In the High Court of Justice BETWEEN JENNY LIND THOMPSON AND THE INCORPORATED TRUSTEES OF THE ETHIOPIAN ORTHODOX CHURCH OF TRINIDAD HIRAM SCOTT

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1 The Republic of Trinidad & Tobago In the High Court of Justice Claim No. CV BETWEEN JENNY LIND THOMPSON KALONJI MONTSHO JAHI (formerly Anderson Thompson) Claimants AND THE INCORPORATED TRUSTEES OF THE ETHIOPIAN ORTHODOX CHURCH OF TRINIDAD HIRAM SCOTT HENRY JAMES Before the Honourable Mr. Justice James Christopher Aboud Dated: 10 May 2013 Representation: Defendants Ms Samantha Lawson with Mr Joseph Ottley for the claimants Mr Garvin Simonette instructed by Ms Sophia Vailloo for the defendants JUDGMENT 1. This is a dispute over entitlement to a parcel of land in the Darrel Spring Road neighbourhood, in the Parish of St. Andrew, Tobago. The boundaries and the size of the land are disputed, and it is a somewhat complicated dispute. Delineations are needed at the outset. The layout of the land is set out in a survey plan dated 23 February 2007 drawn by Winston Doyle, a licensed land surveyor. It is annexed as Appendix A to this Page 1 of 58

2 judgment, and will hereafter be referred to as the Doyle plan. The Doyle plan shows a parcel of land roughly in the shape of an axe that is divided into a northern and southern portion. The two portions together comprise hectares (which I have, using conversion tables, approximated at 61,978 square feet). The Claim Form and Statement of Case seek, among other things, a declaration that the two claimants (who are brother and sister) are owners of and entitled by adverse possession to hectares. The pleadings therefore make a claim for orders in respect of the northern and southern portions of the disputed lands. 2. In the course of the trial it was disclosed that the second claimant was previously unsuccessful in seeking an identical high court declaration of adverse possession in relation to the northern and southern portions. That was a case involving the owners of the southern portion. The court held it was owned by the heirs of Arthur Moses; it declined to make any declaration in relation to the northern portion. The second claimant s appeal from that decision is now pending. Notwithstanding what is claimed in the Claim Form, the claimants evidence was mostly directed to a claim in respect of the northern portion. 1 The defendants say that the northern portion is owned by the first defendant, The Incorporated Trustees of the Ethiopian Orthodox Church of Trinidad ( the church ) by virtue of certain deeds 2. The defendants say that the church acquired this parcel of land in 1956 and they built a mission house on it a few years later. They say 1 The defendants submitted that the claim as pleaded was abusive and that the claimants were estopped from re-litigating. While the poorly drafted pleadings sought a declaration for all the disputed lands the nub of the claimants case was really set out in their witness statements and they were only interested in the northern portion. In the interest resolving the real issues I turned a blind eye to the drafting errors, but do not condone them. 2 The proper name of the first defendant, by virtue of its incorporating statute is The Incorporated Trustees of the Ethiopian Orthodox Church in Trinidad (not of Trinidad, as they have been named in the suit and throughout the evidence). Page 2 of 58

3 that the church is the legal and equitable owner of the northern portion of the disputed lands. 3. The church building is not shown on the Doyle plan. There is no dispute about the lands upon which it was built. The church building and the curtilage around the building is located on the eastern boundary of the northern portion or along the base of the handle of the axe, so to speak. Immediately east of the church building and also not shown on the Doyle plan is Darrel Spring Road. To the south of the northern portion one will see two lots of land numbered 5 and 6 bearing the names of the two claimants. These lands are held under the Real Property Ordinance. I will henceforth refer to these lands as the claimants RPO lands. The two claimants have built homes on lots 5 and On 23 October 2007 the claimants filed this claim seeking a number of reliefs in respect of the disputed lands (encompassing its northern and southern portions). The reliefs include damages in trespass to hectares of land, a declaration that they are entitled to possession of hectares, a prohibitory injunction and damages for destruction of a chain link fence. In their Statement of Case the claimants say that they were born and grew-up on a large portion of land, including the disputed lands (i.e. the northern and southern portions). They contend that the church acquired a parcel of land by a deed of conveyance in 1956 but, in a 1986 deed of rectification of the 1956 deed, the church s parcel of land expanded to include a portion of the claimants land. The nub of this part of their case is that the 1986 deed of rectification misdescribed the boundaries that were originally described in the 1956 deed and by so doing laid legal claim to a portion Page 3 of 58

4 of the hectares, which, on the basis of the evidence led at the trial (and not on the pleadings), is the northern portion shown on the Doyle plan. The Statement of Case sets out a rough chronology of how the claimants and their siblings became entitled under the then Real Property Ordinance ( RPO ) to certain lands adjoining the northern portion on the south, that is, the claimants RPO lands. It is also said that the claimants and their siblings fenced a large portion of the disputed lands since 1980 and that their parents and later themselves and their siblings, planted fruit trees and short crops and also reared animals and poultry. The claimants plead that the planting and rearing of animals continue to the date of the action. 5. The claimants also allege that on 23 September 2006 the second and third defendants, who are church officials, together with others, destroyed a chain link fence that they had erected on the far eastern boundary of the northern portion bordering the church building. The allegation is that in late 2006 the claimants erected a chain-link fence to prevent the members of the church from gaining access to the northern portion, and then the church caused the fence to be unlawfully removed. This event precipitated the high court action. 6. The defendants by way of Defence contend that the church is the legal owner of the northern portion, as well as the lands upon which the church building is built. In 1954 Frank Peterkin, a trustee of the church, purchased these lands from Francis Knatt by way of a deed registered as No of 1956 ( the first 1956 deed ). He later transferred these lands to the church by deed registered as No of 1956, conveying as a trustee of the church ( the second 1956 deed ). Both of these deeds describe the lands by way of Page 4 of 58

5 its size (one acre) and by reference to the names of adjoining owners or adjoining landmarks. There are no plans attached to these deeds. The two descriptions are identical. 7. By a deed ( the 1986 deed of rectification ) made in 1986, registered as No of 1986, and made between certain persons described as Trustees of the Incorporated Trustees of the Ethiopian Orthodox Church of the one part and the Incorporated Trustees of the Ethiopian Orthodox Church of Trinidad of the other part, the second deed was rectified. The rectification was said to have been necessitated by a re-survey of the lands that was undertaken by G.A. Farrell, a former director of surveys, in A copy of his survey plan dated 21 January 1986 was attached to the 1986 deed of rectification ( the Farrell plan ). The resurvey describes the lands as comprising 1.1 acres instead of 1 acre. The increase, by my calculation (evidence not having been led), is point one of an acre, which would amount to an increase of 4,356 square feet. 3 The configuration or shape of the land comprising the northern portion in the 1985 Farrell plan seems very similar to the configuration or shape of the northern portion in the 2007 Doyle plan. The similar configuration does not mean that the parcels in the two surveys are identical in size. 8. It is the defendants contention that the northern portion has always formed part of the parcel of land described in the first and second deeds, thus making the first defendant the fee simple owner of the entire parcel of land (i.e. the northern portion together with the lands upon which the church building is built). They say that in August 2006 the claimants began foundation work for a structure and erected a chain-link fence near to 3 Both sides agree that point one of an acre amounts to 1/10 th or 10% of an acre. Page 5 of 58

6 their church building, excluding them access to the northern portion. They admit removing the chain-link fence. These events precipitated the exchange of letters and led to this litigation. 9. The defendants have filed a counterclaim in which they seek a declaration that the church and it predecessors were at all material time entitled to an estate in fee simple in possession in land comprising 1.1 acres; in the alternative they counterclaim for a declaration that the first defendant is entitled to a possessory title by virtue of adverse possession, an injunction to demolish and remove the concrete structure, and damages for trespass. The Evidence 10. The claimants filed six witness statements but due to the absence of one witness his witness statement was expunged. Three witnesses testified for the defendants. I will now analyse the evidence of each witness. I use the order in which the witness statements were presented in the trial bundle, and not the order in which the witnesses were called. Evidence for the Claimants Jenny Lind Thompson 11. In her witness statement this claimant testified that she and the second claimant are jointly in occupation and possession of the northern portion. She says that since the early 1960s she started planting several fruit trees and short crops, and since the 1980s she had a fowl coop and reared sheep on the disputed lands. She later began construction of a concrete structure on the disputed lands in The church is said to be the legal owner Page 6 of 58

7 of the area east of the northern portion where the church building is constructed, bounded by Darrel Spring Road, and not the northern portion. Ms. Thompson says that their proper western boundary is the area where they erected a chain link fence in 2006, namely at the bottom or butt of the axe-shaped parcel of land. There is a ravine running along that line. Prior to the claimants 2006 installation of the chain link fence along the path of the ravine she says that there was no enclosure or fence between the church building and the northern portion. 12. This witness compared the schedule in the second deed to the schedule in the 1986 deed of rectification; she pointed out the changes in the names of the owners of the lands bounding the northern, southern, and western boundaries in the 1986 deed of rectification. Her evidence in chief is that by the 1986 deed of rectification the church s land holding was expanded to include the northern portion in the Doyle plan. I will return to this point later in the judgment. 13. She says that the church has never been in possession of the northern portion of the disputed lands. She also testifies that there is a barbed wire fence on the northern and western boundaries of the northern portion and that this barbed wire fence was placed there since the early 1980s by her brother, the second claimant. She further says that she began construction of a structure measuring 25 feet by 20 feet on the northern portion in August It is her evidence that she has been in occupation and possession of this land since childhood. Page 7 of 58

