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. In such a case the claim will succeed. If he was not in adverse possession for the required period then his claim will not succeed.
OTHER CLAIM
21. By claim filed on April 5 2017, CV2017-01152, HDC filed suit against Gormandy, Sammy and JSCL for declarations and consequential relief setting aside the agreement between Gormandy and Sammy and damages for trespass inter alia. The determination of the present claim will resolve the issues in that claim so that the parties agreed to stay that claim while this claim is determined so that by Consent Order dated August 16, 2016 the parties have agreed that Claim No. CV2017-01152 shall be determined in accordance with and abide the decision of the Court in CV2017-01145 (this claim).
THE CASE FOR THE CLAIMANTS
22. The claimants gave evidence and called six other witnesses, Bianca Banswell, Andy Dubay, Carlton Forde, Lester Moore, Sewsaran Sawh and Marion Mohammed.
Gormandy’s case
23. Gormandy resides at Building 11, Apt. 1-1 Anabelle Street, Couva (“the apartment”). He is fifty-one years of age. Since 1994 he has been in a common law relationship with Bianca Banswell (“Bianca”). Bianca and he have two children, Nataki who is twenty-one years of age and Akil who is nineteen years of age. Gormandy also has two other children from another relationship. They are Naila Gormandy (“Naila”) who is twenty-nine years old and Afiya Gomandy (“Afiya”) who is twenty-six years old. Afiya, Nataki and Akil live with Gormandy and Bianca at the apartment. Naila lives on her own with her husband.
Page 7 of 123
24. Gormandy was born in Enterprise Street, Enterprise, Chaguanas. In 1984, he was living with his father at his father’s National Housing Authority (“NHA”) apartment at Building 18, Apt. 1-1, Annabelle Street, Couva when, following many disagreements with his father, he decided to move out and live on his own. At that time, the first claimant’s eldest brother Andy, his younger brother Martin, his sisters, Alicia (now deceased) and Akilah lived with his father.
25. Gormandy testified that in 1984, he gathered old plywood and galvanize from persons living in Perseverance and from the dumps to construct a shack approximately twenty feet away from the banks of the Couva river which was a short walk away from his father’s apartment. The shack he constructed was approximately ten feet by fifteen feet in size. He cleared a spot and built the shack under a tree for shelter. The front part of the shack was not fully enclosed.
26. He testified that the lands on which he built his shack were owned by Caroni (1975) Ltd and that he was familiar with the lands as he used to play on the banks of the river as a child. He further testified that the lands on which he built his shack had at one time been planted with sugar cane save and except for the river bank but that when he built his shack it was mainly bushes and trees around the shack. Gormandy testified that he did not ask anyone for permission to build his shack. That he chose the area carefully because it was close to the river and he liked the water. According to him the Couva river had fish and clean water for bathing.
27. He lived in the shack on and off sometimes two to three days per week as his brothers and sister encouraged him to come back home and so he sometimes stayed at his father’s NHA apartment. However, his father and he quarreled again and he moved out. He was a student at the Chaguanas Senior Comprehensive School but he left in about 1981 and took odd jobs in Enterprise for pocket money. Later when he and his family moved to the Annabelle Street Housing Scheme, he used to wash cars and clean out people’s garages
Page 8 of 123
and businesses to earn a living. As Gormandy did not have much education, fixed work was very hard to obtain. As such, he decided to cultivate the lands around his shack to earn a living.
28. After he built the shack in 1984, he started clearing about three lots of the land around it and planted sorrel and peas. He used the water from the river to irrigate the crops and sold the crops to the residents of the Lisas Gardens Housing Development. He testified that he did not know much about farming when he started but that he learnt more eventually. He also received advice from agricultural officers from the Ministry of Agriculture who visited from time to time to give him advice and on occasion samples of seedlings.
29. In 1985 he marked out the boundaries of the lands which he intended to cultivate. The lands were already bordered on the West by a chain link wire fence, on the South by the Couva River and in 1985 he planted coconut trees and zaboca trees on the northern and eastern boundaries. He planted guava trees in the middle of the lands. The land he marked out was approximately three acres in size (“the subject land”).
30. Between the periods 1984 to 1985, Gormandy continued to live in the shack. He began to rotate the cultivation of crops over the subject land with peas, sorrel, ochro and pumpkins. He maintained the rest of the subject land by cutting the grass, keeping the lands clean and preparing the lands for cultivation. He testified that planting was hard work but that he liked the idea of working for himself since he sold the crops door to door in the Housing Scheme where he used to live in Annabelle Street and also in the June Street Housing Scheme which was close by.
31. When he built the shack there was no running water or electricity to the shack. As such, he used the water from the Couva River to water the crops. When the Couva River overflowed, he used the silt and mud around his plants. He got some of the small boys in the area to help him plant and water his crops. He caught the boys thieving from him on
Page 9 of 123
a few occasions and so he threw them off of his lands. After a while he made friends with them and told them not to steal from him because he would give them the crops to make cooks but that in return they had to help him to fill buckets and water the plants.
32. Gormandy testified that he remembered those boys. One of them, Dexter Ali died but the others like Andy Dubay (“Andy”), Gary Frank (“Gary”), Dexter Frank (“Dexter”), Marcus de Souza (“Marcus”) and Darryl Ali (“Darryl”) all helped the first claimant. Andy and Gary in particular helped him for many years although not on a regular basis but when they could he gave them small payments and some of the produce for their families.
33. Every year after 1985 whenever he sold his crops and made more money, he increased the volume of his crops on the subject land. Between 1985 and 1995 he expanded his cultivation of the subject land so that most of his lands were under cultivation with peas, ochro, pumpkin and other crops. He always maintained the rest of the subject land by keeping the lands cut and preparing it for cultivation based on his rotation system. He also planted fig trees and various fruit trees. The fruit trees were usually for his use but the crops were for sale.
34. Sometime in late 1985 his father and he resolved some of their differences and so he returned home to live with his father, brothers and sisters at the Annabelle Street Housing Scheme. Although he returned to live with his father, he continued to maintain the shack and the subject land. He slept in the shack once or twice a week when the crops had to be protected or when he just wanted a break from his family. Sometime in the late 1980’s a man attacked Gormandy with a cutlass and tried to steal some of the buckets that Gormandy had stored in the shack. Gormandy fought the man back. Over the next few years, Gormandy had to force people off the subject land although on occasions he allowed some persons who he felt were trustworthy to stay in his shack or on the subject land for a short while in exchange for helping him on the subject land to keep a look out to make sure that nobody was stealing his crops.
Page 10 of 123
35. In the early 1990s, Gormandy allowed a man named Steve Henry (“Steve”) to construct a one room wooden shack on the subject land on the basis that Steve would help him on the lands and act as a watchman. Steve built a small shack on the subject land. Steve left after two or three years and his shack eventually fell apart. Over the years, Gormandy gave other persons permission including a man who he called Creamo and Steve Dick to put up shacks on the subject land and to live in the shacks in exchange for helping him on the lands and acting as watchmen.
36. Sometime in 1986, Gormandy got a part time job in a meat shop in Couva and in 1987 he started working part time at Rotoplastics Trinidad Limited. He testified that he felt that with part time work he could earn additional money to invest in the subject land in order to expand his cultivation and still have time to cultivate his lands. He received assistance from persons in the area to cultivate the subject land. He worked at Rotoplastics until 1993.
37. In 1989 he married Nerissa Gormandy (“Nerissa”) and they had Naila and Afiya. Sometime after, Naila was born Gormandy obtained his apartment, where he resides today.
38. In 1993, he stopped working at Rotoplastics. In 1994, he separated from Nerissa and he met his common-law wife, Bianca. In 1995 he got a job at the San Fernando General Hospital as a hospital attendant and he began working shifts. His shifts were either from 6:00 a.m. to 2:00 p.m., from 2:00 p.m. to 10:00 p.m. or from 10:00 p.m. to 6:00 a.m. For every five days of work, he had three days off. On the last five days of the shift rotation, he had four days off instead of three. When he was not working his shift at the San Fernando General Hospital, he was cultivating the subject land with help from the youth men in the area.
39. Bianca and Gormandy began living together in 1998. Bianca started helping him on the subject land. When they started living together she left her part time jobs so that she could look after the children and also help him with the subject land. In the late 1990s,
Page 11 of 123
Gormandy began to plough the subject land regularly to make the lands more fertile. He started to grow larger quantities of crops on a rotation basis. The crops included patchoi, cucumbers, corn, tomatoes and baigan (eggplant).
40. Most of his crops were sold door to door at the NHA Housing Schemes and to his colleagues at work. Some of the youth men used to help him sell to persons in traffic as well. When the cultivation on the subject land grew, Bianca helped him to start selling wholesale to vendors at the Chaguanas and Couva markets.
41. In late 1998 he purchased a motor car which made the door to door sales much easier. Before he used a wheelbarrow and sold the produce from it. He usually parked the wheelbarrow in the yard of the NHA housing schemes when most of the mothers and housewives were around playing with their children and he sold to them. The car made it easier since Bianca and Gormandy packed the produce in the trunk and backseat and went from housing scheme to housing scheme to sell. Gormandy would drive and Bianca would sell and keep the money.
42. Sometime in 1998, Gormandy made an application to T&TEC for an electricity connection to the subject land on the basis that he would pay for the poles from Christine Street to his shack. Christine Street is situated within the nearby housing scheme and the subject land is located to the northern end of the street. The estimate for the poles was over $50,000.00 which was more than he could afford at the time so he abandoned the idea of getting electricity to his shack. In the meantime, whenever he needed to, he cooked on his fireside by the shack.
43. In late 1998, Gormandy was transferred from the San Fernando General Hospital to the Mount Hope Women’s Hospital (“Mt. Hope”). When he began working at Mt. Hope, he sold his crops to the Mt. Hope office staff. He sold the produce during his lunch hour and before and after work. He sold peas, sorrel, ochros, pumpkins, patchoi, tomatoes, lettuce,
Page 12 of 123
baigan and corn which he kept in the backseat of his car. He kept the pumpkins in the trunk. He sold the crops in plastic bags which Bianca and he packaged the night before.
44. After he purchased his car, he also began selling his crops to vendors at the Chaguanas and Couva wholesale market twice a week. He sold cucumbers, tomatoes, baigan and peppers to the wholesalers. The tomatoes were sold in cardboard boxes weighing approximately twenty-five pounds; the cucumbers, baigan and peppers were sold in large crocus bags. The crocus bags were packed in the car trunk and in the back seat and taken to the markets. Andy sometimes helped Gormandy to pack the crocus bags. Bianca went with Gormandy to the Chaguanas and Couva markets. Gormandy purchased many one- hundred pound flour crocus bags from bakeries and Bianca and he filled them with the cucumbers, peppers and baigan. Bianca and he sold to wholesalers from late 1998 until about 2012.
45. Sometime in 2002, he began selling produce including cucumbers, tomatoes, lettuce, corn, pumpkin, patchoi, baigan and peas to a restaurant called Touch ‘n’ Taste in California. The owner of Touch ‘n’ Taste, Sewsaran Sawh was impressed with the quality of the first claimant’s produce. Gormandy supplied Touch ‘n’ Taste with his crops from 2002 to 2015. He earned on average about $2,000.00 per month from Touch ‘n’ Taste.
46. As he grew up in the Enterprise and Point Lisas areas, he was familiar with the youth men in those areas. As such, he often employed the youth men on a daily basis to help him cultivate the subject land. He relied on them a lot because of his shift work at the hospital but he also spent time every day to supervise the crops. He testified that it was hard work to cultivate the subject land and that the biggest problem in the dry season was to water the crops. He used buckets to get water from the river to full into barrels that he had placed on the subject land and the youth men watered the crops. He had to show the men how to do it because on occasions they dumped the water on the crops and killed same. He bought watering cans and showed them how to clean around the crops, mulch
Page 13 of 123
it and then water it. When the first claimant’s children grew older, they also helped him with the crops.
47. Sometime in 2000, Gormandy used PVC pipes and a gas pump to create an irrigation system to pump water from the Couva River directly to the crops on the subject land. With the gas pump he was able to run a garden hose from the river to the pump so he could remove the stagnant water to water the crops. When he removed the stagnant water he was able to plant lettuce and cabbage.
48. Later in 2000, he received a WASA connection to the subject land from WASA’s main line. The connection was made by a WASA contractor. The pipes from WASA’s main line ran from the Dump Road access on the northern side straight across in a westerly direction to the southern side and the pipes serviced all of his crops which were planted in between eight to twelve beds. This water supply allowed his cultivation to expand and he also started planting thyme, chive and celery.
49. The connection from WASA’s main line also went to six pipes on the subject land. He used the fresh water supply because the water from the river was not as clean as it used to be. In 2012 when WASA had an amnesty, he regularized his status and began receiving WASA bills. He received his first bill in 2013. WASA used Christine Street as the address for the water connection and the WASA bills were mailed to the first claimant’s address.1
50. When his children began attending primary school in Couva in 2002 and 2003, Bianca had more free time to help Gormandy on the subject land. Gormandy however continued to pay youth men to help him plant.
51. Between 2000 and 2015, Gormandy reared goats and chickens on the subject land. He used to tie the goats close to the shack to graze although the goats sometimes ate some
1 Copies of the fist claimant’s Customer Statement from WASA for the period of July 5, 2013 to April 11, 2017 together with his WASA bill for the period of January 1, 2017 to March 31, 2017 and WASA bill for the period of April 1, 2017 to June 30, 2017 were attached to his witness statement at “RG 1”.
Page 14 of 123
of his crops. Most of the goats were reared for home consumption during Christmas. Sometime in 2015 some stray dogs went onto the subject land and killed the goats while they were grazing. Gormandy did not rear goats after 2015.
52. Gormandy also kept chickens in a coop a short distance from the shack. He built the coop with wood and galvanize using wire netting and at one time there was as many as twelve to fifteen chickens. He used to let the chickens out of the coop for them to eat grass but they wandered off and ate his crops so he had to keep them in the coop. He never got eggs from the chickens but the chickens were reared for home consumption and he also cooked chickens when they had cooks by the shack.
53. In 2006, Gormandy was shot and twenty-four screws and a metal plate were implanted in his left leg. As a result, he was unable to work for about a year. He took leave from his job at Mt. Hope and was forced to reduce his cultivation because he could not spend long hours on the land. He testified that he decided to reduce his short crops cultivation and instead planted long term crops such as green fig, lime, lemon, cane, guava, coconut and pommecythere since those crop did not require as much attention.
54. He paid labourers to help him on the subject land and he also relied on family and friends when he had his injury. He testified that between 2006 and 2008 his life was very hard because it was difficult for him to stand for long periods when he was cultivating the subject land. He often went to the subject land with crutches. He brought a wooden bench which he kept in the shack to sit on to supervise the youth men.
55. When he suffered the injury Bianca and he were forced to reduce their wholesale because they had less crops to sell. During this period they sold any crops they reaped to the Lisas Garden Housing Scheme and to Touch ‘n’ Taste.
56. Gormandy testified that as he was used to hard work, he could not sit still for too long. By mid-2008, he was exercising regularly which improved the strength in his left leg and he gradually increased his cultivation. As such, by late 2009 his cultivation was close to what
Page 15 of 123
it was before his accident. He received help from the youth men in the village but as most of them were getting government work from CEPEP, he had to pay them $200.00 to $250.00 per day which was more than he had previously paid. Also as most of the men were complaining about the hot sun and the hard work, on the evenings he cooked for them by the wood fire by the shack to build their loyalty and friendship. The first claimant’s children also helped out but he did not encourage them to stay on the subject land because their education was his priority.
57. From about 2009, Bianca and Gormandy resumed their wholesale and Gormandy began to sell more crops to his co-workers at Mt. Hope who sometimes gave him orders to fill. Bianca and he also continued their door to door sales.
58. Gormandy testified that over the years, he has improved the shack on the subject land to make it more secure. He changed the galvanize and the wood when it became rotten. He used the shack to store seeds, fertilizers and gardening tools. Over the years the wooden flooring had rotted so he compacted the earth since an earth flooring did not require any maintenance.
59. In 2010, Gormandy enrolled in classes on agricultural practices which was being conducted by the Ministry of Food Production, Land and Marine Affairs in some of their farms and buildings in Perseverance in Couva, Princes Town and in Centeno. Each class was over a one week period and Gormandy learnt the best methods of growing and how to fertilize and control pests. He also met many other small farmers and they talked about setting up a co-operative since all of them were complaining about predial larceny, the high cost of getting labour and their difficulties in securing markets. He received educational literature on cultivation from the Ministry on planting.
60. Gormandy approached the school feeding programme so that he could sell directly to the caterers but he was told that he had to become a registered contractor and get a limited company with a VAT number. He also met a buyer from the JTA supermarket who was
Page 16 of 123
interested in his hot peppers, cucumbers and baigan but because they wanted him to sign a contract to supply them with a minimum amount on a weekly basis and he could not guarantee that supply, he did not sign the contract.
61. Gormandy used to purchase his seedlings and plants from agricultural shops including the Agricultural Supplies & Seedling Company (“ASASCO”) located on Aranguez Main Road in San Juan. He testified that he tried unsuccessfully to find his bills and receipts. That he threw away most of his bills but was able to locate one bill and two receipts from ASASCO dated January 22, 2011 and February 19, 2011 respectively.2
62. Sometime in 2011, Gormandy became a member of the Agricultural Society of Trinidad and Tobago and in 2012 he received his farmer’s badge from the Ministry of Agriculture, Lands and Fisheries. One day a field officer from the Ministry saw him on the subject land and they started talking. Gormandy asked questions about rotating his crops, irrigation methods and the use of fertilizer. The field officer walked around with Gormandy and gave him advice and suggested that he should apply for a farmer’s badge so Gormandy applied and received it. He has renewed it annually and is awaiting the laminated card for 2016.
63. Gormandy has used his farmer’s badge to get a reimbursement of up to fifty percent when he buys agricultural tools like weed wackers, hoses, forks, shovels as well as fertilizers and seeds. The field officers have visited the subject land on two or three occasions since 2012 to ensure that same was cultivated in order for his farmer’s badge to be renewed.3
64. Gormandy testified that since he has occupied the subject land since 1984, he has had to chase away trespassers. That sometimes people would come to fish from the river and on one occasion a few of them even wanted to build a shack as a get-away but Gormandy
2 Copies of the bill and the receipts were attached to the first claimant’s witness statement at “R.G.3”. 3 A copy of first claimant’s Farmer’s Badge which has been renewed was attached to his witness statement at “R.G. 4”.
Page 17 of 123
never allowed trespassers since as far as he was concerned the three acres of land belonged to him.
65. In 2013, Gormandy took an early retirement from Mt. Hope and so had more time for his agriculture. He decided to apply for a loan from the Agricultural Development Bank (“ADB”) through its $50,000.00 Reaping Opportunities Loan (“ROL”) Programme in order to expand his cultivation, install an improved irrigation system and to purchase more seedlings. Gormandy requested and received a letter dated July 8, 2013 from the Agricultural Society of Trinidad and Tobago to support his request for the loan. The letter was addressed to the branch manager of the ADB’s Chaguanas branch.4
66. The ADB asked Gormandy to provide it with a quotation for the improved irrigation system. As such, he obtained a written quotation from Ramlagan’s General Hardware & Electrical Limited in the sum of $31,625.93. The sum included the plumbing fixtures and fittings for the irrigation system and also a Gould’s water pump and three 1,000 gallons rotoplastic tanks.5
67. In order to support his request for the loan, he also received a testimonial dated August 2, 2013 from the Ministry of Agriculture, Land and Marine Resources which certified that he was a bona fide farmer and registered under the Ministry’s Farmer’s Registration Programme with a file number CARO-5383/2013 and that he was carrying out mixed vegetables and tree crops on two and a half acres. The letter dated August 2, 2013 was signed by the County Agricultural Officer I and stamped by the Ministry.6
68. In late 2013, Gormandy was asked to and did go back to the ADB’s branch office in Chaguanas. He testified that based on his conversation with the representative, his loan was declined because the ADB had been having problems with clients defaulting on loans.
4 A copy of Agricultural Society of Trinidad and Tobago’s letter dated July 8, 2013 was attached the first claimant’s witness statement at “R.G.5”. 5 A copy of the quotation dated July 17, 2013 was attached to the first claimant’s witness statement at “R.G.6”. 6 A copy of this letter was attached to the first claimant’s witness statement at “R.G.7”.
Page 18 of 123
69. From 2015, Gormandy was employed by PLIPDECO on a casual shift system. He currently does ambulance work. Whilst he was at PLIPDECO, he used to sell produce to the office staff on the PLIPDECO estate. However, PLIPDECO did not always allow him to sell to the office staff unless it was during his lunch hour.
70. In late 2010, he met Sammy when Julin bought the lands west of the subject land (“the Julin lands”). As the subject land are adjacent to Julin’s compound, from time to time, Sammy visited Gormandy on the subject land and often expressed an interest in purchasing the subject land but at the time Gormandy was not interested in selling because he was content with cultivating and he did not want to work for any one for the rest of his life.
71. In February, 2015 Bianca started working part time with the Trinidad and Tobago Postal Service. Gormandy encouraged Bianca to go back out to work because he started to suffer from arthritis and it was safer if they had someone with a fixed income.
72. Gormandy testified that his reluctance to sell changed in 2015 when he began suffering from arthritis and he began relying more and more on paid workers to help him cultivate the subject land. Bianca and he discussed it and agreed that it would be a good idea to sell since his arthritis was making it almost impossible to maintain his large cultivation.
73. When his arthritis got worse, he agreed to sell the subject land to Sammy for $500,000.00 on the basis that he could keep two lots for himself. On the 14th March, 2017 Gormandy executed the agreement for sale. It was agreed that Sammy would pay Gormandy a deposit of $100,000.00 and that the balance would be paid in monthly instalments of $100,000.00 over the months of April, May and June, 2017 with the final balance of $100,000.00 to be paid on the 17th July, 2017.7
7 A copy of the agreement for sale dated 14th March, 2017 together with a copy of the cheque dated the 17th March, 2017 for $100,000.00 was attached to the first claimant’s witness statement at “R.G.8”.
Page 19 of 123
74. Although the full purchase price had not been paid, Gormandy agreed to allow Sammy to take possession of the subject land immediately. Sammy wanted to demolish the crops immediately and to erect a wall to secure the subject land. Gormandy testified that he only gave Sammy permission because Sammy agreed that he (Gormandy) could reap whatever crops he had on the subject land before the tractor cleared same.
75. Gormandy took Bianca to the subject land on the 12th March, 2017 and they picked cane, green fig and seasoning but the lettuce and patchoi were still growing and could not be harvested. They even uprooted several plants that they wanted to salvage. Gormandy testified that it made him sad to know that the rest of crops would be destroyed but that there was nothing he could do about it.
76. On March 12, 2017 Gormandy used his cellphone to take photographs of the crops including beds of lettuce and patchoi which he planted on the subject land together with the gardening implements in the shack. He testified that he took those photographs to remind himself of his life as a farmer even though he was still continuing to cultivate a small portion. Gormandy downloaded the photographs to his computer and printed them.8
77. On March 20, 2017 Gormandy was present when Sammy’s tractors went onto the subject land and levelled the same. Sammy’s contractors also erected a concrete fence around the subject land enclosing the three acres. Gormandy asked Sammy not to demolish the shack on the subject land. Sammy agreed and his workmen used the shack to shelter from the hot sun.
