The Real Property Ordinance Chapter 27 No. 11 v Paul Gomes Bernard Vincent

• Jurisdiction: Trinidad & Tobago
• Judge: Mme Justice Karen Reid
• Judgment Date: 17 July 2023
• Neutral Citation: TT 2023 HC 230
• Docket Number: Claim No.: CV2018-04500
• Court: High Court (Trinidad and Tobago)

In the Matter of the Real Property Ordinance Chapter 27 No. 11

and

In the Matter of the Application of Robert Teemul and Daniel Teemul

Applicants/Claimants

and

Paul Gomes Bernard Vincent

Defendants

Before

The Honourable Mme Justice Karen Reid

Claim No.: CV2018-04500

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

Appearances:

Claimants: M. Khan instructed by K. Khan

First Defendant: S. Mohammed

Introduction

1 The Claimants in this claim seek a vesting order pursuant to Section 49 of the Real Property Act, Chap. 56:02 in respect of four parcels of land in Tabaquite, which they claim to have been rented by their parents in the 1930s from Texaco Employees Credit Union and Corporative Society and for which they ceased paying rent in the 1980s when the lands were acquired by the First Defendant's father. Thus, they maintain that the lands were acquired by adverse possession.

2 For his part, the first Defendant is the paper title owner of three (3) of the four (4) parcels of land and he is the Legal Personal Representative of the estate of his late mother, who is the paper title owner of the fourth parcel. He has intervened to resist the Claimant's application. The second Defendant, who occupies a portion of the lands, attended the proceedings in the early stages during case management, but did not file any application to intervene nor did he attend or take part in the trial of the claim.

Procedural History

3 By Fixed Date Claim Form filed on November 30, 2018 and amended on January 13, 2020 the Claimants sought an order that Lots 22, 23, 24 and 25 described in the Certificates of Title Volume 3397, Folios 301, 303, 305 and 307 and located on the southern side of the Guaracara Tabaquite Road, Tabaquite at L.P #84 be vested in their names together with an order that the Registrar General issue to the Claimants and register new Certificates of Title for an estate in fee simple in the said lands.

4 The Fixed Date Claim was supported by the first affidavit of the second Claimant filed on November 30, 2018 and the affidavits, both sworn to on November 21, 2018, of Hector Gomez and Peter Fraser both of whom were elderly men and long-standing neighbours of the Claimants and purport to be independent witnesses. The second affidavit of the second Claimant, filed on January 6, 2020, exhibited purported affidavits of Stanley Teemul sworn on December 9, 2019 and Celestine Teemul sworn on December 6, 2019. Stanley and Celestine are brothers of the Claimants, who each have houses constructed on the subject lands and who purport to consent to the Claimants' application to have the subject lands vested in the Claimants' names only.

5 On November 5, 2019 the Registrar General's Department filed an affidavit of Kelly Anne Ventour who prepared Reports on Title with respect to the subject lands which were annexed to said affidavit. The Reports on Title showed that Lots 22, 23 and 24 are registered in the name of the first Defendant and his mother, save for Lot 25, which was only registered in the name of the first Defendant's mother Ermine Gomes.

6 On September 10 2021, the first Defendant intervened by filing an affidavit objecting to the Claimants' claim.

7 On October 26, 2021 the Court ordered the Claimants to file a Statement of Case, which they filed on November 19, 2021. The first Defendant thereafter filed a Defence on January 24, 2022.

8 The second Defendant appeared in person at the Case Management Conferences on February 19, 2021 and July 16, 2021 and indicated his objection and that he was seeking to obtain Counsel to advance his interest in the portion of the subject lands upon which his house stands. However, he did not appear in the proceedings after July 16, 2021 nor did he file any documents intervening in the proceedings, attend or participate in any way at the trial of the claim.

9 A Field Investigator's Report was prepared by Radesh Jagdeo, Field Investigator at the Registrar General's Department on October 20, 2020 and is relied upon by the Claimants.

10 The Claimants both filed witness statements on August 11, 2022 and were cross-examined extensively at the trial on February 10, 2023. The Claimants also filed a Hearsay Notice in relation to the Field Investigator's Report and the affidavit evidence earlier filed by Peter Fraser and Hector Gomez; as both men had unfortunately passed by the time the matter came up for trial. Neither Stanley Teemul nor Celestine Teemul filed witness statements of gave evidence on behalf of the Claimants at trial and no reason was advanced as to why the brothers could not give evidence in support of the Claimants' claim.

