republic of trinidad and tobago in the high...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No.: CV2012-03876

BETWEEN

GANESH MADHO

Claimant

AND

CHANDERDAYE RAMDHANIE

RAJINDRA RAMDHANIE

Defendants

Before the Honourable Mr. Justice Vasheist Kokaram

Date of Delivery: 17th

December 2013

Appearances:

Ms. Alicia Baksh-Clarke instructed by Mr. Gerard Gray for the Claimant

Dr. Charles Seepersad for the Defendants

ORAL JUDGMENT

1. Ganesh Madho, the Claimant, has been living on a parcel of land at 163 Cacandee Road,

Felicity, Chaguanas with his family for over fifty years. It is a sliver of land rectangular in shape

with a frontage of 15.5metres on Cacandee Road and 160metres long comprising some

2451.7square metres. The property was previously owned by his father Mahabir Madho and

after he died intestate in 1994, Mr. Madho obtained a grant of Letters of Administration Ad

Colligenda Bona on the 22nd

November 2006. He does not to date possess the legal title to the

said lands. Just next door on Cacandee Road, living immediately to the North of this property

are his neighbours Chanderdaye Ramdhanie and Rajindra Ramdhanie, the Defendants, owners

of 165 Cacandee Road. They, together with Mr. Ramdhanie’s wife Savitri purchased that parcel

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of land at 165 Cacandee Road in 1998. Prior to that purchase he was living some 300feet away

at 178 Cacandee Road.

2. Between these two properties there lay a boundary drain which ran along the boundaries of both

properties from the back of their properties on the East running in a westwardly direction to the

main drains on the Cacandee Road which lies to the front of their properties. The length of that

drain from East (the back) to West (the front) measured approximately 100feet from the

Cacandee Road. The boundary drain had served the purpose of taking surface water from the

two properties out to the concrete drains under the pavement on the Cacandee Road or the Main

Road. In 2005 Mr. Ramdhanie began filling the drain for the purpose of constructing a boundary

wall between the neighbouring properties and a paved driveway on his own property. Mr.

Madho complained that this construction blocked the boundary drain and caused his premises to

be flooded and later to become waterlogged. Mr. Madho made several requests of Mr.

Ramdhanie, he reasoned with him and when his pleadings were ignored he turned to the Court

in 2005 when an injunction was granted by the Honourable Justice Narine, as he then was,

against the Defendants to clear the drain and refrain from blocking the drain. I will return to that

judgment of Justice Narine later on.

3. That injunction was later discharged by Justice Pemberton in July 2010 due to a procedural error

on the part of the Claimant’s lawyers. Prior to the discharge of that injunction the Claimant

alleged that the Defendant had failed to comply with the order and made an application for

contempt on the 9th

November 2006. Of course all those applications as a consequence were

dismissed by the order of Justice Pemberton for the reasons that I have alluded to. With no

finding of contempt being made against him and with the claim having been dismissed and the

injunction discharged subsequently, Mr. Ramdhanie completed the wall in 2012.

4. At the end of the construction in 2012 the boundary drain that previously existed was no more.

In its place if one were to walk from the Cacandee Road along the boundary of both of these

properties of these two neighbours one would find a boundary drain of some 30feet in length

and then a concrete wall of about 70feet varying from heights of 56inches and 88inches and

then after that wall some of the structures that lie on the Claimant’s property. The surface water

on Mr. Madho’s property since the construction has been hindered from gaining access to the

main drains on the Cacandee Road as there is no longer any drain on Mr. Madho’s Northern

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boundary to take his surface water to the Cacandee Road save of course for the 30feet of drain

to the front of his property. As a result of this obstruction there has been constant flooding and

unsafe and unsanitary conditions and as such Mr. Madho subsequently brought this claim

against his neighbours the Ramdhanies’ for an injunction compelling them to restore the

boundary drain; to restrain the Defendants from trespassing on the lands of the Claimant;

seeking a declaration that the Claimant has an easement in the boundary drain and seeking

damages for nuisance and or trespass to land.

5. The nub of the Claimant’s case is to be found in paragraph 6 and 7 of the Statement of Case

where the Claimant contends that he has been in occupation of the premises at 163 Cacandee

Road for over fifty years and throughout that period until sometime in 2005 they enjoyed the

use of a drain of approximately 100feet that ran in a westerly direction along the boundary of

the said lands and the lands belonging to the Defendants which drain emptied into the Cacandee

Road. In paragraph 7 he says that in 2005 the Defendants began filling and obstructing the

boundary drain and that act prevented the outflow of water from the Claimant’s premises and

caused the property to become waterlogged and flooded.