78. Gormandy testified that prior to the HDC’s claims no one has ever challenged his possession of the subject land. That during the period 1984 to March, 2017 he was never approached by HDC or anyone from the Government claiming that they are the owners
8 Copies of the photographs which Gormandy took on March 12, 2017 and printed were attached to his witness statement at “R.G.9”.
Page 20 of 123
of the subject land. He further testified that Caroni (1975) Limited has never served him with a notice to quit or filed any claim against him for possession of the subject land.
79. Gormandy testified that he has never accepted that anyone else is the owner of the subject land and that he continues to regard the subject land as his own since, other than the deposit of $100,000.00, he has not been paid the balance of $400,000.00.
80. Gormandy denied that in late June or early July, 2012 the subject land were overgrown with thick bush and that there were no structures or buildings on the subject land. He testified that in late June or early July, 2012 he was cultivating the subject land and that there were growing crops as well as his shack on the subject land.
81. Gormandy also denied that his occupation of the subject land was sporadic or interrupted. He testified that from 1984 to 2017, he continuously used and occupied the subject land comprising approximately three acres. He further testified that in April, 2017 after he sold the subject land, he continued to cultivate the two lots. That the two lots were just large enough for Bianca and he and they planted ochros, dasheen, eddoes, peas, sorrel and thyme. When the ochros and dasheen started to come in, Gormandy used his cellphone to take photographs which he downloaded and printed.9
82. Gormandy testified that Bianca and he still sell produce from door to door and that he has set up a stall outside the Boulevard in Point Lisas opposite Mary’s Street. Afiya sells vegetables which Gormandy cultivated on the two lots of land at the stall.
The cross-examination of Gormandy
83. Gormandy testified that his family and he moved to the Annabelle Street Housing Scheme in Couva in 1983. He further testified that in 1984, he was seventeen years of age and that he was involved in agriculture prior to 1984. That from the age of twelve, he planted
9 Copies of the photographs taken by Gormandy in May, June and July, 2017 showing the progress of the crops were attached to his witness statement at “R.G.10”.
Page 21 of 123
lands in Enterprise with his father and siblings. Moreover, Gormandy testified that when he first started cultivating the subject land, he did so more as a hobby. Additionally, that in 1985 he did not have the entire subject land under control. That he could not have cleaned and cleared three acres of land in one year. He never put up a fence around the subject land and between the periods of 1984 to 2017, he never had the subject land surveyed.
84. It was his evidence that although the subject land were located approximately two hundred feet away from the National Housing Authority (NHA) office (the predecessor company of the HDC), no one from the NHA or from HDC visited the subject land and told him that he was on lands that belonged to the NHA or the defendant.
85. He did not regard the subject land as his in 1984. He knew he did not have a deed for the land but that he was hoping that he could apply for one. He then testified that he knew he was the owner of the land because of the amount of years he spent on the subject land but that he knew he did have any title to the subject land. That if any of the relevant authorities attempted to evict him from the subject land, he would have had to retain a lawyer because of the time he spent on the lands.
86. It was only when he visited his lawyer on March 14, 2017, he was told that he had an interest in the land. Sammy was present with him when he visited the lawyer for the advice. The purpose of Gormandy’s visit to the lawyer on March 14, 2017 was to get advice as to his rights to the land and to prepare the agreement for sale.
87. Prior to March 14, 2017 Gormandy knew that he had rights to the land but he did not know how much rights he had. He also knew prior to March 14, 2017 that if he stayed on Caroni lands for sixteen years, he could obtain title to the lands.
88. Gormandy’s father lent him tools to clear the subject land for cultivation in 1984. In 1984, Gormandy obtained seeds from people who were planting. He also collected seeds such as pumpkin seeds when his mother purchased pumpkin from the market. It was the
Page 22 of 123
evidence of Gormandy that there was no other person cultivating lands in the area of the subject land. He testified that no one else wanted to cultivate the subject land and that even if someone else wanted to cultivate the subject land, he would not have allowed them to because as far as he was concerned, he was contented with what he was doing and did not want anyone else to plant the land to cause any conflicts. He prevented people from planting on the subject land by simply telling them that he was cultivating the lands. He had a piece of sponge and ply board in the shack that he used as a bed to sleep on.
89. In 1998 he began operating a parlour at his apartment. Bianca and he worked in the parlour. They sold groceries and snacks at the palour. He denied that they sold alcoholic beverages at the palour. He also had a pool table at the palour. He testified that HDC never served him a notice to break down the parlour. That he built a homework centre to the front of the palour and HDC broke down the homework centre in 2004.
90. In 2000, Gormandy learnt that he could apply for a farmer’s badge but did not apply for one until 2012. The Ministry of Agriculture officers who visited Gormandy on the subject land since 1984 did not inform him that he could have applied for a farmer’s badge. According to him, the Ministry’s officers knew to visit him on the subject land because he visited the offices of the Ministry located in Chase village to inform the Ministry’s officials that he was interested in doing agriculture and that he needed some advice.
91. Gormandy was referred to the agreement for sale. The subject land were described in the third schedule of the agreement for sale as follows;
“…comprising THREE (3) ACRES more or less and bounded on the North by Housing Scheme, on the South of B.C. River, on the East by Recreation Ground/Housing Scheme and on the West by lands of Junior Sammy Contractors Limited (Carillion Building) shaded as “A” in the Survey Plan hereto attached to this Agreement as “c” save and except two
Page 23 of 123
lots of land more or less located on the eastern side of the said lands shaded as “B” in the said Survey Plan hereto attached to this Agreement.”
92. It was the evidence of Gormandy that the boundaries as identified in the agreement for sale is correct. The B.C. River which is the Brechin Castle River is the same as the Couva River.
93. Gormandy was then referred to the survey plan annexed to the sale agreement. He testified that the survey plan is an accurate depiction of the subject land he occupied since 1984. He could not recall whether it was he or his attorney who drew in the diagonal lines on the survey plan. The shaded area on the plan is the Julin lands. The subject land is to the east of the Julin lands. The area marked ‘B’ on the plan is the two lots of land Gormandy retained for himself.
94. Gormandy did not cultivate the lands immediately contiguous to the boundary of the Julin Carillion lands. It was his evidence that Julin maintained that area as a “clear path” or “fire break”. He was then showed the layout plan annexed to the defendant’s defence and asked whether he could point to the lands he is claiming he occupied since 1984. Gormandy pointed out the reserved portion for residential lots to the west of the recreation ground. Gormandy was then reminded that in the agreement for sale it was stated that subject land was bounded on the east by the recreation ground. He testified that the subject land does not go all the way up to the recreation ground. That the recreation ground is located four to five hundred feet away from the subject land. He further testified that the recreation ground was not a boundary of the subject land. That the recreation ground was used as a landmark.
95. Gormandy was again referred to the layout plan. He was shown the area marked “pedestrian reserve” located to the north of the portion he pointed out to be the subject land. Gormandy has never seen a pedestrian reserve to the north of the subject land. He denied that persons walked along that pedestrian reserve to get to the Southern Main
Page 24 of 123
Road. According to him, persons used Christine and Beatrice Streets to get to the Main Road.
96. There were persons living all around the subject land. Gormandy testified that although there were people living all around the subject land, the people rarely visited the subject land. Mostly children (and some adults) frequented the subject land to go to the river to bathe and/or fish.
97. Gormandy was then referred to annexure “H-3” of the expert report of Marion Mohammed (“Mohammed”). Gormandy was asked whether he is familiar with the area delineated in blue. He testified that he was and that it represented the subject land. That the areas marked “G1” and “G2” represented the subject land. G1 is the lands that Gormandy claims he sold and G2 is the land that allegedly retained. The road just above “173.76” is the Dump road. By the time Mohammed did her survey on the subject land, Gormandy had already agreed to sell the subject land to Sammy and Sammy would have already moved in on the subject land and cleared same.
98. Gormandy was referred to the WASA bill dated December 6, 2016 annexed to his witness statement at “R.G.1”. On the bill it was stated that the water connection was a domestic connection. Gormandy did not know that WASA has subsidized or lower rates for agriculture. He testified that when he went to WASA to get the connection, he informed the officials at WASA that he was cultivating the subject land, that he had a water connection on the subject land and that he needed same to be regularized so that he could start paying a bill. The court pauses to make two observations and findings. Firstly the bill lists the service address as being different to the home or mailing address of Gormandy. The service address is Christine Street Couva which is one of the streets that leads to the land and is in fact the street that meets the end of the pedestrian walkway. It follows that if a water connection was to be made on the land, it is reasonable to list the service address as Christine Street. The court therefore accepts that Gormandy had obtained a water service to the land. Secondly, it is not implausible that Gormandy did
Page 25 of 123
not know that he may have been entitled to lower rates as a farmer (in any event there is no evidence before this court that there exists such a concession available to farmers).
99. Gormandy had no idea of the value of the subject land. Sammy asked him how much he wanted for the subject land and he told Sammy that as he never sold land before, Sammy should offer a price. In or around December, 2016 Sammy initially offered $600,000.00 for the subject land but then decreased the offer to $500,000.00.
100. When the offer was decreased, Gormandy agreed to the $500,000.00 but asked to retain two lots. As he did not have a deed for the subject land, he was contented with the sum of $500,000.00 for the subject land. He did not work out a value for the crops he had planted on the subject land prior to Sammy clearing same. Gormandy made an income of $6,000.00 to $7,000.00 per month from his cultivation on the subject land.
101. Gormandy accepted that he swore to a statutory declaration dated August 17, 1992 to obtain housing from the NHA and that in the statutory declaration he stated that he did not own any property. He further accepted that he never declared his income from his cultivation to the NHA when he was applying for housing.
102. He did not declare his income from the cultivation because at that time he was a squatter and could have been evicted from the lands. He also did not know that the NHA wanted to know of his additional income. He thought the NHA wanted his total income from his employer. He then testified that if he told the NHA that he was receiving an income from his cultivation, his rent would have been exorbitant. He admitted that he was dishonest with the NHA in order to get housing and/or to obtain a lower rent. The rent Gormandy paid in 1992 was $150.00.
103. Gormandy was then referred to an affidavit he swore to on January 2, 2009 filed with the HDC as an update to his previous declaration. In this affidavit, Gormandy swore that he was not the owner of any property and that the return he submitted was his total income. It was stated that Gormandy worked at Mt. Hope and that his total income was
Page 26 of 123
$4,500.00. Gormandy accepted that he did not include his income from his cultivation and from the operation of the palour. Gormandy again accepted that he was dishonest with HDC in order to obtain a lower rent. Gormandy also accepted that in 2003 he was owing the NHA $4,300.00 in rent.
104. He was aware that during the period 2003 to 2012, Jeannette Redhead (“Jeannette”) was involved in a reforestation and rehabilitation programme. His mother was also involved in the programme. He accepted that persons from the programme planted trees along the Couva River. However, he testified that no trees were planted where he was cultivating. When his mother told him about the programme, he went to Jeannette and informed her that he was doing agriculture on the subject land and that if she planted teak trees in that area, in some years’ time, the roots of the teak trees would interfere with his agriculture. He further informed Jeannette that when he had to tractor the subject land, the roots of the teak trees would get in the way of the tractor. As such, it was the testimony of Gormandy that Jeannette and the members of the programme never entered the subject land. Gormandy denied telling Jeannette that she was preventing him from “eating a food”.
105. Gormandy is at present cultivating the two lots of land he retained. In April, 2017 he planted orcho, sorrel, eddoes, dasheen and cassava on the two lots which he has already harvested. He recently hired a tractor to cut the grass and plough the two lots. If one is to visit the two lots of land, one would see that a tractor recently ploughed the land. The two lots of land currently has no crops on it.
Bianca
106. Bianca is fifty-one years old. She and Gormandy have been together for about twenty-three years. Some of her evidence was the same as Gormandy’s evidence and so there was no need to repeat that evidence.
Page 27 of 123
107. When Bianca met Gormandy in 1994, she was working at Clark and Battoos Funeral Home as a messenger/car park attendant during the day between the hours of 8:00 a.m. and 4:00 p.m. She had a second job with Milton Moses and Sons Limited which is a janitorial company and she worked there on the evening into the night.
108. Bianca testified that in 1994, the first claimant’s sole source of income was from the sale of crops that he cultivated on the subject land. She further testified that in 1995 Gormandy began working shift at the San Fernando General Hospital as a hospital attendant and from 1999 he was transferred to the Mt. Hope Women’s Hospital where he continued to work shift until he retired in 2013. When Gormandy was off from his shift, he cultivated the subject land in Couva and got some assistance from youth men from the area like Andy and Gary. Gormandy paid the men to work for him.
109. When Bianca moved into the first claimant’s apartment, she left her two jobs so that she could be a full-time mom and assist Gormandy on the subject land when necessary. She testified that the subject land are about five minutes walking distance from the apartment. She was able to leave her jobs because Gormandy was earning enough from the subject land and from his job at the San Fernando General Hospital to look after the children and her. In between looking after the children, Bianca helped to water the crops and to harvest the crops. Gormandy’s mother who lived a few minutes away used to help Bianca look after the children so that she could help Gormandy.
110. Bianca testified that Gormandy has cultivated the subject land since she met him in 1994 up to early 2017 when he agreed to sell the subject land to Sammy. She further testified that she was not quite sure what the area of the subject land was but that she knew the boundaries based on where Gormandy planted. According to her, the lands went up to the Couva River on the south side, there were some other lands on the east side, a HDC Housing Scheme on the north and a fence on the west.
Page 28 of 123
111. Gormandy, the children and Bianca sometimes made a cook on a fireside by the shack which is close to the Couva River. Gormandy used to overnight in the shack sometimes when the crops were ready for harvesting to ensure that no one stole the crops. Bianca never overnighted because there was no electricity and plenty of mosquitoes. She testified that the shack is still there although it is now hidden by a concrete wall built by Sammy.
112. Bianca and Gormandy have continued to cultivate the two lots of lands which Gormandy retained with crops such as ochro, dasheen, eddoes, peas, sorrel and thyme. They are expecting some peas and the sorrel to come in for Christmas later this year.
The cross-examination of Bianca
113. Bianca testified that based on her own knowledge, she could not say whether Gormandy was cultivating the subject land in 1984. According to Bianca, the subject land was open on three sides. Since the subject land were open, anyone could have walked onto the lands. Bianca agreed that there is a pedestrian walkway to the north of the subject land. It appears to the court on all of the evidence that the pedestrian walkway does exist and is or the purpose of facilitating persons walking to and from the Southern Main Road and the Housing scheme but that the walkway ended when it arrived at the end of Christine Street.
114. Further she agreed that the two lots of land retained by Gormandy were recently ploughed to prepare same for cultivation. Before the two lots were ploughed, there were dasheen and eddoes planted on the two lots. Bianca also admitted that she did operate a palour with Gormandy and that they had a pool table. She further testified that they sold alcoholic beverages.
Page 29 of 123
Andy Dubay
115. Andy Dubay (“Andy”) is forty-six years of age. He resides in an HDC apartment in the housing scheme that sits adjacent to the subject land. Andy testified that when he was about eleven years old in 1983, his mother and he moved from their home at No. 56 Washington Street, Marabella to the June Street Housing Block in Couva and he still lives there. For a few months between 1996 and 1997, Andy lived with his then girlfriend, Leba Evelyn in Maloney.
116. Sometime in 1983 or 1984 Andy got to know Gormandy. At that time Gormandy was older than Andy by a few years. From about 1984, Gormandy cultivated the subject land directly behind the building then known as Wimpey Contractors (now Julin) in Couva on the bank of the Couva River. One of the access roads to Gormandy’s lands was Dump Road and Andy’s home was about four hundred feet from Dump Road. The other access road to the subject land is Christine Street. Andy further testified that no other person cultivated the subject land even though Gormandy allowed fellows from the area to assist him to do the planting and sleep in sheds on the subject land.
117. Since Andy has known Gormandy, Gormandy has continuously planted on the subject land up to today’s date. Going to school every day from his home, Andy passed the subject land since he used Christine Street to get access to the Main Road and from Christine Street he had a clear view of the subject land and the shack. Andy attended the Williamsville Junior Secondary School but later transferred to the Couva Secondary School after he moved to the June Street Housing Block. Andy still uses Christine Street on a daily basis to go to and from his home.
118. As a young boy, Gormandy and Andy had many disagreements because Gormandy caught Andy and a few of his friends including Dexter Frank, Gary Frank, Dexter Ali, Darryl Ali and Marcus de Souza stealing peas, pumpkins, ochroes and patchoi from the subject land in order to make cooks by the river. Andy testified that when Gormandy caught
Page 30 of 123
them, he told them that rather than “tiefing” from him they could give him a little help to water the crops using water from the river and in exchange they could take whatever crops they want to cook. Later on, as Andy and his friend grew older, they decided to take up Gormandy on his offer and they got pocket change from him for helping him on the subject land.
119. From about 1987 or 1988, Andy began helping Gormandy regularly on the subject land. Andy was only about fifteen years of age at the time and still going to school. So after school and on weekends Andy and his friends helped Gormandy to plant peas, corn, patchoi, ochros, hot peppers, baigan and cucumber for pocket change. Andy testified that there were plenty guava trees and that he and his friends picked guava to make chow. Andy continued to assist Gormandy until the early 1990s. In the 1990s Andy began working in PLIPDECO as a Terminal Worker and so did not have much free time.
120. Andy worked at PLIPDECO from 1992 to about 2008 or 2009 and during that time he passed by the subject land every day. Andy used to see Gormandy most days. He testified that Gormandy was on the subject land at all hours since he had shift jobs. Andy sometimes saw Bianca with Gormandy and other persons mainly from the area but also others that he did not know. They were planting or clearing or watering the subject land.
121. Gormandy and Andy often spoke. Andy also helped Gormandy fill up the trunk and backseat of his car with crocus bags and boxes of vegetables for Bianca and Gormandy to sell in the Couva and Chaguanas markets since the bags were very heavy. Andy testified that when Gormandy got the injury from the gunshot, he helped him and Bianca when they were selling door to door in the housing scheme. Andy further testified that Gormandy had some goats and chickens on the subject land next to the shack and that some stray dogs killed all the goats.
Page 31 of 123
122. In 2007 or 2008, Andy began working for himself. Andy’s company is called A and A Reco. The company provides janitorial, garbage removal and recycling services. Andy operates his business from home and it continues to this date.
123. Andy, Gormandy, Gary Frank, Martin Gormandy, Adrian Coltrust, Marcus de Souza and some other old friends used to meet up every few weeks or so at Gormandy’s shack on the river bank to cook, have a few drinks and to lime. The last time Andy limed with Gormandy on the subject land was late last year before the construction works began.
124. Andy testified that Gormandy, Bianca and their daughter Afiya are now only planting about two to three lots of the subject land. He further testified that he has seen them selling crops at the housing estate and that they also now have a stall on the Boulevard opposite Mary Street.
The cross-examination of Andy
125. Andy and Gormandy are good friends. Andy has not measured the subject land but he knew that the subject land comprised three acres because Gormandy told him so.
126. Andy testified that there is a pedestrian walkway to the north of the subject land that leads to the Southern Main road. The walkway was a few footsteps from the subject land. Residents of the area used that walkway as a shortcut to get to the Southern Main road. The court also understood this witness to be saying that Kescadee Avenue was used by persons in the area to access a part of the land where they would dump refuse. That part of the land was near to the housing scheme. He referred to it as dump road.
Lester Moore
127. Lester Moore (“Lester”) is sixty-three years of age. He is a retired hospital attendant. Lester has known Gormandy for about eighteen years. He first met Gormandy at the Mount Hope Women’s Hospital (“Mt. Hope”) in 1998 when Gormandy was
Page 32 of 123
transferred from the San Fernando General Hospital to Mt. Hope as a Hospital Attendant. At that time, Lester was also employed at Mt. Hope as a Hospital Attendant.
128. In 2004, Lester was transferred to the St. James Medical Centre. In 2009 Lester was transferred to Mt. Hope once again and in 2013 he was transferred to the Chaguanas Health Facility where he worked until he retired in July, 2015. Although Lester was transferred to other health care facilities during his employment, Gormandy and he remained friends.
129. When Lester first got to know Gormandy at Mt. Hope, Gormandy told him that he had about three acres of land in Couva where he grew crops. Lester testified that Gormandy used to bring crops on a weekly basis to sell to the Mt. Hope staff. Lester purchased crops from Gormandy from time to time. Lester used to go to Gormandy’s car in the carpark at Mt. Hope to choose his vegetables. Gormandy also told Lester that he sold crops to the residents of the apartment buildings at Lisas Garden Development where he lived and also to wholesale vendors in the Couva and Chaguanas markets.
130. In late 2003, Gormandy invited Lester to his home. When Lester visited Gormandy’s, Gormandy asked him if he was interested in seeing his garden before he left. Lester went with Gormandy and saw his garden.
131. When Lester arrived at the subject land, he was impressed by the volume of cultivation. Lester observed a wide variety of crops on the subject land such as corn, baigan, coconut, peas, pommecythere, green fig and guava. He also remembered seeing some goats and chickens. Gormandy also showed Lester his shack on the subject land and Lester observed that Gormandy kept his tools in the shack. After this time, Lester only went back on the subject land on one more occasion when Gormandy asked him to help him because he said that his goats had been attacked by a dog. Lester could not recall the exact year but he believes it was sometime around 2012 to 2015. When Lester went to
Page 33 of 123
the subject land, he again observed that the subject land were being cultivated. Lester assisted Gormandy to dispose of the goats which had been killed by the dogs.
132. Lester bought vegetables from Gormandy at Mt. Hope until he retired in 2013. Even when Lester worked at Chaguanas, he continued to purchase vegetables from the first claimant. Gormandy used to call Lester on his cell to tell him what vegetables he had and if Lester was interested in purchasing those vegetables he would go to Mt. Hope after his shift was done and purchase the vegetables from Gormandy.
133. Lester testified that sometime in 2006, when Gormandy was injured by a gunshot, he visited him at the San Fernando General Hospital. Lester further testified that Gormandy had taken about one year off from work at Mt. Hope. When Gormandy returned to work, Lester continued to purchase produce from him.
The cross-examination of Lester
134. Lester testified that he never measured the subject land and his cross examination was uneventful.
Carlton Forde
135. Carlton Forde (“Carlton”) is fifty-five years of age. He is a Boiler Operator II at Port of Spain General Hospital. During the period of 2000 to 2014, he was employed as a Boiler Operator I at the Mt. Hope Women’s Hospital (“Mt. Hope”), Engineering Department. Carlton met Gormandy whilst he was employed as a hospital attendant at Mt. Hope.
136. Carlton was first introduced to Gormandy in 2000 through other co-workers who used to buy market produce from Gormandy. Carlton testified that Gormandy sold a range of vegetables to the Mt. Hope staff during lunch time and before and after his shifts Gormandy used to tell Carlton what produce he had and then brought whatever produce Carlton wanted from his car to him. On some occasions, Carlton went to Gormandy’s car
Page 34 of 123
to choose what vegetables he wanted. Gormandy told Carlton that the vegetables were grown by him on some lands he had in Couva. During Carlton’s employment at Mt. Hope, he bought produce from Gormandy on a weekly basis for himself and his family.
