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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CLAIM NO. CV 2011-2207

BETWEEN

SUCHETA BEHARRY Claimant

AND

WENDY PATEL 1st Defendant

MARIELVI COMPANY LIMITED 2nd

Defendant

BEFORE THE HONOURABLE MADAME JUSTICE DEAN-ARMORER

APPEARANCES

Mr. David West and Ms. Christine Ragoobar, Attorneys-at-Law for the Claimant.

Mr. Arthur Douglas, Attorney-at-Law for the Defendant.

REASONS

Introduction

1. By this action, the claimant, Sucheta Beharry alleges that she had enjoyed continuous

and uninterrupted possession of premises known as No. 1, Freeling Street, Tunapuna

“the subject property” for more than sixteen years. The claimant asserts thereby that

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the interest of the paper title owner has been extinguished and that by virtue of the Real

Property Limitations Act1, (the Act), she is entitled to the subject property.

2. On the 9th

January, 2014, I delivered an extempore decision in favour of the claimant.

My reasons for so doing are set out below.

Procedural History

3. By her Claim Form filed 10th

June, 2011, Ms. Beharry sought the following items of

relief:

“1. An interim injunction restraining the defendants from demolishing or

removing any or all of the applicant’s wire fence materials, dog

kennels, water tanks, situated on the subject lands.

2. An interim injunction preventing the respondent/defendants … from

entering the said lands…and /or interfering with the

applicant’s/claimant’s possessions.

3. An order fixing a date of hearing of a mandatory injunction…

4. A declaration that the claimant is entitled to the property at No. 1

Freeling Street, Tunapuna.

5. Aggravated damages for trespass

6. Costs…”

4. The claim form was not accompanied by a statement of case. However, on the 10th

June, 2011, the Honourable Justice Charles granted to the claimant an interim injunction

restraining the defendant from entering the subject property.

1 The Real Property Limitation Ordinance Ch. 56:03

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5. The Honourable Justice Charles also granted permission to the claimant to file and serve

her statement of case and to issue a notice seeking the continuation of the interim

injunction.

6. On the 21st June, 2011, I continued the injunction and adjourned the matter for the

hearing of the first Case Management Conference (CMC) on the 28th

June, 2011.

7. At the first CMC, I gave standard pre-trial directions and ordered by consent, that the

parties commission the services of Land Surveyor, Paul Williams to conduct an aerial

survey of the subject premises.

8. This trial was listed for hearing on the 28th

and 29th

October, 2013. The Court heard the

evidence of two witnesses for the claimant:

The claimant, Ms. Sucheta Beharry

Mr. Farouk Mohammed

The Court also heard the evidence of the following witnesses for the defendants:

Mr. Paul Anthony Williams

Mr. Elgin Seupersad

The first defendant, Ms. Wendy Patel

9. The defendants counterclaimed for an order for possession.

Evidence

10. This issue before this Court were entirely factual. It was necessary therefore, to resolve

the claim on the evidence. For this reason, full reference is made to the evidence which

was led at trial.

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Evidence of Ms. Sucheta Beharry

11. The claimant, Ms. Sucheta Beharry testified that since 1977, she had been in sole

occupation of the piece of land situated at No. 1, Freeling Street, Tunapuna.

12. This witness testified that prior to 1977, she lived at No. 3 Freeling Street, to which she

eventually became entitled pursuant to the Will of her late mother.

13. Ms. Beharry testified that her family later occupied both No. 1 and No. 3 Freeling until

1990 when the house which stood on No. 1 Freeling Street had become dilapidated.

14. Ms. Beharry denied that any family arrangement had been made with Wendy Patel or

Marielvi Company Limited in respect of No. 1 Freeling Street, and testified that her

family continued to be in exclusive occupation of the land, claiming that they planted it

with vegetables including patchoi, tomatoes and sweet peppers as well as orchids and

fruit trees and that they reared poultry and ducks between 1990 and 2007.

15. Ms. Beharry stated that around 2005, her daughter began keeping dogs on the land and

asserted that for twenty-six (26) years she paid taxes for No. 1, Freeling Street and

repaired and maintained the land, without any contribution from anyone else.