6. Mr. Ramdhanie on the other hand contends that the wall was built on his lands and the

Ramdhanies’ allege that the duty is on the Claimant to discharge the excess water on the

Claimant’s lands into the drains on the Cacandee Road. The nub of the Ramdhanies’ defence is

that the flooding experienced on 163 Cacandee Road has been caused by the inadequate

drainage of that land by Mr. Madho as well as the encroachments of buildings and structures

erected by Mr. Madho on that property which also lie on the Defendants’ land and the discharge

of water by the structures of the various buildings on 163 Cacandee Road. The Ramdhanies’

contend that they did construct the wall at great expense to themselves and drained their lands

so that no water escapes unto the Madho’s land and no surface water escapes unto Mr. Madho’s

property because of the under-water drains which were built by the Ramdhanies’ on their

property at their expense.

7. The Defendants further contended in their defence that Mr. Madho unlawfully built on the

Ramdhanies’ property at the Southern boundary a steel structure about 20feet high and 40feet

long with a roof about 20feet by 20feet and the Claimant had lodged plastic water tanks on that

steel structure and extended his dwelling house unto the Defendants’ lands in the vicinity of the

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Cacandee Road. These were some of the structures which the Defendant contended in this

matter which would have caused the blockage of the drain and the consequent flooding on the

Claimant’s property however there is no such pleading to that effect. The purpose of the

pleading of the construction of these structures in paragraph 21 of the Defendant’s defence was

to launch a counterclaim that those structures constituted a trespass on the Defendants property

and as a result the Defendant counterclaimed that they were the owners of 165 Cacandee Road;

that the Claimant do remove so much of his unlawful structures built by the Claimant which

stands on the lands of the Defendant and sought an order that the Claimant build a drain on his

land stretching from the unlawful structure built by the Claimant on the Defendants’ land on his

Southern boundary to remove wastewater into the State drain.

8. The Defendant also sought an injunction against the Claimant from using obscene language and

threatening and/or harassing the Defendants. At the commencement of this trial having

examined the pleadings and the witness statements I asked the parties to agree certain relevant

facts so as to narrow the issues for determination at this trial those agreed facts which set the

parameters for the determination of this matter are as follows:

i. That 163 and 165 Cacandee Road are neighbouring parcels of land.

ii. Mr. Madho was at all material times the occupier of 163 Cacandee Road.

iii. That 165 Cacandee Road was owned by the Defendant.

iv. An earthen drain ran in 2005 between both of these properties in an East to West

direction.

v. That the said drain ran between both properties taking water from both properties

into the drains under the pavement of the Cacandee Road.

vi. That the length of that drain was approximately 100 feet.

vii. That the said drain is shown on the survey plan drawn by the surveyor Trevor

Koylass dated 6th

April 2005 (“the Koylass Plan”) and that plan shows that the

drain ran on the lands that belonged to the Defendant the Ramdhanies’.

viii. The drain was blocked by the construction of a wall in 2005. It was built where

the drain existed. The wall is not 100 feet in length but about 70 feet in length

with a remaining portion of 30 feet of drain which has been left to the front of

both of the properties emptying into the drain in Cacandee Road.

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ix. That the wall which was constructed and completed in 2012 was built on the

Defendants land.

x. The wall is preventing water from the Claimant’s land going into the drain that

existed for that 70 feet in length.

9. At an earlier pre trial review I had struck out several parts of the second Defendant’s witness

statement. He was the only witness for the Defendants and in answer to my query whether

having regard to that ruling whether the Defendant intended to proceed with his counterclaim

Counsel for the Defendant elected not to do so and permission was granted to the Defendant to

withdraw its counterclaim with costs reserved.

10. The main issue therefore for determination at this trial was whether Mr. Madho as the occupant

of 163 Cacandee Road enjoyed an easement in the boundary drain which was filled or blocked

by the Defendants’ construction of the boundary wall. If so what is the nature of easement and

what should be the appropriate relief; whether damages or the grant of a mandatory injunction

or both. After reviewing the evidence in this case I am of the view that Mr. Madho did enjoy an

easement in a boundary drain which was located on the Defendants lands as a means to direct

the outflow of water from his property into the main drains on the Cacandee Road. 165

Cacandee Road was the servient tenement and 163 Cacandee Road was the dominant tenement.

