Smith v Benjamin; Smith v Benjamin and Baptiste

• Jurisdiction: Trinidad & Tobago
• Judge: Mendonca, J.A.
• Judgment Date: 21 May 2009
• Neutral Citation: TT 2009 CA 24
• Docket Number: Civil Appeal No. 67 of 2007
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 21 May 2009

Court of Appeal

Mendonca, J.A.; Weekes, J.A.; Jamadar, J.A.

Civil Appeal No. 67 of 2007

Smith

and

Benjamin

Smith

and

Benjamin and Baptiste

Appearances:

Mr. Y. Ahmed for the appellant.

Mr. G. Raphael for David Benjamin.

Mr. A. Mc Kell for Patrina Benjamin and Kenneth Baptiste.

Real property - Extinguishment of title — Adverse possession — Judge ruling appellant's title to lands extinguished by respondent's possession for over 16 years — Limitation Act, s.3 — Conditions regarding limitation period and right of entry of distress — Respondents’ occupation adverse to interest of appellant — Factual possession for required period proved — Appeal dismissed.

Mendonca, J.A.

1 These are two (2) appeals by Grace Latmore Smith (the appellant) from the judgment of Jones, J. whereby she held that the title of the appellant to lands on Lopinot Road, Arouca was extinguished by virtue of section 22 of the Real Property Limitation Act (the Limitation Act).

2 It was not in dispute that the appellant was at all material times the paper title owner of the lands. The lands, which comprised approximately 2 roods and 36 perches, were previously owned by Ormand Hazel and were conveyed in 1974 to the appellant in fee simple by Augusta Hazel the legal personal representative of Ormand Hazel then deceased. The respondents at the trial however successfully contended that the appellant's right to enter the lands or to bring an action for their recovery was barred by section 3 of the Limitation Act as they or the persons through whom they claimed have been in possession of the lands for upwards of sixteen (16) years.

3 It seems to be common ground that the area of the appellant's land is equivalent to approximately six (6) lots. Four (4) of these lots were occupied by David Benjamin, the respondent to one of the appeals, one lot by Kenneth Baptiste and Patrina Benjamin, the respondents in the other Appeal, and the other lot by Joan Singh and Leroy Francois (hereafter together referred to as Joan and Leroy). Their occupation of the appellant's lands gave rise to two (2) actions which were before the trial judge. They were both tried together. One action was by David Benjamin against the appellant. In that action Mr. Benjamin claimed several heads of relief including a declaration that he is the owner of and entitled to possession of the portion of the lands occupied by him, an injunction restraining the appellant from entering and remaining in possession of the portion of the lands, an order for possession of the lands and damages for trespass. The appellant counterclaimed in that action for possession of the lands occupied by David Benjamin. The other action was commenced by the appellant against the other two respondents, Patrina Baptiste and Kenneth Benjamin, as well as Joan and Leroy. The action was discontinued against Joan and Leroy before the trial, but nevertheless, as will appear later in this judgment, their occupation of the lands is relevant as Patrina Benjamin and Kenneth Baptiste have claimed through them. In that action the appellant claimed possession of the portion of the lands occupied by Patrina Baptiste and Kenneth Benjamin. They counterclaimed for a declaration that the portion of the lands occupied by them are rightly in their possession and a further declaration that the appellant's title to the said portion in their occupation has been extinguished.

4 According to the evidence of David Benjamin he entered into the appellant's lands in 1965. This was with the permission of one Caroline Cumberbatch who authorized him to construct a dwelling house on the lands to house himself and his family. In that year he constructed his home on 1 ¹/₂ lots of the lands. He further stated that in 1968 he began to pay an annual rent to Ms. Cumberbatch. Although he occupied the entirety of the appellant's lands comprising approximately six (6) lots, Ms. Cumberbatch issued receipts for the rent paid by him which stated that rent was paid for one (1) lot of land. He continued to pay rent to Ms. Cumberbatch in 1968 until she died in 1981. In 1982 he paid rent to Ms. Cumberbatch's daughter. That was the last payment of rent.

5 It is not in dispute that Ms. Cumberbatch had no title to the lands.

6 Mr. Benjamin further stated that in the year 1976 the appellant visited him on the land. The appellant told him that she was the owner of the lands and requested that he pay rent to her. He however told her that he could not do that to Ms. Cumberbatch as she had put him on the lands and that she should take Ms. Cumberbatch to Court if she knew that the lands belonged to her. He further told the appellant that if she had any document of title that she should let him see it but she never produced any such document.

