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IN THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

PORT OF SPAIN

C.V. 2011-03561

BETWEEN

THE ROMAN CATHOLIC ARCHDIOCESE OF PORT OF SPAIN

Claimant

AND

LEROY EDWARDS JUNIOR

Defendant

Date of Delivery: Friday 16th November 2018 Appearances: For the Claimant: Mr. Ravi Mungalsingh, Ms. Tara Bhairosingh For the Defendant: Ms. Badri-Maharaj

JUDGMENT

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[1] This action was commenced by Fixed Date Claim Form and Statement of Case filed on

the 19th September, 2011 by which the Claimant sought the following reliefs against

the Defendant:

a) The sum of One Thousand Three Hundred and Twenty Dollars ($1,320.00)

representing arrears in rent for the period 1989 – 2011 at a rate of $60.00 per

annum;

b) A declaration that the Defendant is not entitled to enter or use the Claimant’s

lands;

c) An injunction to restrain the Defendant by himself, his servants and/or agents or

otherwise from entering or remaining on or continuing in occupation of the

Claimant’s lands;

d) That the Defendant remove all backfilling and materials that he has accumulated

and fencing erected on the Claimant’s lands and restore the said lands in such a

manner as it was prior to the acts of trespass at the Defendant’s expense within

twenty eight days;

e) Damages for trespass including aggravated damages;

f) Interest pursuant to the Supreme Court of Judicature (Amendment) Act 2000;

g) Costs;

h) Such further or other relief as the Court deems just;

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THE CASE FOR THE CLAIMANT

[2] The Claimant’s case is that it is the owner of the lands which are described in Deeds

registered as No 262 of 1851 and 595 of 1873 (the subject lands) and that in or around

2006, the Defendant began trespassing on portions of the Claimant’s lands.

[3] The Claimant caused the subject lands comprising 2556 square metres to be surveyed

by one Leslie Akum on the 23 December 2010.He subdivided the land into lots and

delineated said lots on a Plan (the Plan).

[4] In 1988, the Defendant was given permission by the Claimant to occupy, for the

purpose of building a house, the lands situate and described as Lot No. 13 on the Plan

at an annual rent of Sixty Dollars $60.00. The Defendant paid rent for the first year of

his tenancy and none thereafter; he therefore remained in arrears of rent from then

to present.

[5] Lot No. 8 as shown on the Plan was originally leased to Mr. de Freitas, deceased, on

which he built a two-storey wood and concrete house. In or about mid-2004 the top

floor portion of the building was destroyed by fire, leaving the ground floor, which was

rented to one Ms. Hazra Ali and her two daughters. Ms. Ali and her daughters were

later evicted on the 31 August 2006 by one Mrs. Beverly Guevara, one of the

granddaughters of Mrs. Carmen de Freitas, the second wife of Mr. de Freitas. After

the eviction of Ms. Hazra Ali, the house situate on Lot No. 8 remained vacant. The

Claimant contended that the tenancy of Lot No. 8 had been abandoned. Further, by

operation of law, it came to an end on the 30th June 2011 by virtue of the Land Tenants

(Security of Tenure) Act1 as no notice of renewal of the tenancy was served on the

Claimant.

[6] In or about early 2006, the Defendant began to stockpile and/or store materials on

Lot No. 8. The Parish Priest, Father Steve Duncan wrote to the Defendant by letter

1 Cap 59:54 s4 and s10

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dated the 13 July 2006 requesting that he cease his acts of trespass upon church lands.

This letter was sent via Registered Mail and was returned with the notation “refused”.

The Defendant temporarily ceased his actions and Father Steve Duncan wrote by

letter dated the 25 August 2006 thanking him for his co-operation and extending an

invitation for the parties to meet which was not accepted by the Defendant.

[7] In or about late 2007 and early 2008 the Defendant continued his acts of trespass by

installing a water line from the burnt premises on Lot No. 8 to his house on Lot 13. The

Defendant performed further excavation and backfilling, compacting and grading of

the lands situate on Lot No. 8 to the extent that the burnt out dwelling therein was

obscured from view from the road which runs alongside same. He also erected a

galvanise fence to the north of Lot No. 8 running along Lot No. 7, encroaching upon

lands of other tenants of the Claimant.