It was the only surface drain on Mr. Madho’s property which was so configured to rely upon

that drain as the sole means of taking water from his lands and excess water falling from the

roofs of their structures to the main waterway running in the Cacandee Road. It was an easement

that Mr. Madho enjoyed by implication of law he having enjoyed as part of his occupation of

163 Cacandee Road for over fifty years and for the reasons set out in this judgment I will order

the demolition of that wall in so far as it is necessary to re-construct the boundary drain which

lay between the two properties at 163 and 165 Cacandee Road. The drain having been located

entirely on the Defendants land I see no merit in the claim for trespass and that claim would be

dismissed.

The boundary drain

11. A proper appreciation of the boundary drain in its original state prior to the construction can be

seen in the Koylass plan which was tendered into evidence as an agreed document. The survey

plan for ease of reference has been incorporated into this judgment and marked “A”.

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“A” Survey Plan of Trevor Koylass dated 6

th April 2005

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12. From that document the drain is shown as originating in the back of Mr. Madho’s residence

running parallel to the Cacandee Road originating from the South heading to the North to the

boundary. It then turns at a right angle and leads Westwards towards the Cacandee Road. The

drain is shown on the plan as located on Mr. Ramdhanie’s property and separated by a chain

link fence. It is clear from the evidence of both the Claimant and the Defendant that over the

years both properties enjoyed the use of that drain even though it was located on the

Defendants’ land. As seen on the plan the footprint of the Madho’s residence appears to be

one residence however from the evidence it really comprises of several buildings; and if one

were to take a walk from the Cacandee Road Eastwards on Mr. Madho’s land one would first

see a two storey building in which his sister lives, then further to the East walking along the

boundary one will come upon a two storey structure which covers the stairs of a dwelling

house and then a concrete structure supporting large water tanks that services the property.

13. It would appear from the Koylass plan that from the Cacandee Road the drain snaked along

the Defendants land and then turned Southwards along the back of the Madho’s residence.

Mr. Madho’s residence and water tank structures appear at times to be built right up along his

Northern boundary. After the wall was constructed, the drain was no longer visible save for

the thirty feet to the front of the property from the Cacandee drain running East on the

boundary of both properties. In answer to a question from the Court to Mr. Shane Gayle who

was the civil engineer who prepared a report as to the effect of the construction of the wall on

163 Cacandee Road; he explained that the topography of the Madho land generally sloped

from the South to the North and therefore the water naturally flows in the direction of where

the boundary drain stood. Due to the nature of the building structures, there are now stagnant

pools of water with no room to escape. So by way of an example the water falling off the

roofs in some instances falls into some paved areas and remains land locked unable to flow

towards the boundary drain which had existed before 2005 and now since 2012 finds in its

place the Ramdhanies’ wall.

The action in 2005

14. In 2005, the Claimant filed an application for an injunction in HCA1116 of 2005. The

application was determined by Justice Narine who granted an injunction against the

Defendants to clear the drain and to refrain them from blocking it pending the determination

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of the action. Importantly in that claim the facts bear a stark resemblance to the facts in these

proceedings and there is not much difference to date. The basic facts in those proceedings

were that the plaintiff Mr. Madho was the occupier and beneficial owner of the lands. The

land was owned by the Plaintiff’s father. He lived on the land for over fifty years. There was

a drain running in a Westerly direction along the boundary of the lands and lands belonging

to the Defendants. It emptied into the Cacandee Road, the Defendants filled the drain causing

water to collect on the lands of Mr. Madho creating a breeding ground for mosquitoes and a

health hazard to Mr. Madho. In opposition the Defendant contended that the Claimant’s sister

built a structure on the boundary of the said land which covered a part of the drain and

caused an encroachment on the Defendants land. The Defendant admitted that there was a

boundary drain of about 100 feet located on one foot of land of both parcels. The first

Defendant admitted that the Defendants did in fact fill the existing the drain for making a

driveway and erected a concrete wall and further contended that the Claimant, Mr. Madho’s

brothers and sisters who in occupation should landscape their properties so as to avoid

flooding and waterlogging on the Claimant’s land.

