Roodal Rampersad v Deosaran Dwarka
| Jurisdiction | Trinidad & Tobago |
| Judge | Bereaux J.A. |
| Judgment Date | 31 January 2020 |
| Neutral Citation | TT 2020 CA 3 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Docket Number | Civil Appeal No. S077 of 2015 Claim No. CV2006-02985 |
| Date | 31 January 2020 |
IN THE COURT OF APPEAL
N. Bereaux J.A.
C. Pemberton J.A.
A. Des Vignes J.A.
Civil Appeal No. S077 of 2015
Civil Appeal No. S079 of 2015
Claim No. CV2006-02985
(In his personal capacity and as the Legal Personal Representative of Balroop Dwarka, deceased)
Mr. N. Harrikissoon instructed by Mr. A. Ramlal Attorneys-at-law for the Appellant
Mr. S. Saunders instructed by Ms. N. Maharaj Attorneys-at-law for the Respondents
Delivered by Bereaux J.A.
(1) The issue in this appeal is whether, pursuant to sections 3, 9 and 22 of the Real Property Limitation Act Chap 56:03 (the Act), the respondents, by their occupation, for sixteen years or more, have extinguished the appellant's paper title in certain lands situated at Cunupia, Central Trinidad. The trial judge, in agreement with the respondents, held that they had. There is also the question as to whether the appellant has properly pleaded his title. The judge ruled that he hadn't. The respondents have cross-appealed with regard to the judge's refusal to grant a declaration that they were statutory tenants under the Land Tenants (Security of Tenure) Act.
(2) The respondents are occupants of residential lots and agricultural land for which the appellant had paper title. The lands were tenanted by their father Balroop Dwarka (Balroop), from the appellant's predecessor, one Madoo. It was a yearly tenancy. There was no formal lease. No rent has been paid since 1970. Balroop died on 20 th March, 1983. The appellant ultimately succeeded Madoo as owner of the lands. The lands were supposed to have been purchased for him by his sister Baby Rampersad (Baby) with moneys he provided. She did purchase the lands but registered title in her name. The appellant then brought an action to obtain title to the lands. That action, HCA 1370 of 1980 and the appeal Civil Appeal No. 135 of 1996, took nineteen years to be completed during which time the respondents continued their exclusive occupation while paying no rent.
(3) This raises the issue whether the appellant's action to obtain title to the lands from Baby stopped time running in favour of the respondents until that action was determined.
(4)
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(i) The appellant's pleading at paragraph 1 of the statement of case is sufficient to constitute a pleading of his title to the land. The trial judge was wrong to hold that he had not pleaded title.
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(ii) The appellant's action in 1980 against Baby to recover possession stopped time running against him. By then nine years had already accrued (1971–1980). A further nine years elapsed before he took action against the respondents in 2005 (1996 – 2005). By that time more than sixteen years had elapsed (2003) and his action was statute-barred. The appeal must be dismissed.
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(iii) The judge found that the respondents were in adverse possession of three residential lots and two and a half acres of agricultural land. Those were findings of fact which she was entitled to find on the evidence. In light of those findings, there was no necessity for her to rule on the respondents' claim that they were statutory tenants. The cross appeal must be dismissed.
(5) In or about the year 1971, the appellant returned to Trinidad from the United Kingdom for a four week visit. He made arrangements with Charbhan Madoo the eldest son of the deceased Madoo to purchase from him the parcel of land which is the subject of this dispute. (He also arranged to purchase other parcels but those parcels are not relevant to these proceedings.) The parcel contained several tenants one of whom was Balroop. Before his return to the United Kingdom, the appellant arranged to have the property purchased on his behalf by Baby. He returned to the United Kingdom and forwarded monies to Baby to facilitate the purchase.
(6) Upon returning to Trinidad in the late 1970's the appellant discovered that Baby had purchased the parcel of land in her name in August 1971. She refused to convey the property to him. She contended that all of the monies that he had forwarded to her were gifts to assist with her living expenses. The appellant instituted legal proceedings, HCA No. 1370 of 1980 against Baby for, inter alia, a declaration that she held the parcel in trust for him.