8 Cross-examination 14. Under cross-examination this witness admitted that her family home was located on Darrel Spring Road. This is where her grandmother (known as Mother T ) lived. The claimants mother, together with the claimants and their siblings were born and grew up there. The family home is shown on Lot 1 on the survey plan of Peter Beard dated 4 September 1993 ( the Beard plan ). The Beard plan is attached to this judgment as Appendix B. Lot 1 is one of six lots that comprise the claimants RPO lands that were acquired by way of an R.P.O application in These RPO lands are described by the claimants to be the lands adjoining their ancestors lands comprising, it is claimed, the northern and the southern portions. Lot 1 is separated from lots 2 through 6 by Darrel Spring Road. The Thompson family was familiar with or used the expression down the yard. During her cross-examination it was put to Ms Thompson that whenever Mother T sent her down the yard it referred to the lands comprised in the Beard survey plan numbered 2 through 6 on the opposite side of Darrel Spring Road. Her response was yes, and beyond. I took that to allege that Mother T sent her grandchildren to the RPO lands and the lands beyond the RPO lands. Looking at the two plans in the Appendices, the distance between the family home and the lands beyond the RPO lands is not inconsiderable. I did not mark her demeanour at this point to be particularly reassuring or convincing. When questioned as to how far, she replied all down by the river, the Spring River. Again, looking at the two attached plans, the Spring River is the furthest point from the family home, at the extreme western boundary of the northern portion. This court had an opportunity to visit the locus in quo on the invitation of both counsel. Observations were made. I will deal with these observations later in this judgment. At Page 8 of 58

9 this point I will however say that the incline from the family home slopes down from Darrel Spring Road at a fairly steep gradient, and that the northern portion is intersected by a fairly steep gorge running north to south. Lot 6 on the RPO lands (where the second claimant built his home) is in the vicinity of this gorge. I did not find this witness to be confident when she said that Mother T, in sending her down the yard, meant that she would go all the way to the Spring River. She seemed somewhat tentative. I must bear in mind the likelihood of such activities by a young child on this type of terrain. She also indicated to counsel that she began planting at the age of six in the company of Mother T. When asked to look at the Doyle plan and to point out to the court where exactly on the plan these plantings occurred she replied I use to plant with mother T and she use to plant all over, that would be in the early 1960 s. Q: You don t recall where you first started planting? A: No, she had me all over. I was not satisfied with the continuity of her alleged planting activities. She admitted being married for a short while, moving out of Mother T s home and then having a full time job and two children to raise. This witness testified that the northern portion of the disputed lands was cultivated by herself, the second claimant, her sister Clara May and other siblings. 15. It was further elicited from Jenny Lind Thompson that her family and the priest at the church would exchange crops. She recalled that the priests at the church used to exchange short crops with the Thompson family. It was put to her that the priests gave the Thompson family a variety of crops, but she only admitted receipt of a few. According to Page 9 of 58

10 her, these crops were provided over many years. She admitted that it could have been from the 1960s to the 1980s and even beyond in her words. In answer to the question of where the church s crops were grown she said it was grown on the compound of the church building. This is on the east of the northern portion. This eastern most line on the Doyle plan follows the length of the shallow ravine to which I earlier referred. The church house is just east of the ravine. She was asked if she remembered whether any priests or church members planted on the northern portion of the disputed lands, she replied No, I don t remember. She was further asked whether the area of land between the ravine and the back of the church building is relatively small, she replied I don t know what is small; it s reasonable enough to plant these crops. I felt unsatisfied with her demeanour at this point; I expected her evidence on these matters to be more vigorous and unequivocal. 16. This witness also denied that the church was ever in possession of any part of the northern portion or that the members of the church had access to it across the shallow (and until 2006 unfenced) ravine. 17. This witness satisfied me that there was no issue of any encroachment in the construction of her house on Lot 5 in 1985 that necessitated the unusual triangular-shaped configuration to the east of Lot 5. The suggestion was made to her that one Father Haddis had generously permitted the curtilage of her home to extend into the small triangular-shaped region in This suggestion was put to the two claimants and formed part of the defendants evidence in chief and I should deal with it now. The claimants RPO lands were demarcated since its acquisition in 1972 and the unusual boundary line was in existence since then. It therefore cannot be the result of any Page 10 of 58

11 generosity by the resident priest in It cannot be said how this unusual boundary came to be drawn in 1972, but, at the same time, it cannot be denied that there was comity between the church and the Thompson family from the 1960s to If it is that this idiosyncratic triangular line was created by adjoining owners it could not have been in 1985 but in or before It is either that the 1972 RPO application was made with this idiosyncratic boundary line as a matter of right or as a matter of private agreement between adjoining owners. If it was by private agreement it would have had been in 1972 and not The defendants reliance on this act of generosity was either wrong as to its date or wrong as to its occurrence. In any event, it is not a fact that by itself, or in conjunction with other facts, is determinative of the dispute. 18. During cross-examination this witness knowledge of the neighbourhood was tested. She said that the original families that comprised the Darrel Spring Road community were the Peterkin, Moses, Thompson, Trotman and Proctor families. I took a note that this witness had no familiarity with the family name John Parks who is shown as the owner of the lands north of the claimants RPO lands (i.e. the owner of the northern portion). Finally, this witness admitted in cross-examination that she has never paid land taxes for the disputed lands (northern or southern portions) despite being aware of a legal duty to do so. Kalonji Montsho Jahi 19. The second claimant, Kalonji Montsho Jahi, stated in his witness statement that since 1924 his grandparents and mother occupied the northern and southern portions of the disputed lands. He said that he and the first claimant are jointly in occupation and Page 11 of 58

12 possession at all material times of the entire disputed lands, upon which he says since the 1950s he has planted several fruit trees including mangoes, grapefruit, lime, cherries and golden apple. He said that he has ploughed, fertilised, treated and tended to these fruit trees from the 1950s to the present. He said since the 1980s he had a fowl coop on the northern portion of the disputed lands and reared fowls. He also said that he reared sheep up to the present time. 20. A substantial portion of the second claimant s witness statement is devoted to the narrative of how the claimants acquired the RPO title in the lands adjoining the northern portion; he also analyses the differences in the boundaries in the second 1956 deed and the 1986 deed of rectification. I will return later in this judgment to a detailed analysis of the boundaries. In relation to the claimants RPO lands that adjoin the northern and southern portions of the disputed land I noticed the following material allegations: The northern portion of the disputed land was first occupied by his grandmother in 1924; At that time, it was owned by Benjamin A. Thompson, his ancestor; Benjamin A. Thompson died, and in 1930 Georgianna Thompson became the owner of an adjacent parcel of land (which eventually became the claimants RPO parcel). This alleged common law title was passed to Joseph A. Thompson in 1945 and then to Allison Elder in 1964; Allison Elder brought these Thompson family lands under the RPO in 1975; Page 12 of 58

13 Allison Elder s acquisition of these family lands from Joseph Thompson in 1964 was described by this witness as having occurred without his knowledge, and, for reasons or consideration not disclosed on the evidence, Allison Elder transferred these alleged Thompson family lands to the second claimant and he thereafter subdivided the same into six lots transferring the lots to himself and his family. 21. The second claimant is suggesting that the claimants RPO lands that adjoin the northern and southern portions of the disputed land represent only a portion of the lands owned by his grandmother since the No explanation or evidence is given as to why in the administration of various estates of his ancestors the Thompson lands were not administered as a whole or why the only portion of the lands which was applied for under the RPO and which he eventually distributed to his siblings was the claimants RPO lands, south of the northern portion. No RPO application was made for all of these alleged Thompson lands throughout the course of time since the 1920s, up until One possible explanation is that the other lands alleged to be part of the Thompson family lands were not brought under the RPO through inadvertence. This is the explanation given in certain correspondence of the claimants attorney at law that was attached to their Statement of Case. The letter is dated 10 March It refers to approximately one acre of land originally owned by the claimants ancestor, Benjamin A. Thompson, which lands included the northern portion. Paragraphs 8 and 9 of this letter: 8. In or about Allison Elder made an application to bring the said parcel of land under the Real Property Ordinance. However, only a portion of the said 4 The Certificate of Title is dated 1972 not 1975, contrary to this assertion. Page 13 of 58

14 lands was actually brought under the Real Property Ordinance through some inadvertence. 9. In or about 1978 the said portion of the parcel of land that was brought under the Real Property Ordinance was sold to one of our clients, Anderson Thompson, now called Kalonji Montsho Jahi. 22. I take these paragraphs to suggest that the claimants and their siblings were entitled in the course of time to lay claim to portions of land larger than those comprised in the claimants RPO lands but failed to do so through some conspicuously unexplained inadvertence. There is another explanation. It was canvassed throughout the trial by the defendants counsel. It is that the Thompson family lands (the lands said to be down the yard from the family house) are confined to the boundaries of the claimants RPO lands, on which all the siblings now live. This possibility cannot be overlooked. 23. This witness stated in his witness statement that he, his sisters Clara, Jenny Lind and Anne built their homes on the claimants RPO lands and that they each use the disputed lands to ingress and egress their homes. However, a quick examination of Appendix A and B will show that all the Thompson lots are serviced by a road 6.5 meters wide and by Darrel Spring Road. This bit of sworn evidence plainly gives a false impression about access to and from the claimants homes. Cross-examination 24. During cross-examination this witness was asked by counsel whether he was born on the lands and he said yes. However, upon further cross-examination he admitted that he was Page 14 of 58

