IN THE HIGH COURT OF JUSTICE. Between PARVATEE ANMOLSINGH MAHABIR. And THE PRESBYTERIAN CHURCH OF TRINIDAD AND TOBAGO

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE Between PARVATEE ANMOLSINGH MAHABIR Claimant And THE PRESBYTERIAN CHURCH OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr Justice Ronnie Boodoosingh Appearances: Mr Phillip Lamont and Mrs Doril Ann Beckles-Lamont for the Claimant Mr Ken Sagar and Mr Yaseen Ahmed for the Defendant Date: 30 June 2016 JUDGMENT 1. This claim concerns the occupation of a parcel of land measuring approximately 14,000 square feet located at the corner of Francis Street and the Eastern Main Road, Arouca. Page 1 of 18

2 2. The claimant lives opposite this land with her husband, Dr Vinod Mahabir. He carries on a medical practice at the front of his home. They live where the claimant s father, Rajaram Anmolsingh, lived. The claimant s father was a physiotherapist and was known as the Hindu Healing Hand. He operated his practice and did his healing from his home. Persons would come from all over Trinidad to see him sometimes from 2 or 3 in the morning. They would wait outside until he started work about 6 am. They would come by bus or taxi, but some patients had their own private transport. The claimant was born in 1947 and recalls these events occurring during the 1950s and 1960s. 3. The land in dispute was a vacant lot across the road. The claimant in her statement of case says that from the early 1960s her father, Rajaram, caused the land to be cleaned and maintained and to be planted with vegetables and fruits trees. Patients began using the front part of the vacant land to park their vehicles. She said this continued right up to her father s death in After that, she took up the occupation of the land. It was used for parking vehicles for her husband s patients. She cleaned it and maintained it. She then developed it by grading and placing materials on it and also by filling a sink hole to the back. She later paid the land taxes for it. She warned persons off the land. 4. Her claim therefore is that her father has adversely possessed the land, and after him, she has done so, such that any title of the owner has been extinguished. 5. The defendant says the Church is the owner of the land. They deny Rajaram occupied the lands. They accept the claimant has done some work on the land but say this happened recently. They say that any occupation by the claimant has never been exclusive. And such occupation has also not been continuous for 16 years. Page 2 of 18

3 6. The first issue to be decided concerns the ownership of the lands. The claimant has submitted that the defendant cannot displace her occupation of the lands since they have not proved they have title to the lands. The defendant, through the Church s property manager, Samuel Sinanan, produced a Deed, No of 1882 to prove ownership. It sets out that the land was granted to the defendant by one Fritz Zurcher, for use by the Church. 7. Mr Lamont, for the claimant, points to a survey report prepared in 2008 by one Winston Ramcharan which mentions Deed 2008 of 1882 and not 3008 and that the boundaries on this survey plan in metres do not match the deed when measured in feet. The deed speaks of a road reserve on the north, but the plan has no such thing and the deed says the lands are freed from all such trusts. However the defendant s witness mentioned that an attempt to sell the land was held back because of a covenant that the land must be used for church or school purposes only. 8. Now the starting point to this issue is the correspondence and pleadings. The claimant s husband wrote a letter dated 5 February 2003 to the defendant stating: I am aware that this property belongs to the Presbyterian Church and is situated directly opposite my residence... In a letter sent by Mrs Beckles-Lamont on behalf of the claimant to the defendant dated 4 August 2014, she wrote: We acknowledge that by Deed No of 1882 you acquired the legal title to the lands in question. In paragraph 1 of the claimant s reply and defence to counterclaim the claimant stated: The Claimant does not deny that the paper title to the lands is vested in the defendant, but says that such title, if any, has been extinguished... At paragraph 9 she said: the claimant acknowledges that the paper title to the said lands may reside in the defendant... At paragraph 21 of the Defence to Counterclaim the claimant admitted the existence of the matters referred to in paragraph 33 of the counterclaim, but says that this paper title has been extinguished... Paragraph 33 of the Defence and Counterclaim had set out that the Page 3 of 18