[8] The Defendant broke a portion of the fence to the south of Lot No. 8 belonging to the

occupants of Lot No. 9 which is tenanted to the Joseph family. The Defendant cleared

a portion of the southern side of Lot No. 8 to create a road wherein he erected a sign

with the words “Barack Obama Avenue”. The creation of this road caused a drain

running along the boundary of Lot No. 8 and Lot No. 9 to be covered by soil preventing

the flow of water from Lot No. 9. The Defendant later erected a galvanise fence to

replace the portion of the fence that he destroyed.

DEFENCE AND COUNTERCLAIM

[9] A Defence and Counterclaim on behalf of the Defendant was filed2. By his

counterclaim, the Defendant sought the following reliefs:

a) A declaration that the Claimant’s title to the lands numbered as Lots 5 and Lot

13 on the survey plan of Mr. Leslie Akum-Lum dated the 9th day of May, 2011

has been extinguished due to the Defendant’s open, exclusive, continuous and

2 Defence and Counterclaim filed on 24th November 2011

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uninterrupted occupation of same for a period in excess of sixteen years.

b) A declaration that the Claimant’s title to the Eastern half of Lot 4, the Eastern

half of Lot 7 and the Western half of Lot 8 on the Survey plan of Mr. Leslie

Akum-Lum dated the 9th May, 2011 has been extinguished due to the

Defendant’s open, exclusive, continuous and uninterrupted occupation of

same for a period in excess of sixteen years.

c) A declaration that the Defendant is entitled to possession of the lands

described above.

d) Costs.

e) Such further and/or other orders as the Honourable Court deems fit and

appropriate in the circumstances.

THE AGREED STATEMENT OF FACTS

[10] On the 16th December, 2013, an Agreed Statement of Facts was filed. By the said

statement, the following facts were agreed by the parties:

a) The Claimant is the owner in fee simple of the lands described in the Schedule

to Deed no. 262 of 1851 and the lands described in the Schedule to Deed no.

595 of 1873 (“hereinafter referred to as the Claimant’s lands”).

b) The Claimant caused a survey plan to be prepared by Mr. Leslie Akum Lum to

identify the Claimant’s lands dated the 23rd day of December, 2010

(hereinafter referred to as the “first survey plan”).

c) The Claimant caused a survey plan to be prepared by Mr. Leslie Akum Lum to

identify the Claimant’s lands and more particularly the area of encroachment

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on the same by the Defendant dated the 9th May, 2011 (hereinafter referred

to as “the second survey plan”).

d) The Claimant leased a portion of its lands numbered 8 to Mr. de Frietas,

deceased, wherein a two-storey wood and concrete house was built. In or

about 2004 the top floor portion of the building was destroyed by fire leaving

the ground floor which was being rented to Ms. Hazra Ali and her two

daughters. Ms. Ali and her daughters were evicted on the 31st August, 2006 by

one Ms. Beverly Guevara, one of the granddaughters of Mrs. Carmen de

Frietas, the second wife of Mr. de Frietas.

e) The tenancy with respect to the said Lot 8 was abandoned.

f) The Defendant performed further excavation and backfilling, compacting and

grading of the lands situate at Lot number 8 to the extent that the burnt out

dwelling house therein was obscured from view from the road which runs

alongside same.

g) The Defendant erected a galvanise fence to the north of Lot number 8 running

along Lot number 7 encroaching upon lands of tenants of the Claimants.

h) Lot number 7 is occupied by a house belonging to the Claimant named the

“Scared Heart Villa” which said house is being rented out to Ms. Hazra Ali and

her two daughters.

i) By letter dated the 8th April, 2009 the Chancery of the Claimant wrote to the

Defendant to stop his actions and invited him to meet with the Parish Priest to

resolve the matter but same went un-heeded by the Defendant.

j) The Claimant’s Attorneys-at-Law sent letter dated the 10th January, 2011 to

the Defendant inviting him to a meeting with the Property Management

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Committee of the Claimant and Mr. Leslie Akum Lum, Licensed Surveyor. This

letter went unacknowledged.

k) The Defendant continued his actions into 2011 whereby:-

i. He used a backhoe to perform works on Lot number 8; and

ii. Erected a fence around and planted trees and flowers on Lot number 5

continuing the fence along Lot number 4 and further east of Lot

number 4

l) The Defendant also placed two galvanised sheets to the west of Lot number 7

around the house known as the “Sacred Heart Villa” situate thereon.

m) The Defendant has erected a galvanised fence to the east of Lot number 9

running adjacent to the car park of the Sacred Heart Church.