7 In 1977 the appellant through her attorneys wrote to both Ms. Cumberbatch and Mr. Benjamin. In the letter to Ms. Cumberbatch, the attorneys stated:

“We act for Mrs Grace Smith, the owner of property comprising 2 Roods and 36 Perches situate at Lopinot Road, Arouca which she purchased from one Augusta Hazel by deed, registered as number 11782 of 1974.

On visiting the land, our client noticed David Benjamin occupying the same and on enquiring, she ascertained that the said David Benjamin was wrongfully renting the property from you.

We have informed Mr. Benjamin that our client is the true owner of the property in question, but, he refused to pay the rent to our client because he considers you to be his landlady.

We should be grateful, in the circumstances, if you would inform Mr. Benjamin that he should now pay rent to our client.

We would point out, that, if you insist on accepting rent from Mr. Benjamin, our client intends to take such legal proceedings against you and/or Mr. Benjamin as she may be advised.

Unless we have a favourable reply to this letter by the 20t instant, we shall proceed as instructed by our client.”

8 The letter to Mr. Benjamin threatened legal proceedings to eject him from the lands. It also contained a without prejudice offer to the effect that the appellant was prepared to appoint Mr. Benjamin as a caretaker of the lands and to allow him to plant and reap crops thereon provided that he pay to her the sum of $5.00 per annum presumably as rent or a licence fee.

9 The letters however went unanswered and Mr. Benjamin continued in occupation of the lands. He cultivated the lands planting various short crops and fruit trees including corn, peas, tomatoes, peppers, bananas, plum trees, mango trees and chennet trees.

10 In or about 1980 Adolphus Francois, the brother of Ms. Cumberbatch, put Leroy Francois in possession of two (2) lots of the original six (6) lots of land occupied by Mr. Benjamin. Leroy Francois entered into possession of the lands with his wife Joan Singh. In 2002 Patrina Benjamin, who is the daughter of David Benjamin, and her common-law husband, Kenneth Benjamin, went to live on a portion of the lands occupied by Joan and Leroy.

11 Mr. Benjamin stated that after 1980 he continued in possession of the remaining four (4) lots and continued to cultivate them as before.

12 In 1984, according Mr. Benjamin the defendant commenced High Court proceedings to recover possession of the parcel of land occupied by him but the proceedings were dismissed. The appellant took no further steps to recover possession until 2005 when her servant or agent entered upon the lands occupied by Mr. Benjamin and broke down part of his house. He started to repair the house but in 2006 the appellant's agents broke down the entire house and apparently excluded him from the lands.

14 As a consequence David Benjamin began proceedings against the appellant seeking the relief as mentioned earlier in this judgment in relation to the four (4) lots he claimed to have occupied since 1965.

15 Kenneth Baptiste's evidence of the circumstances surrounding his occupation of the lands supported that of David Benjamin. He stated that Patrina Benjamin is his common-law wife. Joan Singh is his sister and is married to Leroy Francois. In 2002 he and his wife were given permission by Leroy Francois to build a dwelling house on a portion of the lands occupied by Joan and Leroy. He stated that he knew Joan and Leroy to have been living on the lands for over twenty (20) years. They in fact informed him that they have been in occupation of the lands since 1980 when Adolphus Francois gave them permission to occupy the lands.

16 Kenneth Baptiste further stated that prior to his occupation of the lands they were maintained, cleared and planted by Joan and Leroy. He explained in his witness statement that:

“Even prior to our occupation of the portion of the lands occupied by Joan and Leroy, the land was always maintained by them, cleared and also planted. The portion of the land that both families occupied is of a very steep gradient and to the best of my knowledge the entire parcel of land in dispute is assessed as agricultural land. From ever since I have known Joan and Leroy to be in occupation of the land it has been cleared from the top which is bordered by the public road known as Lopinot Road right down to the bottom to within 15 feet of the river which is reserved to the State. They have also planted garden crops on the lands which they occupy.”

17 Kenneth Benjamin also stated that in the time of their occupation that he and his wife have continued to keep the land clear and plant short crops on it including pimientos, and pineapples, and they have also planted a few coconut trees.

18 The case for the appellant was that David Benjamin commenced his occupation of the lands sometime in the 1970s. He occupied only one (1) lot and built a house on it. Joan and Leroy also occupied one (1) lot and began their occupation of it in the 1980s. In 2002 Patrina Benjamin and Kenneth Baptiste began occupying the portion of the lands and built a house on it....