4 defendant is the owner of the lands and then proceeded to state how this occurred citing the said Deed, as well as the incorporation of the church etc. 9. Thus the defendant s title to the land was specifically made a non-issue by the pleadings. The claimant has admitted the ownership of the lands. The attempt to submit that the defendant has not proven its ownership by pointing to these perceived discrepancies is at best seeking to adopt a scatter-shot approach that is inconsistent with accepting the value and purpose of pleadings to a claim. 10. Pleadings define the issues in dispute between the parties in a civil claim. They help us to know the important facts being asserted by each party, what the issues are, what is accepted, what is denied, why it is denied, and so on. After comparing the pleadings, both the court and the parties are informed on what matters evidence would be required and what proof, if any, is needed. 11. The defendant has given evidence of the deed as showing ownership and this sufficiently proves the matter of the defendant s ownership of it in light of the pleaded cases. 12. In any event, I would note that the perceived discrepancies do not trouble the application of a common sense test. It is obvious to me that the surveyor made a mistake in noting 2008 of 1882 instead of 3008 of 1882; a 2 instead of a 3. Second, the apparent different description between the 2008 deed and the survey plan presupposes that the location did not change in 126 years. That would be incredible for that area if it were so. What may have been described as a road reserve then is simply a road now. The road is really to the north east on the survey plan. The deed notes it as north. Nothing turns on it. Richards land is still to the north. The Eastern Main Road is still to the south. Page 4 of 18

5 13. Further, it also goes without saying that survey or conveyancing practices in 1882 may have been different from Was a survey plan done then or were rough descriptions recorded in the deed? We do not know how measurements were recorded in deeds then, whether these were done with the same care or accuracy as may be done now or whether standards have fallen since then. The technology available to surveyors now is very different. Suffice it to say, none of these matters, raised in submissions, troubled me about the ownership of the lands. The description of the lands in my view is not materially different and clearly identifies the parcel of land as the disputed land. The defendant, in my view, consistent with its pleaded case and the case it has had to meet, has proven on a balance of probabilities that it owns the land in dispute. Nothing in the cross-examination undermines the evidence contained in the witness statements of the defendant on that point. 14. The main issue for determination then is whether the claimant s father or she or both of them together have been in adverse possession of the subject lands to extinguish the title of the defendant. 15. This requires the application of the facts to the law on adverse possession. The claimant must prove that she or her father had a sufficient degree of physical custody and control (factual possession) and an intention to exercise such custody and control on her/their own behalf and for their benefit (the intention to possess or animus possidendi): JA Pye (Oxford) Ltd and Another v Graham and Another [2003] 3 All ER Each case has to be considered on its own. What may prove possession in one case may be inadequate for another case. Page 5 of 18

6 17. In Guyadeen v The Attorney General of Trinidad and Tobago [2014] UKPC 16, Lord Hodge noted: 24. In any event, the Board considers that on the evidence led before the judge at first instance the only reasonable conclusion was that the appellants had established on a balance of probabilities that they and Mr and Mrs Rambaran before them had possessed not only the building and fenced land behind it but also the car park. The appellants and Mr and Mrs Rambaran had the necessary intention, the animus possidendi. Their construction, maintenance and cleaning of the car park and the steps they took to exclude persons other than their customers from parking there vouch such an intention. The other requirement is factual possession which connotes a sufficient degree of physical control: J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, per Lord Browne-Wilkinson. What constitutes an appropriate degree of physical control must depend on the circumstances. In this case the Rambarans and the appellants would have wished members of the public to have access to their car park from Tumpuna Road in order to provide custom to their business. There could have been no question of fencing off the car park if they were to attract such custom. They dealt with the car park as an occupying owner might have been expected to deal with it. No one who parked there temporarily without their consent dealt with the car park in that way. Such ephemeral use of part of the car park by a driver of a vehicle did not amount to factual possession and did not manifest any intention to possess. The Evidence The Claimant s Evidence 18. The claimant gave evidence. She is a retired school teacher, a former Senator and a present member of the Public Service Commission. Her father was Rajaram. She had 5 siblings, one of whom is Krishna Anmolsingh, who is a chiropractor and carries on her Page 6 of 18