137. Sometime in 2001, Carlton visited Gormandy on the subject land located behind the Carillion building. When Carlton arrived at the subject land, he saw that it was a very large parcel of land. Gormandy told Carlton that the subject land were about three acres of land. Carlton observed that the subject land were cultivated with coconut trees, peas, sorrel, baigan, lettuce, tomatoes and other crops. Carlton noticed some goats tied on the subject land and also saw some chickens on the subject land which Gormandy kept in a small pen. Gormandy gave Carlton a tour of the subject land and also showed Carlton a water connection he got from WASA.
138. Carlton testified that sometime in 2006, Gormandy had surgery after he was shot. Carlton visited Gormandy at the San Fernando General Hospital. Gormandy was away from work for about eleven months whilst he was recovering from the gun shot. Carlton testified that Gormandy told him that he needed the help of family and friends to cultivate the subject land until he recovered from his injury. Carlton offered to help Gormandy since he was his friend and he knew that Gormandy was going through a difficult time with his injury.
139. Carlton agreed to help on the subject land at least twice a month depending on his off days from Mt. Hope. Gormandy told Carlton that he was also getting other family and friends to help him and that he would pay workers to help him.
140. On the days that Carlton went on the subject land, he helped cut the excess grass and weeds with a weed-wacker, help plant plants and water the plants. Carlton testified that Bianca along with some other persons also helped on the subject land. That Gormandy sometimes paid workers to assist them. Gormandy was always there when he (Carlton) was on the subject land but Gormandy could not do much because he was using
Page 35 of 123
crutches. Carlton never asked for any money for helping Gormandy since Gormandy was his friend and often gave him produce from the subject land to thank him for his assistance.
141. Carlton testified that in or about 2009, Gormandy recovered and that he started to plant more crops on the subject land such as peas, pumpkin, tomatoes, bhagi and other crops. When Gormandy got better, Carlton only went on the subject land on the rare occasion to give Gormandy a little help.
142. In or about 2015, Carlton left Mt. Hope to work at the Port of Spain General Hospital as a Boiler Operator II. He had more fixed working hours at this new job and as a result he stopped going on the subject land to assist Gormandy. However from time to time Carlton visited Gormandy on the subject land to see how he was going. During his visits, Carlton observed that Gormandy was still cultivating the subject land.
The cross-examination of Carlton
143. When Carlton visited the subject land in 2001 it was not fenced. He testified that there was a pedestrian walkway to the north of the subject land which led to the Southern Main Road. Carlton never measured the size of the subject land.
Sewsaran Sawh
144. Sewsaran Sawh (“Sewsaran”) is seventy-three years of age. In 1982 Sewsaran and his wife, Monica Sawh (“Monica”) opened a restaurant known as Touch ‘n’ Taste Restaurant (“the restaurant”) which they operated and continue to operate from downstairs their family home at No. 8 West Boundary Street, California, Couva. They
Page 36 of 123
operated the restaurant as sole traders but about four years ago it was incorporated into a limited liability company.10
145. Sewsaran is the main chef but his wife assists in the kitchen. As the years passed, the restaurant grew and the clientele increased which meant that the restaurant required more supplies including fresh produce. Sewsaran normally purchased the supplies from wholesalers in the Couva market but he also purchased from persons in the community.
146. In or about 2002 the restaurant was renovated and the clientele increased. It was around this time that Sewsaran first met Gormandy. Gormandy walked into the restaurant with a variety of fresh produce and asked Sewsaran whether he was interested in purchasing produce from him for the restaurant. Sewsaran testified that Gormandy had more produce in the back of his vehicle so he (Sewsaran) went with Gormandy to his vehicle to view the produce.
147. Sewsaran immediately asked Gormandy where he had obtained the produce from and Gormandy told him that he cultivated his own produce on lands nearby. Sewsaran asked Gormandy that question because he was concerned about the possibility of praedial larceny. Sewsaran does not purchase produce from anyone involved in such activities. Gormandy explained to Sewsaran that his lands were behind the Carillion lands.
148. Sewsaran immediately knew what lands Gormandy was talking about because since the 1980s Sewsaran observed cultivated lands behind Carillion lands. Sewsaran observed the subject land when his restaurant provided full catering services to Carillion from the 1980s to 2010 at least three times a year for Christmas, retirement and other functions. The catering services Sewsaran provided to Carillion included the provision of food, catering staff and a bar. The Carillion functions were usually held on the outskirts of Carillion’s land under tents and Sewsaran was present at those functions to supervise the staff.
10 Copies of the restaurant’s business registration name and its certificate of incorporation were attached to Sewsaran’s witness statement at “S.S.1”.
Page 37 of 123
149. As such, Sewsaran testified that he was able to observe the subject land from the back of Carillion’s lands through the chain link fence which separates the Carillion’s lands from the subject land. Sewsaran further testified that the subject land always looked well maintained and cultivated. Sewsaran observed that there were crops on the subject land bounded by the river. Sewsaran could not estimate the size of Gormandy’s garden but he testified that it was huge. Sewsaran also saw Gormandy on some occasions cultivating and maintaining the subject land. Sewsaran was very impressed that a young person would undertake that much work to earn a living. He also noticed a small wooden shack with a galvanized roof on the subject land.
150. Sewsaran purchased all of Gormandy’s produce from him on the first day he met him as he (Sewsaran) was impressed with the quality of Gormandy’s produce. From 2002 to 2015 Gormandy supplied Sewsaran with produce for his restaurant. The produce included cucumbers, tomatoes, lettuce, corn, pumpkin, patchoi, bhaigan and peas. Sewsaran testified that over the years Gormandy’s prices fluctuated (as all prices do) but that he never refused Gormandy’s produce because his produce was always fresh and appealing so he (Sewsaran) was encouraged to purchase every time Gormandy visited.
151. Sewsaran always paid Gormandy in cash. He paid on average $2,000.00 per month. However, the amount Sewsaran paid Gormandy fluctuated depending on what produce Gormandy reaped and how often he visited the restaurant.
152. Sewsaran is aware that the Carillion lands are now owned by Junior Sammy. Sewsaran stopped purchasing from Gormandy in November, 2015 when the restaurant was closed for renovations. As over the years the restaurant’s menu changed, Sewsaran began to purchase from foreign suppliers on a more regular basis and less local produce.
The cross-examination of Sewsaran
153. Sewsaran testified that he did not see Gormandy planting the subject land in the 1980’s. He first saw Gormandy on the subject land in 2010. He testified that the subject
Page 38 of 123
land were not fenced and that he did not know the size of the subject land. Gormandy never gave Sewsaran receipts when he purchased the produce from him.
Sammy’s case
154. Sammy is an executive director of JSCL and Julin. He is also a manager at Julin Limited (“Julin”) which is a related company to JSCL. By Deed of Conveyance dated September 1, 2010 and registered as DE201002170407 (“the 2010 deed”), Julin bought certain lands together with a building from Carillion (Caribbean) Limited (formerly George Wimpey (Caribbean) Limited).11 The lands Julin purchased comprised over two acres and is situated along the Southern Main Road in Couva (“the former Carillion lands”).
155. Sammy viewed the former Carillion lands on behalf of Julin before it was purchased. The first viewing was sometime in 2010. At that time, Sammy observed that the lands on the East and behind the former Carillion lands were cultivated with crops (“the subject land”). He also saw a small shed on the subject land.
156. Immediately after Julin purchased the former Carillion lands, Julin carried out renovations on the building during a three-month period. The renovations were completed in early 2011. During the renovations, Sammy went to the former Carillion lands almost every day to oversee the renovations. He noticed that the subject land which were separated from the former Carillion lands by a chain link fence, were always well maintained and cultivated and almost every other day he saw Gormandy on the subject land tending to the crops. Sammy testified that on occasions there were other persons present. During one of his visits, Gormandy spoke to Sammy through the chain link fence and introduced himself. Gormandy also offered Sammy some crops. From that time they spoke whenever Sammy saw Gormandy on the subject land.
11 A copy of the Deed of Conveyance dated the 1st September, 2010 and registered as DE201002170407 was attached to the second claimant’s witness statement at “S.S.1”.
Page 39 of 123
157. When the renovations were completed in 2011 Julin rented out the building to the National Gas Company of Trinidad and Tobago Limited. Julin and JSCL used the remainder of the former Carillion lands for the storage of equipment. After the building was rented, Sammy continued to visit the former Carillion lands on a weekly basis as part of his duties as an executive director of JSCL and manager of Julin. During those visits, he regularly saw Gormandy on the subject land cultivating and tending to the crops.
158. Sometimes he saw Gormandy on the side of the road selling fruits and vegetables to persons in vehicles. Sammy also noticed that sometimes Gormandy was on the subject land very late at night and based on what Gormandy told Sammy and what Sammy noticed, Gormandy sometimes also slept on the subject land when his crops were close to being reaped.
159. Gormandy and Sammy became better acquainted. Sammy sometimes went onto the subject land with some of his employees. Sammy testified that the subject land were bounded by the river. He further testified that there were many trees and crops on the subject land and that it was a nice place to relax.
160. Over the next two to three years Sammy was able to better see Gormandy’s cultivation when he visited the subject land. Sammy testified that Gormandy had a wooden shed close to the river in which he (Gormandy) stored his gardening tools, seeds, fertilizers and buckets. Gormandy also had some goats on the subject land.
161. From his observations, the subject land was about three acres in area and was cultivated with various crops and were bounded by the river on the south side, by other lands on the east side, the HDC Housing Scheme on the north side and by Julin’s chain link wire fence on the west side. Based on Sammy’s discussions with Gormandy, Sammy formed the view that Gormandy had been occupying the subject land since the early 1980’s and that the subject land were formerly Caroni lands.
Page 40 of 123
162. In early 2017, Sammy asked Gormandy whether he would be interested in selling the subject land since Sammy saw the commercial potential of the subject land to JSCL, Julin and himself. The subject land had commercial potential because it was adjoined the former Carillion lands. Sammy obtained legal advice from his attorneys-at-law and was informed that if Gormandy had been occupying the subject land continuously and exclusively for over sixteen years he would have extinguished any title which Caroni had to the subject land and that he (Gormandy) would have possessory title to the subject land. Based on Sammy’s observations, he formed the view that Gormandy had satisfied those legal conditions.
163. Sammy testified that Gormandy agreed to a purchase price of $500,000.00 for his possessory title to the subject land on the sole condition that he (Gormandy) would retain about two lots of the subject land on the eastern side so that he could continue to cultivate upon those lands.
164. Sammy and Gormandy then entered into the written agreement for sale by which Sammy agreed to buy the subject land (less the two lots) for $500,000.00. Sammy paid Gormandy a deposit of $100,000.00 through JSCL on March 17, 2017. Sammy has not made any further payments to Gormandy because of these court proceedings.
165. After Sammy signed the agreement for sale, he took possession of the subject land with Gormandy’s permission and retained JSCL to carry out grubbing, levelling and compaction works since he (Sammy) intended to erect a perimeter fence and drainage (“the works”). Sammy was present when the works commenced and Gormandy’s crops on the subject land were cleared by the tractors so that the site could be levelled.
166. Sammy testified that Gormandy reaped as much of his crops as he could before the works commenced but most of the crops had not yet matured and were destroyed. JSCL commenced the works on March 20, 2017 and agreed to defer payment for the works until the works were completed. JSCL issued a letter on April 3, 2017 confirming its
Page 41 of 123
agreement to carry out the works and advised that the contract price and the final scope of works would be finalized in due course.12
167. Sammy testified that he is indebted to JSCL in the sum of approximately $600,000.00 for the works which have been carried out by the JSCL prior to the works being stopped.
The cross-examination of Sammy
168. Sammy is the son of Junior Sammy. Sammy’s family owns the Junior Sammy Group of Companies which is comprised of JSCL, Jusamco Pavers, Sammy’s Multilift Services and Julin. Sammy holds the position of Executive Director in all the aforementioned companies. He became the Executive Director in the companies at the age of seventeen. Julin is a real estate company and JSCL is involved in Civil Engineering and land works.
169. Sammy testified that he would describe himself as an experienced business man. He agreed that he knows land and the value of land. The Junior Sammy Group purchased lands when the need arose and the Group owns about ten parcels of land and/or properties.
170. Sammy could not recall the price Julin paid for the former Carillion lands. He was then referred to the 2010 deed which stated that Julin paid $14.2 million dollars for the former Carillion lands which comprised two and a half acres.
171. After the renovations to the building on the former Carillion lands were completed, Sammy visited the former Carillion lands every other day to supervise. Julin had about ten to fifteen workers stationed at the former Carillion lands. He reiterated that he saw Gormandy selling fruits and vegetables every other day on the main road. He visited Gormandy about five times on the subject land. Although there was a gate on the
12 A copy of JSCL’s letter dated the 3rd April, 2017 was attached to the second claimant’s witness statement at “S.S. 3”.
Page 42 of 123
chain link fence between the former Carillion lands and the subject land, Sammy used a hole in the chain link fence to go across to the subject land because the gate was always locked with a pad lock. When Julin bought the property, the gate was there and Sammy said he did not know the purpose of the gate.
172. When Sammy asked Gormandy to purchase the subject land, he was not doing so in the capacity of Executive Director of Julin. Sammy agreed that since the subject land were going to be an extension to the Carillion property, it was logical for Julin to purchase the subject land. He testified that he was acting as an agent for Julin. He then testified that he intended on being the owner of the subject land.
173. Sammy was referred to letter dated March 31, 2017. It was pointed out to Sammy that in this letter it was stated that JSCL was entitled to and in possession of the subject land. Sammy accepted that the letter did not state that he was entitled to and in possession of the subject land. He testified that it is he who is claiming possession of the subject land.
174. Sammy expressed an interest to purchase the subject land in 2010. Gormandy was initially reluctant to sell the subject land and so Sammy told Gormandy that anytime he would like to sell the subject land to keep him in mind. Sammy took Gormandy’s word that he was in occupation of the subject land since the 1980’s. In 2015, Sammy asked Gormandy to produce his title deed for the subject land and Gormandy told him he did not have a deed. As such, Sammy went to his lawyer to find out what to do. It was the testimony of Sammy that he did care whether Gormandy had a title to the land which was capable of being conveyed to him.
175. According to Sammy, he allowed two years to pass and then went to Gormandy and made an offer to purchase the subject land and Gormandy agreed. Sammy did not do a valuation of the subject land to determine its worth. In March, 2017 Sammy offered Gormandy $600,000.00 for the subject land. However, Sammy then offered Gormandy
Page 43 of 123
$500,000.00 and the retention of two lots of land. Sammy reduced the price he was willing to pay because of the amount of work he had to do on the subject land.
176. Sammy took possession and constructed a ten feet wall around the subject land for security reasons. He initially testified that he did not know the length of the wall offhand but then stated that the wall is probably about two to three hundred feet in length. Sammy began building the wall less than a week after the agreement for sale was executed and continued to erect the wall whilst the attorneys for the parties herein were exchanging pre-action protocol correspondence. Sammy hired Marion Mohammed to survey the subject land after he had begun construction of the wall. The construction of the wall halted by this court by the grant of an interim injunction.
177. Sammy showed Gormandy the two lots of land he could retain. The two lots are located to the back of the subject land. Although Gormandy never took Sammy for a tour of the subject land and he (Sammy) never traversed the subject land, he knew exactly where the two lots are located because he knew the area very well as he used to work in Point Lisas. He also drove to the recreation grounds and from the recreation grounds, he could have seen the subject land.
178. Sammy testified that it was his idea to pay Gormandy a deposit of $100,000.00 and pay the balance in monthly instalments. Sammy never executed a land transaction in this manner before. The fact that Gormandy did not have a deed for the subject land motivated Sammy to pay for the subject land in the aforementioned manner.
179. Sammy and Gormandy made prior arrangements to meet at the office of the attorney on March 14, 2017 to execute the agreement for sale. Prior to agreeing to meet at the attorney’s office, Gormandy and Sammy had agreed that the subject land would be sold for $500,000.00. Sammy testified that although in the agreement for sale it was stated that he agreed that the subject land was being sold without any new survey being
Page 44 of 123
done, he did not have a previous survey of the subject land. Sammy had no idea why that clause was inserted.
180. Sammy testified that the boundaries of the subject land as described in the third schedule of the agreement for sale was accurate. He was then referred to the survey plan annexed to the agreement for sale. He testified that the dark shaded area on the survey plan represents the former Carillion lands. That the area with the diagonal lines represents the subject land and the area marked ‘B’ represents the two lots retained by Gormandy. Sammy could not remember who drew in the shaded area, the ‘B’ and the ‘C’ on the survey plan. He testified that it had to be either Gormandy or he. He then testified that he thinks he remembers seeing Gormandy drawing the items in.
181. Sammy accepted that it is usual in agreements for sale to state that the sale is subject to the vendor showing he has title to sell the land. He further accepted that in the agreement for sale no such clause was inserted. Sammy testified that although as a businessman he thought it prudent for Gormandy to go to court to obtain title to the subject land before he sold same and even though Gormandy and he spoke about doing that before, they did not do that.
Marion Mohammed (the expert)
182. Marion Mohammed (“Mohammed”) is a registered surveyor and a Trinidad and Tobago Licensed Surveyor.13 She is a Director of Geometrics Surveying Consultants Limited (“GSCL”). She has about thirty years’ experience in surveying and land administration having worked in the Lands and Surveys Division, PHILDECO, Caroni (1975) Limited, e Teck and GSCL.
13 A copy of Mohammed’s academic and professional qualifications as well as her experience were set out in the resume annexed to her report at “A”.
Page 45 of 123
183. At the Lands and Surveys Division, during the period October, 1987 to October, 1997, Mohammed performed land administration functions and surveying. Part of her responsibilities included advising committees on land use and preparing technical reports on land issued at the Ministry of Agriculture, Land and Marine Resources, as well as the processing of applications in relation to State Lands. Land matters were sometime investigated using aerial photographs available over a period of time. Whilst at the Lands and Surveys Division, Mohammed gave evidence on behalf of the State in High Court on matters dealing with State Lands.
184. In the performance of her duties and responsibilities at the Lands and Surveys Division, Phipdeco, Caroni 1975) Limited and e Teck, Mohammed frequently used aerial photographs in the management of land issues relating to disputes involving the occupation of land in which she interpreted aerial photographs to advise as to the identification of Estate Traces, Roads, tenants parcelation, available lands to be leased and the extent and period of time of occupation.
185. Since 2005, she has been in private practice at Geometrics Surveying Consultants Limited practicing in all aspects of surveys inclusive of cadastral surveys, engineering surveys, marine surveys, geodetic surveys, satellite surveys, photogrammetry, land information systems, automated mapping and cartography. She is also a consultant in the field of Land Management, Land Surveying and Operational Systems for Land Administration and she serves as GSCL’s in house project manager and specialist for Cartography, Remote Sensing and Image Analysis. At GSCL, she is responsible for managing their projects, cadastral plan preparation and quality control.14
186. The projects she has worked on required her to enter hundreds of parcels of lands to execute surveys on behalf of the Ministry of Works or T&TEC or NGC. Aerial photography was often used to determine the best access points or routes. The clients’ project routes were overlaid unto the relevant aerial photographs. This allowed for
14 A summary of some of the projects Mohammed has worked on were annexed to her report at “B”.
Page 46 of 123
identification of owners or occupiers of the parcels through which the routes traversed and the land use of the parcels on the routes. The insertion of aerial photography is one aspect of the projects requirements.
187. Mohammed’s responsibilities in those projects included searching of the records and database of survey plans from the Survey and Mapping Division of the Ministry of Agriculture Land and Fisheries for relevant cadastral survey plans, quality control on data collected and plans prepared, plan preparation of the project areas, managing the project so as to meet timelines, requirements under Act No. 33 of 1996 and the Land Surveyors Regulations, preparation of databases and purchasing of aerial photographs from the Director of Surveys. Some of the projects required the use of the relevant aerial photography to determine land use and submission to the clients.
188. Mohammed received the following instructions from Mr. Varin Gopaul-Gosine (“Mr. Gopaul-Gosine”) Instructing Attorney-at-law for the claimants;
i. On or about April 10, 2017 Mohammed received oral instructions from Mr. Gopaul-Gosine to prepare an occupation cadastral survey of approximately three acres of land 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 JSCL (formerly Carillion (Caribbean) Limited) (formerly George Wimpey Caribbean Limited) (“the subject land”). ii. On April 27, 2017 Mr. Gopaul-Gosine wrote to GSCL retaining GSCL as surveyors to identify by way of a survey plan(s) lands comprising 49.8269 hectares vested in the HDC, three acres of land occupied by JSCL and two lots of land retained by the first claimant.15 iii. On July 3, 2017 Mr. Gopaul-Gosine, wrote to Mohammed and asked her to prepare an expert report in relation to the cadastral survey plan dated April 27,
15 A copy of the letter of instructions dated April 27, 2017 was annexed to Mohammed’s report at “C”.
Page 47 of 123
2017 (“the cadastral survey plan”) and the image interpretation of aerial photographs for the period 1980 to 2014.16
189. Mr. Gopaul-Gosine provided Mohammed with copies of the following documents;
i. Amended Claim Form and Statement of Case; ii. Defence of the Defendants; iii. Order of this court dated April 7 2017. iv. Agreed and Unagreed List and Bundle of Documents; v. Copy of Order of this court dated August 16, 2017 granting me permission to prepare an expert report; and vi. Part 33 of the Civil Proceedings Rules 1998 as amended.
190. The following are the services that were provided in relation to the subject land;
i. Review of relevant documents from the Survey and Mapping Division Ministry of Agriculture Land and Fisheries and Land Registry; ii. Execution and preparation of Cadastral Survey Plan; iii. Creation of overlay using data from the Cadastral Survey Plan and aerial photographs for the years 1979, 1980, 1989, 1994 and 1998 all obtained from Mr. Paul Williams, Licensed Land Surveyor (now deceased); iv. Creation of overlay using data from the Cadastral Survey Plan and aerial photographs for the years 1980, 1986, 1994, 1998, 2003 and 2014 all obtained and certified by the Director of Surveys; and v. Image interpretation of aerial photographs for the years 1980, 1986, 1989, 1994, 1998, 2003 and 2014.
16 A copy of the letter of instructions dated July 3, 2017 was annexed to Mohammed’s report at “D”.
Page 48 of 123
191. In preparing the cadastral survey plan for the subject land, Mohammed reviewed the following documents in order to obtain a historical perspective of the subject land;17 i. Cadastral Sheet 43 B/ 4/a & 4/b - The subject land are located in the section of the Cadastral Ward Sheet 43B 4/a & 4/b as sourced from the Survey and Mapping Division, Ministry of Agriculture Land and Fisheries. ii. Cadastral survey plan, Plan J.B. 145 - The subject land are located within the area coloured pink on Cadastral Plan J. B. 145. Plan J. B. 145 which was sourced from the records of the Survey and Mapping Division, Ministry of Agriculture Land and Fisheries. The area coloured pink on Plan J. B. 145 was surveyed in March & April 1978. However, the Plan J. B. 145 was signed in June 1995 by Land Surveyor, Mr. Leslie Ackum-Lum now deceased. iii. Cadastral survey plan in Book 1266 Folio 106, iv. Book 1038 Folio 140 -The cadastral survey plan lodged in Bk. 1038 Folio 140 sourced from the Survey and Mapping Division was surveyed in July 1970 for Caroni Limited. The said parcel is bounded on the north and east by lands of Caroni Limited v. Deed of Conveyance Registered as No. 5006 of 1938 Third Schedule – First Part; vi. Deed of Conveyance Registered as No. DE 201002170407D001; vii. Caroni 1975 Limited (Vesting) Act Chapter 64:07 of the Laws of Trinidad and Tobago.