(7) On 19 th July, 1996 (sixteen years later) Warner J (as she then was) gave judgment for the appellant holding, inter alia, that the sixteen acre parcel of land was held on trust for him by Baby absolutely. Baby's appeal was dismissed on 27 th October, 1999. All of the original tenants of the parcel had by this time vacated same except for Balroop's children (the respondents) as well as Dipchan and his family.
(8) The appellant alleged that during those court proceedings he visited Balroop, who was ill, on approximately five occasions. The appellant said that Balroop at “all times … rented only two lots of land of the said parcel, one for a house spot and the other lot for gardening purposes. Whilst speaking to him I told him that I had purchased the said parcel including the two lots of which he was occupying. I also informed him that I had a problem in relation to same as my sister was also claiming the land in the High Court Proceedings I had instituted but that I was optimistic that I would eventually be successful.”
(9) He added that “I personally lived only a quarter of a mile away from the said parcel and during the court proceedings I used to visit the said lands approximately three to four times a week in order to monitor the said parcel pending the determination of the matter.”
(10) Both the appellant and his sister unsuccessfully tried to collect rent from the respondents. In 1999, the appellant attempted to assert his ownership by placing notices on the land. The respondents removed the notices. In 2000, the appellant attempted to spray the land. The respondents drove him off.
(11) The appellant went to inform the respondents that because Baby's appeal had been dismissed he was unquestionably the legal owner of the land that they were living on. The first respondent refused to acknowledge him as the owner and demanded proof of his right to ownership of the parcel.
(12) Thereafter the parties exchanged several letters, the appellant asserting his title to the lands and the respondents requesting copies of title documents as proof of ownership.
(13) The appellant commenced these proceedings on 9 th May, 2005. He was not yet formally registered as owner and was only so registered in 2006. He sought, inter alia, possession of “two lots of land and the other portions of land currently occupied by the Defendants comprising approximately six acres more or less being portion of that … parcel of land comprising Sixteen Acres and Fifteen Perches” as well as injunctive relief. Although he speaks of the respondents being in possession of six acres, in his witness statement he alleges that parts of the six acres were vacant. This evidence is supported by the witness statement of Prabudial Dipchan at paragraphs 8 to 11.
(14) In their defence the respondents stated that they had been living on three lots of land rented from Madoo and that they had always been willing and able to pay rent to anyone producing proof of ownership of the subject lands. In their counterclaim, the respondents sought, inter alia, a declaration that the tenancy of the building land is protected under the terms of the Land Tenants (Security of Tenure) Act.
The respondents asserted that they had been in adverse possession of an area of land used for agricultural purposes and were the statutory tenants of a smaller residential plot. The remedy sought by the counterclaim was quite imprecise. They sought a declaration that the title, “if any, of anyone to the agricultural land has been extinguished under the terms of the Real Property Limitation Ordinance”. The actual acreage was not set out but at paragraph 17 of the Defence, which was adopted by the counterclaim, the respondents spoke of occupying three lots of “tenanted lands” and “2 1/2 acres of agricultural lands”.
(15) While she does not expressly say it in her judgment, the judge considered the evidence of the appellant and rejected it. He had made a number of allegations about encroachment by the respondents. The judge noted that Balroop occupied four lots of land one of which he gave to Dipchan. She found that the respondents had been in continuous, undisturbed possession for more than thirty years. After the rent was last paid in 1970, Balroop asserted ownership of the land by building a concrete structure, and expanding it. It was completed over a period of three years and was extended in 1988 and 1994. Balroop also farmed and reared cattle on the two and a half acre parcel. After his death in 1983 his sons continued use of the land. The respondents asserted their ownership by refusing to pay rent, by removing the notice placed on the premises and by forcefully expelling the appellant from the land when he attempted to spray in 2000. The continuous, undisturbed occupation of the land by Balroop and his descendants operated to extinguish the title of the paper-title holder, Baby Rampersad.
(16) The judge also held that the appellant failed to plead at the outset that he was entitled to the land. He could not plead this at the start of the proceedings because, in 2005, he was not the registered owner of the land. After becoming the registered owner in 2006, the appellant did not attempt to amend the statement of case to plead his entitlement to the land. Without an amendment to the pleading, any evidence of the appellant's entitlement would be inadmissible. The...
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