15 born and raised in Mother T s home on Lot 1 5. Mr. Jahi testified that he has been in possession of the disputed lands in excess of 30 years and this is evidenced, according to him, by the planting of fruit trees and the rearing of poultry and animals by him, his siblings, and his grandmother. When asked to give his age when he planted his first tree, he said I was 7 or 8 years of age when I planted down the yard. When the court asked him to explain the expression down the yard he said Down the yard is over the road across from the house. The house is the house on Lot 1. When it was put to him that the lands down the yard must refer to the Thompson lands, the subject of the claimants RPO title, he said No, it s a much larger area. It includes the disputed lands. I take this to mean that the claimants and his family are saying that they have an historical relationship with the claimants R.P.O lands and, as well, with the disputed lands (including the northern and southern portions). The question for the court is to determine whether the claimants have provided sufficient evidence to make a finding that they have a possessory title to lands beyond the borders of the claimants RPO parcel. 25. Upon further cross-examination Mr. Jahi said that he can t recall any planting by the priests on the northern portion of the lands. He noted that since early childhood he planted on the northern portion and irrigated those lands by taking buckets of water in hand and on his head from Lot 1. When questioned by counsel as to the terrain that he was required to traverse in order to irrigate crops on the northern portion Mr. Jahi disagreed that it was uphill and downhill. Rather, he stated that It s a comfortable walk, except in one area. Later in this judgment I will describe my visit to and the observations I made at the locus in quo. I will however at this point say that it does not 5 See the Beard plan, Appendix B Page 15 of 58

16 seem to me to be a comfortable walk from Lot 1 on Darrel Spring Road, down the sloping road, past all his siblings houses on the claimant s RPO parcel and then beyond those lots to all areas on the northern portion. It seems to me to be an onerous walk for a child of tender age (or indeed an adult) to irrigate plants with a bucket in his hand or on his head. Irrigation of this type suggests a walking back and forth, which makes it more gruelling. But even if it were only one bucket of water to be carried, it would still not be accurate to say that it was a comfortable walk for a young child. I have difficulty believing this part of the witness evidence. In addition, I did not find his testimony of these events (in this and the previous paragraph of this judgment) to be as forceful or as attentive to detail as I would have expected. 26. This witness, like the first claimant, admitted that he never paid land taxes for the disputed lands. He was asked whether he said in his witness statement that he had fenced the northern portion in the 1980 s. He denied saying that. He was then referred to paragraphs 36 and 37 of his witness statement which describes his enclosure of the northern and western boundaries of the northern portion by a barbed wire fence in the early 1980s. It is there stated that he put that fence there when unidentified neighbours attempted to encroach on it. After reading these paragraphs in the witness box he conceded that that was indeed what was stated in paragraphs 36 and 37. A straightforward question was then put to him: Q: What are you now saying? A: In the 1980 s most of the fence was on the Moses side, later on the church put the northern fence on the boundary with Boyce. Page 16 of 58

17 The name Boyce is represented in the Doyle plan as being the owner on the north of the northern portion. The witness was then asked whether he was now saying that the barbed wire fence on the northern boundary with Boyce was put there by the church. His answer was No, I didn t say so. The court was then asked to read its note of the evidence and I read it in the exact terms quoted above. The witness remained silent after the note was read back to him. I marked this bit of evidence as inconsistent. The witness was equivocating as to who was responsible for erecting the barbed wire fence on the northern boundary. I did not feel confident that he erected that barbed wire fence. In fact, I felt much more confident that the church had erected it. I observed that very barbed wire fence at my visit to the locus in quo and I will say more on this later. There was no reexamination on this point. 27. This witness maintained that the shallow ravine on the east of the northern portion was the boundary of the church lands. He said it had never been fenced by any party and that even though the church members could physically walk across the ravine they did not do so because it was the boundary. This witness admitted that he lived for four years in Trinidad after age 21 and that he has resided and worked in the United States since His absence from the land during this period raises doubts in my mind about the continuity of his alleged agricultural undertakings. In paragraph 59 of his witness statement, for example, he says I have ploughed, fertilised, treated and tended to the said fruit trees from the 1990 s to the present. This cannot be so, as the second claimant lives and works in Maryland, USA and there is no evidence of any agents doing so on his behalf. Page 17 of 58

18 Evidence of Clara Thompson 28. Clara Thompson is the sister of the two claimants. In her witness statement she testified that from a very young age she and her siblings played on the northern portion. She particularly recalls playing doll house in the exact location where the recent structure is under construction. She alleges that as children she set dove traps on the northern portion. She said that she assisted with planting and cultivation of short crops on the northern portion since the 1960s, but she does not say exactly where these agricultural activities took place. 29. She states that the first defendant has never been in possession of the northern portion and that that barbed wire fencing was placed on most of the northern portion by her brother, the second claimant, in the early 1980s. Cross-examination 30. During cross-examination this witness accepted that she was close with the church priests and members and, in fact, she recalled that members of the church would give her family produce. She denied however that the church planted on the northern portion, saying that they only planted on the curtilage of the church building, east of the ravine. She admitted that prior to 2006 there was no fence along the ravine and she agreed that nothing prevented the church members from freely walking across it. Evidence of Kurt Moses 31. In his witness statement Kurt Moses said that he knew the claimants for over nineteen years. He has been doing construction work for the family for some time. He said that if Page 18 of 58

19 the claimants won their case he would get the job to complete the house which is now under construction. He stated that the claimants had and still have several fruit trees and vegetables on the northern portion and that he observed the claimants, their servants and or their agents planting a variety of short crops. In addition he said that the claimants rear sheep and fowls on the land up to the present time. Cross-examination 32. Under cross-examination Mr. Moses contradicted himself and admitted to counsel that he never saw the first claimant plant any trees. Cross-examination came to an abrupt end when the defendants counsel noted that the witness could not read his own witness statement. It was apparent to me that he was illiterate. However, there was no endorsement on the witness statement that the contents had been read over to him and fully understood. There was no re-examination on this point. The independence of this witness is, in any event, somewhat compromised by his admission of a pecuniary interest in the outcome of the trial. Evidence of Winston Doyle 33. Mr. Doyle testified that his survey conducted in November 2006 was intended to support an application by the second claimant to bring the northern and the southern portions under the provisions of the RPO. However, that exercise came to a halt due to objections from adjoining owners, among them the heirs of Arthur Moses and the church. His evidence was not otherwise noteworthy, save for the production of his useful plan. Page 19 of 58

20 Evidence for the Defendants Hiram Scott 34. In his witness statement Mr Scott said that he is the deacon at the Ethiopian Orthodox Church of which he has been a member since His evidence was basically a history of the Church s occupation of the northern portion of the disputed land and the erection by the claimants of a chain link fence on the church lands in He stated that the northern portion was always maintained by members of the church. He said further that throughout the 1980 s, 1990 s and up to May 2002 prisoners of the Tobago prison under the supervision of the prison officers maintained the lands. 35. Mr. Scott stated that members of the church removed the claimants chain link fence and sometime in the month of October 2006 the claimants cut down the church s fruit trees that were planted on the church lands. He further stated that in December 2006 the claimants cleared a portion of the church s lands, located near the southern boundary, and proceeded to erect a concrete foundation. Cross-examination 36. During cross-examination this witness steadfastly maintained that he saw the first claimant together with her sister Ann, another family member, and yet another individual with a chain saw cutting down trees and vegetation that the church had planted on the northern portion. Upon further questioning he appeared confused as to who cut which trees, and when. He was sure that the second claimant did not cut any trees. This Page 20 of 58

21 evidence was not very useful to unravelling the main issue of the case. The boundaries of the lands described in the second 1956 deed and the 1986 deed of rectification were put to him in detail using the names of the respective owners on the north, south, and west. I will closely analyse this later in the judgment. In addition, this witness was probingly cross examined on the issue of who were the trustees of the trustees described as a party in the 1985 deed of rectification. This line of enquiry was designed to support the claimants plea that the deed of rectification should be rectified as it effected an improper enlargement of the lands described in the first 1956 deed to encompass all of the northern portion. Finally, there was no cross-examination on his evidence that prisoners assisted throughout the years to help maintain the northern portion. Henry James 37. Mr. James stated that he is a deacon at the Ethiopian Orthodox Church and that the northern portion of the lands is legally owned by the church. He says the land has been maintained by church members since 1956 and that throughout the late 1980s to the early 1990s and up to May 2002 prisoners of the Tobago prison, supervised by prison officers with authority from the Commissioner of Prisons, helped to maintain the northern portion. 38. He said that records show that the claimants encroached onto the church s lands (northern portion) in 1985 and the resident priest did not object to this but rather allowed them to have the land identified as the triangle, as demarcated in the Farrell plan attached to the 1986 deed of rectification. However, as I have found before, the boundaries of the claimants RPO lands had been established since This witness further testified in Page 21 of 58