The Cadastral Survey
192. Mohammed explained that a cadastral survey is the discipline of land surveying that relates to the laws of land ownership and the definition of property boundaries regarding the rights, restrictions and interests in property, as well as the recording of such information for use on plans and maps. It also involves the physical delineation of
17 Copies of the documents were annexed to Mohammed’s report at “E”.
Page 49 of 123
property boundaries and determination of dimensions, areas and the rights associated with the property.
193. Based on the information provided by the first claimant, coordinates for the survey of the subject land were obtained. Having regard to the injunction in place, the subject land were viewed from adjoining lands and also the lands which Gormandy had retained by virtue of the injunction order. Gormandy pointed out the boundaries of the subject land and coordinates of the subject land were obtained.
194. On April 25, 2017 the information obtained from the field cadastral occupation survey was plotted using AutoCAD Land Development Desktop 2005 and a cadastral survey plan was generated. The programme was used in the plan preparation inclusive of the drawing of the occupied parcels and contiguous parcels, labeling of lines, colouring of parcels G1 and G2, calculating the areas of the parcels and formatting the plan.
195. The following were shown on the Cadastral survey plan;
i. The parcel of land known as G1 comprises one point seven seven three three hectares (1.7733 Hectares) or approximately 4.6 acres. G1 is the parcel of land which Gormandy identified that was occupied by JSCL. G1 is bounded on the north by a concrete wall, on the south partly by lands of George Dottin and by the Couva River, on the east partly by lands formerly Caroni (1975) Limited now the State and partly by G2 and on the west by lands formerly Carillion (Caribbean) Limited now Julin Limited; ii. The parcel of land known as G2 comprises nine hundred and twenty nine point zero square metres (929.0 m2) or approximately 10,000 square feet. G2 is the parcel of land which Gormandy identified that he retained for his personal use. G2 is bounded on the north by lands formerly Caroni (1975) Limited now the State on, the south by G2, on the east partly by lands formerly Caroni (1975) Limited now the State and on the west by G1.
Page 50 of 123
iii. Marks were placed at the corner of the parcels of G1 and G2 as Ir. pt. (Iron Put) on the survey plan. iv. Concrete walls were marked on the northern and eastern boundaries of G1; v. The Couva River located south of G1 was also shown in the survey plan; vi. Scale 1:2500 and distances are in metres.
196. Upon completion of the plan, four original cadastral survey plans were printed and Mohammed signed, dated and stamped them. Mohammed also endorsed the four original cadastral survey plans with her Licensed Land Surveyor Stamp No. 0070/2017, issued by the Land Survey Board of Trinidad and Tobago.
197. On April 28, 2017 the four original cadastral survey plans bearing Mohammed’s signature and her Licensed Land Surveyor Stamp No. 0070/2017 were sealed and stamped by the Lands and Surveys Division, Ministry of Food Production, Land and Marine Resources.18
Methodology for preparation of overlay using data from cadastral survey plan and aerial photographs
198. In order to create the overlays, AutoCAD Land Development Desktop 2005 software was used. Mohammed explained that an overlay refers to the combined view of two or more layers, in order to view each in relation to the other. With the cadastral plan already drawn in AutoCAD, Mohammed imported scanned Aerial photographs of the subject land to the computer programme and placed them in the correct position, orientation and scale (rubber sheeting).
199. To complete the overlay, the Cadastral Sheet Detail Tile 43B (source the Surveys and Mapping) was used. This tile is already coordinated and showed all details present in
18 A copy of the Cadastral Survey Plan dated April 27, 2017 was annexed to Mohammed’s report at “F”.
Page 51 of 123
1994. This tile allowed for the scanned Aerial photographs to be correctly attached to the survey plan. Common points, such as corners of buildings, round-abouts and streets, found on both Detail Tile 43B and the Aerial photographs were used to fix the Aerial photographs in position.
200. Once in the correct position, orientation and scale, the cadastral survey plan (coordinated using Garmin Handheld GPs +/- 10 metres) was overlaid on each of the scanned Aerial Photographs and a printed copy was created. This process was done for all the digital Aerial Photographs available as well as the Satellite Imagery. The creation of the overlays with the cadastral survey plan and the aerial photographs allowed Mohammed to examine G1 and G2 plots of land more accurately and scientifically. From her estimate, the margin of error for the overlay of the cadastral survey plan on the aerial photographs is approximately +/- 10 metres.
201. The following documents were used for the creation of the overlays;
i. 1979 Aerial photograph labelled CAS 79035, No 73 – Source - Paul Williams (“Williams”).19 ii. 1980 Aerial photograph labelled CAS 80010 No. 205– Source - Williams.20 iii. 1986 aerial photographs labelled T&T 860010, No. 18 - Source - Williams. 21 iv. 1989 aerial photographs labelled 89002 No. 106 - Source - Williams.22 v. The 1998 aerial photographs labelled T&T 98006 No. 55 - Source -Williams.23 vi. The 2003 aerial photograph from the Survey and Mapping Division – Source – GSCL’s database.24
19A copy of 1979 aerial photograph was annexed to Mohammed’s report at “G-1”. 20 A copy of 1980 aerial photograph was annexed to Mohammed’s report at “G-2”. 21 A copy of 1986 aerial photograph was annexed to Mohammed’s report at “G-3”. 22 A copy of 1989 aerial photograph was annexed to Mohammed’s report at “G-4”. 23 A copy of 1998 aerial photograph was annexed to Mohammed’s report at “G-5”. 24 A copy of 2003 aerial photograph was annexed to Mohammed’s report at “G-6”.
Page 52 of 123
vii. Imagery of Trinidad and Tobago accessible to the public on website for the occupied lands for the year 2014 – www.surveys.gov.tt/publicmap/.25 viii. Satellite imagery accessed from Google Earth for the year 2015.26
Overlay using the cadastral survey plan and aerial photographs obtained from Williams
202. Using the methodology referred to above in the creation of an overlay, the following overlays were created:- i. The 1979 Aerial photograph labelled CAS 79035, No. 73 was sourced from Williams.27 ii. The 1980 Aerial photograph labelled CAS 80010 No. 205 was sourced from Williams.28 iii. The 1986 aerial photograph labelled T&T 860010, No. 18 was sourced from Williams.29 iv. The 1989 aerial photograph labelled 89002 No. 106 was sourced from Williams.30 v. The 1998 aerial photograph labelled T&T 98006 No. 55 was sourced from Williams.31 vi. The 2003 the aerial photograph from the Survey and Mapping Division and sourced from GSCL database.32
25 A copy of imagery for the occupied lands was annexed to Mohammed’s report at “G-7”. 26 A copy of Google Earth satellite imagery of the occupied lands for the year 2015 was annexed to Mohammed’s report at “G-8”. 27 A copy of 1979 Aerial photograph from Mr. Paul Williams with overlay was annexed to Mohammed’s report at “H-1”. 28 A copy of 1980 Aerial photograph from Mr. Paul Williams with overlay was annexed to Mohammed’s report at “H-2”. 29 A copy of 1986 Aerial photograph from Mr. Paul Williams with overlay was annexed to Mohammed’s report at “H-3”. 30 A copy of 1989 Aerial photograph from Mr. Paul Williams with overlay was annexed to Mohammed’s report at “H-4”. 31 A copy of 1998 Aerial photograph from Mr. Paul Williams with overlay was annexed to Mohammed’s report “H- 5”. 32 A copy of 2003 Aerial photograph with overlay was annexed to Mohammed’s report at “H-6”.
Page 53 of 123
vii. Imagery of Trinidad and Tobago accessible to the public on website www.surveys.gov.tt/publicmap/.33 viii. Satellite imagery accessed from Google Earth.34
Preparation of Report
203. In preparing her report, Mohammed relied on the following information; i. Oral and written instructions provided by Instructing Attorneys-at-law for the claimants; ii. Documents provided by Instructing Attorneys-at-law for the claimants, iii. Documents obtained from the Survey and Mapping Division, iv. GSCL’s database, v. Personal knowledge in her area of expertise and her own research; vi. Cadastral survey plan and data of G1 and G2 parcels of land.
204. In order to determine a historical perspective of the subject land, Mohammed reviewed the following documents;
i. Cadastral Sheet 43 B/ 4/a&4/b; ii. Aerial Photographs 1979, 1980, 1986, 1989, 1998 and 2003 (obtained from Williams, Licensed Land Surveyor (now deceased)) to show occupation; iii. Aerial Photographs 1994 with Detailed Tile 43b to show occupation; iv. Aerial Photographs from the Ag. Director of Surveys, Lands and Surveys Division, 118 Frederick Street, Port of Spain:- a) Aerial Photograph line (1980) CAS 80010-205; b) Aerial Photograph line (1980) CAS 80010-206; c) Aerial Photograph line (1986) CAS 86010-41;
33 A copy of 2014 imagery was annexed to Mohammed’s report at “H-7”. 34 A copy of 2015 google earth imagery was annexed to Mohammed’s report at “H-8”.
Page 54 of 123
d) Aerial Photograph line (1986) CAS 86010-42; e) Aerial Photograph line (1994) T&T 06-141; f) Aerial Photograph line (1994) T&T 06-142; g) Aerial Photograph line (1998) 98006-54; h) Aerial Photograph line (1998) 98006-55; i) Aerial Photograph line (2003) T&T 03005-145; j) Aerial Photograph line (2003) T&T 03005-146; k) Aerial Photograph line 2014. v. Satellite imagery www.surveys.gov.tt/publicmap/ (2014) to show occupation; vi. Satellite imagery Google Earth 2015 to show occupation; vii. Cadastral survey Plan, Plan J.B. 145, viii. Cadastral survey Plan in Book 1266 Folio 106 ix. Registered Deed of Conveyance No. DE 201002170407D001 x. Trinidad and Tobago Housing Development Corporation (Vesting) (Amendment) Order 2006 Legal Notice No 59 page 812
205. After the death of Williams, GSCL purchased from the Director of Surveys, Survey and Mapping Division, the Ministry of Agriculture Land and Fisheries, the paper copies of the aerial photographs in stereo pairs for 1980, 1986, 1994, 1998, 2003 and 2014 imagery of the subject land which were identified by the co-ordinates obtained at the site visit. The paper copies in stereo pairs for 1980, 1986, 1994, 1998, 2003 and 2014 were certified by the Director of Surveys. The digital electronic copies for the years 1980, 1986, 1994, 1998, 2003 and 2014 were also purchased from the Director of Surveys. Mohammed testified that in her opinion the digital copies purchased from the Director of Surveys were identical in data to the paper copies.
Preparation of overlay using aerial photographs and data from cadastral survey plan – using aerial photographs certified by the Director of Surveys
Page 55 of 123
206. The process of creating an overlay (referred to above) was done using the data from the cadastral survey plan and the scans of sections of the following aerial photographs purchased from the Survey and Mapping Division and certified by the Director of Surveys;
i. Aerial Photograph line (1980) CAS 80010-205.35 ii. Aerial Photograph line (1980) CAS 80010-206.36 iii. Aerial Photograph line (1986) CAS 86010-41.37 iv. Aerial Photograph line (1986) CAS 86010-42.38 v. Aerial Photograph line (1994) T&T 06-141.39 vi. Aerial Photograph line (1994) T&T 06-142.40 vii. Aerial Photograph line (1998) 98006-54.41 viii. Aerial Photograph line (1998) 98006-55.42 ix. Aerial Photograph line (2003) T&T 03005-145.43 x. Aerial Photograph line (2003) T&T 03005-14644 and xi. Aerial Photograph line 2014.45
207. Using the methodology referred to above in the creation of an overlay, the following overlays were created:-
i. Aerial Photograph Line (1980) CAS 80010-205 – source - The Office of the Director of Surveys.46
35A copy was annexed to Mohammed’s report at “I-1”. 36 A copy was annexed to Mohammed’s report at “I-2”. 37 A copy annexed was annexed to Mohammed’s report at “I-3”. 38 A copy was annexed to Mohammed’s report at “I-4”. 39 A copy was annexed to Mohammed’s report at “I-5”. 40 A copy was annexed to Mohammed’s report at “I-6”. 41 A copy was annexed to Mohammed’s report at “I-7”. 42 A copy was annexed to Mohammed’s report at “I-8”. 43 A copy was annexed to Mohammed’s report at “I-9”. 44 A copy was annexed to Mohammed’s report at “I-10”. 45 A copy was annexed to Mohammed’s report at “I-11”; 46 A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-1”.
Page 56 of 123
ii. Aerial Photograph line (1986) CAS 86010-41– source- The Office of the Director of Surveys.47 iii. Aerial Photograph line (1994) T&T 06-142– source- The Office of the Director of Surveys.48 iv. Aerial Photograph line (1998) 98006-54– source- The Office of the Director of Surveys.49 v. Aerial Photograph line (2003) T&T 03005-146 – source- The Office of the Director of Surveys.50 vi. Aerial Photograph line 2014 – source- The Office of the Director of Surveys.51
Method of image interpretation of aerial photographs
208. Mohammed explained that interpretation of aerial photographs is useful in order to identify ground objects such as vegetation, water courses and buildings. In order to identify ground objects various fundamental characteristics are examined and considered. The fundamental characteristics are site, size texture, pattern and shape.
209. Mohammed used two methods for the image interpretation of the aerial photographs. Firstly, she examined the paper copies of the aerial photographs by using a stereoscope. Using a stereoscope, she examined overlapping pairs of the paper copies of the aerial photographs. A stereoscope is a simple instrument composed of two pictures mounted next to each other, and a set of lenses to view the pictures through. The left picture represents what the left eye saw, and likewise for the right picture. When observing the pictures through the special viewer, the pair of two-dimensional pictures combine into a single three-dimensional 3D photograph. The right and left eyes see
47 A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-2”. 48 A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-3”. 49A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-4”. 50 A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-5”. 51 A copy of 1980 Aerial photograph was annexed to Mohammed’s report at “J-6”.
Page 57 of 123
slightly different versions of the same scene, and taken together gives the illusion of depth.
210. Secondly, Mohammed examined the electronic copies of the aerial photographs by using AutoCad computer programme. The computer programme allowed her to zoom and enlarge the electronic photographs. Mohammed compiled a CD containing the digital electronic copies of the documents.52
Image interpretation of aerial photographs
211. Mohammed examined the paper and the electronic copies of the following; i. Aerial photographs for the years 1980, 1986, 1994, 1998, 2003 and 2014 which were obtained from the Director of Surveys; ii. Aerial Photographs for the years 1979, 1980, 1986, 1989, 1998 and 2003 (obtained from Williams.
212. According to Mohammed, in all the photographs certain features were constant. Those included a parcel of land west of G1 and G2 parcels of land and which was identified on the Cadastral Survey Plan as formerly Carillion (Caribbean) Ltd. now Julin Ltd. The Julin Limited lands was clearly identifiable in all the aerial photographs by the distinct shapes of the parcel of land, including the building and a driveway with a roundabout close to the entrance from the Southern Main Road.
213. The Couva River was also clearly visible in all the aerial photographs and is distinguished by the presence of large trees growing along its banks. The Couva River is located south of G1 and G2 parcels of land. The roundabout at the intersection of the Rivulet Road and Southern Main Road was also clearly seen on all the aerial photographs examined.
52 A copy of the CD was annexed to Mohammed’s report at “K”.
Page 58 of 123
214. Mohammed testified that in her opinion the presence of all those clearly identifiable features on all the aerial photographs confirmed that the photographs used showed the subject land (G1 and G2) and the surrounding areas.
215. The following were Mohammed’s specific observations and opinions in relation to the individual aerial photographs
i. The 1980 Aerial Photograph - In examining and interpreting the 1980 aerial photo, it was seen that G1 and G2 plots of land and surrounding lands were covered with rows of cultivation in an organized and structured pattern indicative of a large scale farming practice. There was the presence of a road or trace to the north of G1 and G2 plots of land separating two sections of cultivation. The rows of these cultivation all had the same north-south direction. According to Mohammed, having regard to the title search that G1 and G2 parcels of land were owned by Caroni (1975) Limited and having regard to the planned, organized nature of the rows of cultivation, the cultivation appeared to be sugar cane which was indicative of the type of crop in that area during that time period.
ii. The 1986 Aerial Photography - In the 1986 aerial photograph significant changes from the 1980 aerial photograph were observed. The lands to the north of G1 and G2 plots of land and to the east of the Southern Main Road, were now occupied by a planned housing development, identified by well organized, laid out and repeated patterns in the houses and roads. Within G1 and G2 plots of land, there were distinctive characteristic changes such as the texture, pattern and shape. The direction of the rows of the crops in a north-south direction as seen in the 1980 aerial photograph were no longer in the north-south direction. There were about three distinct segments in the G1 and G2 parcels of land displaying various patterns of cultivation. About fifty percent of the lands in G1 and G2 plots which were located in the north-western portion showed a different stage or level of growth of agriculture compared to the other portion of the lands. The cultivation
Page 59 of 123
was not organized or structured and the non-uniformed cultivation of different sizes, shapes and textures suggested different stages of cultivation. Some cultivation in the lands were denser and while other areas were more sparse. iii. The 1989 Aerial Photography - The 1989 aerial photographs were not available from the Director of Surveys. Mohammed used the 1989 aerial photograph obtained from Williams. The photograph showed different texture, pattern and shape throughout the G1 and G2 parcels of land. In the G1 parcel there appeared to be a pathway, possibly a footpath running in a north-south direction. In the north-western portion of G1, there were east to west rows of crops while on a smaller segment of the eastern portion of G1 and the entire G2 there were north to south rows of crops. North of the Couva River showed denser cultivation. The cultivation was not organized or structured compared to the 1980 aerial photographs. Some cultivation in the lands were denser and while other areas were more sparse. According to Mohammed, based on the texture and pattern there were different stages of agriculture cultivation. On the north-eastern corner of G1 there appeared to be a small structure. iv. The 1994 Aerial Photography -The 1994 aerial photographs showed that the texture, pattern and shape became more consistent throughout the G1 and G2 parcels of land as compared to the 1986 aerial photograph. On the south-western portion of G1 from the boundary of the Julin Lands leading to the Couva River there appeared to be the creation of a pathway with little or no vegetation. This pathway was not seen on the 1986 aerial photograph. According to Mohammed there was growth of agriculture in the G1 and G2 parcels of land. The cultivation remained not organized or non-uniformed. The north-eastern segment of G1 showed a distinct and different texture, pattern and tone compared to the remainder of the G1. Mohammed saw the pathway appearing to be a footpath entering the G1 plot of land from a road within the housing development becoming more visible than in the 1986 aerial photograph.
Page 60 of 123
v. The 1998 Aerial Photography - In the 1998 aerial photography the pattern, tone, texture and shape of the vegetation were more consistent and were more uniform than the 1986 and 1994 aerial photographs. The vegetation patterns were more or less similar throughout G1 and G2 parcels of land. According to Mohammed, there also appeared to be a footpath that ran through G1 and connected to pathway located north of G1. The footpaths as stated in Mohammed’s opinion on the 1994 aerial photograph were further developed and now clearly identifiable.
vi. The 2003 Aerial Photography - In the 2003 aerial photograph Mohammed could no longer see definite row crops within G1 and G2 plots of land but there were different textures, tones, patterns which could suggest the presence of patchy cultivation of crops save and except the western side of the G1 lands. On the western side of the G1 lands the portion of lands which appeared to be a pathway within the boundary within G1 lands showed a clear and distinct difference in pattern, texture and tone of the vegetation. According to Mohammed, the growth of agriculture on the western side showed different levels of growth of vegetation. The almost straight line running north to south in difference of levels of growth of vegetation suggested that it was maintained. vii. The 2014 Aerial Photography - The 2014 Imagery was the first coloured image produced by the Director of Surveys. It showed the appearance of two small structures within the G1 plot of land. Within the remainder of G1 and G2 plots of land Mohammed saw some defined row crops, some running in a north-south direction and some in an east-west direction. She also observed bare ground and sparse vegetation. To the east of G1 and G2 she saw a large area of parched lands, which stopped near the eastern boundary of the G1 and G2 plots of land. According to Mohammed, there appeared to be fire and which fire was extinguished close to eastern side of the G1 and G2 lands.
Page 61 of 123
216. Mohammed stated in her report that from examining and interpreting the aerial photographs for the various years for the areas, G1 and G2 plots of land, it appeared to her that between 1980 and 1986 the planting of sugar cane in that area ceased and a housing development was established to the north of G1 and G2. The area south of the housing and north of the Couva River which included G1 and G2 plots of land became occupied by agriculture which was seen by various small plots of agriculture which showed a change from the sugar cane, seen by the appearance of varying row direction and smaller sized plots. According to Mohammed, that occupation continued to the last available imagery in 2014, slowly developing with the establishment of footpaths and the appearance of structures on G1 and G2 plots of land.
Cross-examination of Mohammed
217. Mohammed is not licensed to practice as a photogrammetrist in Trinidad and Tobago. She testified that there are categories of surveyors in the Lands and Surveys Act Chapter 58:04 but that those categories are not implemented in Trinidad and Tobago.
218. The oral instructions Mohammed received on April 10, 2017 was via a telephone conversation. The instructions were to survey the lands occupied by Gormandy and that Gormandy would be contacted for him to be present when the survey was going to be conducted. Mohammed was also informed of the location of the subject land in this conversation. Prior to conducting the survey of the lands on April 25, 2017 Mohammed used aerial photographs (Google maps) to locate the subject land.
219. Mohammed was referred to letter dated April 27, 2017. This letter was addressed to Winston Mohammed and Mohammed. Winston is Mohammed’s business partner. This letter contained written instructions identifying the boundaries of the subject land.
220. Mohammed was referred to the cadastral survey plan she produced. She testified that the cadastral survey plan she prepared was in accordance with the written instructions given to her in letter dated April 27, 2017. This letter stated that the subject
Page 62 of 123
land comprised of approximately three acres but when the survey was on conducted on April 25, 2007 it was seen that the lands comprised of about 4.6 acres. Mohammed brought this inconsistency to the attention of the claimants’ attorneys and the claimants’ attorney informed Mohammed to proceed with the finalization of the cadastral survey plan despite the discrepancy.
221. On the cadastral survey plan it was stated that the survey was conducted by Mohammed with due authority on April 25, 2017 at the request of Gormandy. Mohammed testified that there was no particular reason why she chose to put Gormandy’s and not the other clients’ names. Gormandy was the person who was on the field with her and who showed her the subject land. The payment for the survey came from the claimant’s lawyers.