15. Importantly in that judgment of Justice Narine it was not in dispute, as it is not in dispute in

this case, that for the last fifty years there was a drain flowing between the respective parcels

of land in a westerly direction and emptying on the Cacandee Road. That drain has been

filled in by the Defendants they contend that part of that drain was on their property and that

they were entitled to erect a concrete wall on their land if they so wished. They further

contended that the drain was a breeding ground for mosquitoes and the smell of brackish

water was a health hazard however to date they have not built a drain to replace the one that

they filled.

16. Justice Narine concluded that it was clear that the parties should have considered settling the

matter however failing that settlement the Court had no difficulty in granting an injunction

along the principles of law that it is a nuisance to interfere with an easement or other rights

used or enjoyed with another neighbour’s land. See Clerk and Lindsell on Tort 16th

ed para

24(3) pg 1356. A private nuisance is a wrong only to the owner or occupier of the land

affected and possession or occupation of the land is what gives the right to sue a private

nuisance. This was a red flag which was raised by Justice Narine since his judgment in July

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2005 and heed should have been taken by the Ramdhanies’ of what was being said as to what

would amount to a nuisance which is now the main focus in this trial.

The expert report

17. On the 2nd

October 2013 at a pre-trial review I gave the Claimant permission to rely on an

expert report compiled by Mr. Shane Gayle. He is a practicing civil engineer since 2004 and

a registered member of Association of Professional Engineers of Trinidad and Tobago

(APETT). His evidence is captured largely in his report which was tendered into evidence

and served as a useful guide to the topography of the land, the effects of the actions of the

Defendants on Mr. Mahdo’s land and the likely options to resolve those problems. On the

utility of experts in matters such as these Justice Jamadar reminds us in the Court of Appeal

decision of Kelsick and Kuruvilla CA P277 of 2012 that Part 33 of the CPR provides for

the calling of expert evidence and use of expert reports with the permission of the court

would be granted where it is reasonably required to resolve proceedings justly. “Part 33(1)

CPR provides that the duty of an expert is to impartially help the Court on matters relevant to

his expertise and his duty in part 33.2 overrides any obligation to any other party including

those from whom the expert received instruction and payment. The report must be an

independent product uninfluenced as to form or context by the exigencies of litigation and

the duty of the expert is to provide independent assistance to the Court by way of an

objective unbiased opinion.”

18. Save for the fact that the expert in this case, Mr. Gayle, obtained his knowledge of the state

of the drain prior to 2005 from instructions received by Mr. Madho, and that he admitted in

cross examination that the drain did in fact run on the lands belonging to Mr. Ramdhanie,

save for those two aspects of his report this Court derived considerable assistance from his

report most of which remained unchallenged. I drew particular reference in Mr. Gayle’s

report to his methodology where his investigation report was based on a review of all

cadastrals, meeting the residents, a visual review of the topography of the existing site and

immediate environs, a review of video records of site conditions and status site drainage

before the main ditch was blocked, digital photographs for records, a list of problem areas

which was generated after the tasks were completed and recommendations to restore the

drainage capabilities of the property.

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19. Relying on the Koylass plan which was referred to by Mr. Gayle as the “Gokool plan” (and if

one examines the Koylass plan one would see reference to the survey done by C. Gokool in

November 2000) Mr. Gayle confirmed the topography of Mr. Madho’s land and the

boundary drain. He observed that the drain based on its size would not have had sufficient

size or slope to function adequately during times of excessive rainfall however, it was the

only drainage conduit seen on the cadastral responsible for draining the entire Madho’s

property and also that of the neighbouring property to the West. Reviews of the video records

shows that the Madho property was able to drain and the aforementioned drain had managed

to keep the property dry which is unlike the state that it is now.

20. Mr. Gayle observed that presently there are remaining parts of the boundary drain to “the

North of the property and another small portion to the South” (as was explained in cross

examination this meant to the East and West as his report was not based on cardinal points

but by referring to the Cacandee Road where he stood as South and the back of Mr. Madoo’s

property as the North). However the rest of the drain in-between and the chain link fence

have been destroyed and replaced by a reinforced concrete block wall the height of which

varies from 88inches in some instances to approximately 56inches. This new wall and all the

backfill material behind it has virtually blocked the path of the original boundary drain

leaving storm water and domestic greywater from Mr. Madho’s residence with no route with

which to get to the municipal drains. The property has always drained itself along this line as

evident by the majority of the surface area outside of the house which is paved with concrete

that slopes towards the old drain alignment. Without the drain what has resulted is an

unpleasant sight in several areas within the Madho’s property of black stagnant foul smelling

water which has backed up against the newly built wall and has remained for days with no

way of freely draining off the property.

