The Republic of Trinidad and Tobago in the High Court Of
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THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Port of Spain Claim No: CV2017-01145 BETWEEN ROBERT GORMANDY First Claimant SHAUN SAMMY Second Claimant And TRINIDAD AND TOBAGO HOUSING DEVELOPMENT CORPORATION Defendant Before the Honourable Mr. Justice R. Rahim Date of Delivery: November 9, 2018 Appearances: Claimants: Mr. R. L. Maharaj SC, Mr. R. Bissessar, Mr. A. Ramroop and Ms. V. Maharaj instructed by Mr. V. Gopaul Defendant: Ms. D. Peake SC and Mr. R. Heffes-Doon instructed by Mr. A. Rudder Page 1 of 123 TABLE OF CONTENTS Introduction 3 Issue 7 The other claim 7 The case for the claimants 7 The case for the defendant 68 Law 83 The submissions of the defendant 84 The submissions of the claimant 94 The defendant’s submissions in reply 108 Findings 113 Disposition 123 Page 2 of 123 JUDGMENT INTRODUCTION 1. This claim is one for possession of lands by the first claimant (“Gormandy”) situate in the Ward of Couva comprising 1.8662 hectares. The second claimant (“Sammy”) is an executive director of Junior Sammy Contractors Limited (“JSCL”) and Executive Director and manager of Julin Limited (“Julin”). 2. By Claim filed on April 28, 2017 Gormandy, a farmer, claims that in 1984 he went into occupation and possession of certain lands situated in Couva comprising approximately three acres more or less and which was bounded on the north by a housing scheme, on the south by the BC River, on the east by a recreation ground and housing scheme and on the west by lands of Julin (formerly Carillion (Caribbean) Limited) (formerly George Wimpey Caribbean Limited). 3. According to Gormandy, the land described above was recently surveyed and found to comprise 1.8662 hectares and bounded on the north by lands of George Dottin and the Couva river, on the south partly by lands of George Dottin and by the Couva river, on the east by lands formerly of Caroni (1975) Ltd. now State and on the west by lands formerly of George Wimpey Caribbean Limited, later Carillion (Caribbean) Limited but now Julin Limited (“the occupied lands”). 4. It is therefore clear that the claimants’ case is that Gormandy was under the misconception that the occupied lands comprised three acres of lands. That when the survey was commissioned by the claimant’s lawyers it was determined that the occupied lands actually comprised of 1.8662 hectares which is approximately four point six (4.6) acres of lands. Marion Mohammed, a licensed land surveyor conducted a survey on the occupied lands on April 25, 2017 and produced a cadastral survey plan dated April 27, 2017. Page 3 of 123 5. Gormandy claims that in 1984, he did not cultivate the entire parcel of land but that he was in control and possession of the entire parcel by 1985. That those parts of the 1.8 hectares which were not cultivated were under his control as he maintained, cleared and prepared the occupied lands for additional cultivation. 6. The occupied lands were formerly owned by Caroni Limited by virtue of Deed dated September 13, 1938 and registered as No. 5006 of 1938 (“the 1938 deed”) and thereafter by its success-in-title, Caroni (1975) Limited pursuant to the Caroni 1975 Limited (Vesting) Act Chapter 64:07 which came into effect on November 15 1978. Pursuant to the Caroni (1975) Limited and the Orange Grove National Company Limited (Divestment) Act Chapter 64:08 in 2006, the occupied lands became vested in the State. 7. The occupied lands form part of a larger parcel of land comprising four hundred (400) acres more or less known by the name of Brechin Castle being part of a certain plantation known by the name of Surprise. The occupied lands also form part of a larger parcel of land comprising forty-nine point eight two six nine (49.8269) hectares known as Couva South Housing Section 5 (“the 49 hectare parcel”). 8. By section 3 of the Trinidad and Tobago Housing Development Corporation (Vesting) Act [No. 10/2004] Chapter 33:06 (as amended) (“the Vesting Act”) and section 1 of the second schedule (Part 1) of the Vesting Act, the 49 hectare parcel was vested by the State in the defendant (“HDC”) for a term of nine hundred and ninety-nine years. The first schedule of the Vesting Act (which took effect from January 1, 2004), did not originally include the 49 hectare parcel. However, by Legal Notice No. 259/2006, the first schedule of the Vesting Act was amended by the Trinidad and Tobago Housing Development Corporation (Vesting) (Amendment) Order dated June 7, 2006 (“the Vesting Order”) to include the 49 hectare parcel (which includes the occupied lands ). 