222. Mohammed did not have any discussions with Gormandy prior to going onto the subject land. She met him on the subject land when she and her crew went to survey same. Gormandy was there to identify the area that he was occupying. Mohammed’s instructions were to go onto the subject land and do a survey plan of same identified by Gormandy. Mohammed did not enter the subject land because of the injunction in place, so she and her crew went around the subject land and Gormandy pointed out the wall. Although Gormandy informed her that the wall was erected by Julin, Mohamed took the construction of the wall as evidence of Gormandy’s occupation of the subject land. They then walked along the river and Gormandy pointed out the lands that he was occupying. The wall was on the northern boundary and on part of the eastern boundary. The wall on the eastern boundary stopped where “A” was placed on the cadastral survey plan.
223. Consequently, it was the testimony of Mohammed that the cadastral plan she prepared was based entirely on where Gormandy pointed out to her.
224. On the survey plan was written “Note: Boundary Lines of parcels G1 & G2 run based on occupation”. Mohammed did not know for a fact what land, if any, Gormandy
Page 63 of 123
occupied but the boundary lines were inserted based on what Gormandy told her. Surveyors normally state on survey plans “lines run by occupation” as opposed to “occupation alleged by … or stated by…”
225. When Mohammed went to survey the subject land on April 25, 2017 she did serve a notice on the owner of the subject land. She served a notice on the Commissioner of State Lands instead of serving a notice on HDC because in her opinion although the lands were vested in the HDC, the State was the ultimate owner of the lands. The notice to the Commissioner of State Lands was hand delivered the Thursday prior to the survey on April 25, 2017. No representative from the State or from HDC was present when the survey was executed.
226. No notices were served on Julin and on George Dottin (“Dottin”). When Mohammed arrived at the subject land, she spoke to Dottin and he allowed them onto his land.
227. Although the cadastral survey plan is stamped by the Lands and Surveys Division, it does not mean that the Lands and Surveys Division verified the accuracy of the cadastral survey plan.
228. Mohammed was referred to survey plan dated August 22, 2001. The subject land on this plan would be located to the east of the lands of George Wimpey (Caribbean) Ltd. now Carillion where Caroni (1975) Ltd is written. On this plan there is a drain reserve between the lands of George Wimpey (Caribbean) Ltd. now Carillion and the Caroni (1975) Ltd. lands. Mohammed did not see any such drain reserve during her survey of the subject land.
229. Mohammed testified that there was a chain link fence between the subject land and the former Carillion lands on the day the survey was conducted.
Page 64 of 123
230. Mohammed accepted that aerial photographs are taken to facilitate the general mapping out of this country. She disagreed however that aerial photographs were not intended to be used to do a detailed analysis of the features shown in the aerial photograph. She testified that in the 1994 aerial photography done by the Lands and Surveys there were definite tiles which showed features on the ground such as roads and areas of cultivation. She then testified that the particular exercise conducted in the 1994 aerial photograph was not conducted in other aerial photographs.
231. She therefore accepted that based on the general mapping, she would not be able to identify with certainty features seen on the photographs. She testified that there are some limitations to using aerial photography. That sometimes the shadows from the clouds or a big tree would affect the clarity of the photograph. She further testified that the integrity of the photographic material might impact the conclusions she could draw from the photograph. Also the quality of older photographs would be poorer than the photographs taken by more modern technology.
232. In the 1980 aerial photograph, Mohammed did not actually see that sugar cane was planted. She came to that conclusion because she saw the furrows and knew that Caroni (1975) Ltd cultivated the lands with sugar cane at that time. She identified cultivation by furrows and also by the tone, the colours, the texture and the pattern on the photographs.
233. Mohammed was referred to the 1986 aerial photograph obtained from Williams. She agreed that the quality of this photograph is extremely poor. The red, black line on the photograph was drawn on same by Williams. Mohammed was unable to see whether anything was being cultivated on the subject land from this photograph.
234. Mohammed was then referred to the 1986 aerial photograph she obtained from the office of the Director of Surveys. The different tones on this photograph indicated that there was cultivation on the subject land. She did not see furrows on this photograph. She
Page 65 of 123
accepted that as she could not tell what plant was being cultivated, that it could have been razor grass. However, she testified that if it was a wild grass, there was not going to be a pattern, it is going to be all over.
235. Mohammed was referred to the 1989 aerial photograph she obtained from Williams. She disagreed that this photograph was of poor quality. She testified that the white lines on the area under examination may have originated from the photocopying of the photograph. She further testified that furrows are visible on the subject land in this photograph but that she could not see anything growing in the furrows. To the east of the former Carillion lands, she was able to identify a footpath running in a north to south direction. The footpath suggested that there was no cultivation up to the former Carillion lands boundary. However, she testified that other aerial photographs indicated that there was cultivation up to the former Carillion lands boundary. On the lands to the east of the subject land, rows and furrows can be seen which was indicative of cultivation.
236. Mohammed was referred to the 1994 aerial photograph. She saw the pathway to the east of the former Carillion lands and the footpath appeared to be continuing from the road. She did not observe any furrows in this photograph but she saw different tones which was indicative of cultivation.
237. Mohammed was referred to the 1998 aerial photograph. She agreed that the quality of this photograph was not the best. When she used the word “vegetation” she meant cultivation.
238. Mohammed was referred to the 2003 aerial photograph obtained from the office of the Director of Surveys. From looking at this photograph, no distinction could have been made between what was going on the subject land and on the lands north of the subject land. There were two 2003 aerial photographs, one from the office of the Director of Surveys and one from the Survey and Mapping Division. Mohammed testified that the buildings to the south of the subject land on the photographs looked different from each
Page 66 of 123
other. That there was probably an error as two sets of aerial photographs would not have been done in the same year.
239. Mohammed was referred to the 2014 aerial photograph. On this photograph it appeared as though half of “G2” was burnt and an area of land larger than the size of “G2” was burnt on “G1”. Mohammed knew that the areas were burnt because of the colour shown on the photograph which was a parched, dark colour. She accepted that the tones and/or texture of the “G1 & G2” was the same as that outside of “G1 & G2”.
240. Mohammed agreed that in most of the aerial photographs on the northern and southern boundaries of “G1 & G2” there appeared to be dense vegetation.
241. When Mohammed used the word “cultivation” in her report, she meant that someone was maintaining and planting on the subject land. By the use of her words “non- structured” and “non-uniformed” she meant that in comparison to when the subject land were being cultivated by Caroni (1975) Ltd. the structure of the cultivation was less uniformed. She testified that from the aerial photographs, there was always cultivation on the subject land but the subject land were never fully cultivated. According to Mohammed, based on the colours, the tone and pattern of the rows, it seemed as though the person or persons who were occupying the subject land was doing rotational cultivation.
242. Although she did not observe the entire subject land cleared and cut in any one of the aerial photographs, the subject land were never covered with heavy bush. She testified that she was able to see the cultivation right up to the former Carillion lands fence in certain years.
243. Mohammed was referred to the agreement for sale. She testified that the boundaries on the cadastral survey plan she prepared coincided with the description of the subject land as identified in the third schedule of the sale agreement. She was then asked whether she saw a recreation ground on the eastern boundary of the subject land.
Page 67 of 123
She testified that the recreation ground is further east, about two hundred feet away from the subject land. She also testified that the Couva River is not the southern boundary of the subject land. That the Couva river is south of the southern boundary line of the subject land. According to Mohammed, she cannot use the river as a boundary line since it belongs to the State.
244. Mohammed was then referred to the survey plan annexed to the sale agreement and asked to compare same with the cadastral survey plan she prepared. Mohammed testified that the location of “G2” and B (which is supposed to be the two lots of lands Gormandy retained) appeared to be in the different locations on the plans. However, Mohammed testified that it seems as though someone simply drew in “B” on the survey plan attached to agreement for sale whereas her survey plan is an exact measurement on the ground of what was shown to her as being occupied. Mohammed did not notice this discrepancy before. If she did notice this discrepancy, she would have brought same to the attention of the claimants’ lawyers.
245. Mohammed accepted that two persons in her profession could look at the same aerial photograph and come to a different conclusion.
THE CASE FOR HDC
246. HDC called three witnesses, Kimberly Molligan, Joel Hackshaw and Jeannette Redhead.
Kimberly Molligan
247. Ms. Kimberly Molligan (“Ms. Molligan”) is an Attorney-at-Law. She is employed with HDC as its Acting Divisional Manager, Legal. HDC is and was at all material times a body corporate established by the Trinidad and Tobago Housing Development Corporation Act Chap. 33:03. The functions of HDC are as follows;
Page 68 of 123
i. do all things necessary and convenient for or in connection with the provision of affordable shelter and associated community facilities for low and middle income persons; ii. carry on any business activity that is incidental to or which may be performed conveniently by HDC or which may assist HDC in connection with its delivery of the services referred to in paragraph (a); and iii. implement the broad policy of the Government in relation to housing as may be directed by the Minister from time to time.
248. According to Ms. Molligan, the Trinidad and Tobago Housing Development Corporation (Vesting) Act Chap. 33:06 (“the Vesting Act”), as amended, provided for the vesting of the lands identified and described in the first schedule of the Vesting Act in HDC for a term of nine hundred and ninety-nine years. The Trinidad and Tobago Housing Development Corporation (Vesting) (Amendment) Order, 2006 published in Legal Notice No. 259 of 2006 (“the Vesting Order”) amended the first schedule of the Vesting Act by adding the parcels of lands described in the schedule to the Vesting Order. The schedule to the Vesting Order listed, one parcel of forty-nine point eight two six nine (49.8269) hectares of lands situate in the Ward of Couva, County of Caroni, named the “Couva South Housing Section 5”, Ward Sheet: D12M&D17A, 43B/4a&4b, Lands & Surveys Reference: J.B. 146 (“the HDC lands”).53
249. The HDC lands are more particularly delineated and described in the approved cadastral plan dated June 17, 1995. The HDC lands are bounded on the north by the Couva Junior Government Secondary School, on the east by State lands, on the south by a river, on the west by the Southern Main Road as well as the lands by George Wimpey Caribbean Ltd (now Carillion (Caribbean) Ltd), George Dottin and Ahamad Khan.54
53 A copy of the Legal Notice No. 259 of 2006 was attached to Ms. Molligan’s witness statement at “K.M.1”. 54 A copy of the approved Cadastral Plan was attached to Ms. Molligan’s witness statement at “K.M.2”.
Page 69 of 123
250. Ms. Molligan testified that on the evening of March 28, 2017 she received a call from Deborah Cheesman (“Cheesman”), the Senior Manager of Urban Planning of the defendant. Cheesman informed Ms. Molligan that Diana Smith (“Smith”), the Senior Security Supervisor of HDC visited the south-western portion of the HDC lands (“the subject land”) situate to the north of the Couva River adjacent to the land of George Wimpey Caribbean Ltd (now Carillion (Caribbean) Ltd), and saw trucks bearing the signage JSCL on the subject land, persons in the process of clearing and levelling the land and a trench being excavated by a backhoe.
251. On the morning of March 29, 2017 Ms. Molligan spoke with Smith who confirmed her observations. Smith also informed Ms. Molligan that when she visited the subject land she spoke with someone who identified himself as an employee and/or agent of JSCL (whose name she could not now recall) and that the employee and/or agent informed her that the works were commissioned by Carillion (Caribbean) Limited (“Carillion”), which said company was identified as the owner of the land to the west of the HDC lands.
252. After receiving confirmation from the office of the Managing Director of HDC that it did not authorize JSCL to enter upon the HDC lands, including the subject land, or to carry out any works thereon. Ms. Molligan drafted the letter dated March 29, 2017 to both JSCL and Carillion for the signature of the defendant’s Managing Director. Ms. Molligan testified that as the defendant’s Managing Director was out of office when the letter was finalized for issue and, due to the urgency of the matter, the letter was signed by the defendant’s Chairman, Newman George (“George”) on behalf of the Managing Director.
253. In the letter of March 29, 2017 both JSCL and Carillion were advised that the HDC lands and the subject land upon which the unauthorized works were being undertaken were vested in HDC by virtue of the Vesting Order and that their entry onto and occupation of same constituted trespass. The letter also demanded that JSCL and Carillion
Page 70 of 123
vacate the subject land.55 Ms. Molligan caused this letter to be delivered to both companies by facsimile transmission on March 29 2017, the receipt of which was duly acknowledged on the same day, and by hand on March 31, 2017.
254. On March 31, 2017 HDC received a letter of even date from Mr. Ronnie Bissessar (“Mr. Bissessar”), who identified himself as the Attorney-at-law for JSCL.56 This letter was in response to letter dated March 29, 2017. In his letter, Mr. Bissessar denied that his client was trespassing on the HDC lands and contended that JCSL having received the requisite permission from an adverse possessor, was entitled to and was in possession of the subject land which comprised three acres of lands in Couva bounded on the north by a Housing Scheme, on the south by B.C. River, on the east by a Recreation Ground/Scheme and on the west by lands of JSCL. More specifically, Mr. Bissessar stated that “the adverse possessor of a 3 acre parcel has been in continuous and uninterrupted possession for over 30 years and Junior Sammy Contractors Limited has been occupying the 3 acre parcel and carrying out works thereon with the full consent and approval of the adverse possessor.” Further, Mr. Bissessar called upon HDC to provide by April 3 2017, copies of any documents on which HDC relied upon in support of its claim.
255. Upon receipt of letter dated March 31, 2017 Ms. Molligan immediately instructed Messrs. J.D. Sellier & Co. to respond and to take conduct of the matter on behalf of the defendant.
256. Ms. Molligan testified that despite HDC’s demand for JSCL to provide documents to support its claim, on March 31, 2017 JCSL continued the unauthorized construction works on the subject land apace. She further testified that according to the records of HDC, Adesh Beephan (“Beephan”), an employee of HDC visited the subject land sometime on or around March 31, 2017 and a wall, approximately nine feet high and three hundred
55 A copy of the letter dated March 29, 2017 was attached to Molligan’s witness statement at “K.M. 3”. 56 A copy of the letter dated March 31 2017 from Mr. Bissessar was attached to Ms. Moligan’s witness statement at “K.M.4”.
Page 71 of 123
feet long was erected on the subject land. Beephan provided Ms. Molligan with four photographs which he had taken of the unauthorized works.
257. On April 2, 2017 Messrs. J.D. Sellier & Co. responded to Mr. Bissessar’s letter. This letter enclosed a copy of the Vesting Order, the photographs that were taken by Beephan and demanded that JCSL provide undertakings not to enter onto the subject land and to refrain from carrying out any construction and/or building work on same. The letter also contained a threat of legal action against JCSL, including but not limited to the initiation of proceedings for an interim injunction to prevent JSCL from interfering with the defendant’s right to the HDC lands if JCSL failed to give the written undertakings as demanded.57
258. Mr. Bissessar responded on April 3, 2017 advising that he also acted for Sammy as well as JCSL. Mr. Bissessar’s letter stated the following;
i. That now that the defendant’s Attorneys had provided him with the Vesting Order and Cadastral Plan, he was in a position to confirm that the lands occupied by Sammy and JCSL, the subject land, form part of the parent parcel of the HDC lands vested in the HDC; ii. That the lands occupied by Sammy and JCSL were alleged to have been in the continuous and uninterrupted possession of Gormandy since 1984 (by inter alia the erection of a wooden shed used to store gardening implements, by the cultivation of crops and by the procuring of a WASA connection to the shed). iii. That by an agreement dated March 14, 2017 Gormandy had purported to agree to sell his possessory rights and title in the subject land to Sammy for the sum of $500,000.00, and that this total sum was to be paid by on or before July 17, 2017;
57 A copy of the letter dated April 2, 2017 was annexed to Molligan’s witness statement at “K.M.5”.
Page 72 of 123
iv. That Gormandy had given possession of the subject land to Sammy and Sammy had retained JSCL to carry out certain works on the subject land through a connector road called Christine Street, Couva; v. That following the execution of the Agreement, Sammy retained JCSL to carry out grubbing works on the subject land and commenced the erection of a perimeter fence, levelling the site and the installing drainage; vi. That he had advised his clients that they are entitled to sole possession of the subject land on the basis of Gormandy’s alleged adverse possession commencing in 1984 and that by virtue of the Vesting Order, HDC would not have received the benefit of any of the HDC lands since on January 1, 2004 (when the Vesting Order commenced) the subject land were not within the ownership or possession of Caroni Limited (the registered owner prior to the vesting order) since by that date Gormandy alleged adverse possession would have trumped Caroni Limited as the paper title owner.
259. The letter also exhibited one WASA bill dated December 6, 2016, a copy of the purported agreement for sale dated March 14, 2017 between the first and second claimants, a receipt issued by JCSL to Gormandy for the sum of $100,000.00; six photographs of agricultural plants; and four photographs of the subject land with construction works occurring thereon.58
260. Ms. Molligan testified that notwithstanding the objections of HDC and its Attorneys-at-Law to the construction activities of JSCL and Sammy on the subject land and the threat to commence legal proceedings in relation to same, JSCL and Sammy continued apace with construction works on the subject land throughout the entire period of pre-action correspondence described above and even after the initiation of the Claim CV2017-01152. JSCL, Sammy and/or their servants or agents, grubbed and levelled the subject land, constructed a concrete wall on the northern side of the subject land
58 A copy of the letter dated April 3, 2017 was annexed to Ms. Molligan’s witness statement at “K.M.6”.
Page 73 of 123
approximately six hundred and twenty-seven feet long and ten feet high; a concrete wall on the eastern side of the subject land approximately two hundred and sixty-six feet long and ten feet high; and a wire fence on the western side of the subject land with a gate entrance providing access to the subject land from the Julin lands.
261. Ms. Molligan examined the files and records of HDC and found a number of documents pertaining to Gormandy. She testified that Gormandy has been and is still a tenant of HDC and its predecessor, the NHA since in or around December, 1992 and resides at Building 11 Apartment 1-1 Annabelle Street (“the apartment”). She further testified that those premises are situated within the HDC lands.59
262. According to Ms. Molligan, the NHA, under the agreement granted Gormandy the exclusive use and occupation of the apartment. Gormandy’s exclusive use and occupation of the apartment is evidenced by 1) the letter dated September 8, 2003 from the NHA to Gormandy which demanded the payment of the arrears of rent in respect of his exclusive use and occupation of the apartment, 2) letter dated July 6, 2004 from Gormandy to the NHA wherein Gormandy stated that he rents the apartment from the NHA and 3) the official cash receipts from HDC issued to Gormandy for the payment of rent dated July 30, 2007 and October 17, 2007.60
263. Ms. Molligan testified that when applying for or continuing in occupation of housing from HDC or NHA, an applicant is required to submit information as to his job status and income and is required to make a statutory declaration stating that he does not own, or part own any property in Trinidad and Tobago, leasehold, freehold, or chattel.
264. The following documents were in Gormandy’s file:
59 A copy of the agreement dated November 26, 1992 between the NHA and Gormandy granting him occupation of the premises at Building 11, Apartment 1-1, Annabelle Street, Couva was annexed to Ms. Molligan’s witness statement at “K.M.7”. 60 Copies of those documents were annexed to Ms. Molligan’s witness statement at “K.M.8”.
Page 74 of 123
i. A letter from Rotoplastics Trinidad Limited to the NHA dated August 13, 1992 indicating that Gormandy had been in full time employment with that company for the past five years.61 ii. A statutory declaration made by Gormandy before a Commissioner of Affidavits on August 17, 1992 which stated that Gormandy was not the owner of any property in Trinidad and Tobago.62 iii. An affidavit sworn by Gormandy on November 18, 1992 before a Commissioner of Affidavits together with an exhibit thereto. As is evident from the affidavit and the exhibit thereto, Gormandy swore that he was not the owner of another property. Gormandy also indicated in the exhibit to the affidavit that his sole source of income was Rotoplastics Trinidad Limited.63 iv. An affidavit of Gormandy sworn before a Commissioner of Affidavits on January 2, 2009 together with an exhibit thereto. As is evident from the affidavit and the exhibit thereto, Gormandy swore that he was not the owner of another property.64 v. A tenancy agreement between HDC and Gormandy dated April 1, 2009.65
The cross-examination of Ms. Molligan
265. Ms. Molligan testified that she knows a man by the name of Glen Wilkes (“Wilkes”). Wilkes is an expert contracted by HDC to assist with this matter. He was present in court during the trial. The relevance of this line of cross examination never came to light.
61 A copy of the letter dated August 13, 1992 was annexed to Ms. Molligan’s witness statement at “K.M.9”. 62 A copy of the statutory declaration was annexed to Ms. Molligan’s witness statement at “K.M.10”. 63 A copy of the affidavit and exhibit was annexed to Ms. Molligan’s witness statement at “K.M.11”. 64 A true copy of the affidavit and exhibit was annexed to Ms. Molligan’s witness statement at “K.M.12”. 65 A copy of the tenancy agreement between HDC and Gormandy dated April 1, 2009 was annexed to Ms. Molligan’s witness statement at “K.M.13”.
Page 75 of 123
Joel Hackshaw
266. Joel Hackshaw (“Hackshaw”) is a retiree. He was formerly employed as a Senior Planning Specialist with HDC from July 11, 2011 to July 10, 2017. Prior to his employment with the HDC, he was a Development Control Supervisor with the Town and Country Planning Division. He has over thirty years’ experience in regulatory compliance in the planning and development of land.
267. As part of his role as Senior Planning Specialist, he reviewed and considered the various lands and developments belonging to HDC in relation to the development of the lands. It was a part of his job function to investigate the lands to consider the viability of the lands in question to be developed for affordable housing. As such, he regularly carried out inspections and site visits of different parcels of land, investigated boundary disputes or land disputes, and prepared and submitted reports on his activities and investigations to the defendant.
268. During the first year of Hackshaw’s employment with the HDC, he carried out site visits to each HDC development in Trinidad and Tobago so that he could familiarize himself with the land and developments for his future work. He first visited the Lisas Gardens Development in Couva in or around 2011. Lisa Gardens Development was constructed in or around the 1970’s by PLIPDECO for the NHA which had constructed a large number of townhouses and apartments along with streets and roads (“the developed area”).66
269. Hackshaw testified that to the south of the housing development, between the area fully developed with completed housing units and the Couva River there were two large areas on either side of the Recreation Grounds reserved north of the Couva River
66 A copy of the Couva Housing Development Layout Plan dated February 9, 1999 was annexed to Hackshaw’s witness statement at “J.H.1”.
Page 76 of 123
for residential lots (“the reserved areas”). Hackshaw visited all of those areas, the reserved areas, as well as the developed area. He testified that the reserved areas were overgrown with thick bush, including long grass, trees and shrubbery.
270. In or around late June or early July, 2012 Hackshaw was tasked to provide a “scoping exercise” for the Lisas Gardens Development. This was to assess the existing state of, amongst other pieces and parcels of land in the area, the reserved areas relating to the availability and viability of development of the area for affordable housing. The areas in Lisas Development that Hackshaw was considering included the eastern area from Laurie Street to Hilda Street. He also considered the western area of the reserved areas adjacent and spanning the length of Ellen Street to Christine Street. The western area (west of the recreation grounds) comprises the reserved areas.
271. Hackshaw went to the Lisas Gardens Development and considered the reserved areas on his own to see the conditions of the areas including the topography of the land, the usage of the land, the drainage on the land and the conditions generally. It took him around one hour to walk each area of land in the east and west and to consider the same. After this visit he returned to the office and prepared a report to be given to Cheesman, his superior. The report contained his views and findings.67
272. In his reports, Hackshaw would identify any squatters or suspicious buildings to bring those issues to the attention of the Legal Department and/or the Board of Directors. He testified that in his report dated July 13, 2012 he detailed that at Laurie Street, an area of land to the south where the road ends was occupied by a squatter who had a wooden residential structure. That the squatter resided on site and was engaged in agricultural activity. Hackshaw testified that he did not see any squatters or suspicious buildings on the western area and that if he did, he would have detailed same in his report.
