Wendy Persad v Dolly Ramcharitar
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr Justice Kevin Ramcharan |
| Judgment Date | 15 December 2017 |
| Neutral Citation | TT 2017 HC 387 |
| Court | High Court (Trinidad and Tobago) |
| Docket Number | Claim No. CV2015-04292 |
| Date | 15 December 2017 |
IN THE HIGH COURT OF JUSTICE
PORT OF SPAIN
Before the Honourable Mr Justice Kevin Ramcharan
Claim No. CV2015-04292
Mr. Gerard Rahael instructed by Ms. Lana Chunilal for the Claimant
Ms. Camilla Jankie instructed by Mr. Samuel Saunders for the Defendant
Real Property — Title — Possession — Animus possidendi — Damages — Whether title of defendant property claimed was extinguished by adverse possession of claimant and his predecessors — Whether claimant was successor in title — Whether damages ought to be awarded for demolition of house — Limitation of Real Property Act, ss. 3 and 22.
By Claim Form and Statement of Case filed on December 17, 2015, the Claimant claimed against the defendants the following relief:
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a. Damages including aggravated damages for Trespass.
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b. An injunction restraining the Defendant whether by herself her servants and/or agents from entering on or remaining on ALL AND SINGULAR that single storey concrete dwelling house situate at #4 Hugh Street, Montrose, in the Borough of Chaguanas, in the Island of Trinidad comprising approximately 900 square feet of floor area standing on concrete pillars with three bedrooms living/dining room, kitchen, toilet/bathroom and an open side garage together with the tenancy rights thereto on one lot of land bounded on the North by lands of Rattansingh on the South by lands of Sammy on the East by Hugh Street and on the West by Constance street (“the said property”).
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c. An injunction restraining the Defendant whether by herself her servants and/or agents from evicting or attempting to evict the Claimant from the said property.
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d. An order ordering the Defendant to return one heavy duty washing machine, one gould water pump and one water heater, two thousand gallons water tanks to the Claimants or their value.
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e. Costs.
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f. Further and or other relief.
In her Statement of Claim, she claimed that her parents had been given permission to build on the premises in 1956 by her maternal grandparents, and that in 1972, a concrete structure was built. By deed registered No 1427 of 2000, the Claimant and her parents became owners of the said structure as joint tenants. It was averred that the grandparents had promised to transfer the land to the Claimant's parents. The Claimant's mother Molly Baksh died on August 31, 2008 while her father, Unoos Baksh died on June 30, 2015.
The Claimant further averred that the she built an annex to the structure at the cost of some $110,000.00, and since the death of her father was renting the house out to a family.
The Claimant avers that the Defendant, who is the Claimant's maternal aunt, claims ownership through Deed registered as 10150 of 1960. It is averred that the Claimant's maternal grandmother filed a writ of summons in 1970 challenging that Deed, but that the action was never pursued. She avers that on diverse occasions since 1990, the Defendant had been trying to get the Claimant's parents and the Claimant to vacate the premises, through letters from Attorneys at Law, to which her father, and then she had instructed Attorneys at Law to respond.
She alleges that on or about the December 5, 2015, the Defendant through her servant, a licenced bailiff evicted the Claimant's tenants from the premises, despite the Claimant showing the bailiff her Deed for the dwelling house. She further avers that sometime later the Defendant on the December 6, 2015, the Defendant caused her heavy duty washer, a Gould Water Pump, a water heater and 2 thousand gallon water tanks from the premises. That same day, the Claimant observed that the house was demolished.
In her Defence and Counterclaim, the Defendant avers firstly that the Deed number 1427 of 2000 did not transfer any rights in the lands to the Claimant or her parents. She also alleges that the description of the land is wrong as the lot on which the house stood is bounded by the Defendant's land and not Constance Street.
She claims that she became owner of the premises together with her children by virtue of Deed number 10510 of 1967. She denies that the Claimant's parents built the house, but rather, states that she built the house and allowed the Claimant's parents to live there as her licencees. She further alleges that when she wrote in 1990, she allowed her sister to remain on the premises with her family out of compassion. She admits that the Claimant's tenants were evicted by her agent, but denies sanctioning the breaking down of the house, and avers that she is unaware as to who demolished it.