22 his witness statement that in early 2007 the claimants proceeded to construct a galvanised fence on the church lands running north to south on the boundary of the church lands with the intention of fencing off the same. Cross-examination 39. Under cross-examination this witness was understandably confused in relation to the questions posed by counsel about the difference between the two parties to the 1986 deed of rectification, namely the Incorporated Trustees of the Ethiopian Orthodox Church of Trinidad and the Trustees of the Incorporated Trustees of the Ethiopian Orthodox Church of Trinidad. I do not expect an attorney s technical descriptions of parties to a deed to be easily understood by lay people: they pay more attention to the legal effects of instruments, not their legal bases. He did however say that the Trustees of the Incorporated Trustees and the Incorporated Trustees were the same. At one point in his intense cross-examination he testified that lots 2, 3, 4, 5 and 6 on the Beard plan (the claimants RPO lands) were actually owned by the church. It was a clearly ludicrous statement, and Mr James appeared fairly dumbfounded. A short break was thereafter taken on account of the witness s low blood sugar (according to his counsel) and the cross-examination resumed. After the break he did not complain of being unwell and seemed to have recovered his composure. I did not mark this lapse of coherence too severely as the evidence was plainly wrong and Mr James seemed disoriented. Mr. James was also questioned extensively on the differences between the boundaries described in the second 1956 deed and the 1986 deed of rectification. He basically admitted that the names of the adjoining owners were not the same. Mr James was curiously not cross examined on his evidence that prisoners were used to help maintain Page 22 of 58

23 the northern portion. It was also put to this witness that his description of the claimants 2007 galvanised fence as being on the boundary of the church lands meant that the church s landholding ended where the galvanised fence was located within the shallow ravine on the east of the northern portion. However the witness was quite clear that the fence was built on the church s lands with the intention of fencing off the same (witness statement Para 7) and that the galvanised fence runs along the boundary of the church (cross-examination 16 March 2011). I take his reference to the boundary of the church to mean the compound of the church building, and not its entire landholding. Violet Peterkin 40. In my view, Mrs Peterkin is a key witness in this case. Prior to the adduction of her witness statement, permission was granted (with the consent of Ms Lawson) to amplify it. She orally testified to the following matters: a) She is 72 years old. b) She became a member of the church on 16 August She and her husband used to keep service on the opposite side of Darrell Spring Road from where the church is now located, on lands belonging to relatives of her parents. c) Her husband was a lay reader; he had a conversation with her as a result of which she became aware that lands of Francis Knatt opposite to where they held their services were for sale. Page 23 of 58

24 d) The church gave her husband permission to negotiate with the owner and he did so in 1954; he did so on behalf of the church because it was not statutorily incorporated until e) The church purchased one acre of land and the church is on the acre of land. f) She was familiar with all the families in that district who she described as good friends and closely-knit neighbours. She specifically mentioned the Thompson family as well as the Moses family and the Trotman family. g) Wherever in her testimony she refers to church lands she means the lands adjoining the parcel where the church building is situated, which were identified by her in court as the northern portion shown on the Doyle plan. It was this portion that the church has always maintained by cleaning, cutting of bushes and planting of short crops. 41. In her witness statement she testifies that she lives three houses away from the church and that she is aware of all matters concerning the purchase of the church lands by her husband Frank Peterkin, deceased. She said she was born at 44 Darrell Spring Road where she has lived all her life and she is very familiar with the neighbourhood. Indeed, the presence of the Peterkin family as an original family was acknowledged by the first claimant. Mrs Peterkin said this area once formed part of the estate of Calder Hall and that to this day the Elections and Boundaries Commission refers to this district as Calder Hall/Scarborough. She testified further that her husband purchased one acre of land at Darrell Spring Road. She describes the one-acre parcel as the church lands. The Page 24 of 58

25 church lands include the area where the church building is located, as well as the northern portion. 42. The first 1956 deed is dated 7 July 1954 and registered as No of This was a deed made between Frank Peterkin (described as a pastor of the church) and Francis Knatt. Mrs Peterkin testified that by the second 1956 deed (dated 1 October 1956, registered as No of 1956) her husband, as trustee of the church, conveyed the same one acre parcel to the church. The descriptions of the boundaries of the one acre parcel are given by the names of the adjoining owners in the first and second deeds. The names of the adjoining owners are identical in both deeds. 43. Mrs Peterkin testified that by the 1986 deed of rectification the size of the land in the schedule to the first and second deeds was rectified. She said that the one-acre parcel has always been maintained by the church and that during the late 1980s to the 1990s members of the church together with prisoners of the Tobago prison, supervised by prison officers, with the authority of the Commissioner of Prisons, helped to maintain the land. 44. She gave further testimony that the resident priest permitted the first claimant to encroach onto a small triangular shaped piece of land in But, as I have already held, the triangular shaped portion of land was in existence since Cross-examination 45. A first point to note is that no question was put to Mrs Peterkin to contradict her statement that prisoners helped to maintain the northern portion. Ms. Peterkin was shown the first 1956 deed and said that at the time of purchase from Francis Knatt the lands Page 25 of 58

26 were naked bush. A couple questions were put to her that were unfair and to which objection was taken but she conceded that since she is not a land surveyor she could not say whether the first 1956 deed or second 1956 deed actually conveyed one acre of land as it purports to do in their respective schedules. 46. This witness was extensively cross examined on the names of the adjoining owners stated in the schedules to the first and second deed. In relation to the description on the north she said that there was no building on the north where John Parks was and that the land was in bush, although it is today planted-up by its present-day (unnamed) owners. I take this to mean that the present-day owners of the lands north of the northern portion are successors in title of either John Parks or whoever else might have been north of the lands acquired by the church from Francis Knatt. 47. This witness expressed familiarity with the lands acquired by her husband and satisfied the court as to her knowledge. Her straightforward manner in answering the following questions gave me a sense of confidence in her truthfulness: Q: When did you see the 1956 deed? A: He showed me in He was my husband. He showed it to the members too. Q: When did you first go on the land purchased by your husband? A: The day that he bought it we went, because it was right opposite. Q: Was Mr. Knatt present? A: No M am. Page 26 of 58

27 Q: Did you ever go with Mr. Knatt? A: No, but my husband went. Q: The boundaries were pointed out to you? A: No, not to me, but to my husband. A short while later the insinuation was made that she did not really know about the church land except what her husband told her. She firmly, unequivocally, and convincingly declared: I know about the land. I am on the land from the time of its purchase. She was a witness who convinced me that she was very familiar with the land, the circumstances of its purchase, its size, and its use since Visit by the court to the locus in quo 48. On the 16 March 2011 at the invitation of the parties the court convened on Darrell Spring Road just outside the church building. The parties and their attorneys accompanied me. I walked from Mother T s home on Darrell Spring Road, down the paved road reserve to lot 6. The road reserve is on an incline; it sloped down from Mother T s home on Darrell Spring Road. It was not a slight incline, and in parts the slope of the road was quite steep. I entered the northern portion by passing through lot 6. The attorneys (in each other s presence, and in the presence of their clients) pointed out several landmarks on the northern portion. I walked across most of the northern portion except towards the western area, as there was a rather steep gorge or hill, precipitous in parts, fairly close to where the second claimant had built his house on lot 6. The steep incline or hill ran in a north-south direction from near the western boundary of lot 6 all the way to the northern boundary of the northern portion. Page 27 of 58

28 49. On the northern boundary I observed the remnants of an old barbed wire fence. The fence posts were green, but mostly rusted or corroded, and many of them were lying on the ground. The old fence posts run along the length of the northern boundary of the northern portion. While standing there, at a point midway across the length of the northern boundary, I saw a loose piece of the fence post and pried it off. I did this in the presence of the attorneys. Later, while standing within the curtilage of the church building, to the east of the northern portion, I observed remnants of the same old fence posts. They appeared to me to be identical in colour and age to the fence posts on the northern boundary of the northern portion. 50. I observed evidence of human habitation or of physical presence along a narrow band of land running alongside, and adjoining, lots 5 and 6 where the first and second claimants live. For example, there was an old, derelict fowl coop and an old bench under a tree on the northern portion just in front of lot 6. Nearby, there was a wooden retaining wall where the land sloped sharply downwards. The old wooden retaining wall was protecting slippage of the land in the area near the fowl coop and the bench. It was built in the area of the fowl coop and the bench. In addition, just in front of lot 5 there was a lawn that appeared to be an extension of the lawn of the first claimant s home, with a little garden gate leading from her house. I saw a concrete structure in the process of construction on the northern portion. It was just across from lot 5. Between the concrete structure and lot 5 was the lawn area of which I spoke. I told both counsel of my observations as I made them, and kept notes and markings on a spare copy of the Doyle plan. 51. My general observations of the remainder of the northern lot, that is, the parts on the west that sloped downward (where it was difficult to walk), is that it was uncultivated, Page 28 of 58