THE LAW

Adverse Possession

[11] Section 3 of the Real Property Limitation Act Chapter 56:03 provides:

“3. No person shall make an entry or distress or bring an action to

recover any land or rent, but within sixteen years next after the time

at which the right to make such entry or distress, or to bring such

action, shall have first accrued to some person through whom he

claims, then within sixteen years next after the time at which the right

to make such entry or distress, or to bring such action, shall have first

accrued to the person making or bringing the same.”

[12] Section 4 of the Real Property Limitation Act Chapter 56:03 provides:

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“4. The right to make an entry or distress, or bring an action to recover

any land or rent, shall be deemed to have first accrued at such time as

is hereinafter mentioned, that is to say—

(a) when the person claiming such land or rent, or some person

through whom he claims, shall, in respect of the estate or interest

claimed, have been in possession or receipt of the profits of such land,

or in receipt of such rent, and shall, while entitled thereto, have been

dispossessed, or have discontinued such possession or receipt, then

such right shall be deemed to have first accrued at the time of such

dispossession or discontinuance of possession, or at the last time at

which any such profits or rent were or was so received;

(b) when the person claiming such land or rent shall claim the estate

or interest of some deceased person who shall have continued in such

possession or receipt in respect of the same estate or interest until the

time of his death, and shall have been the last person entitled to such

estate or interest who shall have been in such possession or receipt,

then such right shall be deemed to have first accrued at the time of

such death;

(c) when the person claiming such land or rent shall claim in respect of

an estate or interest in possession, granted, appointed, or otherwise

assured by any instrument (other than a Will) to him, or some person

through whom he claims, by a person being in respect of the same

estate or interest in the possession or receipt of the profit of the land,

or in the receipt of the rent, and no person entitled under such

instrument shall have been in such possession or receipt, then such

right shall be deemed to have first accrued at the time at which the

person claiming as aforesaid, or the person through whom he claims,

became entitled to such possession or receipt by virtue of such

instrument; When the right shall be deemed to have accrued.

(d) when the estate or interest claimed shall have been an estate or

interest in reversion or remainder, or other future estate or interest,

and no person shall have obtained the possession or receipt of the

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profits of such land or the receipt of such rent in respect of such estate

or interest, then such right shall be deemed to have first accrued at the

time at which such estate or interest became an estate or interest in

possession; (e) when the person claiming such land or rent, or the

person through whom he claims, shall have become entitled by reason

of any forfeiture or breach of condition, then such right shall be

deemed to have first accrued when such forfeiture was incurred or

such condition was broken.”

[13] In JA Pye (Oxford) Ltd. & Anor. –v- Graham & Anor. ALL ER [2002] the House of Lords

described the two pillars for establishing a claim to adverse possession as follows:-

i. the factual possession which is actual physical possession of the lands to

the exclusion of all others for the statutory period, viz, sixteen years; and

ii. The intention to possess;

iii. The onus is on the party claiming possessory title to prove, on a balance of

probability that he was in continuous possession for the requisite period.

He must prove both elements.