21. His recommendations to deal with the impacts of the drainage problem which are identified

as “unpleasant sight of black stagnant water, foul odor throughout the property, the

proliferation of mosquitoes on the property as a result of the stagnant water and flooding of

the soak away pit during times of excessive rainfall and property flooding” were two-fold.

The first option was “to reinstall the boundary drain back to its original alignment” and the

second “without a way to get the property to drain freely by open drains then the option

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would be to install a sump pump to de-water the property as soon as there is any kind of

water being discharged”, that option he opined was much more expensive than the first

option. I explored in my examination of the expert, a third option of draining the property to

the South of the Madho property and Mr. Gayle opined that, that would have been a more

difficult enterprise having regard to the slope of the Madho property naturally from the South

to the North.

22. The evidence of the Claimant (in addition to the expert evidence of Mr. Gayle) is to be found

in testimony of Mr. Madho himself, Ms. Shirley Madho his sister in law and a neighbour Ms.

Rita Persad. Their evidence can be summarized (and they were largely unshaken) that the

drain was in existence for over fifty years, that the wall was constructed where the drain ran,

and the wall has blocked the access of the water from the Claimant’s property and caused

damage.

23. With the evidence of the Defendant there were two main incriminating aspects of the

Defendants’ evidence. First his evidence in chief at paragraph 8 of his witness statement

where he admitted that there was a drain taking water from East to West into the Cacandee

Road and into the concrete drains which are below the pavements and that drain which is

about 2 feet wide running from the Cacandee Road on the West to a point of 100 feet East.

And secondly his cross examination which virtually conceded the entire case of the Claimant

on its cause of action for nuisance in the following manner:

“Q: you feel you can do whatever you want on your property?

A: it is mine.

Q: the Claimant complained that your actions caused him flooding on their

property?

A: yes

Q: you did nothing to fix that situation?

A: I fixed my situation

Q: you did not do anything to help fix the situation to fix the flooding on Mr.

Madho’s property?

A: I cannot help them to fix their flooding.

Q: Mr. Madho took you to court and obtained an injunction?

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A: yes

Q: even after that injunction you did not unblock the drain?

A: we did not do anything

Q: even after 2005 as recently as 2012 you continued to block the waterway by

building up the drain?

A: yes I built up the wall

Q: I put it to you that you being selfish and without consideration blocked up the

drain which was in existence for over 60 years to make your place a more

convenient place to live

A: yes why I should not live better.”

24. I turn now to the applicable law which is relevant to the claim for nuisance which I find to be

the only relevant cause of action for the Claimant. An easement has been described in the

Halsbury Laws of England1 as “a right annexed to land to utilize other land of different

ownership to do something on that land or to prevent the owner of that other land from

utilizing his land in one of a limited number of ways.” Simply put it is a right over the land of

another with certain limitations to the extent that is necessary for the reasonable enjoyment of

the property. Translated in this case it is a right by Mr. Madho of the Ramdhanies’ land with

certain limitations to the extent that is necessary for the reasonable enjoyment of Mr.

Madho’s property.

25. In the text of Easements by the author Gale2 he states that:

“If an owner of land for his own convenience diverts or interferes with the course of a

stream he must take care that the new course provided for is sufficient to prevent

mischief from an overflow to his neighbours land and he will be liable if such an

overflow takes place.”

The case relied on is Sedleigh-Denfield v O'Callaghan [1940] AC 880. In this case there is

no complaint of an overflow however the applicable law with the diversion or interference

with the course of easement is directly relevant.

1 Vol. 87 (2012) 5th Edition para 802

2 Charles Gale on Easements 18

th ed. at page

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26. In order to determine whether an easement has been established it is necessary to satisfy the

key requirements as to what constitutes an easement as set out in the Megarry and Wade3 and

those elements can be broken down in four tiers:

i. there must be a dominant and servient tenement;

ii. it must accommodate other lands that being the dominant tenement;

iii. and also being the dominant and servient tenement must be owned by

different persons;

iv. the easement must be a right capable of forming the subject matter of a grant.