29 untended, and covered in bush and several wild trees. There was no sign of human habitation or presence save for the remnants of the old barbed wire fence that ran intermittently along the northern boundary. The majority of the northern portion is in bush, save the areas in the east close to lots 5 and 6, and as well, the area close to the church building. I saw four citrus trees and an old sickly mango tree between the concrete structure and the church building. There was evidence of tree cutting in this area consistent with the evidence of the defendants. I should also mention that the front of the houses on lots 5 and 6 faced the road reserve; the back of their houses adjoined the northern lot. In addition, access to and from both houses to Darrell Spring Road was via the paved road reserve. It is untrue to say that ingress and egress from these lots is via the northern portion, although this is stated unequivocally in the claimants witness statements. The northern portion is not serviced by any road, except by passing through the church compound or one of the claimants houses. The parcel is land-locked. 52. The court immediately re-convened at the Hall of Justice in Scarborough after the site visit. I then invited the parties to engage in discussions aimed at a peaceful resolution. I mentioned three critical observations that I made at the locus in quo and enquired whether the parties would be minded to consider some sort of partition or sharing of the northern portion. The trial was stood down and the parties held lengthy but unsuccessful discussions. The matter was then adjourned to continue on 6 July 2011 on which morning I made the following statement in open court, recording it verbatim in my judge s notebook as I spoke, which I now reproduce: Page 29 of 58

30 The court wishes, for the avoidance of doubt, to draw to the attention of counsel three observations made at the site visit on the last day, which may have been mentioned to the parties on that day, but are now formally recorded. 1) On the north of the disputed parcel the court observed remnants of an old barbed wire fence with rusted fence posts painted green and observed that the identical remnants of the fence were also found on the church property proper, that is, on the boundary between the church house and Boyce. The court took a sample [I then raised up a small rusted piece of galvanised pipe and showed it to the parties in the courtroom]. 2) There is an area of land on the disputed lands which appears to be within the curtilage of lot 6 (Kalonji s house) containing a bench under a tree, an old fowl coop and what appeared to be a little retaining wall made of wood in a small semi-circle which did not appear to be recently installed or constructed ( the area with the bench ) and also a small area just north of lot 5 (Jenny Lind s house) that appears to be maintained with a lawn on it, between the unfurnished concrete structure and her house ( the grassy area ). 3) At the site visit the court walked down the road shown on the Beard plan marked road reserve from Lot 1 down towards lot 6. The distance of road is not shown on the plan but it appears to be a) over 200 feet long; and b) to be a steep incline. Page 30 of 58

31 These are my observations and I will allow all necessary applications to clarify, add, colour or explain these observations in terms of evidence. 53. I then invited counsel in the presence of the litigants to advise the court on the estimated width of two areas, namely the area with the bench and the grassy area. In relation to the former Mr. Simonette said that the area with the bench was about 10 feet from the house on lot 6 and Ms. Lawson said it was about 20 feet away. In relation to the latter Mr. Simonette said that the grassy area was about 10 feet wide and Ms. Lawson said it was about 10 to 15 feet wide. The court then requested both counsel to agree these measurements and also two other measurements, namely, the length of the road reserve and the distance between the concrete structure and the northern boundary of the northern portion. 54. The visit to the locus in quo took place on 16 March 2011, on day three of the trial. An earlier site visit was cancelled due to scheduling conflicts. On days one and two the claimants witnesses and two of the defendants witnesses were cross examined. My observations and request for measurements were at the start of day four, the last day of the trial. On that day the defendants remaining witnesses (Hiram Scott and Henry James) were cross examined late into the evening. The further cross- examination of Violet Peterkin reserved from day three was declined. At no time on day four did either counsel apply to adduce any evidence to clarify, add, colour or explain any of the observations recorded at the start of the day. An attempt was made by Mr Simonette at the close of the trial to recall the claimants for further cross-examination on the court s observations, but it was resisted by Ms Lawson on the ground that the defendants should apply to adduce their own evidence and not adduce it through cross- examination of the Page 31 of 58

32 claimants. I upheld the objection. What is noteworthy is that the claimants made no application to adduce any evidence, and neither did they, in the course of crossexamination on that day, attempt to elicit any evidence that might clarify, add, colour or explain my observations. At the close, both parties took directions for the filing of written addresses. The evidence adduced in the trial, and the observations made at the site visit, were therefore allowed to stand. 55. The measurements I requested were never taken. Correspondence from the defendants attorney sought to make arrangements for a qualified person to visit and take these measurements. It was attached to the defendants closing written address. The claimants attorney was uncompromising and refused permission for a qualified person to attend and take accurate measurements. In my view, the approach was unreasonable. The absence of any evidence relative to the observations and the unreasonable refusal of the claimants attorney to cooperate with the taking of accurate measurements as requested by the court has left me to draw conclusions as to measurements based upon the actual land marks I observed on my site visit, the estimates made by counsel, and the evidence inside the courtroom. Issues to be decided 56. The issues to be decided in this case are (a) Whether the church has proven that it has a legal title to the northern portion; (b) Whether the claimants are or have been in adverse possession of the whole of the northern portion so as to extinguish the legal title of the paper owner; Page 32 of 58

33 (c) Whether the 1986 deed of rectification should be rectified ; (d) Whether the defendants are liable for trespass. The legal title to the northern portion 57. In their written closing address the claimants contend that they were in occupation and possession of the northern portion without let of hindrance since the 1920s. They submitted that, in light of the questions raised about the efficacy of the 1986 deed of rectification, the burden of proof must shift upon the defendants to establish their legal title to the northern portion. I disagree. The burden of proving adverse possession rests on he who makes the allegation. As I will explain below, there is insufficient evidence to adequately dislodge the legal effect of the 1986 deed of rectification, or, at any rate, the conveyance of one acre to the church in The crux of the claimants case is that the land conveyed in the second 1956 deed is restricted to the area where the church building is located, which is (by my observation) substantially smaller than one acre. The church building and the curtilage around it adjoins Darrel Spring Road. There is no evidence whatsoever that the church building and its curtilage occupied only one acre of land. In fact, it was never put to any of the defendants witnesses that the church building and its curtilage occupied one acre of land. The claimants never produced any evidence to prove this allegation. Despite the claimants failure to adduce such evidence the question must still be asked: What area of land was acquired from Francis Knatt in 1954 and conveyed to the church in 1956? The question becomes important because the 1986 deed of rectification (a) revises the size of the land as 1.1 acres instead of one acre and (b) gives different descriptions of the Page 33 of 58

34 adjoining owners/landmarks on the north, south and west. This deed was made some 30 years after the original acquisition. The claimants are saying that it wrongly expanded or, to use Ms Lawson s expression, grew on paper to encompass all of the northern portion. Their case is that the northern portion was always in factual possession and control of their ancestors, themselves, and their siblings since the 1920s, regardless of what is stated on paper, and regardless of what evidence was led by the defendants. 59. In order to resolve this issue I pose three sub-issues: (a) Did the church ever own or occupy one acre of land? (b) Did the 1986 deed of rectification amount to an enlargement of its 1956 land holding to include all of the northern portion? (c) Did the 1986 deed of rectification purport to convey a parcel of land entirely different in size and location from the second 1956 deed? (a) Whether the church became entitled to or occupied one acre of land 60. The claimants have not successfully proven that the church acquired less than an acre of land in In my view the church acquired one acre of land and the acquired parcel was larger than the compound on which the church building was constructed. I say so having regard to the following evidence, which I accept on a balance of probabilities: a) Violet Peterkin s husband bought one acre of land in 1954 on behalf of the church. He took her to see the land pointing out its boundaries to her. To amount to one acre, the land would have been substantially larger than the area where the church structure was built. The onus of proving that the one-acre parcel was restricted to the area of the church structure is on the claimants and they have not discharged that burden. Page 34 of 58

35 b) No member of the Thompson family is said to have raised any objection to or been alarmed or concerned by the acquisition of these lands or the construction of the church so close to their alleged lands. Moreover, upon its construction, no member of the Thompson family sought to separate the northern portion from the church structure by erecting a fence between the building and the northern portion. c) The land in the 1956 deed is clearly stated to comprise one acre. Most people can make a rough estimate of what comprises one acre of land. It is difficult to believe that when Mrs Peterkin s husband conveyed the one-acre parcel, whoever or whatever may have been said to be on its northern, western and southern boundaries, that the church members did not feel themselves entitled or become entitled to one acre of land. It is clearly stated as their landholding in the second 1956 deed. d) I felt very reassured by the evidence and demeanour of Mrs Peterkin who said that the church held its services across the road from Francis Knatt s lands, on the opposite side of Darrel Spring Road, and that she walked the Knatt lands with her husband in 1954 and in many years thereafter, and that they included the northern portion. She was very clear about that. The other witnesses for the defendants, although somewhat unsteady when cross-examined as to the legal capacity of the parties to the 1986 deed of rectification or the date, if at all, of the encroachment into the triangular portion, or when and by whom the trees were cut, were nonetheless unambiguous and convincing about being in possession of land much larger than the church compound. Page 35 of 58

