republic of trinidad and tobago in the high court of...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2472 of 2014

BETWEEN

RAYMOND TIDD

(Legal Personal Representative of the Estate

of CELESTINE TIDD)

MARGARET TIDD-SUTTON

MICHAEL TIDD

ELAINE TIDD-BROWN

JOSEPHINE TIDD-HENRY

GONSALVO CRYIL TIDD

SIMON TIDD

PATRICIA TIDD

CLARA TIDD

Claimants

AND

ALSTON ANDREWS

Defendant

Before The Hon. Madam Justice C. Gobin

Appearances:

Mr. Aaron Seaton instructed by Ms. Rose-Lee Mary

Brown for the Claimants

Mr. Fulton Wilson for the Defendant

JUDGMENT

1. The claimants are all successors in title of Mr. Alexander Tidd of a parcel

of land situate at Pipiol Road, Santa Cruz. Mr. A. Tidd and his wife Celestina, were

their parents. Mr. A. Tidd died intestate on 21st January 1993. Mrs. Tidd died on

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24th September 2008. The first named claimant is the legal personal representative

(LPR) of his mother’s estate.

2. In May 1991, prior to his death, Mr. Tidd (the father) a retired surveyor,

filed an application to bring the Pipiol Road lands under the provisions of Real

Property Act. The application was eventually granted after his death and a

Certificate of Title was issued in his name on 23rd November 1995 pursuant to S.27

of the Act.

3. The lands are described on the Certificate of Title as comprising two

thousand five hundred and sixty eight point six square metres and inter alia as

bounded on the South by land of the heirs of M. Andrews, and intersected by a

ravine 5.18 metres wide. A plan of the parcel appears on the Certificate of Title.

4. The portion of land that lies south of the ravine which measures 349.4 m² is

what is in dispute in this case. It was shown as a hatched area on a plan which was

annexed to the Statement of Case which was prepared by land surveyor Mr. Peter

Goodridge (the Goodridge plan) on 29th October 2013, which plan reflected that the

surveyor redefined the boundaries between November 2012 and September 2013.

The plan stated too, that the disputed area was occupied by one Alston Andrews

and that the surveyor was not allowed to enter it.

5. That Alston Andrews, is the defendant. His home is shown on the

“Goodridge Plan” as located just on what is indicated as the claimants’ southern

boundary line. The house faces northward toward the ravine and the disputed

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portion as is shown on a recent photograph which was tendered in evidence by the

defendant. It is now enclosed by a fence and accommodates a shed and appears to

be fairly well maintained.

6. These proceedings were filed on 24th July 2014. In them the claimants

claimed possession of the disputed portion on the basis of their Certificate of Title

- i.e. their paper title. They alleged that the defendant was a trespasser. The

allegations as to the acts of trespass were made indirectly. The claimants relied on

previous statements, the contents of two pre-action letters in which they had laid

out the following complaints against Mr. Andrews: -

(v) that he started building his house next to the Claimants’

land in or about 2004 and recently built a bridge spanning

a portion of the Claimants’ land. The illegal occupation of

the Claimants’ land now stretches from the Claimants’

Southern boundary line and is enclosed by this wire fence.

The house built by the Defendant occupies about 15 feet of

the Claimants’ land.

(vi) that the Defendant also built steps going to his house, a

garage for his car, a dog kennel, planted the area with a

flower garden, placed boulders on the said land so as to

prevent anyone parking there, and erected a gate stopping

anyone from gaining access to the area of the Claimants’

land unlawfully occupied by the Defendant.

7. In response the defendant claimed that he and his family had been in

occupation of the disputed portion for almost 35 years. He referred to a shed which

was originally built on it to store building material for the construction of his house.

He had planted crops and then fenced in about 2008. He said that he had always

accessed the Pipiol Road directly from the disputed portion across the ravine. In

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the earlier days he piled stones across the bed for foot access. Later on the

“Government” constructed a proper bridge which he subsequently widened to be

able to cross it by car.

8. The Claimants’ rejected these claims. They referred to aerial photographs

for some years preceding and post 2006 which showed no shed on the disputed

lands. They referred to the plan which appeared on the Certificate of Title in 1993

which showed no structure on the disputed lands.

