of this appeal is the alleged use of this land by “rotational farming” described by Gormandy as cultivating small plots of the entire 4.6 acre parcel at different periods of time while other areas remained uncultivated 6. In assessing the activities of Gormandy over the years on this parcel there are some evidential principles in adverse possession claims which may seem to pull in different directions: That the occupier must be able to prove with exactitude the extent of his boundaries; that the occupier need only give a general description of the area of his occupation and that even if an occupier cannot prove continuous usage of an entire parcel, acts of possession on one part of an area of land may be treated as constituting possession of the whole. While these evidential principles may seem to be inconsistent, the exercise of demonstrating possession of an area of land is extremely fact sensitive. While some authorities may have culled an evidential rule that possession of one part of an area of land can constitute possession of the whole, it is subject to the weight to be given to the evidence of the nature of the land and the acts of occupation. Several variables are to be considered in assessing the character and nature of acts of occupation, such is the nature of the wide and varied circumstances in which possessory claims can arise.

Variables such as topography for instance 7 will impact upon a finding whether cultivation on one area can be evidence of adverse possession of a larger area. In this fact sensitive exercise Courts should take a practical view of possession. However, taking a practical approach to adverse possession claims gives no licence to jettison the discipline of subjecting these claims to a critical analysis to justify the serious matter of the extinguishment of the title of the legal owner

6 The very short point in this appeal is whether the trial judge was correct to conclude, as he did, that Gormandy failed to demonstrate on the evidence a continuous usage of a defined and ascertainable 4.6 acre parcel for the requisite period to amount to adverse possession.

7 The trial judge in a careful and detailed analysis of the evidence accepted that Gormandy was a bona fide farmer and that he was engaged in cultivation in the general area in Couva next to the HDC housing scheme and within the 4.6 acre parcel which was subsequently surveyed by the Appellants. The trial judge in identifying the main issue as the exact size of this area of cultivation, was not satisfied that Gormandy was able to prove that he was in control and possession of the 4.6 acre parcel or any identifiable smaller parcel of land even taking into account his history of usage of the land in rotational farming. In arriving at that conclusion, he found aspects of Gormandy's evidence too incredible; the expert's evidence unhelpful to support Gormandy's claims; the evidence of the Appellants' witnesses insufficient to establish length or the extent of occupation and the evidence of Sammy suspect with respect to his purchase of the 4.6 acre parcel from Gormandy and knowledge of the extent of Gormandy's cultivation.

8 Gormandy and Sammy contend principally that the trial judge adopted the wrong approach in analysing the evidence of actual possession and that the trial judge's findings of fact are against the weight of his evidence. They have raised the following main issues:

• a) The Pleading Issue: Whether the trial judge fell in error in making a...