67 A copy of the report dated July 13, 2012 was annexed to Hacksahw’s witness statement at “J.H.2”.
Page 77 of 123
273. From his site visit to the reserved areas, he recalled that the land was overgrown with thick bush, including long grass, trees and shrubbery. He testified that there was no structure and/or buildings on the reserved areas. He recalled that to the west of the reserved areas next to the Southern Main Road there was a building belonging to George Wimpey/Carillion. Those lands were bounded by a steel chain link fence. As far as he could have recalled, there was neither a gate nor an access between the lands.
274. After Hackshaw submitted the report to Cheesman, within a week or two, they visited the areas to consider the vacant land on the boundary of Flamingo Avenue, which was detailed in the report. After this, Hackshaw did not return to the reserved areas in Lisas Development.
The cross-examination of Hackshaw
275. Hackshaw was referred to his report dated July 13, 2012 and the layout plan. He testified that during his visit to the Lisas Gardens Development, he would have made notes of his observations and then compiled his report in conformity with the notes he made. He further testified that he did not know what happened to the squatter that was on the lands to south of where Laurie Street ends. That the squatter may still be on the property. Hackshaw did not obtain the name of the squatter.
276. When he visited the western reserved area, the road, Kescadee Avenue along with the two parcels of land adjacent to Kescadee Avenue were overgrown with bush.
277. Hackshaw accepted that nowhere in his report he stated that he walked in the reserved areas. He further accepted that he did not mention in his report that it took him about an hour to walk each area of the land in the east and west and to consider same. He also accepted that in his report he did not mention that the reserved areas were overgrown with think bush, including long grass, trees and shrubbery. Hackshaw testified that the whole purpose of his report was to do a scoping exercise. He explained that a
Page 78 of 123
scoping exercise is just to give a preliminary overview of what is there on the site. That a scoping exercise is followed by a more in-depth exercise which will involve land surveyors of the defendant. Hackshaw agreed that it was important for HDC to know whether the site was overgrown with bush.
278. When Hackshaw stated at paragraph 11 of his witness statement that there were no structures and/or buildings on the reserved areas, it was supposed to be that there was no structure and/or building on the reserved area to the west of the building belonging to George Wimpy/Carillion.
279. Hackshaw did walk through the reserved area to the west of the building belonging to George Wimpy/Carillion. He walked through the bushes on the reserved area. He walked on the street where the reserved area ends and then walked about one hundred to one hundred and fifty feet into the shubbery to see if there was any activity on the land. He however did not walk along the side of the reserved area by the fence of the Carillion building.
Jeannette Redhead
280. Jeannette Redhead (“Jeannette”) resides at 40662 Ibis Court, Point Lisas. She has resided in Ibis Court in the Lisas Gardens Development (“the development”) for the past thirty-one years. She testified that where she lives is about five minutes’ walk from the lands in dispute in this case (“the subject land”).
281. Jeannette knows Gormandy and has known him for approximately twenty years. Gormandy lives in a ground floor apartment on Annabelle Street in the development. As far as she is aware Gormandy is employed as a ward attendant at the Mt. Hope General Hospital. She always saw him in his hospital clothes. She also knew Gormandy’s first wife, Nerissa. Nerissa was Jeannette’s hairdresser. Nerissa would go to Jeanette’s apartment
Page 79 of 123
to do her hair and Gormandy’s children would also visit Jeannette’s home from time to time when Nerissa visited.
282. Jeannette testified that in addition to his work at the San Fernando General Hospital, Gormandy had a parlour and bar at the back of his HDC apartment. Gormandy also had a pool table there and people in the development would lime there on the evenings. The parlour closed down around 2014.
283. Jeannette has been a member of the Lisas Gardens Welfare Village Council (“the council”) for about twenty-five years. She was also President of the council from 2010 to 2013. The council was established over thirty-five years ago and is governed by the Trinidad and Tobago Village and Community Association which in turn is governed by the Ministry of Community Development, Culture and the Arts. The council was established to assist the residents of the community in several ways through the community centre. Some of the functions include providing a homework centre (for children), and providing assistance for persons in the community who wish to access social and religious programmes.
284. Some of the other functions of council are to work, repair and enhance the forest, watersheds, wetlands, flora and fauna in the community. The council took part in a National Reforestation and Watershed Rehabilitation Program in Couva from 2003 to around 2012 under the Ministry of Housing and the Environment.
285. According to Jeannette, the reforestation works involved the planting of trees along the Couva River in order to protects its banks and ensure same did not cave in. Jeannette testified that the Couva River is to the south of the development and runs roughly parallel to the development from east to west, and then turns sharply to the south just after passing the subject land and before reaching the premises which were occupied by Carillion.
Page 80 of 123
286. Jeannette took part in those works and was also a manager of the workforce that carried out the planting of trees all along the Couva River. In addition to planting trees and reforesting, Jeannette also worked on enhancing the recreational ground in the development which was near Macaw and several other areas in the development.
287. Consequently, it was Jeannette’s testimony that as a result of the aforementioned, she is very familiar with the area along the Couva River. She testified that while planting, checking on and managing the works at the Couva River, she was able to see the subject land. She visited the area along the Couva River around once a week from the time that the reforestation works started in 2003. During that time she never saw any shack near the river and never met or saw Gormandy in that area or in the area of the subject land.
288. On or around March 21, 2017 two residents in the community asked Jeannette to investigate a dust and noise complaint behind Christine Street. On that same day, Jeannette together with Joanne Peters (“Peters”) and Anthony Brooks (“Brooks”) went to see what was going on. Peters is a member of Council (the treasurer) and Brooks is a resident in the community. On visiting the site where the dust and noise was coming from, Jeannette observed heavy equipment, including trucks with signs of JSCL. The trucks were pouring sand on the subject land and dust was blowing in the air. There was also a lot of noise. Jeannette spoke to someone of East Indian descent who identified himself as “Kenneth” and a supervisor for JSCL.
289. Jeannette asked Kenneth what was going on. He told her that he was doing a job for Carillion under JSCL “to prepare a dockyard to host Junior Sammy trucks” and that she should speak to the other supervisor. At that point in time, Gormandy approached Peters, Brooks and Jeannette and asked them why they were there. Jeannette told Gormandy that they were waiting to speak to someone. Jeannette got the impression that Gormandy was working on the site as he was wearing safety vest and safety boots just like the other workers. She testified that when Gormandy walked about he said that they “come to prevent [him] from eating a food.”
Page 81 of 123
290. The other supervisor eventually came to speak to Jeannette, Brooks and Peters. The other supervisor did not identify himself but stated that they should check Carillion. Jeannette was surprised to see this activity on this scale. She estimated that JSCL was working on a few acres of land. She testified that in all her years living in the Lisas Development, she never saw Gormandy planting crops on the subject land.
291. On April 4, 2017 Jeanette along with other members of the community and council hosted a peaceful protest along the pavement of the Southern Main Road because JSCL was causing annoyance and disturbance on the land and in the area.68 While protesting, Jeannette observed water trucks from JSCL proceeding to the site to wet the ground and the sand.
The cross-examination of Jeannette
292. The National Reforestation and Watershed Rehabilitation Programme was supposed to be a ten year project. The programme fell under four different ministries but when it began, it started under the Ministry of Public Utilities. Jeannette testified that there would be a record of how many plants were planted and where the plants were planted. She further testified that that record would be at the Ministry.
293. Jeannette denied that she and Gormandy had differences. She further denied that Gormandy was a member of the council. Moreover, she denied that Gormandy told her that she could not plant trees on his boundary of the subject land.
294. From where Jeannette planted the trees on the Couva River, she could have seen Christine Street but that she could not have seen Christine Street clearly because there was plenty bush.
68 Copies of various photographs of the protest taken by Jeannette on April 4, 2017 were attached to her witness statement at “J.R.1”.
Page 82 of 123
ADVERSE POSSESSION
Law
295. In relation to the principle of adverse possession, Section 3 of the Real Property Limitation Act Chapter 56:03 provides as follows;
“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, or if such right shall not have accrued to any 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.”
296. Further, Section 22 of the Real Property Limitation Act provides as follows;
“At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action or suit, the right and title of such person to the land or rent for the recovery whereof such entry, distress, action, or suit respectively might have been made or brought within such period shall be extinguished.”
297. The law on adverse possession is not in dispute. For the first claimant’s claim in adverse possession to be made out, he must prove both factual possession and an intention to possess the subject property. This factual possession should be exclusive and ought not to have been by force, hidden or with the paper owner’s permission. He must also show an intention to take possession on his own behalf and for his own benefit to the exclusion of all other persons including the owner with the paper title so far as is reasonably practicable. 69
69 See JA Pye (Oxford) Ltd v Graham [2002] UKHL 30
Page 83 of 123
THE SUBMISSIONS OF HDC
298. HDC submitted that Gormandy who has sought a declaration that he is the owner of nearly 4.6 acres of land in Couva owned by the State and leased to HDC can only succeed in extinguishing the leasehold title of HDC if he can, by clear and affirmative evidence, satisfy the court that he was in possession of the entire parcel of land claimed for at least sixteen years.70
299. HDC further submitted that this court should not exercise its discretion to grant the relief sought by the claimants as they have failed to prove that Gormandy was in possession of 4.6 acres of the lands surveyed by Mohammed due to (i) the conflicting descriptions of the area of the land occupied, (ii) the varying and unreliable descriptions of its boundaries; (iii) the absence of cogent and credible evidence adduced by Gormandy; and (iv) the evidence of the HDC’s witnesses, especially Jeanette who testified that the subject land were in bush and that there was no shack near the Couva River.
Conflicting descriptions of the area of land
300. HDC submitted that the contemporaneous documents and the claimants’ witnesses do not support Gormandy’s claim that he had possession of 4.6 acres of land owned by the HDC. HDC further submitted that the claimants’ evidence was replete with several varying descriptions of the area of land cultivated and/or cleared by Gormandy. According to the defendant, the Statement of Case, Gormandy’s witness statement, Sammy’s witness statement, the agreement for sale, the instructions to the surveyors and the claimants’ pre-action correspondence all state that the lands Gormandy occupied were around three acres. However, the lands claimed in these proceedings are fifty-six percent larger in area (nearly 4.6 acres).
70 See Adverse Possession by Jourdan & Radley-Gardner, Second edition, paragraph 9-103.
Page 84 of 123
301. HDC submitted that Andy who according to Gormandy’s witness statement assisted in the planting of the lands as a boy, also confirmed in cross-examination that Gormandy always mentioned that the volume of land he cultivated was averaged at three acres not 4.6 acres. According to HDC, Andy’s evidence is strengthened by the fact that he was able to give a more definite landmark than Gormandy as to the extent of the land. The only landmark that Gormandy identified as the eastern boundary was the recreation ground hundreds of metres away whereas Andy gave a more definite landmark and stated that Gormandy was cultivating lands from around Kescadee Avenue.
302. HDC submitted that in utilizing the overlay of Mohammed’s survey on the 1998 aerial photograph and the plan of the development provided by Hackshaw, Kescadee Avenue is marked with the word “here” above the numbers “173.76”. HDC further submitted that the lands pointed out by Gormandy to Mohammed are considerably further east than the lands that Andy testified that Gormandy was planting. Further, according to Andy the lands at the end of Kescadee Avenue were used as a dumping area by residents and as such, HDC submitted that it was highly unlikely that Gormandy was in exclusive possession of the lands at the end of and around Kescadee Avenue/Dump Road. According to HDC, Mohammed’s survey puts the eastern boundaries of the subject land a considerable distance to the east of Kescadee Avenue/Dump Road.
303. HDC submitted that the large difference in the area between the lands claimed in these proceedings and the lands that the claimants, Andy and the claimants’ attorneys said Gormandy farmed, can only reasonably lead one to conclude that Gormandy could not have been in possession of the lands he pointed out to Mohammed and is now claiming.
304. According to HDC, the above inference is strengthened by the fact that the agreement for sale of the subject land also refer to three acres. HDC submitted that any reasonable Trinidadian or Tobagonian that had really spent his whole adult life tending to
Page 85 of 123
those lands would have taken care to see that the area occupied was correctly described in the agreement for sale, particularly since he was retaining just two lots.
305. HDC submitted that there was another conflicting estimation of the area of land given by the Ministry of Agriculture. The Ministry according to Bianca visited the lands in 2012 and stated in a letter dated August 2, 2013 that the area of the lands was two and a half acres. According to HDC, this was a significant document as Gormandy testified that he relied on this letter, which he described as a “testimonial” and which certified that he was a farmer cultivating two and a half acres and submitted same to the ADB in support of an application for a loan in order to expand his cultivation and to install an improved irrigation system.
306. Accordingly, HDC submitted that on the basis of the aforementioned conflicts relating to the area of land alleged to have been occupied by Gormandy, claimants’ claim for a declaration that Gormandy was in possession of 4.6 acres of land must be dismissed.
Unreliable descriptions of boundaries
307. According to HDC, the claimants’ contemporary documentary evidence as well as the viva voce evidence were also characterized by unreliable and conflicting descriptions of the boundaries of the land.
308. HDC submitted that although Gormandy’s witness statement stated that he planted trees on the northern and eastern boundaries, both Gormandy and Mohammed stated in cross-examination that in pointing out the northern boundary Gormandy pointed to the wall built by JSCL, and in pointing out the eastern boundary, Gormandy pointed to a spot on the ground. As such, HDC submitted that Gormandy did not fix the northern and eastern boundaries surveyed by Mohammed by reference to trees, or any informal landmark or marker since at the date of the survey all the lands had been tractored and cleared.
Page 86 of 123
309. HDC further submitted that in the Statement of Case, the agreement for sale and in the claimants’ pre-action protocol correspondence all described the eastern boundary of the subject land as “a Recreation Ground and Housing Scheme”. However, Gormandy during cross-examination testified that the recreation ground was about four to five hundred feet away from the lands. He further testified that the recreation ground was what he used as a landmark for the eastern boundary of his lands. As such, HDC submitted that the claimants’ evidence showed that Gormandy did not have any definite or precise way of demarcating the eastern boundary of the lands, which would be rather strange if his evidence as to cultivation for thirty-three years is to be believed.
310. Moreover, HDC submitted that the plan annexed to the agreement for sale puts the two lots of land that Gormandy did not sell in a different place from the lands which Gormandy pointed out to Mohammed. In the agreement for sale the two lots are at the north-eastern corner of the subject land whereas Mohammed’s plan places the two lots to the south-east. When this was drawn to her attention in cross-examination, Mohammed admitted that this was a discrepancy that should have been drawn to the attention of the attorneys who instructed her, but that she did not do so.
311. According to HDC, Gormandy’s evidence during cross-examination also refuted and contradicted the western boundary of the lands claimed in these proceedings. HDC submitted that in the agreement for sale and Mohammed’s survey the western boundary of the lands occupied by Gormandy are the lands of Julin. However, during cross- examination Gormandy testified that he did not cultivate the lands immediately contiguous to the boundary of the Julin lands. Gormandy admitted that the occupants of Julin maintained that area as “a clear path” or “fire break”.
312. According to HDC, Gormandy’s evidence was consistent with Mohammed’s evidence of her observations of aerial photographs taken in 1989. Those photographs showed a clear pathway contiguous with the eastern boundary of the Julin lands, where
Page 87 of 123
there was no cultivation, especially in 1994 which showed quite a large area of cleared land. As such, HDC submitted that on the claimants’ evidence, Gormandy could not have been in exclusive possession of the area of land contiguous with Julin’s western boundary.
The credibility of the first claimant’s evidence
313. HDC submitted that Gormandy should not be considered to be a witness of truth, for the following reasons among others.
314. Firstly, Gormandy admitted in cross-examination that he lied on oath in order to gain a monetary benefit. He admitted that he deposed to affidavits in 1992 and 2009, submitted to both the NHA and HDC in which he swore that he had no income other than from Rotoplastics and as a Ward Attendant at Mount Hope Hospital, when, according to his evidence he was in receipt of significant monthly income from the sale of crops, and he was also earning income from running a parlour at his apartment from 1998. HDC submitted that Gormandy who admitted to knowingly giving perjured evidence is a witness that should not be believed on his oath, especially where the documentary and other evidence is inconsistent with his evidence.
315. Secondly, in his witness statement Gormandy testified that in 1985 he marked out the boundaries of the subject land and that he always maintained the rest of the land by keeping the lands cleared and preparing it for cultivation. The amended Statement of Case stated that “by 1985 those parts of the land which were not cultivated…were …cleared and prepared…for additional cultivation.” However, during cross-examination Gormandy admitted that he did not have the whole three acres under control in 1985.
316. HDC submitted that Gormandy’s evidence in his witness statement as to taking control of three acres of land in 1985 was also inconsistent with his statements during
Page 88 of 123
cross-examination in relation to his getting a job in 1986. He testified that at that time planting was merely a hobby.
317. Thirdly, Gormandy failed to disclose in his witness statement that he had another business. That he and his wife ran a parlour selling groceries, snacks and alcoholic beverages complete with a pool table at his apartment from 1998 until around 2010.
318. Fourthly, although according to Gormandy he was selling crops door to door in the housing development, at the hospitals where he worked, on a wholesale basis to various wholesalers and to the restaurant Touch “n” Taste as well as attending agricultural classes in 2010, he did not apply for a farmer’s badge (which would allow him up to 50% off on farming products) until 2012, although he knew since 2000 that he could have obtained one.
319. Fifthly, it was not credible that Gormandy who seemed to be a man of the world and, if his evidence is to be believed a successful businessman, would agree to sell what he believed is at least three acres of land adjoining the multi-million Julin property that he has tended since the age of seventeen to someone who is obviously a very wealthy businessman, at the ridiculously low price of $500,000.00. HDC further submitted that it was just as incredible that he would agree for Sammy to take possession of the land and destroy his growing crops thereon, on the payment of only twenty percent of this reduced purchase price. According to HDC, a reasonable Trinidadian or Tobagonian who toiled since the age of seventeen years old maintaining the lands, would not act in such an irrational fashion.
320. As such, HDC submitted that the only proper inference to be drawn from the above is that Gormandy did not have continuous and exclusive possession of the almost 4.6 acres of land in the manner claimed for over sixteen years.
Page 89 of 123
The evidence of Mohammed
321. According to HDC, the evidence of the surveyor, Mohammed was entirely derivative in nature. HDC submitted that on her own admission she carried out a survey of the lands that Gormandy pointed out to her and did not herself observe any evidence of Gormandy’s possession or cultivation of the land.
322. HDC submitted that Mohammed’s observations in relation to the several aerial photographs do not support the claimants’ pleaded case that those parts of the occupied lands which were not cultivated by Gormandy were maintained, cleared and prepared for additional cultivation. According to HDC, Mohammed admitted that what she observed were small plots of cultivation and that she was unable to say whether these plots were cultivated by the same or different persons.
323. HDC further submitted that Mohammed accepted in cross-examination that there was dense vegetation (not cultivation) near the southern and northern boundaries of the lands and that in most photographs there was no cultivation up to the Julin boundary. As such, HDC submitted that Mohammed’s evidence established that Gormandy’s occupation and cultivation of the lands was not of the extent that he contended. Mohammed also stated in cross-examination that she did not observe any shack along the Couva River. She was however able to identify other shacks on the lands claimed by Gormandy which he could not account for.
324. Accordingly, HDC submitted that Mohammed’s survey and her photogrammetric evidence (the latter which she was not qualified to give and which she admitted was purely subjective) with all the limitations which she conceded under cross-examination do not support the claimants’ allegation that Gormandy had exclusive possession of the almost 4.6 acres of land being claimed.
Page 90 of 123
The defendant’s evidence
325. HDC submitted that it is unnecessary having regard to the burden of proof which lies on the claimants and the weaknesses in the claimants’ evidence which do not establish on a balance of probabilities that Gormany possessed almost 4.6 acres of land for sixteen years, to weight its evidence against the claimants’ evidence.
326. Nevertheless, HDC submitted that its witness, Hackshaw, a retired Senior Planning Specialist with HDC gave evidence that he conducted an inspection of the area of land between Ellen Street and Christine Street and observed that the land was under bush. HDC submitted that Hackshaw’s evidence (which was supported by the claimants’ evidence) was not shaken in cross-examination. HDC further submitted that Hackshaw’s evidence established that in 2012 Gormandy was certainly not in occupation of the extent of the lands that he alleged he was in. Moreover, HDC submitted that Hackshaw’s status as a retiree, not an employee of HDC and a former Development Control Supervisor with the Town and Country Planning Division, placed him in a position of independence and credibility.
327. According to the defendant, Jeannette, a resident of the Housing Development gave evidence that she worked on a reforestation project along the banks of the Couva River, which was contiguous to the southern boundary of the lands, and that the lands were in bush and there was no shack present on the River bank in contradiction to Gormandy’s evidence. HDC submitted that Jeannette’s evidence was not challenged during cross-examination at all. HDC further submitted that Gormandy also admitted in cross-examination that he was aware of the reforestation project and that Jeannette was involved in same over the period 2003 to 2012.
328. HDC submitted that during cross-examination, Jeannette testified that the bush present on the lands prevented her from getting a clear view of Christine Street (a street near the north-western boundary of the subject land). According to HDC, by failing to
Page 91 of 123
cross-examine on the matters that there was no shack along the River and that the land was covered in bush, the claimants cannot ask the court to doubt or disbelieve Jeannette’s evidence.
No identification of a smaller area of land occupied
329. HDC submitted that Gormandy was clearly not in continuous and exclusive possession of almost 4.6 acres of land for over sixteen years as he alleges. That even if the court were to believe that Gormandy was in possession of some smaller area of land (which has not been proven) since 1984, the claimants would nevertheless not be entitled to any relief. According to HDC, this is due to the fact that there has been a failure to identify or demarcate any area of occupation other than the 4.6 acres argued for.
330. In so submitting, HDC relied on the case of Inez Charles-Sarjeant v The Attorney General of Trinidad and Tobago71, which concerned a claim for adverse possession of a vending booth, although it was accepted that the booth was present on the disputed lands for over 30 years (and expanded and improved over the years), there was no reliable evidence of the dimensions and position of the booth when first established.72 Kokaram J at paragraphs 17 to 19 stated as follows;
“17. The evidence to be adduced to prove adverse possession must be logical, cogent and compelling. A typical aspect of the requirement to demonstrate such cogent evidence is the need to clearly demarcate the disputed land. This must not be left to speculation or guesswork for the Court to manufacture boundaries. The user must establish through tell- tale signs of usage the actual dimensions of the land being occupied. 18. Mann J in Port of London Authority v Tower Bridge Yacht and Boat Co Ltd [2013] EWHC 3084 (Ch) stated at paragraph 273:
71 CV2017-00876 72 See para 69
Page 92 of 123
“The first is a general reason which is more procedural than substantive. HDC claims a limitation title to very small defined areas. Yet it has not proved where those areas are, with sufficient clarity for these purposes. Someone claiming a possessory title (as I shall call it, for the sake of convenience) should be able to point to the physical extent of the land to which possession is claimed. HDC cannot do that. All it can do is to point to approximate positions in which a root can be found (save for 2 roots where the position is apparent). The position is approximate because it is not possible (or, if possible, it has not been done) to define precisely where the roots are. Mr Honey could not do it, and (as I have observed before in this judgment) all the previous charts and plans probably do no more than show where chains go into the mud (or water), not where the roots are. Furthermore, even if the position could be shown, the physical extent of the space cannot be identified. The root may be stones of various shapes; or a concrete block; or an engine block; or an oddly shaped piece of wood; or something which has decayed over time so that it now has a different shape. In the case of the new roots it is the shape of an anchor, but that shape has not been specified. While resolving some of these uncertainties might just about make it appropriate to make a finding (or register a title) in terms which achieve sufficient clarity and certainty (as to which I make no determination), cumulatively they present a picture in which the position and extent of the land claimed has not been proved sufficiently.”
