REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2015-01990 Between JANET CHARLES Claimant AND EVERAD MITCHELL First Defendant LEONARD MITCHELL Second Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Mr. K. Walesby instructed by Ms. S. Rajkumar for the claimant Mr. C. Mattis instructed by Mr. J. Philbert for the defendants
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REPUBLIC OF TRINIDAD AND TOBAGOwebopac.ttlawcourts.org/LibraryJud/Judgments/HC/rahim/...Page 6 of 29 17. According to the first defendant, Yvonne permitted Mr. Patrick Henry (“Henry”),
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2015-01990
Between
JANET CHARLES
Claimant
AND
EVERAD MITCHELL
First Defendant
LEONARD MITCHELL
Second Defendant
Before the Honourable Mr. Justice R. Rahim
Appearances:
Mr. K. Walesby instructed by Ms. S. Rajkumar for the claimant
Mr. C. Mattis instructed by Mr. J. Philbert for the defendants
Page 2 of 29
Judgment
1. This claim is one for possession of land. By Claim Form filed on the 12th June, 2015 the
claimant claims that she has acquired possessory title of land situate at 181B Caratal Road,
Gasparillo, comprising of 1144.4m2 (“181b”) since she has been in continuous, exclusive
and undisturbed occupation of same from the year 1983.
2. According to the claimant, in or about 2007 the defendants asserted that they were the legal
title owners of 181b. The claimant alleges that at this time the defendants brought tractors
onto the land with the intention of clearing same and demolishing her home. Further, that
through the intervention of the police, the defendants were prohibited from so doing. As
such, the claimant claims an injunction, damages for trespass and the following;
i. A declaration that the legal rights of the defendants, if any to the said property
situated at 181B Caratal Road, Gasparillo, comprising of 1144m2, (“the said
property”) have been extinguished due to the effluxion of time and/or pursuant to
sections 3 and 22 of the Real Property Limitation Act Chapter 56:03.
ii. A declaration that by virtue of the claimant’s continuous, exclusive and
undisturbed possession of the said property for over 30 years that the claimant is
entitled to legally and beneficially own and possess the said property.
3. By Defence and Counterclaim filed on the 16th November, 2015, the defendants claim that
the land the claimant is claiming is part of a one acre parcel of land which has been in the
possession and control of their relatives since 1914 as evidenced by Deed dated the 2nd
June, 1914 and registered as DE1914014990BF. According to the defendants, Deed of
Assent dated the 30th May, 1969 and registered as No. 5547 of 1969 conveyed the one acre
parcel of land to their mother, Faustina Mitchell and her siblings.
4. The defendants allege that their aunt, Yvonne Williams (“Yvonne”) took possession of the
one acre parcel of land and granted to Winston Miller, the common law husband of the
claimant, permission to occupy one lot of the land. As such, the defendants admit that the
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claimant resides at 181b but argues that she only occupies one lot of land, compromising
of 504.7m2.
5. Consequently, the defendants aver that the claimant’s occupation of the one lot of land is
not in issue and that they are prepared to give her that portion of the land. The defendants
therefore deny that they possessed an intention to demolish the claimant’s home at the time
of entry onto the land. The court understands the defendants to be saying that although the
claimant was in occupation of one lot with permission, the defendants are not claiming the
lot as part of the counterclaim. It means that there is no issue enjoined between the claimant
and the defendants on the claim for adverse possession of the one lot which the defendants
say the claimant occupies. The defendants do so however without making an admission on
the issue of adverse possession of the one lot.
6. The defendants however do dispute the claimant’s occupation of the remaining balance of
land comprising of 639.7m2 (1144.4m2-504.7m2) (“the disputed land”). According to the
defendants, the one acre parcel of land which includes the disputed land is now in their
control and possession. The defendants allege that the disputed land was formerly occupied
by one Mr. Chattergoon and that after his death they repossessed the disputed land. The
defendants further allege that in 2012, the claimant encroached upon the disputed land. It
is therefore the case of the defendants that the claimant is illegally attempting to claim the
disputed land as she has not been in possession and control of same since 1983. As such,
the defendants counterclaim for a declaration that they are entitled to the land and other
consequential relief.
7. Neither party holds paper title to the disputed land in their names. The court therefore has
to determine which party has the better entitlement or right to possession. This is primarily
a matter of evidence.
The case for the defendants.
Page 4 of 29
8. The defendants are brothers and gave evidence for themselves. The first defendant, a
plumber currently resides at 175 Caratal Road, Gasparillo (“175”) which is a part of the
one acre parcel of land. He began living there in 1998.