9. The issues which arose for determination were: -

(1) whether the claimants are the owners entitled to possession of

the disputed lands under the Certificate of Title;

(2) if they are whether the Defendant has trespassed on the disputed

lands;

(3) whether the Defendant has been in exclusive possession of the

disputed lands for more than sixteen (16) years preceding the

filing of this action, and if so whether in the circumstances the

Claimants’ title has extinguished.

Issue 1

10. The plan on the Certificate of Title appeared to include the disputed parcel.

At the close of the evidence, the defendant raised an issue as to whether in the

absence of viva voce evidence of Mr. Goodridge, there was sufficient to identify

the disputed parcel. I found and ruled that in the peculiar circumstances of this case

there was insofar as the general location was concerned, the layout of the land made

that easily identifiable. The parcel falls south of the ravine, the existence of which

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is not in dispute. On closer consideration of the evidence, I found that this did not

put an end to the issue. I came to the view that critically, the identification of the

southern boundary line had not been established on the evidence. Mr. Andrews at

all times denied that the lands were the claimants,’ even when he accepted the

claimants’ measurements of the disputed lands and indeed the location of it as was

confirmed by the photograph produced by him in evidence. Indeed his Counsel

agreed at the start of the evidence that the disputed portion was the hatched portion.

11. In order to establish the nexus between the disputed lands and the Certificate

of Title however the claimants still needed to establish in particular, the southern

boundary. Mr. Tidd himself found it necessary to redefine the boundaries in 2012.

That suggests he could not have been certain of where they were. In his witness

statement Mr. Tidd set out the chronology of events which led to the production of

the Goodridge plan. Mr. Goodridge was hired in October 2012. Mr. Tidd was

given notices on 5th December 2012 to serve on adjacent occupiers. He did not say

that he served them nor did he produce a copy of a notice. The pre-action letter

made no mention of the notice.

12. On 4th February 2013 – Mr. Goodridge attended the site of the dispute lands.

He was unable to gain entry. A new date was fixed for the survey 2nd May 2013

which was cancelled and then new notices were handed out for 24th May 2013. Mr.

Andrews’ daughter refused the notice but the defendant eventually accepted it.

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13. On Tuesday 10th November 2013 – Mr. Goodridge started on the Maharaj

Trace side of the lands i.e. the northern boundary. He continued on 10th December

2013 on the disputed end. The surveyor placed some marks on the ravine on Pipiol

Road and stopped for the day. He was to recommence on 4th December 2014.

Several attempts were made thereafter with the involvement of the police.

14. On his evidence therefore, between December 2013 and July 14, 2014 when

these proceedings were filed Mr. Goodridge had not been able to establish the

southern boundary on the ground. It is clear that none of his efforts to do so were

successful. Indeed the surveyor, on the last attempt on Saturday 17th May 2015

expressed his frustration and the exercise was eventually called off without a

resolution.

15. The plan relied upon by the claimants is however dated 29th October 2013,

well before all of the above attempts. Mr. Goodridge did not, as is reflected on the

face of it, conduct the survey before December 2013. Although the general location

of the disputed lands was identifiable, in the absence of an explanation as to how

this plan which predated his visit, according to Mr. Tidd’s evidence, came about,

and how he came to define the southern boundary shown on the plan, a serious

question was raised as to whether the claimants are the owners of the disputed lands

by virtue of the Certificate of Title.

16. In his witness statement Mr. Tidd said that when it became clear that access

to the disputed parcel was not going to be allowed the surveyor was advised as to

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how he could gain access to the lands occupied by the defendant to conduct the

survey. Indeed as a licensed surveyor Mr. Goodridge would have known what

needed to be done. But there is no evidence that Mr. Goodridge followed up. What

was produced by the claimant to establish the southern boundary was rendered far

from reliable in the light of the above inconsistences regarding the dates of the visits

and the date of the Goodridge plan?

17. It may well be that he did not need to actually enter the parcel to establish

the boundary. Modern technology and instruments may have allowed him to

indicate the line by some other means. But I have no evidence on this fundamental

issue. In the absence of direct evidence of this I find that the claimants have failed

to establish that the disputed lands are part of what is described in their Certificate

of Title.