9. It is the claim of Gormandy that he has acquired possessory title of the occupied lands since he has been in continuous, undisturbed and exclusive possession and occupation of Page 4 of 123 same from the year 1984. According to the claimant from 1984 to 2017 he has been cultivating upon the occupied lands. As such, the claimant claims that the title of Caroni (1975) Limited to the occupied lands was extinguished in 2000 pursuant to sections 3 and 22 of the Real Property Limitation Act Chapter 56:03. Gormandy therefore claims that his possessory title to the occupied lands was not and could not have been affected by the purported vesting of the occupied lands in the State or in the HDC. 10. By written agreement for sale dated March 14, 2017 (“the agreement for sale”) Gormandy agreed to sell his possessory rights and title to the occupied lands to Sammy (save and except for two lots thereof) for $500,000.00. It is noted that in the agreement for sale the occupied lands are described as comprising approximately three acres more or less and bounded on the north by a housing scheme, on the south by the BC River, on the east by a recreation ground and housing scheme and on the west by lands of Julin (formerly Carillion (Caribbean) Limited) (formerly George Wimpey Caribbean Limited). 11. On or about March 17, 2017 Sammy, with Gormandy’s consent and/or approval took possession of the occupied lands save and except the two lots which Gormandy retained. Sammy then retained JSCL to carry out grubbing, leveling and compaction works and thereafter erect a concrete perimeter fence to secure the site and to install drainage (“the works”). The works were anticipated to be completed on or before April 30, 2017. 12. It is to also be noted that the occupied lands lie adjacent to and abuts a Housing Development built by the predecessor of the HDC many years ago and the HDC intends to continue the housing development unto the occupied lands. 13. Gormandy intends on building a new shed and resuming cultivation on the two lots of land he retained. 14. By letter dated March 29, 2017, HDC wrote to JSCL alleging that JSCL had unlawfully entered and taken possession of the lands which formed a portion of a larger parcel of land vested in the HDC. HDC stated that JSCL’s unlawful entry thereon constituted a Page 5 of 123 trespass and demanded that JSCL immediately vacate the occupied lands failing which HDC would commence proceedings against JSCL and apply for an injunction restraining it from entering upon or interfering with same. 15. By letter dated March 31, 2017 JSCL’s attorneys-at-law responded to HDC denying that JSCL was trespassing on the lands owned by and/or vested in HDC and stated that JSCL was entitled to and was in possession of the occupied lands. 16. By letter dated April 2, 2017 HDC responded to JSCL providing a cadastral plan dated June 17, 1995 showing that the HDC’s lands including the occupied lands were vested in the defendant. HDC demanded that JSCL vacate the occupied lands and give written undertakings that it would not enter and remain on the occupied lands. 17. By letter dated April 3, 2017 JSCL and the Sammy’s attorneys-at-law responded to HDC indicating that JSCL and Sammy were entitled to sole possession of the occupied lands on the basis of the Gormandy’s adverse possession. 18. Consequently, the claimants claim a declaration that Gormandy is the owner of the occupied lands, damages for trespass and an injunction restraining HDC whether by itself and/or its servants and/or its agents from entering and/or remaining and/or trespassing on the occupied lands. 19. By Defence filed on May 26, 2017 HDC avers that Gormandy did not have any exclusive, continuous, open, notorious, unconcealed or any possession of the occupied lands since 1984 or for any period necessary to result in the extinguishment of the title of the paper title owner and has no right, title or interest whatsoever to the occupied lands . As such, HDC claims that Gormandy was not empowered or entitled to sell or agree to sell the occupied lands to Sammy by agreement dated March 14, 2017 (which is null and void and of no effect). That Gormandy was also not empowered or entitled to enter, remain or carry out any construction works or authorize or permit anyone including Sammy and JSCL or their servants or agents to do so. Page 6 of 123 ISSUE 20. The main issue that falls to be determined by the court is whether Gormandy is entitled to possession of the occupied lands based on the doctrine of adverse possession. If he is then it follows that he acted well within his entitlement when he agreed to sell the land to Sammy, who then took possession pursuant to that agreement.