[14] In Ian Roach and Marjorie Roach v Hugh Jack and Ors. Civ Appeal No. 132 of 2009

Bereaux JA noted at paragraph 17 that the case of JA Pye (Oxford) Ltd. v. Graham

[2002] W.L.R. 221 is the leading authority on adverse possession. He said:

“In summary, it was held:

(a) that the words “possession” and “dispossession” bore their

ordinary meaning, so that “possession” as in the law of the trespass or

conversion, connoted a sufficient degree of occupation or physical

control coupled with an intention to possess and “dispossession”

occurred where the squatter assumed “possession” as so understood;

(b) that the phrase “adverse possession” was directed not to the

nature of the possession but to the capacity of the squatter. In order

to establish factual possession the squatter had to show absence of

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the paper owner’s consent, a single and exclusive possession and such

acts as demonstrated that he had dealt with the land as an occupying

owner might normally be expected to do and that no other person had

done so;

(c) that the requisite intention was not to own or acquire ownership

but to possess and on one’s own behalf, in one’s own name, to

exclude the world at large including the paper title owner, as far as

reasonably possible; and that it was not therefore inconsistent for a

squatter to be willing, if asked to pay the paper title owner while being

in possession in the meantime.”

22. A claim of adverse possession must be properly pleaded and

proved. In Zanim Ralphy Meah John v Courtney Allsop and Ors

CV2010-04559 Kokaram J noted at para. 34: “Claims of adverse

possession must be carefully drafted and the pleader must make it

clear that this is the case which is being set up in defence of a claim for

possession. In Lystra Beroog & Anor. v. Franklin Beroog CV2008-

004699 I observed that this claim “pits the rights of persons in

occupation against the title owners of the property. It is a short hand

expression for the type of possession which can, with the passage of

years, mature into a valid right. It is therefore a very serious and

significant claim where that type of occupation will trump a legal right.

The claim must therefore be carefully scrutinized to determine the

character of the land, the nature of the acts done upon it and the

intention of the occupier. The onus of establishing the defence of

adverse possession is on the Defendant who put it forward”: The facts

relied upon to establish ‘adverse possession’ must be cogent and

clearly stated in the defence. See Nelson v. De Freitas CV2007- 00042

Pemberton J”. [Emphasis mine].

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ANALYSIS & CONCLUSION

LOT 8

The Claimant’s Claim in regard to Lot 8

[15] The Claimant pleaded that in or about early 2006, the Defendant began to stockpile

and store material on Lot 8 and that upon being asked by the Claimant to cease his

actions, the Defendant stopped works on Lot 8 but re-commenced same in or around

late 2007 to early 2008. The Defendant contended however, that he commenced

stockpiling material on Lot 8 from 1984.

[16] The Claimant also pleaded that the Defendant performed further excavation and

backfilling and compacting and grading of Lot 8 and contended that the actions of the

Defendant on Lot 8 constitute a trespass to its lands.

The Defendant’s claim for adverse possession of the Western half of Lot 8

[17] The Defendant sought a declaration that the Claimant’s title to the Western half of Lot

8 as shown on the survey plan of Leslie Akum-Lum has been extinguished due to the

Defendant’s open, exclusive, continuous and uninterrupted occupation of same for a

period in excess of sixteen years.

[18] In support of the relief claimed, the Defendant3 averred that he has been storing

material on the Western half of Lot 8 since he started construction of his two bedroom

house on concrete pillars on Lot 13 in 1984.

[19] The Defendant testified4 that he deposited rubble on the front portion of Lot 8 and

that most of the material was used to form an accessway which he named Barack

Obama Avenue5; further, that the accessway ran along the southern boundary of Lot

3 Para. 20 Defendant’s Counterclaim 4 Para. 4 Defendant’s Witness Statement 5 Para. 5 Defendant’s Witness Statement

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86; he asserted further that there was no objection to him depositing material on the

Western half of Lot 87 by the Claimant.

[20] It has been agreed between the parties8, that the Claimant leased a portion of its lands

numbered 8 to Mr. de Frietas, deceased who built a two-storey wood and concrete

house.

Conclusion

[21] The Defendant admitted under cross examination that his evidence that he started

stockpiling material on Lot 8 in 1983 was untrue. He, however, admitted to depositing

rubble on the Claimant’s land. It was agreed between the parties that Lot 8 was

tenanted to one Mr. Severine de Frietas. The evidence of Mr. Desmond Joseph is that

he knew the Mr. and Mrs. de Frietas were living on Lot 8 since his birth in 1955. Mr.

de Frietas, having erected a house on tenanted lands, before 1981, became a statutory

tenant pursuant to the provisions of the Land Tenants (Security of Tenure) Act9. This

tenancy was not renewed so as at 31st May 2011 title to Lot 8 reverted to the Claimant.