18. On the matter of whether the claimants are the owners, a further issue arose

as I was looking more closely at the evidence. Mr. Alexander Tidd brought the

larger parcel of land under the provisions of the RPO in 1991. A copy of his

application was produced in evidence. In a supplemental declaration sworn on 8th

October 1992, Mr. Tidd in that application stated:

“……after I derive title to the said parcel of land I

intend to have it divided equally among my brothers

and sisters who are entitled to a share.”

This statement which has not been explained by the claimants, in my view, created

a trust in favour of persons who have not been identified and who are not before the

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Court. No evidence has been adduced as to how many persons are beneficial

owners of the land, or whether these persons have even been made aware that a

grant was made to Mr. Alexander Tidd after his death.

19. The claimants acquired their legal interest by transmission on the death of

Mr. A. Tidd. In the circumstances of Mr. Tidd having created a trust, the claimants

having acquired their title by transmission as opposed to a “dealing” under the Act,

it appears to me that the claimants may not necessarily be the only owners if they

are at all or the only persons entitled to possession of the lands. Indefeasibility of

title is inapplicable in these circumstances.

20. The learning in Baalman, The Torrens System in N.S.W. supports the

proposition at pg. 195:-

“Rights in personam

The body of law which was swept away by s.2 (4), ante, as

being “inconsistent with the provisions of this Act” did not

include the body of law recognized and administered by

Courts of Equity in respect of claims to land arising out of

contract or personal confidence. “In my opinion, equitable

claims and interests in land are recognized by the Real

Property Act”: per Griffith C.J. in Barry v. Heider (1914) 19

C.L.R. 197 at 208. That statement, and the general principle

of recognition, were approved by the Privy Council in Great

West Permanent Loan C. v. Friesen [1925] A.C. 208 at 223.

See also Butler v. Fairclough (1917) 23 C.L.R. 78; York

House Pty Ltd v. Federal Commissioner of Taxation (1930) 43

C.L.R.427; Abigail v. Lapin [1934] A.C. 491; Latec

Investments Ltd. V. Hotel Terrigal Pty Ltd (1965) 113 C.L.R.

265; I.A.C. (Finance) Pty Ltd v. Courtenay (1963) 110 C.L.R.

550; Zdrojkowski v. Pacholczak (1959) 76 W.N. (N.S.W.) 503;

Frazer v. Walker [1967] 1 A.C. 569.

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The learning continues (p. 196): -

In Frazer v. Walker [1967] 1 A.C. 569, the Privy Council held

that a registered proprietor who acquires his title under an

instrument which is void for any reason whatever obtains on

registration an indefeasible title, and that the general

principle is that registration confers on a registered

proprietor a title to the interest in respect of which he is

registered, unless, inter alia, he is subject to a claim in

personam, founded in law or in equity, for such relief as a

Court acting in personam, may grant. With regard to the

right of a Plaintiff to bring an action in personam against a

registered proprietor, their Lordships sighted Boyd v. Mayor

of Wellington (1924) N.Z.L.R. 1174; (1924) Gaz L.R. 489 and

Tataurangi Tairuakena v. Mua Carr (1927) N.Z.L.R. 688, and

the situation to which they were referring is clearly

illustrated by the following quotation from the former case

at 1223: “The power of the court to enforce trusts, express

or implied, and performance of contracts upon which title

has been obtained, or to rectify mistakes in carrying the

contract into effect as between the parties to it, has been

repeatedly exercised”.

Reducing the above to principle, and with full realization of

the dangers inherent in an attempt to condense the

provisions of the Minors (Property and Contracts) Act, 1970,

the position seems to be:

1. If the registered proprietor has created any interests

in the land himself, the indefeasibility provisions of

the Act do not enable him to escape the

consequences of his own acts; in this context,

indefeasibility is retrospective only.

2. If the registered proprietor is himself subject to a

claim in personam, founded in law or in equity,

arising out of the transaction pursuant to which he

became registered, registration will not defeat that

claim.

21. Since this issue was not specifically raised or addressed by the parties, I

shall proceed on the basis that the claimants are the registered owners, but it is my

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intention to order service of copies of the RPO application on the siblings of Mr. A.