36 e) In addition, I do not believe that the church members were only growing crops within the curtilage of the church building. There was nothing to prevent the members from crossing the shallow ravine and I believed the defendants witnesses when they said that they grew crops and maintained the northern portion. The church s evidence of the assistance of the prisoners in maintaining the northern portion remains uncontradicted. I also believe that it was the church and not the second claimant that fenced the northern boundary of the northern portion. (b) Whether the 1986 deed of rectification takes effect as an enlargement of the church s land holding so that it encompassed all of the northern portion 61. In my opinion, the 1986 deed could not have the effect of fictionally creating a legal estate in the northern portion because, on a balance of probabilities, the northern portion already substantially formed part of the church s legal landholding. I say so for the following reasons: (a) The 1986 deed of rectification only purports to increase the square footage by point one (0.1) of an acre which, by my calculation, is 4,356 square feet. This is less than a lot of land. The claimants are hard pressed to prove how the entire northern portion, which they allege comprises 2,499 square metres (or 24,990 square feet), could be the subject of a overall invasion by virtue of the 1986 deed. The 1986 deed represents a very minor increase in square footage and can in no way be said to encompass all of the northern portion. It is not known whether the Knatt lands actually comprised 1.1 acres in If so, the word increase is a misnomer. If not, then we do not know from where the additional 4,356 square Page 36 of 58

37 feet was augmented, whether from the northern, southern, eastern, or western boundaries. (b) I must also take account of the fact that the claimants RPO lands were specifically defined as far back as These lands were described by Ms Lawson as the Thompson lands at one point during her cross-examination. If they were entitled, as they allege, to any lands beyond those specific boundaries on the north they did not make any such claim between 1972 and 2007, a period of 35 years. It was only in 2007 that an attempt was made to bring the northern portion under the RPO, but it failed due to objections by neighbours. 6 (c) The second claimant described a root of title to the northern portion and the claimants RPO lands, stretching back to The absence of any documentation to support the alleged root of title from 1924 unsettles me. No records of the administration of the estate of any Thompsons were tendered in evidence, and no explanation for their absence was offered. The title allegedly passes to various members of the Thompson family, but some of the land is apparently un-administered and the part that is administered, which is the claimants RPO lands, eventually is bought by one Alison Elder in Alison Elder eventually successfully applies for an RPO title to these Thompson family lands. Who is Allison Elder? On what basis does she apply for an RPO title to lands continuously and exclusively occupied by the claimants and their family since 1924? Would she not have to serve notice of her application on the 6 As previously stated, an attempt to claim a possessory title to the southern portion based on similar facts also failed in the earlier unsuccessful High Court proceedings. Page 37 of 58

38 neighbours, including those living in Mother T s home, which house lot was, in part, the subject of the very application? How can the claimants assert that her activities were unknown to them? Was she a member or agent of the Thompson family? Where is her RPO application or the memorandum of transfer between her and the second claimant? On what terms did she transfer these Thompson lands to the second claimant? Starved of evidence on these matters, the court is left to wonder whether the Thompson lands were restricted to the current six lots now divided among the siblings, and did not include the northern portion. In other words, does the expression down the yard refer only to the RPO lands? In my view, on the basis of the documentary evidence supplied by the claimants, the northern portion cannot, on a balance of probalities, be said to form part of the Thompson family landholding. In the circumstances, the 1986 deed of rectification cannot amount to an appropriation of the northern lands by legal instrument. Their case rests entirely on their oral evidence of factual possession, which I shall come to shortly. (c) Did the 1986 deed of rectification purport to convey a parcel of land entirely different in size and location from the second 1956 deed? 62. In order to answer this I will have to scrutinize the schedules of both deeds. There is no doubt that different descriptions were given in both deeds. The nub of the claimants argument is that the second 1956 deed and the 1986 deed of rectification described entirely different parcels of land. I do not agree. The descriptions are proximate enough for the court to hold on a balance of probabilities that they refer to the same parcel, save that its area is increased by 4,356 square feet. Page 38 of 58

39 63. I should at this point mention the perennial problem of land titles in Tobago. It began, I think, on the desks of solicitors and conveyancers in years past. The unsafe practice of simply duplicating the schedule from the previous deed often led to misdescription in the names of adjoining owners who have died or have sold their lands. Sometimes the schedule is replicated verbatim several times. The confusion is compounded for all when adjoining parcels also change hands in a similar fashion. Notwithstanding the dangers of these inaccurate schedule descriptions, confirmation is not sought in the assessment rolls (which themselves are often out of date due to a failure to promptly report changes of ownership). In many cases, land in Tobago was un-serviced by roads (a key boundary landmark), undeveloped, and largely unfenced and thus the dangers of misdescription by boundaries was made more acute. The drafting of the early deeds and the relationship between adjoining landowners seem to be based on an accident-prone informality. One might have expected that in this scenario there would have been more survey plans attached to deeds, but there was no such practice. Moreover, lands are claimed to be owned by persons who have long since died and their estates remain unadministered through several generations. All of these omissions and informalities of the past have been brought acutely to the forefront in modern days by the stupendous increase in land prices on the Island. I cannot speak of present day conveyancing practices in Tobago, but only express the hope that professional standards have improved. 64. These practices of the past have created confusion that has led to countless unnecessary and costly law suits. In my view, they appear to be responsible for inaccurate descriptions on the southern and western boundaries of the northern portion. I will examine the differences in the deeds by analysing all four boundaries in detail: Page 39 of 58

40 a) The Northern Boundary: The 1956 deed speaks of John Parks on the north. The 1986 deed describes the boundary on the north as partly by lands of Carlton Moses, partly by a river and partly by Darrel Spring Road. There is no mention of John Parks on the north in the 1986 deed. However, the name John Parks is not unknown to Violet Peterkin whose antiquity as a resident is recognised by the first claimant herself. An opportunity was given to the first claimant (after a failed objection by the defendants counsel) to clarify the Parks family name in reexamination, but it was not taken. The 1986 description correctly describes the northern boundary as being bounded partly by the river and partly by Darrell Spring Road, 7 but it is unknown how the lands of Carlton Moses could be said to be bounded on the north in The Doyle survey in 2007 describes the northern boundary identically with the 1986 deed save that the name Carlton Moses on the north is substituted by Keturah Boyce. There is nothing in the Doyle survey to suggest that it is not a correct plan, and no such suggestion was put to him. It is not inconceivable that through the passage of almost 60 years that lands said originally to belong to John Parks in the north might have devolved or thought to have been devolved or be owned or claimed by Carlton Moses and then by Keturah Boyce. The failure of the 1956 conveyancer to include the words partly by a river and partly by a road reserve 8 does not, in my view create sufficient doubt and must be considered an incomplete and thus partially inaccurate description. 7 This coincides with the 2007 Doyle survey. 8 The 1956 road reserve eventually was named Darrell Spring Road. Page 40 of 58

41 b) The Western Boundary: The 1956 deed refers to lands of Thomas Benjamin on the west but the 1986 deed describes the western boundary as a river. Again, looking at the Doyle survey plan there is indeed a river on the west of the northern portion. It is not known how the name Thomas Benjamin came to be described as being on the western boundary of the lands described in the 1956 deed, but Violet Peterkin recognised the name Thomas Benjamin as being on the west of the northern portion and went so far as to describe how many houses were west of that boundary. All the surveyors from 1986 onwards locate a river as the western boundary but it has not itself been surveyed so little is known about the owners of its embankments, if any. Moreover, it is not known whether the river was diverted through the lands of Thomas Benjamin at any point in history. If Thomas Benjamin was dispossessed by the church in 1956 he has made no complaint that I know of, and no title document has been adduced to prove that Mr Benjamin had a legal title anywhere in the west, whether within or without of the northern portion. There is no evidence in the trial that Thomas Benjamin and Benjamin Thompson are the same person, and no such suggestion was put to the court. On the western boundary the error in description is most noticeable, but taken together with the descriptions on the north, south and east, it is not sufficient, in my view, to support the contention that the 1956 conveyance did not include the northern portion. c) The Southern Boundary: The 1956 deed describes the southern boundary as a ravine. The 1986 deed describes the southern boundary as being bounded partly by lands of Allison Elder, partly by Darrel Spring Road and partly by a river. The Page 41 of 58

42 one consistent landmark is the description of a watercourse on the south, described as both a ravine and a river. It cannot refer to Spring River which is on the west and north. It most likely refers to the very ravine along which the claimants unilaterally erected the chain link fence. That ravine along the most easterly boundary on the Doyle survey, applying proper cardinal points, is indeed partly on the south of the northern portion. It is not known why the names of the other owners on the south were not named in the 1956 deed but a watercourse on the south was certainly one of the bounds and still is to this day. d) The Eastern Boundary: The eastern boundary is consistent in both deeds as being bounded by Darrell Spring Road. 65. In coming to my findings I also take account of the following further matters: (a) It seems to me that a proper explanation should have been advanced as to why all the lands allegedly owned by the Thompson family were not brought under the RPO in 1972 or before, or why Allison Elder was permitted by the Thompson family to obtain an RPO title to lands under their direct occupation without their consent. These questions increase the likelihood that the claimants RPO lands are the Thompson family lands, which are the lands down the yard across from the ancestral home of Mother T on Lot 1. (b) There is no evidence of the Thompsons ever paying any land taxes for the northern portion, something that surely would have been advisable when the church building was erected in the late 1950s directly on its perimeter with no separating fence or wall. (c) There is no evidence of any survey by the Thompsons to demarcate their claim to the northern portion at any time until (d) I did not believe the claimants evidence that they had no notice of the 1985 survey undertaken by G. A. Farrell. Their testimony on Page 42 of 58