27. The wrongful interference with an easement constitutes a private nuisance that is to say an

injury done to a person in this case Mr. Madho in possession of property in land by which his

enjoyment of his property has been adversely affected. Again referring to the case Denfield v

O’Callghan an occupier of land constitutes a nuisance if with knowledge or presumed

knowledge of its existence that occupier, in this case Mr. Ramdhanie, fails to take reasonable

means to bring it to an end when he had ample time to do so and adopts it if he makes any

use of the erection of artificial structures which constitutes to nuisance.

28. And finally, in Clerk and Lindsell4:

“A nuisance to be actionable must be such as to be a real interference with the

comfort or convenience of living according to the standards of the average man an

interference which alone causes harm to something of abnormal sensitivities does

not of itself constitute a nuisance. In practice the general concepts of the

foreseeability and reasonable user may have rendered the notion of abnormal

sensitivity less significant. The discomfort must be substantial not merely with the

reference to the Claimant it must be of such a degree that it would be substantial

to any person occupying the Claimant’s premises irrespective of his position in

life, age or state of health. It must be an inconvenience materially interfering with

the ordinary comfort physically of human existence.”

29. Having regard to the evidence in this case of Mr. Gayle which to a large extent was

unchallenged with regard to the interference caused by Mr. Ramdhanie’s action to Mr.

3 The Law of Real Property by The Hon. Sir Robert Megarry and H.W.R. Wade 4

th Ed para. 805

4 Clerk and Linsdell on Tort 19th edition paragraph 20-11

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Madho’s enjoyment, the interference with Mr. Madho’s comfort and convenience of living

on his property is in fact in keeping with the standards of the average man and the

inconvenience that he has suffered is that ordinarily associated with the discomfort of

physical human existence and is not merely according to the elegant or dainty modes and

habits of living. This is a basic requirement of the enjoyment of his property: the free flow of

water, the prevention of flooding, the prevention of stagnation of water on one’s property, the

elimination of a proliferation of mosquitoes which causes a health hazard or a foul odor

which also causes a health hazard due to the stagnation of water. These are plain and sober

and simple notions of physical comfort which have been denied to Mr. Madho by the actions

of Mr. Ramdhanie.

30. With reference to the applicable remedies where there is a nuisance it is quite clear that the

Court is empowered to grant either an injunction or damages or both. In this case where what

is being sought is a mandatory injunction I agree with the Claimant that the Court must

exercise great care. Referring to the judgment in Redland Bricks v Morris [1970] AC 652

the grant of a mandatory injunction is discretionary and unlike a negative injunction cannot

be as a matter of course. The general principles for an application in granting such a

mandatory injunction includes that there must be a strong probability that grave damage

would accrue in the future which I find on the facts to have been proven by Mr. Gayle’s

report, that damages would not be a sufficient or adequate remedy if such damage does

happen and thirdly and importantly (unlike the case where a negative injunction is granted) to

prevent the continuance or recurrence of a wrongful act the question of the Defendant to do

works to prevent or lessen the likelihood of a future apprehended wrong must be an element

to take into account.

"Where the defendant has acted without regard to his neighbour's rights, or has

tried to steal a march on him or has tried to evade the jurisdiction of the Court or,

to sum it up, has acted wantonly and quite unreasonably in relation to his

neighbour he may be ordered to repair his wanton and unreasonable acts by doing

positive work to restore the status quo even if the expense to him is out of all

proportion to the advantage there by accruing to the plaintiff." (Lord Upjohn at

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page 656). I also place reliance on Bean on Injunctions5 which reinforces the

point that “if a Claimant can be fully compensated by an award of damages no

injunction will be granted, in particular where the wrongdoing has ceased and

there is no likelihood of its recurring an injunction would be refused. However

where the Defendant has wrongfully interfered with the Claimant’s rights as an

owner of property and intends to continue with that interference the Claimant is

entitled prima facie to an injunction and special circumstances may occur in

which the remedy of damages would adequately compensate the Claimant for the

loss he has suffered and may in the future suffer but it is for the wrongdoer to

satisfy the court that such special circumstances exists.”

31. Finally in Bean “the court may make an award of damages in addition to granting an

injunction in a proper case where the Claimant in an action for nuisance by noise or by

vibration successfully claims an injunction that being the real remedy in the action and also

ask for general damages without being able to prove any special damage his damage may be

limited to a nominal amount.” That is a classic case of what is transpiring in this trial.