Tidd or their heirs. I shall also proceed to consider the remaining issues in the event

that I am found to be wrong in my view on the failure to establish the southern

boundary line, and these are whether Mr. Andrews is a trespasser who only recently

entered the disputed parcel or whether he was in possession with the requisite intent

for almost 30 years. The resolution turned on my assessment of credibility of the

parties and the witnesses.

Evidence of Expert Mr. Paul Williams

22. Before I turn to the evidence of the parties I shall deal with the report and

evidence of Mr. Paul Williams, Licensed Land Surveyor and Photogrammetric

Engineer, whose involvement which was encouraged by the court came about as a

result of a consent order. On my early reading of the defence, I understood the

defendant’s case to be that in the early 1980’s during the construction of his first

home – a shed was constructed on the disputed lands, which he had occupied during

the construction. I took that to be the shed which was shown in a recent photograph

which was annexed to the defence.

23. It subsequently emerged under the defendant’s cross-examination that the

statement at para (4) of the defence that “the shed which now stands on the disputed

parcel of land” referred to a different shed entirely, one which was built

subsequently and which is now used as a garage. It seems obvious now in hindsight

that if it were the same shed it would have said “the shed which still stands”.

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24. This mistake however is what led to the appointment of Mr. Williams to

produce documents and photographs relevant to the issue of whether a building of

any type existed on the subject parcel of land in the year 1985 and the photographs

for the period 1978 to present together with an opinion as to whether there was any

consistent cultivation thereon.

25. It had been hoped that the report would settle the dispute one way or the

other and a trial could have been avoided. It had also been assumed that the

Goodridge plan which Mr. Williams imposed upon the photographs, could be relied

upon to identify the southern boundary line. The appointment of Mr. Williams was

made well before the witness statements had been filed. In the light of my findings

on the reliability of the “Goodridge plan” as it relates the southern boundary, it

seems to me that whatever weight I might attach, to his report, the relevance of

Mr. Williams findings at all, is now limited.

26. Mr. Williams produced a report. He concluded that the disputed lands were

“unoccupied” before 2003. He also concluded that the small buildings existing on

the disputed lands and now occupied by the defendant did not exist in 2003. The

report confirmed that the Defendant’s house appeared on a photograph in 1986.

This is completely inconsistent with the claimants’ case that it was built only in

2004. The photographs produced by Mr. Williams generally showed what he said

were medium height trees according to Government mapping and no building on

the disputed portion before 2003.

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27. Mr. Williams was called at the case management stage to explain an

apparent inconsistency in the report and his conclusions. Sworn evidence was

taken. While he maintained at all times that there was no occupation of the disputed

parcel - the 1998 photograph showed and he indicated the appearance of a small

structure on the disputed parcel. No photographs were available for the years 1995,

1996, 1997 and from 1998 to 2003.

28. When Mr. Williams was questioned on his findings, it became evident that

his conclusion that there was “no occupation” since 1985, could not be relied upon.

I say this with respect for Mr. Williams. He seemed to conflate “occupation” with

occupying by persons as a residence. He was keen to point out that the structure he

saw in 1998 was not one people could live in.

29. Mr. Williams pointed out dark areas which indicated what he called medium

height trees. In fact he clarified the position that what we were seeing was the

shadow of trees. He confirmed under cross examination however, that this was not

conclusive. There was no evidence as to the time of the taking of the photos which

would generally affect the direction of the casting of the shadows, I should think. I

was not persuaded by his evidence that there was no agriculture taking place. I do

not believe from his explanation that one could rule out on the ground short crops

such as one would expect to see in a homeowner’s yard, front or back in the locality.

30. Mr. Williams’ report made no mention of the foot bridge, which existed

across the ravine in 1994 and the existence of which supported the defendant’s case

and which appeared on Government plans. He did however, mention the solid

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bridge which in any case appeared in 2003. Only when he was pressed in cross-

examination did he accept that the foot bridge which led only to the disputed parcel

and the defendant’s home was on the same spot and visible since 1994. After Mr.

Williams’ had clarified his report and conclusions, I found his conclusions to be of

limited assistance. The matter was allowed to proceed to trial.

Conclusions on credibility

31. Having considered the evidence and the pleadings I prefer the evidence of

the defendant and find that Mr. Andrews established that he has been in continuous

and undisturbed possession of the disputed land at least, from the time he built his

home in 1985. There were some obvious inconsistences in the case but even with

these, I considered it remained sufficiently credible to discharge the burden of

proof.