She denies that the Claimant's parents were her tenants, but avers that if they were, they were tenants under the Land Tenants (Security of Tenure) Act Chapter 59:54, and therefore, (a) the purported assignment to the themselves and the Claimant was in breach of the Act and (b) this made them only entitled to a Statutory Lease which expired in 2011.
The Defendant counterclaimed for
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a. A declaration that the Claimant's Statutory Lease expired on the May 31, 2011.
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b. An order that the Claimant deliver up possession of the said property.
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c. An injunction restraining the Claimant from entering upon and/or remaining upon the said property.
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d. Further and/or other reliefs
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e. Costs.
In light of the Defence, the Claimant filed an Amended Statement of Case averring that there was never any tenancy arrangement between the Claimant's parents and the Defendant, or the Claimant's maternal grandparents. In response, the Defendant in her amended Defence pleaded that the Claimant could not plead a position that was contrary to the Deed on which she was relying. The Claimant filed a Reply to the Defence and Counterclaim essentially repeating the contents of the Amended Statement of Case and denying that the Defendant was entitled to the relief sought. The Claimant also averred that if the Defendant her children were owners of the land, their title was extinguished by the continuous possession of the Claimant and her predecessors in title.
The Claimant gave evidence on her own behalf and also relied on the evidence of Ganga Persad Kissoon, who gave expert evidence as a valuation surveyor, to give an estimated value of the premises which the Claimant alleges was demolished by the Defendant.
The Claimant in her witness statement essentially repeated the averments in the Statement of Case. Mr. Kissoon in his witness statement and report indicated that he was provided with pictures of the demolished building and was advised as to what existed previously by the Claimant. He estimated that the value of the structure before demolition was $600,000.00, $550,000 being apportioned to the dwelling house, and $50,000 for the shed which the Claimant said she built.
At trial, the Defendant took objection to the admission of Mr. Kissoon giving expert evidence on the basis that he did not comply with the provisions of part 33.10 particularly with the provision requiring the expert to state which literature he used in reaching his determination. Particularly objection was taken to the reference to the RICS “Red Book”. It was noted that there was no reference to edition, or year of publication. The report was allowed on the basis that it was felt that the report complied with the provisions of Rule 33.10, in that the reference to the “Red Book” was sufficient. In any event, it is felt that in this case, non-compliance with that aspect of Rule 33.10 would not have rendered the report inadmissible for non-compliance with the rules, given the limited reliance on such literature.
In cross-examination, the claimant was asked questions about the plans to build the house. She was asked about the elevation under the house, and whether she could stand under the house. She stated that the space under the house was 3 feet at parts, and in parts she could stand under it. It was drawn to her attention that there were certain discrepancies between the building which existed and the plans which were approved by the Town and Country Planning division. She was unable to account for discrepancy between the 2.
She was also asked about certain receipts which were attached to the Statement of Case. These receipts dated from 1964 to 1986 purported to be receipts for rent, water rates and land taxes, and were all purported to be signed on behalf of the Claimant's maternal grandmother, Molly Ramoutar, even though some of these receipts were issued after her death. The Claimant signed one of these receipts and indicated that she was following the instructions of her father when she signed it. She indicated, that they were made for proof that he paid the water rates and land taxes.
She admitted that she did not see the Defendant breakdown the house or remove the items.
In his cross-examination, Mr. Persad indicated that the structure was a single dwelling house on dwarf pillars of about 1 metre (3 feet). He indicated that he did not inspect the whole premises as he did not enter the premises and take measurements. With respect to the physical condition of the information before the demolition, he indicated that he got the condition of the premises prior to the demolition from pictures he was shown, as well as information he received from the Claimant. He indicated that he was provided with a plan, for a building which was not built on the hose.
The Defendant gave evidence on her behalf. In her witness statement, she indicated that she built the house in the mid-60s with the permission of her mother, the Claimant's maternal grandmother. She stated that the Claimant's mother (“Molly”) eloped with the Claimant's father (“Unoos”) when she was very young, and that this caused their parents to disown her.
She stated that the house was built to house Venezuelan students who...
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