[22] The Claimant was only entitled to bring an action in trespass from the 1st June 2011,

since the heirs of de Freitas had been in possession before that date10.

[23] While a lease is in existence, adverse possession runs against the tenant. Time does

not run against the reversioner until the lease comes to an end whether or not the

lease is registered11.

6 Para. 6 Defendant’s Witness Statement 7 Para. 19 Defendant’s Witness Statement 8 Para. 4 Agreed Statement of Facts 9 Cap 59:54 s. 4 10 Real Property Limitation Act Cap 56:03 s. 4(a) 11 Halsbury’s Laws of England 5th Ed Vol 68 para 1084, Hughs v Griffin and anot 1969 AER 460

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BARACK OBAMA AVENUE

[24] I accepted the Claimant’s evidence that the Defendant began trespassing onto Lot 8

by grading, stockpiling material thereon from 2006. He also admitted in cross

examination that he only wanted a pathway over the land, not to occupy it.

[25] Mr. Williams, the photogrammetrist who produced a photogrammetric report with

respect to the subject lands, confirmed under cross examination that the access to Lot

13 occupied by the Defendant was between Lot 7 and 8.

[26] The Defendant, under cross examination, confirmed that the access to his house on

Lot 13 was between Lot 7 and Lot 8. The survey plan of Mr. Leslie Akum-Lum and the

photogrammetric report prepared by Mr. Paul Williams support this fact.

[27] Having regard to the evidence on this issue, I hold that the Defendant trespassed onto

Lot 8 belonging to the Claimant in creating the roadway Barack Obama Avenue

thereon.

[28] The Defendant also stated in cross examination that he never intended to occupy Lot

8; his intention was to create an accessway between Lots 8 and 9. He has therefore

failed to establish both factual possession and the intention to possess the western

half of Lot 8. I therefore hold that he is not in adverse possession of Lot 8. I also hold

that the Defendant has trespassed onto Lot 8 and is liable in damages for trespass to

the Claimant. I award the sum of Fifteen Thousand Dollars ($15,000.00) as damages in

trespass to the Claimant.

LOT 13

The Claimant’s claim in regard to Lot 13.

[29] The Claimant pleaded12 that the Defendant was a tenant of the Claimant having

obtained permission from the Claimant to construct a house on Lot 13 and reside in

12 Para. 8 Reply and Defence to Counterclaim

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same. The Claimant further contended13 that the Defendant agreed to an annual rent

of $60.00 for the said Lot 13.

[30] By her witness statement filed on the 21st February, 2014, Rosemarie Sinanan testified

that the Defendant was a tenant of the Claimant’s lands. Under cross examination,

the witness was questioned as to how she could say with certainty that the Defendant

was a tenant; Ms. Sinanan was unable to produce rent receipts in respect to this

testimony and sought to rely on assessment records from the District Revenue Office.

The Defendant did not put to her that he was not a tenant of Lot 13.

The Defendant’s claim in regard to Lot 13.

[31] The Defendant sought a declaration that the Claimant’s title to Lot 13 had been

extinguished by his open, exclusive, continuous and uninterrupted occupation of Lot

13 for a period in excess of sixteen years.

[32] With respect to his claim for Lot No 13, the Defendant averred14:

a) In or around 1984, he obtained permission from his grandmother Carmen De

Freitas to build his house on Lot 13;

b) The structure was completed in or about 1988; and

c) He did not pay any rent to the Claimant for his use and occupation of Lot 13.

[33] The Defendant testified that as regards Lot 1315:

a) that shortly after he joined the Trinidad and Tobago Defence Force in or around

the 12th day of April, 1983, he approached his grandmother, Carmen De Freitas

and told her that he was interested in building a house for himself;

13 Para. 9 Reply and Defence to Counterclaim 14 Para. 5 Defence and Counterclaim 15 Paras. 3 and 8 Witness Statement of Defendant

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b) that she told him that there was an area that she had previously used for gardening

that he could use to build his house; and

c) that he began building his house in 1984 and completed same in or around 1988.