7 father s practice. Her father gave her the land on which her home stands and her husband, Dr Mahabir, runs his office from the front. She says her father occupied the disputed land since sometime in the 1960 s. This included planting it. He also allowed an elderly couple to live on the land in a tapia house. They were named Bondel and Ellen. They died in the late 1960s or early 1970s and he broke down the tapia house on the land after. Bondel and Ellen worked for her father. He died in 1983 leaving a will devising his property to her. This included the disputed lands even though it was not specifically mentioned in the will. Her husband started his practice in 1984 and she gave him permission to use the land. 19. She then gives evidence that her brother started to practice in 1979 and continued her father s practice. In 1984 she and her brother, Lutchman, got truckloads of material to fill up the land. This included a sink hole. There was a swampy portion. They graded the lands. This was done between 1984 and Since 1984 she has used the land to allow her husband s clients to park there. She ensured strangers did not park. She had a security guard and placed cameras to monitor the use of the car park. She kept the grass low. In 2001 they decided to upgrade the carpark. Her husband assisted her in getting materials to compact the lands. She cleared the land of bushes. She has had to stop persons from dumping garbage. There was a neighbour, one Victor Richards, who once tried to dig holes to plant on the land but she chased him away. In 2005 her brother received a letter from the defendant concerning the land which was passed to her but she continued to use it. In 2007 she instructed an attorney to make an application to have the lands vested in her but she did not follow up on it. In July 2014 the defendant came on the land and tried to erect a fence on it. Certain correspondence passed and the claim was filed. Page 7 of 18

8 21. Simon Vincent, an attorney at law, gave evidence for her. He met the Anmolsinghs in 1978 or He goes to Krishna s office. He became a friend of the family. He has parked on the lands and the lands were used by Dr Mahabir and Krishna since about About 1984 the lands at the back were swampy. He prepared the will for Rajaram, the claimant s father. 22. Anne-Marie Guerra is a receptionist in the office of Krishna Anmolsingh for the last 8 years. She is 57 years old. She said she is familiar with the property. Her grandparents lived obliquely opposite it. She was a visitor there. Her mother worked for the Anmolsinghs. She would be over by them often. She picked fruits from the land as a child. There was a tapia house and an old couple lived there. The land was not fenced but Rajaram planted it. She sometimes held the seeds for him while he planted it. She considered him as a grandfather or a Nana. Her father also helped Rajaram. She noted that Nana cleared and planted the lands mostly on weekends. A few cars coming to Nana would park on the land in the 1970s but it was not really used as a car park until later on. Her father would help the claimant take care of the land after Rajaram died. Her father helped spread stone on it, it was levelled and paved. She never saw anyone on the lands except the Anmolsinghs and the old couple. 23. Krishna Anmolsingh said he was born in In the 1960s some people who came to his father would use the land to park. He was abroad for some time and he started his practice in Between 1984 and 1986 they dumped dirt and gravel and used a steamroller to compress the land. The claimant did further work in Finally, for the claimant, Amadath Anmolsingh gave evidence. He is 61 years. His inlaws, the Mohammeds, lived to the east of the lands. He would go by them daily to get water since his house did not have running water. He knew Rajaram who would always be on the land or in his practice. When he went for water early in the morning, in the Page 8 of 18

9 1970s, Rajaram would be planting the land. He also knew the claimant s husband filled up the land in the 1980s. 25. These witnesses were cross-examined. The claimant said her father had a busy practice. He had lots of patients. He would get up early to go to the land. He did not plant mainly on weekends. 26. He planted with assistance. These included one Bondel and Poon King. She did not have direct interaction with her father concerning the lands. She said she was in possession of the lands. She did not know why her husband wrote a letter to the defendants asking about wanting to lease or purchase the land. She never fenced the land. The security guard was also a maintenance man. He was employed from the 1980s. She was a teacher in the 1980s. She could not say who would be patients and who were not. All the land taxes were paid on one day in She paid Mulchan Moosai for services. The parking area covered half the land. She did not know who owned the land until Mr Vincent said the car park was there before He saw no one using the lands besides the Anmolsinghs. He did not tell the claimant the land was abandoned and had long passed to her. He never saw cultivation on the land. 28. Krishna Anmolsingh said he was away from 1972 to His father stopped work about He took over. He spent over $100, to fix the land. Altogether he says about $330, was spent. 12 to 15 vehicles would park after the work was done. He said they were in control of the lands between 1983 and 1986, not before. He said people would park and go to and from the mini-mart. Also people from the church Page 9 of 18