The Claimants’ case:

32. The weaknesses in the claimants’ case were evident since the filing of the

Statement of Case in which they made bare allegations that defendant had

wrongfully taken possession of the disputed parcel. It proceeded at paragraph (9)

to refer to the contents of the letter pre-action letter. The letter alleged and I shall

repeat: -

(v) that you started building your house next to the Claimants’

land in or about 2004 and recently built a bridge spanning

a portion of the Claimants’ land. The illegal occupation of

the Claimants’ land now stretches from the Claimants’

Southern boundary line and is enclosed by this wire fence.

The house built by the Defendant occupies about 15 feet of

the Claimants’ land.

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(vi) that the Defendant also built steps going to his house, a

garage for his car, a dog kennel, planted the area with a

flower garden, placed boulders on the said land so as to

prevent anyone parking there, and erected a gate stopping

anyone from gaining access to the area of the Claimants’

land unlawfully occupied by the Defendant.

33. The only reference to a date was the alleged building of the house “next to”

the disputed lands in 2004 which turned out to be quite erroneous. The aerial

photographic evidence established that the house was in fact built at least in 1985.

Significantly in May 2013 in the first pre-action letter, the claimants were alleging

that “the defendant’s house occupies about 15 feet” of the disputed parcel. The

general vagueness of the assertions and as it turns out the serious inaccuracy of the

claim of the encroachment by the house of 15 feet raised a serious issue as to

whether the claimants had any idea as to what was happening on the disputed parcel

before the year 2012 or where the southern boundary was located on the ground.

This confirmed the importance of the need to establish it and the Goodridge plan

failed to do so.

34. The witness statement of Mr. Raymond Tidd contained little evidence to

support the claims of trespass which were made even in the pre-action letter which

as I pointed out provided the particulars of the claim, though indirectly. There was

no statement about the house extending 15 feet into the disputed land in it. For the

first time it appeared in his witness statement (para 28) that he noticed a shed in

2005-2006 on the disputed lands.

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35. The evidence of Elaine Brown, Mr. Tidd’s sister did not assist on the alleged

date of entry. Mrs. Brown produced photographs which showed the fence and

bridge under construction in May 2012. Mrs. Brown confirmed that she had only

begun to visit the lands in 2012. I do believe however as her photographs showed

that the fence was only more recently completed about the time she took the picture.

But fencing in this case was not necessary to establish the defendant’s claim. The

defendant’s occupation and the physical layout of the land, the position of the ravine

as a natural boundary line, made the extent of the occupation especially the

defendant’s northern boundary easily identifiable.

36. Under cross-examination it became clear to me that Mr. Tidd did not visit

the lands, did not know the southern boundary and only noticed the Defendant’s

occupation about the time he decided to have the boundaries redefined by Mr.

Goodridge. I reject his evidence that he noticed the shed in 2005-2006 on the

disputed lands. If he had done so he would have taken some action or he would

have said so in his pre-action letter.

37. The claimants’ case was not helped by the absence of the witness Nyron

Sorzano who in any case had indicated in his statement that he could not attend

Court to give evidence. The Tidds have relatives who live in the area. Mr. Tidd

referred to a Norma Sorzano who had they claimed, reported the defendant’s actions

to them in 2012. That they could produce no witnesses including one of the

claimants Gonsalvo Cyril Tidd, to give evidence to support their claim of a first

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unlawful entry by the defendant on the disputed parcel recently as early as in 2005-

2006, caused me to reject their evidence of recent acts of trespass. I came to the

conclusion that this was deliberately introduced in an attempt to establish a case

that time could run, if at all in the defendant’s favour from 2005.

38. Two further matters affected my general assessment of their credibility. The

reliance on the plan on the Certificate of Title to support the claim that there was

no building on the disputed lands at the date of the grant did not impress me at all.

The claimants were well aware that the lands were originally surveyed in 1981, ten

years before the RPO application was filed when even the Defendant’s house was

not in existence.