Conclusion

[34] The Defendant’s case is that he went into possession of Lot 13 with his grandmother’s

permission. At the time of his entry onto the land, his grandmother was the

wife/widow of the Claimant’s tenant and therefore entitled to possession of Lot 8.

Carmen and Severine de Freitas has clearly encroached onto Lot 13 belonging to the

Claimant and had been using it for gardening purposes. Since the survey took place

years later, (2006), it appears that Severine and Carmen were paying rent for the land

they occupied – Lots 8 and 1316.

[35] On the Defendant’s case, once this statutory tenancy ended in 2011 by operation of

law, both lots reverted to the Claimant. If Carmen was in adverse possession of Lot 13,

then her estate would be entitled to pursue a claim against the Claimant. However,

the estate is not a party to these proceedings. The Defendant, in my view, cannot

succeed in his claim for adverse possession against the Claimant, who only regained

possession in 2011 of Lots 8 and 13.

[36] The Claimant, however, has asserted that the Defendant is a tenant in arrears of rent

of the subject lot. I hold that the Defendant is a tenant of the Claimant, the Claimant

having acknowledged him as tenant. I accepted the Claimant’s case that the

Defendant entered Lot 13 as a tenant. No evidence was adduced before me as to the

term of the tenancy, but a claim has been made for arrears of rent. I therefore hold

16 Halsbury’s Laws of England 5th Ed Vol 62 para 189 “Where, during the currency of his tenancy, a tenant encroaches upon, or without title to do so takes possession of, other lands, there is a presumption that the land so taken becomes annexed to the demised premises, whether or not it is immediately adjacent to the demised premises, and whether or not it belongs to the landlord or to a third person, and on the determination of the tenancy that land must be given up to the landlord together with the demised premises.” (Kingsmill v Millard (1855 11 Exch 313; Tabor v Godfrey (1895) 64 LJQB 245; Smirk v Lyndale Developments Lts [1975] Ch 317, 1974 2 AER 8; JF Perrott & Co Ltd v Cohen [1951] 1 KB 705, [1950] 2 AER 939)

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that the Defendant is the Claimant’s tenant. The Defendant, having entered Lot 13

pursuant to a tenancy cannot be in adverse possession of Lot 13.

LOT 7

The Claimant’s Claim in regard to Lot 7

[37] The Claimant has pleaded17 that the Defendant has encroached on lands owned by

the Claimant and occupied by other tenants; the Sacred Heart Villa which was rented

out to Hazra Ali and her daughters is situate on Lot No. 7. A copy of the Lease

agreement dated the 15th June, 2007 and made between the Claimant and Hazra Ali

was annexed to the Claimant’s Statement of Case as exhibit “F”. The issue regarding

the occupation is not in dispute, the parties having agreed that18:

“Lot number 7 is occupied by a house belonging to the Claimant’s

named the “Scared Heart Villa” which said house is being rented out

to Ms. Hazra Ali and her two daughters.”

[38] Significantly, under cross examination the Defendant admitted that he had trespassed

upon Lot No. 7 of the Claimant’s land.

The Defendants Claim in regard to Lot 7

[39] The Defendant has sought a declaration19 that the Claimant’s title to the Eastern half

of Lot 7 has been extinguished due to the Defendant’s open, exclusive, continuous and

uninterrupted occupation of the Eastern half of Lot 7 for a period in excess of sixteen

years.

17 Para. 9 Statement of Case 18 Para. 8 Statement of Agreed Facts 19 Relief 2 of the Defendant’s Counterclaim

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[40] The evidence in support of the Defendant’s pleading in regard to the Eastern half of

Lot 7 is outlined hereunder20:

a) that in or around 2010, he built a ten (10) feet wide by twenty (20) feet

storage area to the Northern side of Lot 7, next to the Sacred Heart Villa,

which he used to store wood and other building materials.

b) that he planted fig trees along on the boundary between Lots 6 and 7 since

1999 in an East to West direction and the same is grown on Lot 7 in a North

to South direction occupying half the said Lot; and

c) That he was not told to cease his actions when he erected galvanise fences

along the Southern boundary of Lot 7.