10 would park. They would fill up spaces and his patients would not get to park. Thus they got security. Strangers were using the car park. 29. Mr Bahadoorsingh said the distance from the mini-mart to the car park is about 5 houses. Krishna s office is next to the Pilgrim s mini-mart. Most of the time he would see Rajaram on the land. This was during the week. Patients parked on the land. Planting was done to the back. He noted people used to cut through there as a track. Anybody used the track. People coming from Thomas Trace used to cut across the land. He himself used to pass there from time to time. He noted people used to use it all the time, by just walking through. 30. Mrs Guerra-Maharaj noted they would run across a track which is now Timothy Lane. It passes through the lands. Children in the area made use of it. It was a short cut for children. Rajaram never stopped children using the track. The track was used until the 1970s. He planted only on weekends. The Defendant s Evidence 31. The defendant called four witnesses. The Moderator of the Church, Reverend Anabell Lalla-Ramkhelawan gave evidence. She produced records of the Church concerning the property. Her involvement with respect to the land started in They got information and went to see the land. There was material placed on the land. There was loose gravel and it was being used as a car-park. This was to the front of the land. The back was in bushes and greenery. They went to Dr Mahabir s office and told him about the use of the land but he dismissed them. They then took a letter to Dr Mahabir s office some months after. From 2005 the property manager erected No Trespassing signs on the land. These were torn down. Certain correspondence passed. Page 10 of 18

11 32. The property manager, Samuel Sinanan gave similar evidence. He said in 2007 part of the land was being used as a car park and the Richards were planting part of it. He produced certain land reports on the status of the lands. 33. Victor Richards gave evidence. He lives at Francis St at his parents home. This is next to the lands. He is 49. He always knew growing up the land belonged to the Presbyterian Church. He knew the elderly couple who lived on the land. Many of the neighbourhood children would play on the lands. In the 1970s, a Ms Bernadette Haywood, a scout mistress, would hold meetings on part of the land. She lived opposite it. For a short while one Gerald Mc Clean used and cleaned the land. His brother John started planting a kitchen garden on the land close to their home. He, Victor, was then about 12 or 13 and would help his brother. This was for a few years. 34. In 1983 he entered a relationship with Minia, who he later married. They took over planting to earn an income. They planted a small area near their home, gradually increasing to about one lot. They planted lettuce and sweet pepper. They got permission from the church to do so. He would sell in the Tunapuna Market on weekends. His wife also sold produce from the garden in front of the land on the Eastern Main Road. They cleared a second lot and started to plant peas. There was also a small shed. He kept the lands maintained. There was no sink hole on the land. Some members of the church complained about the shed and it was broken down. They had gone to see Reverend Cyril Paul to get a letter of authorisation. They did not get one but had oral permission to use the land. In the 1990s he got a taxi badge so he gradually cut back his planting but he occupied a portion near his home and he planted things like tipey tamboo, figs, cassava, peppers, melongene, dasheen bush. He would cut grass from the land to feed his goats and sometimes he would tether his goats there. Page 11 of 18

12 35. From about 2005 he saw the claimant send persons to spread gravel and level the area. This was about a 20 x 20 ft area. Then he saw it was used as a parking lot. The area of the car park is now about 40 x 40 ft. They continue to plant on a small portion of the land close to their home. 36. His wife, Minia Richards, gave similar evidence. She noted their planting. She was known as the peas lady. She noted that it was only after Dr Mahabir constructed or extended his house that the medical practices have been using the land for parking. Before, patients parked at the back. 37. They were cross-examined. Reverend Ramkhelawan said the land opposite the Barrow Memorial Church is not the land in dispute. She knows the land in dispute. She said someone who needed permission to use the land would have had in the year 2007, to go to the head office at Paradise Pasture, San Fernando. She said the indication that there were covenants running with the land was reported to the synod even though the deed did not say so. She did not report to the synod that Mr Richards was given permission to use the land. She said he has been given verbal permission to plant to the back of the land. 38. Mr Richards said he used to sell on the street at Tunapuna and would operate from his mother s stall at the Tunapuna Market. He said he went to San Fernando to get permission at the back where the fire station is. He got permission from Reverend Paul to use the land. His shed was maybe 15 x 8 feet. He said there used to be marching practice on the lands. When he sold vegetables from his stall, he said, he had cleared an area for cars to park; about 2 cars. He says there was no sink hole on the land and the Anmolsinghs did not fill it up. Page 12 of 18