19. Put bluntly, “if you cannot point out what land you are claiming adverse possession of, you cannot get a declaration that you are entitled to anything’ (per Mann J)…”
331. At paragraph 70 His Lordship held as follows;
“I have given consideration whether an order could be made to recognize the Claimant’s usage of the original vending booth for a period of 30 years from 1984. However that would be an exercise of futility and speculation. Firstly, the Court was starved of the actual dimension and location or the original breakfast shed which was in existence for thirty (30) years. Second the case as framed was focused on the entirety of 5000 square feet of land
Page 93 of 123
and no details were provided for a smaller area. For the reasons set out in this judgment the claim will be dismissed…”
332. HDC further relied on the case of Quintin Padia v Mayor, Aldermen, Councillors and Citizens of the City of Port of Spain & Anor73 wherein Rampersad J rejected a claim for adverse possession on the ground inter alia that the claimant had not properly identified the lands being claimed with sufficient precision to allow the court to make a definite and certain order. The Learned Judge’s decision was upheld on appeal on the 24th October, 2016.74
THE SUBMISSIONS OF THE CLAIMANTS
333. The claimants submitted that HDC has misrepresented the relevant principles of law which apply to a claim of adverse possession. That HDC has also misrepresented the claimants’ evidence and its own evidence.
334. According to the claimant, HDC’s submission on the purported issue of conflicting descriptions of the subject land and unreliable boundaries of the subject land, are not issues arising on the pleadings. The claimants submitted that HDC did not in its defence deny the boundaries of the subject land nor did it argue that Gormandy occupied a smaller portion of the subject land. The claimants further submitted that HDC, for the first time in its written submissions, is raising the area and the boundaries of the subject land as an issue in these proceedings. That HDC has made this boundaries issue the foundation of its defence.
335. As such, the claimants submitted that HDC did not comply with the Civil Proceedings Rules 1998 (as amended) in pleading this new defence. The claimants further
73 CV2007-01562 74 See Archie CJ, Rajkumar JA and Pemberton JA in Civil Appeal No. 54 of 2012
Page 94 of 123
submitted that it is inaccurate for HDC to argue that the claimants gave conflicting descriptions of the area and boundaries of the subject land.
The description of the subject land
336. According to the claimants, it is clear from letter dated March 31 2017, the agreement for sale, the statement of case and the evidence of the claimants that Gormandy at all material times, estimated the area of the subject land to be approximately three acres in size. The claimants submitted that Gormandy is a lay person with limited education. That it cannot be expected that he would have known the exact area of the subject land. The claimants further submitted that the evidence also shows that the first time the subject land were surveyed was after these proceedings were filed and it was upon the subject land being surveyed by the expert Land Surveyor, Mohammed (based on boundaries identified by Gormandy) that it was determined that the precise area of the subject land was 1.8662 hectares (i.e. approximately 4.6114 acres of land).
337. The claimants submitted that the fact Gormandy’s evidence was that the subject land was approximately three acres and it has now been determined on a survey to be 1.8662 hectares (4.6114A), has no adverse impact on Gormandy’s credibility. The claimants further submitted that there is no principle of law of adverse possession which requires a claimant to know the exact area of the lands in a claim for adverse possession. That contrary to the submission of HDC, the cases produced by it do not show that if a claimant gives an approximate acreage of the lands he claims to occupy and these lands are subsequently surveyed by a surveyor on the basis of the claimant pointing out the boundaries of the lands he occupies resulting in the survey determining that the acreage of the lands pointed out by the claimant is more than the acreage of the lands estimated by the claimant, that that is a ground for dismissal of the claim.
Page 95 of 123
338. The claimants submitted that the authorities relied upon by HDC demonstrates that a claimant, in a claim for adverse possession, is required to show that he demarcated his boundaries and is able to point out his boundaries. The claimants further submitted that in this case, Gormandy has produced a cadastral survey plan prepared by Mohammed describing the subject land and giving its area based on the boundaries he pointed out to Mohammed and he also identified in his evidence demarcation icons of the subject land. As such, the claimants submitted that the court is not being asked to manufacture the boundaries and that it is clear from the evidence and in particular the aerial photographs that Gormandy had in fact established the boundaries of the subject land.
339. According to the claimants, the case at bar can easily be distinguished from Charles-Sargeant, supra in that Gormandy in 1985, marked out the boundaries and occupied and cultivated the lands he marked out since 1985. He also pointed out the occupied lands to Mohammed who then used the boundaries to prepare the cadastral survey plan. The claimants submitted that Gormandy therefore showed that he has satisfied the requirement which was not satisfied in Charles-Sargeant supra. At paragraph 58 of Charles-Sargeant supra Kokaram J stated as follows;
“…as indicated earlier, the Claimant adduced no evidence of a surveyor clearly identifying the boundaries of her land said to be in occupation by her.”
340. The claimants further submitted that they have also satisfied the principles of law referred to by Rampersad J Quintin Padia supra in which the learned Judge at paragraph 42 stated as follows;
“The burden of proof obviously lies with the claimant to establish what lands he intends this court to make a declaration in respect of. Obviously, it is necessary for this court to know exactly what is the extent of the parcel of land [that] is being claimed as having been occupied by the claimant and, very importantly, what its boundaries are. There must be a
Page 96 of 123
precise definition of the lands. This court would have expected that the claimant would have commissioned a survey of the land which he occupied so that a proper nexus would be established between the extent of that occupation and the plans he purported to rely upon at “QP2”. This was not done. Alternatively, he could have identified the boundaries by established demarcation icons, but again, this was not done...”
341. According to the claimants, the facts of Quintin Padia supra are totally different to the evidence in the instant case where a cadastral survey plan was commissioned and a nexus was established between the occupation by Gormandy, the pointing out of the boundaries by him to Mohammed and the cadastral survey plan being prepared based on Gormandy’s occupation and the boundaries pointed out by him.
342. The claimants submitted that none of their witnesses besides Mohammed was qualified to give a precise calculation of the area of the subject land. According to the claimants, Mohammed stated quite clearly what the practice in relation to an occupational survey was. The claimants further submitted that HDC did not bring any positive evidence to refute the concept or practice of an occupational survey even though Glenn Wilkes, Licensed Land Surveyor and Gerard Buchun, Licensed Land Surveyor were available to give evidence for the defendant.
343. The claimants relied on the case of Anthony Grosvenor & Anor. v Daniel Walcott,75 wherein Boodoosingh J. accepted the use of an occupational survey by Ramon Fortune, Licensed Land Surveyor in a claim for adverse possession. In that case, Fortune had noted that his survey was an occupational survey and he had looked at the occupation and drew a plan. The court relied on Fortune’s survey report as representing the area occupied by the claimant76. As such, the claimants submitted Mohammed’s occupational survey should be accepted and a finding of fact should be made that Gormandy occupied 4.611 acres.
75 CV 2012-01129 76 See paragraphs 15 to 18 of the judgment
Page 97 of 123
344. According to the claimants, HDC has placed heavy reliance on the evidence of Andy. The claimant submitted that in assessing Andy’s evidence, the court must have regard to the consistent evidence of Gormandy as to the boundaries of the subject land which was corroborated by Mohammed who is an independent expert. The claimants further submitted that the court ought to consider that even though HDC alleged in its defence that Gormandy has not been in occupation or control of the subject land, HDC has not brought any evidence to establish that the lands were not cultivated.
345. According to the claimants, letter dated the 2nd August, 2013 is not inconsistent with Gormandy’s evidence that he estimated the lands to be more or less three acres of land. The claimants submitted that it must be considered that Gormandy was involved in rotational farming so that at the date of the Ministry’s estimate Gormandy may have been farming two and a half acres. The claimants further submitted that there was also no evidence that officials from the Ministry measured or surveyed the lands in any way whatsoever. Moreover, the claimants submitted that Gormandy was not cross-examined in relation to this letter and that HDC is asking the court to make a finding of fact in relation to this letter based on pure speculation and without calling the field officers in the Ministry of Agriculture to give evidence and to be cross-examined.
Alleged unreliable descriptions of boundaries
346. The claimants submitted that there is no merit in HDC’s submission that Gormandy’s evidence as to the description of the land is unreliable because Gormandy did not rely on any informal markers or trees in pointing out his boundaries as at the date of the survey because the lands had been tractored and cleared. According to the claimants, it was clear from Gormandy’s evidence that the subject land were demarcated from 1985 on the western boundary by Julin’s parcel of land, on the eastern and northern boundaries by trees he planted and on the west by the Couva River. The claimants
Page 98 of 123
submitted that it was also undisputed that the subject land were cleared and levelled when Sammy took possession of same.
347. As such, the claimants submitted that it was entirely plausible that Gormandy, having cultivated the subject land since 1984, would have been able to identify and point out the boundaries of the subject land to Mohammed in order for her to prepare her survey plan after the trees were cleared from the subject land. That from the evidence, it was clear that the wall constructed by JSCL for Sammy was constructed along the northern and part of the eastern boundaries of the subject land and the wall is now a demarcation icon in place of some of the boundaries.
348. The claimants submitted that it was of no consequence that Gormandy referred to the eastern boundary of the subject land as the Recreational Ground/Housing Scheme even though it was approximately four to five hundred feet away from the subject land. That in cross-examination, Gormandy explained that the recreational ground was a landmark. The claimants submitted that there can be doubt that the Recreation Ground/Housing Scheme was, in fact, a landmark. According to the claimants, this was not a situation in which Gormandy was trying to claim more land than he was occupying and this was clear from the location of the concrete wall constructed by Sammy before these proceedings were filed and also by the precise boundaries of the subject land as identified in the cadastral survey plan. The claimants further submitted that it was equally clear that from the cadastral survey plan and the wall, that the recreational ground was a landmark and not actually a boundary of the subject land.
349. The claimants submitted that upon an analysis of the cadastral survey plan and the statement of case, there was a clear and obvious error in the statement of case as it related to the northern boundary as pleaded at paragraph 2 of the statement of case. However, the cadastral survey plan referred to at paragraph 2 of the statement of case and exhibited as Appendix A to the statement of case clearly described the lands on the
Page 99 of 123
north as formerly Caroni (1975) Limited now the State and not lands of George Dottin and the Couva River.
350. The claimants further submitted that it was clear from the agreement for sale that the description of the subject land and the plan with the handwritten insertion, that the boundaries were not precise and specific. According to the claimants, there must be a practical and pragmatic approach to the interpretation of the inserted drawing in the plan attached to the agreement for sale.
351. Moreover, the claimants submitted that the reality in Trinidad and Tobago is that persons estimate the areas of their lands and therefore a sketch by a lay person would not be expected to be precise in its layout or description of the land. According to the claimants, estimates are commonplace when there is an absence of a survey plan. The claimants further submitted that if HDC wanted to challenge the plan as it relates to “G2”, there was a duty to put to Gormandy and Sammy during cross-examination that G2 on the sketch appears to be in a different position to G2 in the cadastral survey plan.
352. The claimants submitted that assuming but not admitting that the court considers that Gormandy was not in control of the strip of land referred to by HDC as a “pathway” on the western boundary of the subject land that would not be a basis to dismiss the claim. According to the claimants, the court has the power to hold that Gormandy has acquired possessory title to the whole of the subject land except the strip allegedly used as a “pathway”. In so submitting, the claimants relied on the text, Adverse Possession by Jourdan & Radley-Gardner supra wherein at page 250, paragraph 10-22 the following was stated;
“In Seddon v Smith, the disputed land connected the squatter’s land to the public road. It was enclosed by ancient hedges on two sides. For more than 20 years, the tenants of the squatter’s lands had used three-quarters of the disputed land to raise cabbages, potatoes and other produce, ploughing it up, but leaving a strip at one end of the disputed land as
Page 100 of 123
a way leading from the squatter’s land to the public road. The Court of Appeal held that the squatter had acquired title to the whole of the disputed land, except the strip used as a way.”
Gormandy’s Factual possession
353. The claimants submitted that Gormandy has demonstrated a sufficient degree of physical control of the subject land through (a) cultivation of the lands, (b) planting of trees, (c) granting of licences to other persons to occupy the lands and (d) grazing of animals.
354. The claimants submitted that the cultivation of land for crops or as a garden is a well-recognized and accepted act of possession provided there is a clear boundary marking out the extent of the land cultivated.77 The claimants further submitted that the planting of trees is evidence of physical control of land.78 That the granting of leases and licenses is also an established act of possession which shows that a squatter had the necessary animus possidendi.79 Moreover, the claimants submitted that the grazing of animals on the subject land by itself is not treated as an act of possession but when coupled with other acts of possession, it can amount to animus possesdendi.80 According to the claimants, there was clear evidence in this case that Gormandy cultivated the subject land in rotation from 1984 to the time that he agreed to sell the lands to Sammy in 2017.
355. According to the claimants, Gormandy’s evidence of cultivation was corroborated and supported by the evidence of Andy (who assisted Gormandy on the subject land between 1987 to 2000), by Bianca (who assisted in the cultivation of the subject land and the selling of produce from 1998 to 2017), Carlton (who purchased produce from
77 See Adverse Possession by Jourdan & Radley- Gardner para 13-30 78 See Adverse Possession by Jourdan & Radley- Gardner para 13-41 79 See Adverse Possession by Jourdan & Radley- Gardner para 12-04 80 See Adverse Possession by Jourdan & Radley- Gardner para 13-65
Page 101 of 123
Gormandy, saw the cultivation on the subject land in 2001 and assisted in the cultivation on the subject land after Gormandy was shot in 2006), Lester (who also purchased produce from Gormandy, saw the cultivation on the subject land in 2003 and returned to the subject land sometime between 2012 to 2015 to assist Gormandy to dispose of his goats which were killed by stray dogs), Sewsaran (who purchased produce from Gormandy from 2002 to 2015 and saw Gormandy cultivating the subject land from 1980 to 2010) and Sammy (who saw Gormandy cultivating the subject land between 2010 to 2017).
356. The claimants further submitted that the evidence of Mohammed also supported Gormandy’s evidence that he cultivated the subject land.
Gormandy’s animus possidendi
357. The claimants submitted that Gormandy had the requisite intention to possess the lands to the exclusion of all others persons including the paper title owner because 1) he demarcated the subject land from other lands, 2) he excluded others from exercising control over the lands, and 3) he clearly considered himself to be responsible for the subject land as he maintained and exclusively occupied same.
358. According to the claimants, the evidence produced by Ms. Molligan to show that Gormandy signed documents stating that he was not the owner of another property is entirely irrelevant to a claim of adverse possession. In so submitting, the claimants relied on the text Adverse Possession by Jourdan & Radley- Gardner supra wherein the learned authors stated the following at paragraphs 9-25;
“The animus possidendi is the intention to possess the land, to exercise exclusive control of it, not the intention to own it. In Buckingham County Council v Moran, Mr. Moran took possession of a plot of land, believing that he was entitled to use it until it was needed by
Page 102 of 123
the council for building a road. The Court of Appeal held that he had the necessary animus possidendi. Slade LJ said: “....although there are some dicta in the authorities which might be read as suggesting that an intention to own the land is required, the true position is that what is required for this purpose is not an intention to own or even an intention to acquire ownership but an intention to possess, that is to say an intention for the time being to possess the land to the exclusion of all other persons, including the owner with paper title.”
The credibility of Gormandy’s evidence
359. According to the claimants, there was ample evidence that Gormandy constructed a shack along the Couva River. The claimants submitted that Gormandy’s evidence in relation to the shack was corroborated by Sammy, Bianca and Lester. The claimants further submitted that Jeannette’s evidence cannot be relied upon by HDC to submit that there was no shack on the subject land since Jeannette’s evidence was that she did not enter the subject land. Her evidence was that from her view from the Couva River, she did not see Gormandy or a shack.
360. Moreover, the claimants submitted the fact that Mohammed testified during cross-examination that she did not see the shack in the aerial photographs did not mean that the shack did not exist since the evidence of Gormandy was that he constructed his shack under a tree for shelter so that the shack may not have been visible on the aerial photographs or from some distance away.
361. The claimants submitted that Gormandy gave honest and reasonable explanations in cross-examination as to why he did not declare his income from the sale of crops and from his parlour in affidavits submitted to the NHA and the defendant. According to the claimants, those explanations were not inconsistent in any way with his evidence as contained in his witness statement.
Page 103 of 123
362. The claimants further submitted that Gormandy’s admission during cross- examination that by 1985 he did not have the entirety of the subject land under control but rather planted until the lands gradually reached to three acres was not inconsistent with his evidence in his witness statement. According to the claimants, the aforementioned admission by Gormandy confirmed he was involved in rotational farming which was consistent with his pleadings and his evidence.
363. Moreover, the claimants submitted that it was irrelevant that Gormandy conducted a parlour whilst he was engaged in cultivating the subject land. That Gormandy was forthright in his pleadings, his witness statement and in cross-examination that he indeed held other jobs during the period 1984 to present.
364. Additionally, the claimants submitted that it was also irrelevant that Gormandy did not apply for a farmer’s badge until 2012 although he knew about same since 2000. According to the claimants, it was clear from Gormandy’s evidence during cross- examination that he conducted most of his cultivation from seeds which he said were inexpensive and easy to come by. Further, he used water from the river to irrigate his crops until he received a WASA connection in 2000.
365. According to the claimants, it was highly reasonable and plausible for Gormandy to agree to sell the subject land (less two lots) for $500,000.00 since it was his unchallenged evidence that he agreed to sell the lands to Sammy because of his worsening arthritis. The claimants submitted that Gormandy also agreed to retain two lots of the land which would have reduced the price and he did not have a deed for the subject land.
The defendant’s evidence
366. The claimants submitted that HDC has failed to produce any evidence, documentary or otherwise, to show that it exercised physical control and possession over
Page 104 of 123
the subject land for the period in question and it has failed to produce any credible evidence to rebut the claimants’ evidence of the control and possession exercised by Gormandy over the subject land for the period 1984 to 2017. As such, the claimants submitted that their evidence in the circumstances is to be preferred over HDC’s evidence.
367. According to the claimants, Jeannett’s evidence did not rebut Gormandy’s case that he was cultivating the subject land and that he was in occupation of the subject land. According to the claimants, Jeannette’s evidence was not that she entered the subject land or inspected the subject land or that she planted trees on the subject land. She testified that during the time she visited the area along the Couva River, she never saw any shacks near the river and she never met or saw Gormandy in the area of the subject land.
368. As such, the claimants submitted that Jeannette’s evidence showed that she did not enter the subject land. That it was entirely plausible that she would not have seen Gormandy or his shack from a distance (given the size of the subject land). The claimants submitted that the most noteworthy and telling omission from Jeannette’s evidence, was that she does not state in her evidence that the subject land were uncultivated for the period of time alleged by Gormandy although she has resided in the development for over thirty-one years.
369. The claimants submitted that Hackshaw during cross-examination demonstrated that there were significant differences between the evidence in his report and the evidence in his witness statement. As such, the claimants submitted that Hackshaw demonstrated that the evidence in his witness statement was inaccurate and unreliable.
370. The claimant’s submitted that the court ought to draw adverse inferences against HDC for 1) its failure and/or refusal to file an Expert Report of Glenn Wilkes and failure to
Page 105 of 123
call him as a witness, 2) its failure to call Gerard Buchun, Licensed Land Surveyor as a witness, 3) its failure to produce the records of how many trees were planted and at what point the trees were planted for the Reforestation Project, 4) the failure of Hackshaw to produce the contemporaneous notes which he used to produce his report and 5) the failure to produce Nicky Cunningham as a witness to give oral testimony.
371. According to the claimants, having regard to the well-established principles of law that where a party, without reason, fails to call as a witness, someone he might be expected to call if that person’s evidence would be favourable to him, it is open to the Judge to infer that the person’s evidence would not have helped the party’s case. The same principle applies to the failure of a party to produce documents which it might reasonably be expected to produce. The claimants submitted that only inference to be drawn from the defendant’s failure to call the aforementioned witnesses and/or produce the aforementioned documents is that those witnesses and/or documents would not have been favourable to HDC and would not have helped the defendant’s case.
372. The claimants submitted that HDC as a State entity would be expected to have a Unit to monitor and take action against squatting on its lands to prevent persons acquiring rights to remain on its lands. That it seemed from the evidence that even if it had such a Unit, it was not taking action against squatters in the Couva area. According to the claimants, the evidence of HDC showed that a squatter was detected near the subject land but the evidence did not disclose that any action was taken by HDC to prevent that squatter from trespassing on its lands. As such, the claimants submitted that the court can reasonably infer that HDC knew, over the years of Gormandy’s presence on the subject land, that he was cultivating the subject land and took no action until complaints were made by residents to HDC when Sammy caused JSCL to bulldoze and grade the subject land.
Page 106 of 123
No identification of a smaller area of land occupied
373. The claimants submitted that they have shown above that the case of Charles- Sarjeant supra is clearly distinguishable from the instant case in which the court has before it a cadastral survey plan of the subject land. According to the claimants, the court has the power to make declarations and orders in favour of a party if adverse possession is established in respect of the subject land and to give a declaration in respect of the area of the land it finds that the claim of adverse possession was established. The claimants submitted that it would be an error of law to dismiss the claim in such a situation
374. The claimants relied on the case of Ramnarase Ramnanan v Raymond Ghoulie81, wherein Smith J (as he then was) found in favour of the defendants who claimed adverse possession of land owned by the claimant. However, the court held that owing to the fact that the defendants did not establish the precise area of his occupation, he could only be granted a declaration that he was entitled to build a house on the spot of land where he began construction. At pages 9 to 10, paragraph 12 the Learned Judge stated as follows:-
“…Therefore HDC is entitled to continue building his house on the plot of land he is now using. However, since this plot is not well defined in terms of area, I would only grant this Defendant a declaration of his entitlement to the area of land where his house is being constructed.”
375. The claimants further relied on the case of Chris Moonie v A.B. Mootoo & Company Limited82 wherein Des Vignes J (as he then was) applied the principle of Ramnarase Ramnanan supra.
81 H.C.A. No. 1692 of 2005 82 CV2014-00366 at para 33
Page 107 of 123
376. The claimants submitted that even if the court finds that there were conflicting descriptions, the principles of law do not support a dismissal of the claim. That the court has a discretion to give the claimants a declaration in relation to the portion of the subject land in respect of which the court holds that the claimants have satisfied the principles of adverse possession.