Lot 7

[41] The Defendant admitted that he trespassed onto Lot 7 in cross examination. However,

none of the acts relied upon by the Defendant satisfy the requirement of sixteen (16)

years’ unopposed occupation. He admitted in cross examination that he had adduced

no evidence of occupation of Lot 7 prior to 1999. While he stated that he had fenced

one area in 1997, this did not satisfy the sixteen (16) year requirement.

[42] I therefore hold that the Defendant’s claim for adverse possession of the eastern half

of Lot 7 must fail. Having admitted to trespassing on Lot 7, I therefore hold that the

Defendant is liable to the Claimant in damages for trespass onto this Lot in the sum of

Fifteen Thousand Dollars ($15,000.00).

20 Paras. 9, 12, 19 Witness Statement of Defendant

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LOT 6

The Claimant’s Claim in regard to Lot 6

[43] The Claimant pleaded21 that the Defendant erected a fence and placed materials

around Lot 7 and into Lot No. 6. Lot No. 6 is occupied by Kathy Ann and Cherisse

Fletcher who are tenants of the Claimant.

[44] The Defendant did not answer the Claimant’s plea with respect to Lot No. 6 and made

no averments on this claim. He, however, admitted under cross examination that he

had deposited material between Lots Nos. 6 and 7.

[45] He is therefore liable in trespass to the Claimant. I award nominal damages in the sum

of Fifteen Thousand Dollars ($15,000.00).

LOT 5

The Claimant’s Claim in regard to Lot 5

[46] The Claimant averred22 that the Defendant trespassed onto its lands by erecting a

fence around and planted trees and flowers on Lot 5. The Claimant claimed damages

for trespass as against the Defendant and an order that the fence erected by him, be

removed.

[47] During cross examination, the Defendant admitted that he had trespassed onto

church lands by erecting fences shown on Lot 5 on the survey plan of Mr. Akum Lum

in or around 2009/2010.

21 Para. 14 Statement of Case 22 Para. 13 Statement of Case

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The Defendant’s Claim in regard to Lot 5

[48] The Defendant sought a declaration23 that the Claimant’s title to Lot 5 as shown on

the survey plan of Leslie Akum-Lum has been extinguished due to the Defendant’s

open, exclusive, continuous and uninterrupted occupation of same for a period in

excess of sixteen years.

[49] In support of the relief claimed, the Defendant pleaded24 that since 1991, he has used

Lot 5 and approximately half of Lot 4 as a garden and has planted crops such as

patchoi, dasheen, thyme, coconut, tomatoes, cassava, figs, peas and sorrel in his

garden. He also pleaded25 that he erected a fence around Lot 5 between 2009 and

July, 2010.

[50] The Defendant testified26 that he tirelessly moulded and graded Lot 5 to make it

suitable to grow and cultivate crops in 1991; that he used Lot 5 and approximately half

of Lot 4 as a garden and has planted crops such as patchoi, dasheen, thyme, coconut,

tomatoes, cassava, figs, peas and sorrel in his garden; and that he erected a fence

around Lot 5 between 2009 and July, 2010.

[51] In response to the Defendant’s Claim27 the Claimant denied that the Defendant

occupied Lot 5, and averred that Lot No. 5 was cultivated by Ms. Ryan, who grew short

term crops on same.

[52] The Defendant admitted that he fenced Lot No. 5 sometime between 2009 and July,

2010 during his cross examination, in contradiction to his pleading on the issue. He

admitted further that he trespassed on the Claimant’s land by erecting those fences.

23 Relief 1 Counterclaim 24 Para. 12.2 Defence 25 Para. 12.3 Defence 26 Paras. 11, 12, 13 Witness Statement of Defendant 27 Para. 28 Reply and Defence to Counterclaim

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Lot 5

[53] There was no evidence adduced in support of the claim that the Defendant planted

crops on Lot 5 from 1991. There were no photographs or witnesses to support his

case. I did not consider the Defendant a creditworthy witness having regard to the

inconsistencies in his evidence and the discrepancies between his pleaded case and

evidence highlighted throughout this case. He asserted during cross examination that

the crops he planted were for sale as well as personal use; however, no evidence of

such sales including testimony from his customers was adduced in court. He also

revealed that he fenced the land in 2009-2010 because his crops were being stolen

and that persons freely entered Lots 4 and 5. He admitted that he did not exercise

full/exclusive control over the lots:

i. he was not in exclusive occupation of the Lot to the exclusion of all others;

ii. he did not possess the intention to possess the land for sixteen (16) years.