13 39. Minia Richards said she used to sell at Tunapuna sometimes where someone gave a space. This was Mr Joe. She had gone with her husband to see Reverend Paul to get permission. Someone from the Church had directed her to him. She maintained her position that they had planted the land; the Anmolsinghs did not plant the land then and they started using it as a car park from Findings 40. This came down to different versions by the respective sides. The burden rests on the claimant to prove all the elements of adverse possession. 41. The claimant s husband wrote a letter dated 5 February 2003 to the General Secretary of the Presbyterian Church. This was a short letter. The caption was Re: Request to lease / purchase property. It stated: The vacant land situated at the corner of Francis Street and Eastern Main Road Arouca, has been abandoned for over thirty years. I am aware that this property belongs to the Presbyterian Church and as it is situated directly opposite my residence, I am interested in either leasing or purchasing the said land. I will be happy to meet with you to discuss this matter... Kindly give this matter your urgent attention. 42. Dr Mahabir did not give evidence on behalf of the claimant. The content of this letter is of some significance in evaluating the claimant s evidence even though he is not a party to the claim and the claim is being made solely by another party. But that party happens Page 13 of 18

14 to be his wife and she is relying on acts of occupation done by his patients to advance her claim. What he has said must therefore be of some moment in the context of this case. Further, the claimant s explanation of this letter is that she was angry about it when he sent it. However, she advances no explanation as to why he would have written this. 43. First, the letter asserts the property was abandoned for over 30 years. Does this include by his wife s family? Second, he stated he was interested in leasing or purchasing. What does this mean in relation to the claimant s intention to possess as the owner? Third, what does it say of the claimant s assertion that she did not know of the Presbyterian Church s claim to the land until 2005? 44. Next, two letters were written by the claimant s attorneys before the claim was brought. On 24 March 2014 Mr Vincent wrote to the property manager of the defendant asserting his client s claim. In it he said his client has been occupying the land for over 30 years. He noted during this time she has cleared and cleaned the parcel of land using it as a parking area for the medical practice of her husband and that of her brother. The next letter is the pre-action protocol letter of Mrs Beckles-Lamont. She noted in that letter since prior to 1984 my clients have been in possession of the said lands. She then states since 1984 various works have been done. 45. What is significant from these communications was that there was no specific assertion of the claimant s father s occupation of the lands from the 1960s. It may be argued that it was not necessary to do so since the time from 1984 would have been sufficient for the defendant s title to be extinguished if all the elements were made out. However, it remains an important omission to specifically assert the father s occupation since the claimant also asserts that by the time he died, he would have adversely possessed against the defendant for a sufficient time for him to be able to pass his right to the claimant by his will. The claimant s case is based on the continuity of this occupation by her father Page 14 of 18

15 and then her through the occupation of her husband and brother as a car-park for their medical practices. The evidence of Rajaram s occupation is central to the claimant s case. In these circumstances I consider it odd that it was not asserted before. 46. Accepting, however, that Rajaram may have planted the land, the claimant s case, taken as a whole, contains a significant inconsistency. The claimant herself asserts that only her father exercised control over the land. However, Krishna said people would park and go to the mini-mart. He said church people parked on the land. He also said strangers parked on the lands. Hence, there was a need for security. Further, in cross-examination, Bahadoorsingh said other people used the land. He said they used it as a track. People used it all the time. He himself used it. They just walked through. Finally, Mrs Guerra- Maharaj stated that children used the land as a shortcut. Children made use of it. Mr Rajaram never stopped them. 47. Even in the cross-examination of the claimant it is highly doubtful if either her father or she could have properly excluded persons from using the lands given its location and the surrounding character of the lands. The land was from the claimant s house across a busy main road. The place was too open. Also, for significant parts of the day the claimant would not be around. It is also apparent from the topography of the land that the side closer to the main road would be easier for the claimant to see, but as to the back portion, this was different. It would also have been more difficult to control the use or to exclude persons unless the land had been fenced. In this case enclosing the land would have been a clear act showing the intention to exclude other users. 48. The claim was for the entirety of the land. The claimant had to show possession of the entire land. Page 15 of 18