39. Further, the failure of the claimants to explain what became of Mr.

Alexander Tidd’s obligation to his siblings has caused me some concern. Even if

they were not aware of it before their father’s death, his clear statement appears on

the copy of the application which they procured. It clearly raised an issue as to

whether all necessary parties were before the Court. If, and I don’t think this is

entering the realm of too much speculation, Mr. Tidd had decided and agreed with

his siblings that in their division one of them would get the lands south of Pipiol

Road such an arrangement more directly would have affected the claimants’ title.

The Defendant’s Case

40. Mr. Andrews claimed to have been in continuous and undisturbed

possession of the disputed lands which he claimed were his own family lands. Until

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the claims made by the Tidds in 2013 no one had challenged his ownership or

occupation of those lands. At the close of the claimants’ case, all that had been

established was that the disputed lands were part of what was shown on the

Goodridge plan.

41. It has to be readily accepted that the defence as set out led to some

confusion. It could have been more carefully pleaded. The defendant claimed he

had been in occupation of the disputed lands first in a shed, while their home was

being constructed, then he planted crops around the shed. He continued in

undisturbed possession since that time. Under cross examination the defendant

explained that, the board house is what had been called the ajoupa or shed in which

they had lived. This was located on the very spot on which the concrete house

shown in the photograph now stands, not on the disputed lands.

42. This, according to Counsel for claimants presented a shift from the pleaded

case which specifically referred to the shed on the land adjacent to where the

concreted house was being constructed. I have already indicated how and why I

think the statement may have misled even the Court. Indeed it was this claim that

the shed in which the family lived was on the disputed parcel that had led to the

engagement of Mr. Williams.

43. As the defendant explained the history under cross-examination I had to

decide whether this so called “shift” so fundamentally affected his credibility so

significantly that I should reject the defence case entirely. I came to the conclusion

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that the defendant did not intend to mislead or that he had not changed his story

only as a result of Mr. Williams’ evidence which had been given earlier on. The

defendant had never specifically said that the garage was the same shed. With a

more careful pleading the confusion could have been avoided. I also bore in mind

that the defendant was giving instructions and evidence of matters that had

transpired almost thirty years ago and of activities on a piece of land which he never

considered as anything but his, which forms part of a continuous spread of lands he

occupied up till the ravine bank. The photographs tendered in evidence which show

neighbouring properties show them all enclosed up to the bank.

44. That his occupation would have been similar is not hard to believe while the

evidence that the shed which is now in existence was not the shed in which the

family lived, was only clearly stated more recently in the witness statements, I did

not reject it. I believed the witnesses. I believe they occupied their home and the

disputed land. I accept their evidence that they crossed the land to go to the river,

walking across it over a foot bridge made of piled stones, until the bridge was built

in 2003. The independent evidence established the existence of the foot bridge. I

believe, that there were crops and trees including avocado trees and a mango tree.

I believe that the defendant planted short crops.

45. The defendant went on to explain that he had erected a latrine on the

disputed lands. At some point it sank and he had to relocate it. In answer to the

Court, Mr. Andrews said he considered that his yard ends at the front of the river.

He only began to think of it as a separate parcel since Mr. Tidd began to claim it.

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It would follow that it was only since the filing of the claim that he would have had

to try to recall some thirty years later, specific activities on a small parcel of land

that he consider his own.

46. I accepted the evidence of Aretha Andrews, the defendant’s daughter. She

lived in the family home until she was thirty-one (31). She confirmed they never

lived on the disputed parcel. There was a latrine there and the area around the

latrine was cleared. Her father planted crops on the disputed area. I believe that

the defendant built the shed, which was eventually used as a garage more recently

in or about 2003. Prior to that time he had the outhouse and kept a dog kennel there

too.

47. Mr. Williams’ evidence of the existence of medium height trees in the area

is not inconsistent with the defendant’s case that he cleared the area around the

latrine and planted crops. The absence of what Mr. Williams called cultivation of

crops suggested to me that he was looking for organized cultivation throughout the

disputed parcel since 1986. This was not how I understood the evidence. The

defendant would plant in one area of what he considered his yard, and then shifted

to another for whatever reason. I did not expect anything more organized or regular

that what a home owner would do with a piece of land that he considered his yard.