43 this was unconvincing. The 1986 deed attached the G. A. Farrell survey plan. G. A. Farrell was a former Director of Surveys. I cannot easily accept the suggestion that his 1986 survey plan, which was partly based on his own physical survey of the land in 1985, would have been undertaken without notice to the adjoining landowners. A man with his credentials would be expected to have complied with proper surveying practice and there is no evidence to rebut this assumption save the unpersuasive testimony of the claimants witnesses. While it is true that the burden of proving the service of the requisite notice was on the defendants, the allegation that the notices were served was largely uncontradicted in cross-examination. In addition, the Statement of Case did not specifically plead, as one of the grounds to challenge the 1986 deed of rectification, that notice of the survey was not given. If so, the defendants would have had an opportunity to plead a response. 66. In all the circumstances I find that the church s legal title to the northern portion has been proven. Whether the claimants have proven that they were in adverse possession of the northern portion. 67. To establish a claim of adverse possession it is essential to prove that the possession was open (nec clam), peaceful (nec vi) and adverse (nec precario). Additionally, it is a requirement that it is accompanied by an animus possidendi, that is, an intention to enjoy possession to the exclusion of the paper owner or the world. A combination of these requirements would constitute uninterrupted and undisturbed possession of the land, thereby rendering a possessory title to the occupier and extinguishing the paper title of the legal owner. Page 43 of 58

44 68. In the well-known case of Powell v Mc Farlane 9 Slade J outlined the basic conceptual principles of possession: (i) (ii) (iii) (iv) In the absence of evidence to the contrary, the owner of land with paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ( animus possidendi ); Factual possession signifies an appropriate degree of physical control. The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M R in Littledale v Liverpool College (1900) 1 Ch. 19 at p 23 as the intention of excluding the owner as well as other people. 69. As to what constitutes factual possession, Mr Justice Mendonca in Latmore Smith v Benjamin CA Civ App 67/2007 said this: for there to be possession under the Limitation Act there must be the absence of consent of the paper title owner, or, where relevant, his predecessor in title, factual possession, and an intention to possess. These elements are not disjunctive, but must all be proven to the required standard. 70. In relation to the question of what acts of the possessor amount to exclusive physical control, Lord Walker, sitting recently in the Privy Council in Anthony Armbrister and Anor v Marion E Lightbourne and Anor [2012] UKPC 40, said this at p 31 of the judgment: 9 (1977) 38 P. & C.R. 452 at page 470 Page 44 of 58

45 The clearest statement of the law is in the speech of Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham [2002] UK HL 30, [2003] 1 AC 419, with which the rest of the House agreed. Lord Browne-Wilkinson (at para 41) approved the principles stated by Slade J in Powell v McFarlane (1977) 38 P & CR 452, : The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor had been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else had done so. 71. In Pye Lord Brown Wilkinson also said this at paragraph 43: "The requirement is of an intention, in one s own name and on one s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow". 72. In Jnm Pty Ltd v Adelaide Banner Pty Ltd [2009] VSC 327 Mr. Justice Byrne sitting in the Supreme Court of Victoria said this at page 5: 27. As Gillard J observed in Riley v Penttila [1974] VR 547 at 561, the acts of the claimants implying dispossession necessary to establish a possessory title must be considered with reference to the peculiar circumstances of the case. These will include the character and value of the property, the suitable and natural mode of using it, having regard to all the circumstances, and the course of conduct which the proprietor might be reasonably expected to follow with due regard to his own interests. 28. A very relevant indication of adverse possession is enclosure 29. Adverse possessors must show possessory acts; to adopt the expression of Slade J, they must show that they have used the disputed strip as an occupying owner Page 45 of 58

46 might have been expected to deal with it and that no one else has done so. They must exercise this dominion over the whole of the land unless they can rely upon the doctrine of constructive possession, namely, that the circumstances are such that possession of part indicates possession of the whole. 73. Later on in his judgment Byrne J discussed the concept of constructive possession. He said this: 37. The Lord Advocate v Lord Blantyre ( AC 770) concerned a claim for adverse possession of foreshore land fronting a navigable tidal river. The point was raised as to the fact that the claimant s act of ownership did not extend to the whole of the 700 acres in dispute. Lord Blackburn disposed of this contention by observing that acts of the claimant tending to prove possession as owners of part may tend to prove ownership of the whole provided that there is such a common character of locality as would raise the reasonable inference that if the Barons possessed one part as owners they possessed the whole, the weight depending on the nature of the tract, what kind of possession could be had of it and what the kind of possession proved was. 38. Another case decided in the Privy Council 90 years later is to the same effect. Higgs v Nassauvian Ltd [1975] AC 464 concerned a claim for adverse possession of about 105 acres on the Island of New Providence in the Bahamas. The advice of the Privy Councillors was given by Sir Harry Gibbs. The point here at issue was whether the farming of parts of the land in rotation over many years established adverse possession of the whole. After quoting the passage from the speech of Lord Blackburn in Lord Blantyre s case, to which I have referred, Sir Harry observed that the principle is not applicable to a question of undefined and disputed boundaries. The rule will apply only where the whole of the land, of which the acts of dominion of the adverse possessor relate to part only, is sufficiently defined by fence or physical barrier or otherwise. Page 46 of 58

47 40. Another decision of the Privy Council in West Bank Estate Ltd v Arthur [1967] AC 665 to the same effect is closer to the present. The disputed land was a mile long strip whose width varied from 100 yards to 30 yards. The respondent claimed adverse possession of this strip, asserting that it had used part of it for cultivation purposes. The Privy Council rejected this contention but went on to consider a further argument offered by the appellant. This was directed to the adverse possessor s contention that a dam to the north of the disputed land constituted the boundary of this land. The Privy Council accepted the finding that this was not an agreed boundary. The lack of a defined boundary meant that the claimant had to establish actual possession of the whole of the disputed land. The principle of constructive possession had therefore no role to play. 74. In my opinion the claimants have failed to prove to the required standard that they exercised the necessary physical control of the northern portion to support a finding of factual possession of the whole of the northern portion. They have failed to satisfy me that they have extinguished the title of the church. I did not believe the claimants witnesses when they said that they grew crops and reared animals on the northern portion. Firstly, there was a lack of exactitude in describing precisely where on the northern portion these alleged activities occurred. In many ways a finding of factual possession is an act of anthropologic enquiry, where evidence of human habitation or land use must be scientifically proven. Saying that down the yard was all over, as the first claimant said, creates geographic uncertainty 10. The other witnesses were also somewhat vague as to where exactly on the northern portion the agriculture occurred. Moreover, some of the alleged acts are said to have been done by several siblings and it is not known whether they were acting on behalf of themselves or the two claimants. 10 See West Bank Estates Ltd v Shakespeare [1967] 1 AC 665 Page 47 of 58

48 75. A number of points are to be noted with respect to the acts allegedly evidencing actual physical control. The parcel is not fenced on all sides and I was not convinced that the alleged agriculture, even if undertaken (which I do not believe), was continuous and exclusive for 16 years preceding the action, or at all. Land of that size and hilly terrain would require real manpower to maintain, more manpower than could be expected from an absentee owner living in Maryland and a working mother in Tobago, together with two sisters. There is no evidence that they hired workers or sought the assistance of any neighbours. This must be compared to the uncontradicted evidence of the church (which I accept) that they obtained the assistance of the prisoners on numerous occasions over many years up to 2002 to maintain the northern portion. The long-ago setting of traps for doves or the playing of doll house by little girls cannot be sufficient to dislodge the paper title owner. That is really child s play and not by itself indicative of an animus possidendi. I do not believe, as I said before, that infant children could have comfortably walked to and from Mother T s house with buckets of water to irrigate crops. It would be an arduous task for any child, no matter how hardy they might be. In the 16 years preceding the action there is no evidence of exclusive physical possession of the whole of the northern portion. On the basis of my observations at the site I noted that there are no crops being grown and no evidence of agricultural or other undertakings on the land. There was an old derelict fowl coop that could hold perhaps 5 hens, but it was empty. It was near to the second claimant s house. There were no sheep to be seen anywhere. Save for the first claimant s construction of the concrete structure in 2006 there is no activity on the northern portion to speak of. Page 48 of 58

49 76. There are no acts that constitute a sufficient degree of exclusive physical control capable of satisfying Lord Browne-Wilkinson s test. The claimants have not, in my opinion, been dealing with the land in question as an occupying owner might have been expected to deal with it and they have not proven that the church has not been so dealing with it. For their part, I expect that they would have (a) applied earlier for an RPO title, (b) fenced the northern portion, particularly on the eastern boundary where the church was built and church services were being held, (c) cut or maintained the land with the help of workers or neighbours, (d) paid land taxes, or (e) even used the land for some other purpose indicative of ownership. I take into account the fact that the second claimant contradicted himself in cross-examination when he admitted that the church put the barbed wire fence on the northern boundary. My observations at the locus in quo supported the finding (which I now make) that it was the church and not the second claimant that put that barbed wire fence on the northern boundary. The claimants cannot be said to be dealing with the northern portion as an occupying owner would be expected to do. Taken together with their unconvincing oral evidence, their failure to enclose the lands they claim to possess rebuts any possibility of a finding of constructive possession of the whole. The shallow ravine was an unobstructed point of access for the church and the lack of any fence between the church and the northern portion from 1956 to 2007 (a period of 51 years) further rebuts the suggestion that the claimants were in exclusive possession of the whole, or indeed of such a part as to make them constructively in possession of the whole. 77. This is in contradistinction to the activities of the church, the witnesses of whom I believed. They paid land taxes, they put a fence on the northern boundary, and they Page 49 of 58