16 49. There is another inconsistency between Guerra-Maharaj on the one hand and the claimant and Bahadorsingh on the other. The former said it was on the weekend that Rajaram planted and the claimant and Bahadoorsingh said he planted during the week, every day. Nevertheless, this still shows that he planted the land. Even if I accept that Rajaram planted the land, his occupation was not exclusive. 50. I did not pay any weight to the receipts the claimant tendered signed by one Lochan Moosai for large sums of money. The claimant ought to have called Mr Moosai to give this evidence or tender such evidence to show he was unable to come to court. The receipts were also not specific. It could also have been in respect of other kinds of work especially since the claimant s property was also developed. 51. I also had regard to the defendant s witnesses. The evidence of Reverend Ramkhelawan and Mr Sinanan was less determinative of the central issues than that of the Richards. Reverend Ramkhelawan and Mr Sinanan can speak about the land from about They do suggest that the claimant s evidence in relation to the work done on the land is exaggerated. The claimant has herself not brought adequate evidence to substantiate the large sums of money that she claims has been spent on the land. 52. The claimant also did not give evidence that any signage was put up on the property indicating the land was for patients of Dr Mahabir and Dr Anmolsingh or warning persons other than patients not to use it. 53. The Richards, however, gave evidence of their use of part of the land on which they planted. Mr Richards also said his brother used it. They also gave evidence of the use by a scout mistress and others. I found they had less of an interest to serve compared to the witnesses of the claimant. I find it plausible that they would have used the land right next Page 16 of 18

17 to their home which was not being used by the defendant at the time in the same way that patients of the claimant s husband and brother would have used the land at the front when they were looking for parking. I did not see any significant inconsistency in their evidence. They both gave evidence of their use of the land for planting crops. They speak of having a shed on the land. They speak of obtaining permission from Reverend Cyril Paul to use the land. I accepted their evidence of their use of the land and the use of the land by others, including by the claimant s husband and brother for parking. 54. While there was obviously some intention by the claimant to use and have the enjoyment of the lands in dispute, the evidence is not sufficiently strong to establish that such was done with the intent to possess and to make such intention clear and to exclude all others and indeed to keep out the true owners of the land. 55. The claimant must have known of the letter sent by her husband, Dr Mahabir. That did not evince any intent to exclude the owners. Further, the claimant could have called him as a witness to show any contrary intention to what was set out in the letter. The claim is tied to the use of the land as a car park for her husband and brother. The letter in itself therefore cannot be ignored. It suggests she must have known of the defendant s claim to the land before It also is more consistent with the defendant s version that there was no active use and occupation of the land by the claimant until later on when the idea of using part of the land for a car-park was acted on. 56. The case of Guyadeen (above) was cited by the claimant in support of her case. While the law stated is clearly applicable, the facts are different in material aspects. In that case there was no contrary evidence to that of the claimants. Further, the evidence from the claimant s witnesses here concedes the use of the land by other persons such as villagers passing through the land and persons going to the mini-mart and strangers. The nature of Page 17 of 18

18 the car park in that case also is different from the open nature of this piece of land where excluding strangers would have been a more difficult proposition. 57. In the circumstances the claimant has not proved her claim. The claim is dismissed. There is judgment for the defendant on the counterclaim. The defendant is granted an order for possession of the land described in Deed No of 1882 situated at the corner of Francis Street and the Eastern Main Road, Arouca, now found to comprise square metres. I will hear the parties on costs. Ronnie Boodoosingh Judge Page 18 of 18