32. I have read the Defendants’ submissions. I make two comments on those submissions.

Firstly, that it misses the point that the Claimant’s action with regard to trespass having

regard to the agreed fact that the drain ran on the Defendants’ property is a non-starter, and

that the real case for the Claimant is that for damages or an injunction as a result of a

nuisance caused by the interference with an easement in the boundary drain that existed some

sixty years ago. Secondly, there is no credible evidence that the Claimant, Mr. Madho has

himself obstructed or blocked the boundary drain I say so for the following reasons:

i. By the admission of the second Defendant that he erected a wall on the

boundary drain;

ii. The expert’s report and findings;

iii. The Koylass plan which shows where the boundary drain ran and where the

structures of the Claimant existed in 2005 and;

5 David Bean on Injunctions 11

th Ed 2012

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iv. The corroborating evidence of the Claimant’s witnesses who testified and

were unshaken in their testimony of the existence of the boundary drain which

has now been over taken by the wall constructed by the Defendants.

33. I therefore hold based on the assessment of this evidence, the oral testimony, the

documentary evidence, the photographs and survey plans that:

i. The Defendant purposely blocked the drain when he built his wall foundation

and a concrete platform which was on his land to improve his own premises

and to provide a roadway and parking for trucks and other vehicles owned by

the family6.

ii. There was no flooding or pooling of stagnant water prior to the construction in

2005 and 2012 and that that flooding and pooling of stagnant water was

exacerbated after that construction.

iii. The drain if restored would allow for the alleviation of the problem of the

drainage of the Madho land which has been described by the expert as the

only source of drainage or only possible source of drainage of the Madho

property. The restoration of the drain would also solve the environmental

impacts of the stagnant water.

iv. I find that an injunction would be an adequate remedy in this case where the

Defendant the Ramdhanies’ acted without regard to his neighbours rights. He

tried to steal a march on him. He tried to evade the jurisdiction of the Court

wantonly and quite unreasonably in relation to his neighbour went about

seeing about his own convenience much to the detriment of Mr. Madho and

the occupants of that property.

34. Having regard to the expert’s report and my questioning of Mr. Gayle the best solution would

be to restore the boundary drain. I therefore make the following orders:

i. A declaration that Claimant enjoys an easement in a boundary drain which ran

between the Defendants’ and Claimant’s land that is 163 and 165 Cacandee

6 See witness statement of Rajindra Ramdhanie dated 23

rd July 2013 at paragraph 19. See also his cross

examination for the private business operated on his premises.

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Road, Felicity, Chaguanas as shown on the Koylass plan which was tendered

into evidence in these proceedings.

ii. An injunction is hereby granted compelling the Defendants’ whether by

themselves, their servants, agents or otherwise howsoever to destroy or

remove or dismantle the boundary wall which was constructed by the

Defendants’ their servants and or agents so as to clear and or restore the

boundary drain as shown on the Koylass plan.

iii. An injunction restraining the Defendants’ whether by themselves their

servants and or agents or otherwise howsoever from further interfering with

blocking or impeding the said boundary drain which is shown on the Koylass

plan.

35. Having regard to my findings and having regard to the actions of the Defendant as well to the

lack of evidence as to the extent of damage caused by the blocking of the drain over the years

since 2005 I hold that this is a fitting case for an award of nominal damages and so my final

order would be that the Defendants’ do pay to the Claimant the sum of $15,000.00 as an

award of nominal damages.

36. Quite appropriately the Claimant has submitted that costs should be quantified on the

prescribed scale. We do have the situation where the Claimant is entitled to the costs of the

counterclaim and we have the Claimant not being successful on his claim for damages for

trespass. Therefore the Claimant being successful in what I would call one half of its claim I

would order that the Defendants do pay to the Claimant the costs of $7,000.00 on its claim.

37. I also find that the Defendants having withdrawn its counterclaim the Claimant is entitled to

its costs of that withdrawal however I give credit to the fact that it was done at an early stage

and it saved us a considerable amount of time and the Court has a discretion under Part

67.5(4) CPR to award a percentage of the prescribed costs and so I will order that the

Defendants do pay 50% of the prescribed costs of his counterclaim which would be

$7,000.00.

38. So in total prescribed costs to be paid by the Defendants to the Claimant is $14,000.00. A

stay of execution of seven days is granted.

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Vasheist Kokaram

Judge

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