48. I accept that the defendant’s house was built in 1985/1986. It was a “board”

structure - rectangular in shape. At some point work was done and it was replaced

with a concrete structure. The aerial photographs indicate a shape change from

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rectangular to pistol shaped by the year 1994. This suggests some extensive

rebuilding of the original board house to a more modern and comfortable structure

shown in the photograph. The shed which the defendant occupied during the

construction would have existed up until that construction was completed. There

is no evidence as to when that actually was, and is impossible to tell from the aerial

photographs. Against this background, to expect Mr. Williams to have found

evidence of that shed now used as a garage in photographs before 2003 was

therefore clearly a mistake.

49. The front of the house faced the ravine. The lay of the disputed parcel was

a slope toward the front of the house. The disputed area between the house and the

edge of the ravine is the flattest part. The confirmation of the existence of a small

structure, in 1998 aerial photo, whether what was shown was a latrine, a dog kennel

or a shed is consistent with the defendant’s case that he treated the disputed area as

his own. The claimants had never entered or put anything there. The later

photographs’ confirmed that the lands were cleared of trees in 2003. The bridge

over the ravine was extended so as to allowing drive-in access into the defendant’s

front yard. The aerial photograph confirmed the construction and widening of the

bridge and the photograph produced by the defendant, the back of which reflected

the 2004 date, is also consistent with the defendant’s claim.

50. At the end of the day, the critical finding that I had to make then was whether

the defendant was in possession since 1998 i.e. 16 years prior to the filing in 2014

and the appearance of the small structure in the January 1998 photograph in a large

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measure confirmed his story. Even if the pleading gave the wrong impression of

the shed having been on the disputed parcel, I did not find the later inconsistency

in the witness statements and the evidence to significantly undermine the

defendant’s credibility.

51. I viewed the evidence in the context of there having been no boundary

demarcating the disputed lands, and the lands on which the defendant’s house is

built. The defendant would have been told in the pre-action letter that his house

extended some 15 foot into the disputed area. This if it were true would have put

the shed which both Mr. Andrews and daughter described within that 15 foot

encroachment.

52. Given the nature of the lands and the lay of it, well before he enclosed the

lands, I am satisfied that the defendant simply enjoyed his occupation and

possession of the disputed lands as part of the front yard of his property. The

appearance of the small structure in a corner is entirely consistent with his case.

One does not usually place an outhouse on neighbour’s lands. It is a place of

privacy. The placing of it at a reasonable yet close enough distance for health and

safe access reasons is understandable. The evidence of cleaning around it and

planting dasheen is entirely credible.

53. I accepted the evidence of Seychells Peter Millan. I found him to be

sufficiently independent. I believe he visited the defendant’s home for the first time

in 1997 and entered via the river, passed through the disputed portion and saw a

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derelict structure which may have been the latrine. That would have been almost

three years after the extended pistol shaped home was visible from the air. Works

may well have been ongoing. I accept his evidence that there were trees on the

disputed lands and that he had to pass a dog kennel.

54. The evidence suggests to me that the defendant was since 1985 at all times

over the years taking steps to improve his property and his standard of living for his

family. He first erected a board house (what is shown as the rectangle house). The

concrete house was later constructed over time. This would be what was shown as

the pistol shaped structure. The front yard was completely cleared by 2003 and the

shed which is now used as a garage erected shortly thereafter. That does not mean

that the first defendant was not in possession of the disputed lands before the

clearing. I find that the defendant has in fact been in continuous possession of the

lands shown as the hatched portion of the plan stated to be produced by Peter

Goodridge and dated 29th October 2013 and that at all times he had the requisite

animus to possess the lands.

55. Disposition

(1) The claimants claim is dismissed. The claimant is to pay to the defendant

costs in the sum of $14,000.00.

(2) The Court declares that the defendant Alston Andrews has been in

continuous and undisturbed possession of the piece or portion of land

measuring 349.4 m² or 3760.9 sq feet and shown in the plan of Peter

Goodridge dated 29th October 2013 as the hatched portion.

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(3) The claimants are to serve copies of the claim form and statement of case as

well as of the statutory declaration of Mr. A. Tidd dated 8th October 1992

on the siblings of Mr. A. Tidd or their heirs.

Dated this 25th day of October, 2016

CAROL GOBIN

JUDGE

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