9. The first defendant testified that sometime in 1914, his great grandfather, George Williams
(“George”) bought a parcel of land situate at Caratal Road, Gasparillo comprising one acre
more or less (“the one acre parcel of land”) as evidenced by Deed No. 1499 of 1914 (“the
1914 deed”). The 1914 deed describes the one acre parcel of land as being bounded on the
north by land of Vendee and Crown lands, on the south by land of Beepat, on the east by a
public road (Caratal main road) and on the west by lands of Gajadar.
10. According to the first defendant, George constructed a house on the one acre parcel of land
and also cultivated upon same. George died on the 29th August, 1940 and his wife died
sometime thereafter. By Deed of Assent dated the 30th May, 1969 and registered as No.
5547 of 1969 (“the 1969 deed”), O’Farrell Gregory Williams as administrator of the estate
of George assented and conveyed the one acre parcel of land to George’s five children,
Alphonsine Williams, O’Farrell Gregory Williams, Clement Williams, Laura George and
Ismay Williams.
11. In the 1969 deed of assent, the one acre parcel of land is described as follows;
“All that piece or parcel of land situate at Caratal Road, - Gasparillo, in the Ward of
Naparima, in the Island of Trinidad and bounded on the North by lands of Joseph Williams
and Crown Lands, on the south by lands of Beeput, on the East by a Public Road and on
the West by lands of Goodman or howsoever otherwise the same may be butted or bounded
together with all buildings and appurtenances thereon.”
12. During cross-examination, the first defendant admitted that he does not have a deed in his
name for the one acre parcel of land. He further admitted that there is no deed in the second
defendant’s name for the one acre parcel of land. During cross-examination, the first
defendant testified that Faustina Mitchell (“Faustina”), his mother is the daughter of
Clement Williams (“Clement”) who died on the 20th November, 1970. As seen above
Page 5 of 29
Clement is one of the persons named in the 1969 deed as owner of the one acre parcel of
land. By will dated the 14th October, 1970 Clement bequeathed all his property, real and
personal to Faustina. The first defendant testified that he did not know if Faustina executed
a deed transferring Clement’s interest in the one acre parcel of land to herself. He further
testified that he was not aware of any other deed being executed after 1969 deed.
13. The pleaded counterclaim of the defendants appears in somewhat obscure fashion to aver
that the defendants are entitled to possession based on both paper title and their previous
possession carried over from their aunt. In submissions however, the defendants appear to
have abandoned their counterclaim on the basis of paper title but has pursued possessory
title.
14. In his witness statement, the first defendant testified that sometime in or around 1972, his
aunt Yvonne (subsequently revealed in cross examination to be his mother Faustina’s
cousin), entered upon the one acre parcel of land and took possession of same without the
permission of any of the paper title owners named in the 1969 deed. The first defendant
further testified that in 1973, Yvonne constructed a three bedroom dwelling house at 175.
During cross-examination, the first defendant testified that he was born in 1965 and was
therefore seven years old at the time Yvonne built her house on number 175. He therefore
admitted during cross-examination that he could not answer as to whether Yvonne
exercised any rights over the lands claimed by the claimant since he was only seven years
old at the time.
15. In 1998, Yvonne obtained permission from the defendants’ parents to have the first
defendant live with her at 175.
16. The first defendant married his wife Denise on the 18th December, 2004 and they live
together with their son at number 175. The first defendant testified that prior to 2004, he
paid all utilities bills and land and buildings taxes as Yvonne was a pensioner. During
cross-examination, the first defendant admitted that the WASA bill for 175 is still
registered in the names of the persons stated in the 1969 deed.
Page 6 of 29
17. According to the first defendant, Yvonne permitted Mr. Patrick Henry (“Henry”), Mr.
Andre Barnett (“Barnett”) and Mr. Chattergoon to each use one lot of the one acre parcel
of land for agricultural purposes. In 2006, the defendants asked Henry, Barnett and
Chattergoon to desist from any further use of the three lots of land they occupied. However,
Barnett and Henry refused to move as they claimed that they had growing crops on the
land.
18. Consequently, the second defendant initiated proceedings in the San Fernando Magistrate’s
Court against Barnett and Henry for trespass. Both matters were settled out of court and
the defendants recovered the land. The second defendant paid five hundred dollars to Henry
for the fig plants he had planted on the land and eight thousand dollars to Barnett as
compensation for the crops he had cultivated on the land. The first defendant testified that
no payments were made to Chattergoon as he had stopped planting on the land in or around
2006 and died in 2008.