[54] I therefore hold that the Defendant trespassed onto Lot 5 of the Claimant’s land and

he is liable to the Claimant for damages for trespass to Lot 5. I also award the Claimant

the sum of Fifteen Thousand Dollars ($15,000.00) as damages for trespass of Lot 5 by

the Defendant.

LOT 4

The Claimant’s claim in regard to Lot 4

[55] The Claimant pleaded28 that the Defendant “erected a fence around and planted trees

on Lot 5 and continued the said fence into Lot 4 and further East of Lot 4”.

[56] Under cross examination the Defendant admitted that he erected the fence in or

around 2009/2010 and that he trespassed onto the Claimant’s lands.

28 Para. 13 Statement of Case

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The Defendant’s Claim in regard to Lot 4

[57] The Defendant sought a declaration29 that the Claimant’s title to the Eastern half of

Lot 4 as shown on the survey plan of Leslie Akum-Lum has been extinguished due to

the Defendant’s open, exclusive, continuous and uninterrupted occupation of same

for a period in excess of sixteen years.

[58] The Defendant pleaded30 that since 1991, he has used Lot 5 and approximately half of

Lot 4 as a garden and has planted crops such as patchoi, dasheen, thyme, coconut,

tomatoes, cassava, figs, peas and sorrel in his garden. He further pleaded31 at

paragraph 16 the Defendant states that he used and occupied approximately the

Eastern half of Lot 4 as his own lands without the permission or authority of the

Claimant.

[59] He testified32 that when he first settled upon Lot 4, the lands were “virgin lands”; that

he made the area suitable to walk about; and that he has been growing crops such as

patchoi, dasheen, thyme, coconut, tomatoes, cassava, figs, peas and sorrel in his

garden at Lots 4 and 5.

Lot 4

[60] The Defendant agreed in cross examination that the fencing on Lot 4 was erected in

1997, on the land of the church and that this amounted to trespass. The Defendant

pleaded that he used one half of Lot 4 since 1991 to cultivate a garden. In cross

examination, however, he accepted that one Ena Glasglow occupied Lot 4 since the

1980s; that Glasglow also planted Lot 4; that other persons entered Lot 4 to take

whatever produce they wanted. He asserted that he planted, graded on half of Lot 4

while Glasglow was in occupation without objection from her. Very importantly, he

29 Relief 2 Counterclaim 30 Para. 12.2 Defence 31 Para. 16 Defence 32 Para. 11, 12, 13 Witness Statement of Defendant

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admitted that he did not have full control of Lot 4. His claim for adverse possession

must therefore fail since he has not established on a balance of probabilities, exclusive

possession of Lot 4, for sixteen (16) years or at all.

[61] I therefore hold that the Defendant has trespassed onto Lot 4 and must pay to the

Claimant damages for said trespass in the sum of Fifteen Thousand Dollars

($15,000.00).

CONCLUSION

[62] I therefore make the following Orders:

a) that the Defendant be restrained whether by himself, his servants and/or

agents from entering and/or remaining on the Claimant’s lands;

b) that the Defendant remove all backfilling and materials that he has

accumulated on and fencing erected on the Claimant’s lands and restore the

said lands in such a manner as it was prior to the acts of trespass at the

Defendant’s expense within twenty eight days (28) of the date of this order;

c) that the Defendant pay to the Claimant damages for trespass to the said lands

in the sum of ($75,000.00);

d) that the Defendant pay to the Claimant mesne profits in the sum of Five

Thousand Dollars ($5,000.00);

e) that the Defendant’s counterclaim is dismissed, and

f) that the Defendant pay to the Claimant prescribed costs of the claim and

counterclaim in the sum of Twenty Eight Thousand Dollars ($28,000.00)

g) Stay of Execution Forty Two (42) Days.

Joan Charles Judge