11 The first Defendant filed his own witness statement on July 29, 2022 and was also cross-examined extensively at trial.

12 The parties thereafter filed written submissions and, in response to a request from the Court, the parties filed further written submissions.

The Claimants' Case

13 The Claimants' witness statements are largely in identical terms and state as follows:

• i. The first Claimant was born in 1956 and the second Claimant was born in 1947 and resided in Tabaquite from birth. They are two (2) of ten (10) children on Albertina and Lionel Teemul, who they claim have occupied the lands from the 1930s. The Claimants both state that the lands are identified as Lots 22, 23, 24 and 25 in Certificates of Title Volume 3397, Folios 301, 303, 305 and 307 respectively and rely on a survey plan dated April 14, 1989 filed with their claim and annexed to both witness statements which is reproduced in Figure 1 of the Appendix to this judgment. This survey plan was not prepared by either the Claimants or their predecessors in title. It was prepared on behalf of John Coldert Jones, the Defendant's predecessor in title, following his purchase of the larger parcel of land in/about 1981. John Coldert Jones commissioned the survey in furtherance of his subdivision of the larger parcel of land and it is this subdivision exercise which resulted in the various defined parcels of land coming into being.

• ii. Prior to this survey and subdivision in 1989, the Claimants claim that their parents occupied “ about an acre of land”, which was part of a larger parcel belonging to Texaco Employees Credit Union and Cooperative Society (“Texaco”). This land was tenanted by the Claimants' parents and they paid rent for their occupation of the same. Albertina obtained permission from Texaco to get a water connection to the lands and the Claimants adduced a water bill from the Water and Sewerage Authority for the period July 1 to 30 ^th September, 1988 in the names of Albertina Teemul and Texaco.

• iii. The Claimants and their siblings grew up on the subject lands and state that their parents cultivated both long-term and short-term crops and, with the assistance of the Claimants and their siblings, reared livestock and constructed chicken coups and pens for cattle and pigs. They further stated that they did not pay rent while occupying the lands and no one disturbed their use or occupation of the land.

• iv. The Claimants' mother died on June 25, 1992 and their father Lionel Teemul died on January 11 2002, leaving the Claimants and their eight (8) siblings surviving them.

• v. Following the deaths of their parents, the Claimants, along with two (2) of their brothers Celestine Teemul and Stanley Teemul continued to reside on the subject lands. There are two (2) flat concrete dwelling houses on the subject lands; one being the family home occupied by the first Claimant, who converted it into a concrete structure, and the other which was constructed by Celestine Teemul and is now occupied by Celestine's wife Jenny Jackman and their son Miguel Teemul with Celestine's permission. There is also a wooden dwelling house constructed and occupied by Stanley Teemul.

• vi. The Claimants permitted their cousin, the second Defendant, to construct a small dwelling house on Lot 22 in 2020. However, having regard to the Field Investigator's report and the first Claimant's own evidence in cross-examination, this evidence is patently untrue.

• vii. In 2011, the Claimants were informed that Lot 25 had been sold by Ermie Gomes to Arjoon Lalchan. However, when Arjoon Lalchan came onto the lands, the Claimants informed him that the lands belonged to them and in 2013 Arjoon Lalchan transferred the lands back to Ermie Gomes.

• viii. The first Claimant stated that he was never approached by the first Defendant or held any conversation with him regarding purchasing the subject lands in 2011 and the second Claimant mentioned no such conversation in his witness statement either.

14 In cross-examination, it was apparent to the court that much of the evidence of the Claimants was manifestly unreliable. In the first place, it was clear that neither Claimant knew or could identify which lands were being claimed and which lands were allegedly being occupied by them notwithstanding their reliance on the 1989 survey plan, which was neither prepared nor commissioned by them. In cross-examination, the second Claimant said the land was “ a square piece of land a little more than an acre”. However, a look at the survey plan the Claimants purport to rely upon shows clearly that the land they claim is certainly not square. The only way the land could be moderately square is if lot 25 is wholly excluded and only lots 22, 23, 24 and the road reserve between lots 22 and 23 are included. The first Claimant was adamant that his house was located on lot 25 even though his evidence was, that lot 25 was the lot that was sold to Arjoon Lalchan. Additionally, when asked to point out where his house was located on the plan he annexed as “R.T.3” to his witness statement, he identified an area on lot 18, which is not only wholly unconnected to the lands which he claims but which is quite far away from lot 25 – see Figure 2 in the Appendix to this judgment.

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