50 planted crops. They also obtained the assistance of prison labour to cut and maintain the land. I do not accept that their agriculture was restricted to the area within the curtilage of the church building. The area appeared too small to me on my site visit, and the first claimant s evidence on this was not convincing. In addition, the church had the land surveyed. When the claimants put up their fence on the eastern boundary the defendants immediately tore it down. All of these acts are indicative of the church dealing with the northern portion as an occupying owner is expected to do. Rectification of the 1986 deed of rectification 78. The Claimants are seeking a rectification of the 1986 deed of rectification but they haven t pleaded exactly how it should be rectified. I imagine that they obliquely want the deed to be declared void. They seek this relief on two bases, set out in their written closing submissions (but not in their pleading). Firstly, they say that all the boundaries are wrong and that the 1986 deed has illegally effected an incursion into their lands. I have already dealt with that point, and it altogether disposes of their right to this relief: they have no estate in the northern portion capable of being infringed or compromised by a faulty deed of rectification. Secondly, they say that the trustees of the Incorporated Trustees were not parties to the 1956 deed and therefore could not properly rectify it. When a deed of rectification is made, the parties to it ought to be the same parties to the original deed. If the original parties have died then their legal personal representatives ought to make the deed of rectification. 79. The Incorporated Trustees of the Ethiopian Orthodox Church in Trinidad is a legal entity, created by statute. In 1954, Frank Peterkin, acting as Pastor of the (then Page 50 of 58

51 unincorporated) Ethiopian Orthodox Church purchased the Francis Knatt lands. In 1956, after the incorporation of the church, he conveyed the Knatt lands to the church, now named in its official capacity. He conveyed as Trustee of the legal entity. Frank Peterkin was not a party to the 1986 deed of rectification. It is not known whether he was alive in 1986 or if he had by then ceased holding the office of trustee or was otherwise incapacitated. There is no allegation of this in the Statement of Case and thus it was not an issue on the pleadings. 80. Though the officers of the respective parties to the two deeds had changed between 1956 and 1986, the office of trustee of the (now incorporated) church was said to be in existence by the lawyer who drafted the deed of rectification. Frank Peterkin was described as the trustee of the church in 1956 and his substitute in the 1986 deed of rectification is also described as trustee of the incorporated entity. The new trustee now includes three persons instead of one. I was not told whether this has anything to do with the internal regulations or bye-laws of the statutory body because it was not pleaded in the Statement of Case and therefore not addressed as such in the Defence. In fact, there are no particulars of fraud or deceit in the Statement of Case specifically setting out why the deed of rectification should be rectified. In my view there is sufficient continuity in the office of the two parties in both deeds to disallow my interference in the deed on behalf of these claimants. My opinion here is confined exclusively to the relief sought by these claimants. The position would be different if the claim was made by different claimants who had legal or equitable rights to the northern portion to protect, and who pleaded it properly. A purchaser or a bank might well have a valid issue with the formalities used in the execution of this deed, but, in light of my earlier findings, not Page 51 of 58

52 these claimants. I therefore refuse to order a rectification of the 1986 deed of rectification. Whether the church is entitled to a declaration of adverse possession 81. I have already found that the church s paper title to the northern portion is a good legal title and further that it has not been extinguished by the claimants. This finding will dispose of the church s own alternate claim for a declaration of adverse possession. If I did not find that the legal title was good I would have been minded to consider the grant of this declaration. However, it seems to me that the church always considered the northern portion to be legally owned by itself and the issue of whether the necessary animus possidendi could exist in relation to one s own lands was not canvassed. I express no opinion on that. The issue of trespass 82. In my opinion the claimants trespassed on the northern portion by erecting the fence and constructing a building in late I am however not satisfied with the defendants evidence that the two claimants cut down the trees. I found that part of their evidence to be inexplicit so that I am not sure who was responsible for cutting down which trees. Certainly, the second claimant had no hand in it. Moreover, no evidence was adduced as to the value of the trees. Usefulness of the observations made at the locus in quo 83. I turn now to consider the court s observations at the site and to take account of my findings there in crafting the necessary declarations in this case. Page 52 of 58

53 84. A first point to consider is the legal effect of a visit to the locus in quo. In my view it is the visual collection and examination of physical evidence that has been adduced with the consent of both parties. In Buckingham v Daily News Ltd [1956] 2 QB 534 an issue arose as to whether the trial Judge was entitled to follow his own impressions formed at a visit to the locus in quo. The English Court of Appeal found that he could do so. In that case the trial Judge on the invitation of the parties went to the defendant s premises and in the presence of both counsel inspected a machine and watched a demonstration by the plaintiff of the manner in which he was cleaning certain blades when an accident occurred. Lord Justice Birkitt approved the dicta of Lord Justice Denning in Goold v Evans and Co [1952] TLR 1189: It is a fundamental principle of our law that a Judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence just as much as an exhibit. It is real evidence. The tribunal sees the real thing instead of having a drawing or a photograph of it but, even if a view is not evidence, the same principles apply. Lord Birkitt went on to say: If a Judge sees machinery in operation, and the parties are present and everything is done regularly and in order, it is the same as if the machine were brought into court and demonstration was made in the well of the court for the Judge to see it there in Payton and Co v Snelling, Lampard and Co. [1901] AC 308 Lord Macnaghten said: One word with regard to the evidence I should like to say. I think, as I have said before, that a great deal of the evidence is absolutely irrelevant, and I do not myself altogether approve of the way in which the questions were put to the witnesses. They were put in the form of leading questions, and the Page 53 of 58

54 witnesses were asked whether a person going into a shop as a customer would be likely to be deceived [by a product in a passing off action], and they said they thought he would. But it is not a matter for the witness; it is for the judge. The judge, looking at the exhibits before him and also paying due attention to the evidence adduced, must not surrender his own independent judgment to any witness. That is very high authority, coming from Lord Macnaghten. Looking at the exhibits, whether they are in the court or the judge goes to see them, paying due attention to the evidence adduced, he must not surrender his own independent judgment to any witness. 85. At my visit to the locus in quo I made the observations that were described earlier. Having considered my examination of the physical evidence at the site, hearing the evidence in the courtroom, and inviting both counsel to apply if necessary to adduce any further evidence to clarify, add, colour, or explain my stated observations I have come to the following conclusion: the claimants have satisfied me that they have extinguished by adverse possession the legal title of the church to a narrow band or strip of land directly in front of their homes which I have previously described as the area with the bench and the grassy area. There was an understandable difference of opinion between the parties as to the width of this strip of land. The area with the bench in front of the second claimant s house was said to be 20 feet wide by the claimants and 10 feet wide by the defendants. The grassy area in front the first claimant s house was said to be feet wide by the claimants and 10 feet wide by the defendants. My direction for proper measurements to be taken was not complied with due to the unreasonable intransigence of the claimants. As a result of the failure to supply the court with accurate measurements I must rely on my own independent observation of the width of this strip of land having walked there and carefully examined its dimensions. I also take account Page 54 of 58

55 of the estimates of counsel in this matter who were there with me and who expressed them in the presence of their clients. I put the width of this strip of land at an even 12 feet from the respective boundary walls of the claimants properties on lots 5 and 6. The claimants concrete structure is not within this strip of land and will have to be removed. 86. For reasons already given I decline to make an order for damages for trespass on the claim and counterclaim, and I also decline to make any order for damages for destruction of trees on the claim. The claim succeeds only insofar as the narrow strip of land is concerned, and the defendants counterclaim succeeds save in respect of the narrow strip. 87. In all the circumstances therefore, and having regard to my findings of law and fact, I make the following orders: (a) A declaration is granted in favour of the claimants that they are entitled to possession of a strip of land 12 feet wide running parallel to their northern boundaries on lots 5 and 6 on lands described in the survey plan of Peter R. Beard dated 4 September 1993 situate at Darrell Spring in the Parish of St. Andrew, Tobago so that each claimant is separately entitled to possess the strip of land to the north of their respective lots. (b) A declaration is granted in favour of the first defendant that it is the legal owner and entitled to an estate in fee simple in possession in a parcel of land in the Parish of St. Andrew, Tobago comprising One point One (1.1) acres more particularly described in the survey plan of G. A. Farrell dated 25 January 1986 SAVE AND EXCEPT for the strip of land described in the declaration above at clause (a). (c) An injunction is granted compelling the claimants within 21 days of today s date to pull down, demolish, and remove all concrete structures, fences, fence posts, or walls of whatever nature on the first defendant s land as described above at clause Page 55 of 58

56 (b) above. In default of the claimants compliance with this injunction within the stipulated time the first defendant is granted liberty to itself pull down, demolish, and remove all concrete structures, fences, fence posts or walls on the said parcel of land. (d) An injunction is granted restraining the claimants whether by themselves or their servants, agents, licensees or howsoever otherwise from entering, being, remaining, trespassing, or building any structure on the first defendant s parcel of land as described at clause (b) above. (e) The claimants will pay two-thirds of the defendants costs on the counterclaim prescribed in the sum of $9, with no order as to costs on the claim. James Christopher Aboud Judge Page 56 of 58

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