377. According to the claimants, they have established their claim of adverse possession of the parcel of land described in the Survey Plan dated the 27th April 2017 attached as Appendix A to the Statement of Case.
THE DEFENDANT’S SUBMISSIONS IN REPLY
378. HDC submitted that Gormandy has the burden of proving that he was in possession of the subject land claimed, including establishing the dimensions, boundaries and area of such land. According to HDC, a failure to prove the aforementioned matters, clearly and affirmatively, is fatal to the claimants’ claim. As such, HDC submitted that it was well within the parameters of its pleaded case in averring that the area and boundaries of the lands Gormandy was allegedly in possession of have not been proven.
The area of the lands
379. HDC submitted that limited education (and the fact that Gormandy was clearly a man of the world – holding down multiple jobs and running a commercial establishment – parlour, bar and recreation area) is no excuse for being unable to estimate more accurately the amount of land that he farmed. According to HDC, it was unbelievable that a man who personally cleared the entire parcel did not know how many feet long by how many feet wide the land was. HDC submitted that what was far more incredible was that what might have been almost three acres (for what period and whether continuous or not, uncertain) mushroomed to nearly 4.6 acres in an opportunist grab by the claimants
Page 108 of 123
for more land. According to HDC, this unsatisfactory aspect of the case goes to the very heart of the claim.
380. HDC submitted that Gormandy’s alleged rotational farming related only to vegetable short crops. That according to Gormandy, he planted a number of trees on the land and those trees were at the boundaries of his lands. According to HDC, the Ministry’s letter dated August 2, 2013 described the acreage as encompassing was “Mixed Vegetables + Tree Crops”. As such, HDC submitted that the estimation of acreage was not only referable to rotational farming. Further, HDC submitted that this letter was relied on Gormandy to prove his occupation. In his witness statement he described it as a testimonial which he submitted to the ADB in support of an application for a loan in order to expand his cultivation and to install an improved irrigation system. Consequently, HDC submitted that there would have been absolutely no incentive for Gormandy to underestimate the area of land in respect of which he was seeking a loan by nearly 50%.
381. As such, HDC submitted that the conflicting accounts of land on the claimants’ evidence, which the claimants are unable to discount or satisfactorily explain, mean that the claim that Gormandy farmed nearly 4.6 acres of land cannot succeed.
The unreliable descriptions of the boundaries of land
382. HDC submitted that the authority relied on by the claimants, Anthony Grosvenor supra is against them, and suggests, quite logically that an occupational survey, as the name plainly suggests, represents the surveyor’s own observation of the present occupation of land in question; not a description of a past, and no longer existing occupation alleged by another. HDC further submitted that Boodoosingh J in Anthony Grosvenor supra, in assessing the area of land alleged to be in possession, rejected another survey which was done in accordance with the instructions of a litigant, similar to the 2017 survey in the instant case.
Page 109 of 123
383. Boodoosingh J stated as follows;
“15. The real issue was how much land they were in possession of. This came down to the battle of surveyors… 17. Mr. Fortune noted that his survey was an occupational survey. He looked at the occupation and drew a plan accordingly. Mr. Second’s survey was part of a wider job to survey the entire parcel of land claimed by the defendants… 18. Given that Mr. Fortune’s survey was essentially an assessment of an occupational survey, I preferred his survey report as representing the area occupied by Olive Bailey and the other claimants. This took into account the existing structures on the property. Mr. Second’s survey was adjusted to suit the instructions of HDC and did not seek to encompass the structures of the claimants already existing. For this reason I preferred Mr. Fortune’s survey report as representing the area occupied by Mr. Fortune.”
384. HDC submitted that the evidential value of the 2017 survey falls to be analyzed in a similar manner since it was done to suit the instructions of Gormandy. According to HDC, the evidential value of the 2017 survey stands or falls entirely on the credibility or quality of Gormandy’s evidence. HDC submitted that if the court finds that Gormandy’s evidence of the boundaries of land was unreliable and conflicting, and was not of a clear and affirmative quality, the 2017 survey plan cannot make their case any more persuasive or give it any greater weight.
Adverse Inferences
385. According to HDC, the question of whether or not the court should draw adverse inferences as a result of the alleged failure to call certain witnesses or adduce certain items of evidence does not arise in this case.
Page 110 of 123
386. HDC relied on the case of Wisniewski v Central Manchester Health Authority83 wherein the following was stated at page 11;
“The need for the party relying on such an inference to establish a prima facie case on the matter in question was established in McQueen v Great Western Railway Company (1875) LR 10 QB 569,…Cockburn CJ said at p 574: ‘If a prima facie case is made out, capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence, then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it were adduced it would not displace the prima facie case. But that always presupposes that a prima facie case has been established; and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witnesses who might have been called on the part of HDC amounts to nothing."
387. HDC submitted that as the claimants cannot establish a prima facie case, by way of clear and affirmative evidence, that Gormandy was in possession of the nearly 4.6 acres of land, no question arises as to whether an alleged failure to adduce certain evidence can strengthen the claimants’ case. HDC further submitted that the claimants continue to bear the burden of proof, which has not been discharged by way of clear and affirmative evidence.
388. HDC submitted that in any event, even assuming that a prima facie case had been made out (which it clearly was not), the only assumption which the court can make is that the witnesses who were not called by HDC would have given evidence of the same quality or cogency as the claimants’ evidence.
83 [1998] PIQR P324
Page 111 of 123
The first claimant’s other alleged acts of possession
389. According to the defendant, the claimants’ submissions that the planting of trees, the granting of licences for persons to build shacks on the land and the grazing of animals amount to acts of possession of the whole 4.6 acres, should be rejected. HDC submitted that although there is learning that such acts when maintained for the requisite period, can be proof of possession, they cannot in the circumstances of this case support a claim for possession of the nearly 4.6 acres claimed since according to Gormandy’s evidence those activities only took place on the lands in the immediate vicinity of his shack.
390. HDC submitted that the alleged granting of licences for others to build shacks likewise only amounts to an act of possession for the tiny area of land on which the shacks were situate. HDC further submitted that as to the planting of trees, all the trees have been destroyed and Gormandy’s evidence as to the boundaries of the land, on which the trees were allegedly situate was inherently unreliable.
The court cannot grant relief in respect of a smaller area of land
391. According to HDC, the authorities relied upon by the claimants establish that the court may only grant an order for possession of land for a smaller area where the dimensions of the smaller portion are known.
392. HDC submitted that in Ramsaran supra, Smith J (as he then was) granted a declaration that the defendant was entitled to build his house on the spot of land on which he began construction. HDC further submitted that it is important to note that the Court found that the defendant had the requisite intention and factual possession of a significant portion of the larger parcel of land owned by the plaintiff but due to the fact
Page 112 of 123
that the lands that the defendant was using were not properly defined the court was only able to grant a declaration in respect of the spot of land on which he began construction.84
393. As such, HDC submitted that Ramsaran supra established that the Court can order possession of a smaller portion of land claimed where that portion is capable of identification. According to the defendant, another point of distinction with the instant case is that in Ramsaran, the construction was still in existence, so the court did not have to speculate on the area of land occupied whereas in the instant case, the alleged physical possession of Gormandy has been destroyed.
394. Moreover, HDC submitted that in the case of Chris Moonie supra, the claimant was able to identify the land which the court found her to be in possession of by way of existing demarcation icons; road reserve, a lagoon, lands occupied by a church, the stump of a mango and sugar apple tree, a starch mango tree, a plum tree and a bay leaf tree.
395. Consequently, HDC submitted that as no dimensions or boundaries of any smaller area of land have been identified, no relief can be granted in respect of same.
FINDINGS
Gormandy’s claim
Extent of occupation
396. There is no doubt in the court’s mind that Gormandy occupied part of the subject land for the purpose of farming. It is clear that he was a farmer and that he is familiar with the land. While the evidence that he has given on farming contains some very general
84 see the Order at para 12, bottom of page 10.
Page 113 of 123
statements which are common in a society such as ours where agriculture is well known and practiced, his evidence rings true in relation to his participation in the agricultural field.
397. His evidence is also supported by Bianca, Andy, his co-workers Carlton and Lester and the restaurant owner, Sewsaran who all testified to his involvement in growing and selling produce. Further, the evidence of Bianca, Andy, Carlton and Lester demonstrate that Gormandy was in fact planting on the subject land. Carlton assisted with the planting during Gormandy’s recuperation from the gunshot injury and Lester testified to seeing the garden at least twice in the years 2003 and between 2012 and 2015. Lester’s evidence that he went back onto the subject land to assist Gormandy dispose of the goats which had been killed was somewhat suspicious as there was no logical reason for him helping with the disposal of the goats as opposed to one of the youth men Gormandy testified to hiring to help on the land. However, as there was no evidence to the contrary, the court accepts Lester’s evidence that he returned to the land sometime between 2012 and 2015 and that land was being cultivate. Also, Sewsaran’s evidence demonstrated that Gormandy continued cultivation upon the subject land from 2010 to 2015. As such, the court finds that Gormandy’s cultivation of the subject land was continuous. The court further accepts that Gormandy eventually obtained his Farmer’s badge after years of farming.
398. Further, his application for the Farmer’s loan and his water connection to the subject land demonstrates quite clearly that he was planting on the land. He is a bona fide vegetable farmer according to the letter in support of his application for the loan from the Agricultural Society of Trinidad and Tobago. The Ministry of Agriculture by way of letter of August 2 2013, further certified that he is a bona fide farmer carrying out the major farm activities of mixed vegetables and tree crops on two and one half acres of land.
Page 114 of 123
399. There can therefore be no real dispute as to the fact that when Gormandy allegedly entered into the agreement with Sammy, he was a bona fide farmer occupying lands to the east of the Julin compound.
400. The extent of the land occupied is however in issue. The evidence in that regard demonstrates several matters worth considering. Firstly, all of the witnesses who testified on behalf of Gormandy testified that the land which he occupied was about three acres. However, none of the evidence from those witnesses were from their own personal knowledge. They all relied on what was told to them by Gormandy. In other words, their evidence amounted to previous consistent statements made by Gormandy. This type of evidence is certainly not independent and ought not to be given any weight as the evidence offends the rule against narrative. In other words not because a thing is repeated several times by the same person does it become true.
401. When the chaff is dusted off, the only evidence of extent of occupation left in this case comes from Gormandy and no one else. Even the evidence of the expert has shown that the boundaries were pointed by Gormandy. Gormandy’s case is that he believed that he occupied three acres and only realized that he occupied more after the survey. The court must therefore ask itself whether it is reasonable to believe that in all of the circumstances of this case Gormandy would have made such an error. Or is it that he wants the court to believe that his occupation was actually more than it factually was in an effort to claim the entire parcel.
402. In the court’s view, the resolution of this issue presents no real difficulty. Gormandy is a farmer. It is a matter of public knowledge and the court takes judicial notice of the fact that famers are very good at averaging. They do so quite skillfully with weight and distance. The agricultural history of Trinidad and Tobago along with the average person’s experience in the markets and on the roadways throughout the length and breadth of the nation demonstrates that the average farmer is well acquainted with his land and produce. Far more so for farmers who would have been involved in the business
Page 115 of 123
to such a large scale as Gormandy claimed to be. To be clear, Gormandy is saying that he was not aware that his occupied area was almost twelve lots larger than what he thought it was. The court finds this to be tremendously difficult to accept from a professional farmer. If Gormandy had been in occupation of the subject land for all the years that he claims to have been, clearing and cultivating over the years, he must have had a clear knowledge of the lots having portioned them out on a rotational basis for cultivation. The difference between 3 acres and 4.6 acres is not by any means a marginal one.
403. The court therefore does not accept the evidence of Gormandy that he occupied the entire parcel of 4.6 acres.
404. It is obvious that he occupied less. The evidence is that the land was not bounded by the river, nor by the housing scheme or recreational ground which was on Gormandy’s evidence some 400 to 500 feet away from his land. This tally’s with the evidence of there being an area used off of Kescadee Avenue within the subject land for the dumping of refuse.
405. Having made the finding above, the rest of the evidence of the extent of occupation must be examined. There is no evidence of the precise size of the plots that were planted on a rotational basis. The evidence of the expert, Mohammed is that even though there appeared to be cultivation on the lands, the entire parcel of land was not all cultivated at one time. Her evidence demonstrates that different parcels within the area were cultivated at different times. Of note is her evidence that at no time was the entire parcel of land clear. Much weather was made by the defendant in relation to this witness’ evidence of cultivation as opposed to vegetation. This distinction was explained by the witness who spoke of furrows and the inference to be drawn from their presence being the obvious one of the activity of planting having taken place. The court accepts the evidence of Mohammed that crops were in fact planted on the subject land overtime in different areas. In the court’s view this evidence was not destroyed in cross-examination and remains clear.
Page 116 of 123
406. The court has found that he did not occupy some 4.6 acres of land as he attempts to set up after he filed his claim but that he in fact occupied less. The duty lies with a claimant to demonstrate both the boundaries of his occupation. The evidence of Mohammed demonstrated that while there was cultivation on the 4.6 acres, that cultivation occupied what may be considered the majority of the land and not the whole. This is consistent in the court’s view with the claim of Gormandy who estimated his occupation to be some three acres and in fact agreed with Sammy to sell three acres.
407. However, the contemporaneous documents included the letter from the Ministry of Agriculture dated August 2, 2013. This letter as mentioned above was utilized by Gormandy to support that he was a bona fide farmer for his loan application. In this letter, the acreage stated as being planted by mixed vegetables and tree crops was two and a half acres. The court agrees with the defendant’s submissions that this letter creates ambiguity and uncertainty as to the extent of Gormandy’s occupation of the subject land. The court does not agree with the claimants’ submission that this letter was not inconsistent with Gormandy’s estimation that the subject land was three acres and that it supported his evidence that he was involved in rotational farming. As correctly pointed out by the defendant, Gormandy’s rotational farming only related to vegetable short crops. He testified that he planted a number of trees on the subject land and that those threes were at the boundaries of his lands. Therefore, in the court’s view this letter clearly contradicted the extent of Gormandy’s occupation of the subject land.
408. The following is a summary of all the material reasons which led this court to believe that Gormandy only cultivated on part of the subject land;
i. Gormandy, a farmer of over thirty years and who has been involved in the agriculture business on such a large scale estimated the subject land to consist of 3 acres. The survey done by Mohammed showed that the land actually comprised of 4.6 acres.
Page 117 of 123
ii. Gormandy admitted during cross-examination that in 1985 he did not have the entire subject land under control which was contrary to his witness statement wherein he testified that in 1985 he marked out the boundaries of the lands he intended to cultivate which were approximately 3 acres in size bounded on the west by a chain link fence, on the south by the Couva River and on the north and east by trees he planted. iii. Gormandy testified during cross-examination that when he began cultivating the subject land, he did so as a hobby. The court finds that it is highly improbable that someone cultivating lands as a hobby would cultivate 4.6 acres. iv. Gormandy admitted during cross-examination that he did not cultivate upon the lands contiguous to the boundary of the Julin Lands. That the occupants of Julin maintained that area as a clear path or fire break. Notwithstanding having this knowledge, Gormandy during the survey done by Mohammed pointed out that the western boundary of the subject land was the Julin lands which was depicted on the cadastral survey. v. Andy gave evidence that an area off of Kescadee Avenue within the subject land was used for the dumping of refuse; vi. The Ministry of Agriculture letter dated August 2, 2013 stated that Gormandy was cultivating upon 2 ½ acres of land; vii. Mohammed gave evidence that although there appeared to be cultivation on the land, the entire parcel of land was not all cultivated at one time. Her evidence demonstrated that different parcels within the area were cultivated at different times and that at no time was the entire parcel of land clear. There is no evidence of the precise size of the plots that were planted on a rotational basis and the length of occupation of the several plots.
409. The claimant submitted that the court has the discretion to give the claimants a declaration in relation to the portion of the subject land in respect of which the court holds that the claimants have satisfied the principles of adverse possession. In so submitting, the claimants relied on the cases of Ramnarase Ramnanan supra and Chris
Page 118 of 123
Moonie surpa. The court agrees with the submission of the defendant that those two authorities relied upon by the claimants establish that the court may only grant an order for possession of land for a smaller area where the dimensions of the smaller portion are known. Further, those two authorities are distinguishable from the instant case as in those cases the construction and certain demarcation ions were still in existence so that the respective courts did not have to speculate as to the area of land occupied. In the instant case, the cultivation of Gormandy was destroyed and a wall was erected around the subject land.
410. As stated by Rampersad J in Quitin Padia supra, the burden of proof lies with the claimants to establish what lands they intend the court to make a declaration in relation to. It is necessary, especially in the case of open land to know precisely what is the extent of the parcel of land that is being claimed and the boundaries of same. The claimants submitted that they have satisfied the principles of law referred to by Rampersad J in Quitin Padia supra since they have precisely defined the land which they are claiming. The court agrees that the claimants have in fact precisely defined 4.6 acres of land however, the claimants have failed to demonstrate that Gormandy is entitled to possession of the 4.6 acres by adverse possession. Consequently, in order for the court to be able to make a declaration in relation to a smaller portion of the 4.6 acres, it was incumbent upon the claimants to lead evidence to establish the boundaries of that smaller portion of the 4.6 acres in respect of which they wish to have a declaration. But their case is one of all or nothing and the court does not accept that the lands occupied by Gormandy was 4.6 acres.
411. The claimants further submitted that this case is distinguishable from the case of Inez Charles-Sarjeant supra wherein my brother Kokaram J declined to make a declaration in relation to the smaller area because there was no actual dimensions and location of the smaller area before the court. That Inez Charles-Sarjeant supra is clearly distinguishable because in this case the court has before it a cadastral survey plan of the subject land.
Page 119 of 123
412. Although the claimants have disclosed a cadastral survey plan in the instant case, that plan was focused on the claim for the entirety of the 4.6 acres. No details and/or dimensions were identified therein for a smaller area. The court therefore finds that this case is not distinguishable from Inez Charles-Sarjeant supra.
413. Consequently, although there is evidence that Gormandy was in possession of some area within the 4.6 acres, if the court is to make a declaration in relation to a smaller portion of the subject land, this court would be engaging in speculation and/or guesswork by the of manufacture boundaries of that smaller area. Put another way, the claim as framed was focused on possession of the entirety of the 4.6 acres. The claimants have failed to provide any evidence to identify the dimensions of a smaller portion of land and/or exactly where on the subject land the acts of possession were carried out.
414. In relation to the two lots of land which were retained by Gormandy, the plan annexed to the agreement for sale placed those two lots to the north-eastern corner of the subject land whereas the cadastral survey done by Mohammed placed the two lots on the south-eastern corner of the subject land. In an attempt to explain this inconsistency, the claimants submitted that there must be a practical and pragmatic approach to the interpretation of the inserted drawing on the plan attached to the agreement for sale. That a sketch by a layperson would not be expected to be precise in its layout or description of the land. The court finds that this explanation did not ring true. Although Gormandy is a layperson, he testified to planting this land since 1984, therefore, it is highly probable that he would have been able to state whether the two lots he intended to retain was closer to the northern or southern boundary of the subject land.
415. Further, when the court examined the plan annexed to the agreement for sale and the cadastral survey plan, the two lots seemed to be oddly added to the area of the original land. Additionally, no evidence was led of any acts of possession that may have been carried out specifically on those two plots over the years. As such, the court cannot
Page 120 of 123
make a declaration in relation to those two plots as the claimants have not proven that Gormandy was in possession of same since 1984. Gormandy’s claim will be dismissed.
Sammy’s claim
416. The success of Sammy’s claim was dependent on the success of Gormandy’s claim. As Gormandy has failed to satisfy this court that he has acquired possessory title to or was in undisturbed possession of the subject land and/or any smaller defined portion therein, Sammy cannot obtain the declaration that he seeks. Further, as Gormandy has no right, title or interest in the subject land, he was not entitled to sell the subject land to Sammy. The agreement for sale dated March 14, 2014 executed between Gormandy and Sammy is therefore void and of no effect.
417. Further, and in any event the court finds that the agreement for sale was highly suspicious and has caused much unease. Not only did Gormandy and Sammy give differing versions of the negotiations leading up to the agreement for the price of the land, the price which was accepted by Gormandy was incredibly low.
418. Gormandy testified that he had no idea of the value of the subject land. That Sammy asked him how much he wanted for the subject land and he told Sammy that as he never sold land before, Sammy should offer a price. Gormandy further testified that in or around December, 2016 Sammy initially offered $600,000.00 for the subject land but then decreased the offer to $500,000.00. When the offer was decreased, Gormandy agreed to the $500,000.00 but asked to retain two lots. Sammy on the other hand testified that in March, 2017 he offered Gormandy $600,000.00 for the subject land. That he thereafter changed his offer to $500,000.00 and the retention of two lots of land. Not only is their evidence of how the deal was negotiated inconsistent but it is also illogical. The evidence shows that Gormandy at first refused to take the offer so the intended purchaser offered him less money. This strikes the court as being extremely odd. Further, it means that if this is true, then Sammy himself considered two lots of land to be worth
Page 121 of 123
$50,000.00 each hence the reduction in the offer by $100,000.00 upon the retention of two lots, but he was paying $2.50 per square foot for the other lots out of the 4.6 acres being some $12,500.00 per lot. This simply made no sense whatsoever and reeked of suspicion about the bona fides of such a transaction.
419. Gormandy appears to be an astute small farmer. Indeed his demeanour in the witness box demonstrated clearly that he knew his way about the questions and he had either an answer or retort for every question posed to him. He certainly does not strike the court as a man who would be unaware of the value of his property. Neither does he appear to be someone who will be easily taken advantage of by big business. Further, it is reasonable to infer that he was well aware that he was speaking with a Manager or Director of Julin, the company who owns the business adjoining the said land. In those circumstances the court found it somewhat incredible that Gormandy who had allegedly toiled on the land since the age of seventeen would have sold the land for such a price. There is no evidence of value but the court can take judicial notice of the fact that the price of the land on Gormandy’s case amounts to the paltry sum of approximately two dollars and fifty cents ($2.50) per square foot in a well populated area close to the Southern Main Road. Further, that he would do so without agreeing to compensation for the many crops he had planted thereon.
420. Sammy’s claim shall also therefore be dismissed. The parties shall be heard on the issue of the order they wish the court to make in the matter that has been stayed pending the determination of this claim, CV2017-01152. It is to be noted that there was no counterclaim filed in the present claim. The parties shall also be heard on costs.
421. Finally, two applications were made for injunctive relief, one by the HDC in CV2017-01152 and one by the claimants in this claim. Undertakings were given by all parties by way of consent in both applications pending determination of the claims. The parties shall be relived from the undertakings and shall be heard on the costs of injunctive proceedings. Additionally, having regard to the decision in this claim the appropriate
Page 122 of 123
order shall be made in CV2017-00152 in keeping with the agreement of the parties narrated above.
DISPOSITION
422. The judgment of the court is as follows;
i. The claim of the first claimant is dismissed. ii. The claim of the second claimant is dismissed. iii. The parties are relieved of their undertakings given by consent in the injunction proceedings in this claim. iv. The parties shall be heard on the issue of costs of the claim and of the injunction proceedings. v. Submissions on costs to be filed and served by November 23, 2018.
Ricky Rahim Judge
Page 123 of 123