19. Yvonne died on the 23rd July, 2007. By her last will and testament dated the 21st September,
1998, Yvonne bequeathed her house at 175 and all her property real and personal to the
first defendant. The first defendant testified that Yvonne occupied the one acre parcel of
land from 1973 up to the date of her death. During cross-examination, the first defendant
testified that he did not apply to probate Yvonne’s will. Further during cross-examination,
the first defendant accepted that Yvonne did not specifically mention the one acre parcel
of land in her will.
20. According to the first defendant, in 2008 Krishna Boodram (“Boodram”) and his family
began claiming ownership of the one acre parcel of land. In order to deal with the
Boodram’s claim, the defendants were advised by their then attorney at law, Mr. Steadson
Jack to survey the portion of the one acre parcel of land which they had in their possession
and control. The first defendant testified that the portion of land he and the second
defendant had in their possession at that time comprised of 4738.8m2. In 2011, Hollis
Eversley (“Eversley”), a land surveyor surveyed the land and produced a survey plan dated
the 21st September, 2011 (“the defendants’ survey plan”).
Page 7 of 29
21. During cross-examination, the first defendant accepted that it is not stated on his survey
plan that the survey was done in accordance with the 1914 and 1969 deeds. Further during
cross-examination, the first defendant accepted that his survey plan was not conducted to
identify the land the claimant was occupying. Moreover, he admitted that the notice dated
the 13th June, 2011 given to the claimant informing her that the survey was going to be
conducted did not state that all the boundaries of the land she occupied would have been
identified.
22. In his witness statement, the first defendant testified that according to his survey, the
claimant only occupied one lot of land comprising of 504.7m2 at that time. He further
testified that the claimant and her family did not occupy more than one lot of land for the
past sixteen years and that the claimant only planted crops on that one lot. However, during
cross-examination the first defendant testified that when his survey was conducted, he
became aware that the claimant was occupying additional lands to the south of her property.
He further testified that the purpose of the survey was to identify encroachments along the
eastern boundary of the claimant’s property and that is why at the bottom of his survey the
following is stated;
“Encroachment by P. Henry- 39.1m2
Encroachment by J. Charles – 2.8m2
Encroachment by Julien Miller – 504.7m2”
23. The first defendant testified that in 2012, the claimant caused a tractor to enter unto the
disputed land and began clearing same. The disputed land according to the defendants is
located to the south of the one lot of land occupied by the claimant. Consequently, by letter
dated the 2nd November, 2012, the defendants’ then attorney at law, Mr. Jack demanded
that the claimant do stop her trespass on the disputed land. By this letter, the defendants
also offered to sell to the claimant the one lot of land she was occupying. During cross-
examination, the first defendant accepted that this letter did not state that prior to the
claimant’s trespass on the disputed land, either he or Yvonne was in possession of same.
Further, during cross-examination the first defendant accepted that prior to this claim he
Page 8 of 29
did not make mention of Yvonne’s occupation and possession of the one acre parcel of
land.
24. Subsequent to their survey, the defendants placed iron fence posts in concrete bases on the
southern boundary line of the lot of land possessed and occupied by the claimant in an
attempt to fence their land. The first defendant testified that during the fencing process, he
and the second defendant were subjected to objections and harassment from the claimant,
Julien and a third party. He further testified that due to the behaviour of the claimant and
her family, the second defendant obtained the services of two officers from the Gasparillo
Police Station for two days to continue the fencing work. The first defendant testified that
even with the police present, the claimant, Julien and the female third party continued to
harass the workers present.
25. Thereafter, the second defendant initiated proceedings in the San Fernando Magistrate’s
Court against the claimant and Julien to prevent them from further trespassing on the land.
The first defendant testified that this action was withdrawn because the Magistrate’s Court
did not have the powers to deal with the issues arising.
26. Subsequently, the claimant brought the present claim against the defendants. The first
defendant testified that the second defendant has developed the one acre parcel of land by
filling areas with hundreds of truckloads of dirt and by putting up dry walls. He further
testified that the second defendant currently uses the disputed land to store sand, gravel,
building materials and his equipment.
27. During cross-examination, the first defendant was referred to letter dated the 1st July, 2014.
This letter which was sent to the claimant’s attorney at law by the defendants’ attorney at
law referred to the 1914 and the 1969 deeds. The first defendant accepted that in this letter,
his claim to the ownership of the one acre parcel of land was premised on the two deeds.
28. The second defendant, a proprietor, currently resides at Mary Street, Gasparillo and not
on the disputed land. Most of the second defendant’s evidence was the same as the evidence
given by the first defendant and as such there is no need to repeat it. During cross-
Page 9 of 29
examination, the second defendant also admitted that there is no deed in his name for the
one acre parcel of land.
29. The second defendant testified that Yvonne permitted Winston to occupy one lot of the one
acre parcel of land. That Winston constructed a house thereon and resided there with the
claimant and his children until he died in 2000. The second defendant further testified that
the claimant and Julien currently reside in the house constructed by Winston.
30. The second defendant described the location of the lots of land that Yvonne gave
permission to Henry, Barnett and Chattergoon to utilize as follows;
i. The lot of land utilized by Henry was located immediately behind his land on his
western boundary;
ii. The lot of land utilized by Barnett was located immediately to the north of the land
used by Henry; and
iii. The lot of land used by Chattergoon was immediately north of the land used by
Barnett and bordered the lot of land now occupied by the claimant.
31. The second defendant testified that the claimant did not serve any notice on him or the first
defendant prior to undertaking the survey she did on lot 181b in 2012. According to the
second defendant, the first defendant and he served a notice on the claimant prior to conduct
of their survey.
32. The second defendant testified that he has always assisted in the planting and maintaining
of the disputed land and treats same as his own.
33. During cross-examination, the second defendant denied trespassing on the claimant’s land
in 2007. However, he admitted that he took a tractor to the western side of the claimant’s
house and that he destroyed trees which the claimant had planted on the western side of
her house. The second defendant denied telling the claimant that he intended to clear up
the land and to build a road through 181b.
Page 10 of 29
34. During cross-examination, the second defendant was shown the claimant’s survey plan of
181b which was done by land surveyor, Sasha Addo. The second defendant denied that the
claimant planted crops on the entirety of the parcel of land to the west of her shed shown
on the plan. He testified that there were fruits trees planted to the west of her house near
her shed. He further testified that there is a mango tree about ten to fifteen feet away from
the claimant’s southern boundary line.
The case for the claimant
35. The claimant gave evidence for herself and called one other witness, Glenna Bethelmy.
36. The claimant, a housewife shared a common law relationship with Winston Miller
(“Winston”) who died on the 4th July, 2000. The claimant and Winston have four children,
Rhona Charles (“Rhona”), Lesliean Charles (“Lesliean”), Ina Miller (“Ina”) and Julien
Miller (“Julien”) who were born on the 5th May, 1977, the 17th April, 1978, the 18th April,
1981 and the 14th June, 1982 respectively.
37. According to the claimant, sometime in 1977 she began living with Winston at his mother,
Adina Miller’s (“Adina”) house located at 181A Caratal Road, Gasparillo (“Adina’s
house”). Adina’s house is located to the east of 181B Caratal Road, Gasparillo (“181b”).
The claimant testified that prior to 1977, Adina used 181b as her land and planted various
crops on same straight down to a river located on the land.
38. The claimant testified that while living at Adina’s house, she never saw anyone enter 181b
without Adina’s permission. Sometime in 1979 or 1980, in the claimant’s presence a man
by the name of Gibson asked Adina for her permission to plant on a portion of 181b. The
claimant testified that Adina gave Gibson permission to use part 181b and that Gibson built
a fence to mark the portion of 181b which he took possession and control of. Gibson was
therefore in possession of the land between the fence and the river. According to the
claimant, the fence which is partly broken down now is the western boundary of her land.
Page 11 of 29
39. During cross-examination, the claimant testified that on 181a there were two apartments.
That Adina lived in the front apartment and Chattergoon lived in the back apartment. She
further testified during cross-examination that in 1980 Chattergoon took possession of a
piece of land located to the east of 181b and began cultivating crops such as cassava and
dasheen on same. According to the claimant, Gibson planted behind Chattergoon which is
as the court understands to the west of Chattergoon.
40. Moreover, during cross-examination the claimant testified that she also knew that Barnett
began planting a piece of land to the south of the land used by Chattergoon. She further
testified during cross-examination that Henry planted to the back of his house which was
to the south of the land planted by Barnett.
41. According to the claimant, sometime in 1983, Winston and she informed Adina that they
wanted to move out of her house as they wanted to have a home of their own. The claimant
testified that Adina told Winston and her to build their home on 181b as no one was living
there. She further testified that Adina told her that she believed that 181b was state lands
and that she (Adina) used the land without the permission of anyone.
42. In 1983, Winston and the claimant built a wooden house for their family. At that time, the
house consisted of an upstairs apartment on wooden posts. In her witness statement, the
claimant testified that since 1983, she has planted various fruit trees which included corn,