16. Ms. Beharry testified that on the 24th

April, 2011, Wendy Patel removed the galvanize

fence on the Eastern Boundary of No. 1 Freeling Street. On the 8th

and the 9th

June,

2011, Ms. Patel tore down the chain link fence.

17. Ms. Beharry was cross-examined. Pursuant to the application of Mr. West, learned

attorney-at-law for the claimant, the Court granted leave to Ms. Beharry to amend her

witness statement.

18. On oath, she alleged that she lived at No. 1, Freeling Street from 1977 to 2011 and that

during that period of time she had an intention to possess the land.

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Cross-examination of Ms. Beharry

19. Ms. Beharry told the Court that she lived at No. 1, Freeling Street from 1977 and that

she never stopped living there. Ms. Beharry then changed her answer to state that she

ceased living at No.1 Freeling Street in 1985.

20. Ms. Beharry admitted that she caused a letter to be sent to Elgin Seupersad, in his

capacity as executor of her mother’s estate and that the letter contained a demand for

$146,000.00 as a repayment for maintenance and land and building taxes.

21. Ms. Beharry was questioned as to the sum claimed. Explaining why she claimed that

sum, she said she wanted to be compensated for maintaining the property which she

believed at the time to be in her possession2.

22. Ms. Beharry was questioned as to paragraph 6 of her statement of case, where the

claimant had made this allegation:

“…the claimant and her family continued in occupation of No. 1 Freeling

Street, Tunapuna and planted the land with vegetables…”

23. Ms. Beharry agreed under cross-examination that she had not given any particulars as to

what was alleged in paragraph 6, and that her allegation was both bald and general.

24. In the course of cross-examination, Ms. Beharry referred to photographs which had

been filed in support of her allegation. The photographs which had been tendered in a

bundle and marked “S.B.3”, were produced for Ms. Beharry’s consideration. Under

cross-examination this witness could not say which photograph showed cultivation of

the lot or rearing of chickens or ducks for 1994 or 1997.

25. Ms. Beharry identified a photograph which pertained to the year 2001. According to

Ms. Beharry, the photograph depicted a short building which was used as a chicken pen.

2 See Notes of Evidence, Page 17 of 103

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26. Ms. Beharry also identified a photograph which showed “orchid plants on a table” and

testified that this photograph was taken around 2003-2004.

27. Learned counsel, Mr. Douglas put to Ms. Beharry that she had never been in exclusive

possession of No. 1, Freeling Street. Ms. Beharry insisted that the suggestion of the

learned counsel was incorrect.

28. Learned counsel, Mr. Douglas asked Ms. Beharry whether, her brother, Mr. Seupersad

had provided monies to pay a person (Boogie) to cut the grass at No. 1, Freeling Street.

Ms. Beharry denied this suggestion.

29. In the course of cross-examination, Mr. Douglas put to Ms. Beharry that her brother,

Elgin Seupersad, being executor was the one who exercised control over No. 1, Freeling

Street.

30. Ms. Beharry responded in this way:

“In the capacity as executor, my brother was executor of my mother’s

estate, but in control of No. 1 Freeling Street, I felt then that I took

possession of it and I used it for my use over that period of time and as I

said, I used it for different reasons for the poultry and planting and

maintaining it and everything that took place within that period of time. So

when it comes to No. 1 Freeling Street, …I was in control of that portion of

the land up to the point of 2011, when I was told about the sale. My brother

or sister did not take any interest in No. 1 Freeling Street.”3

3 See page 42 of 103 of the Notes of Evidence

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Evidence of Mr. Farouk Mohammed

31. Farouk Mohammed, Information Technology Manager testified on behalf of the

claimant, and told the Court that he was born on the 4th

October, 1962 at Freeling Street,

Tunapuna and that he grew up in the area. He testified that he left Freeling Street in

1972, but returned to live there in 1990. At paragraph 3 and 4 of his witness statement,

Mr. Mohammed had this to say:

“3. As far as I know, Ms. Sucheta Beharry and her family have always

lived at Nos.1-3 Freeling Street, Tunapuna. I personally know that

they have lived there exclusively and are responsible for

maintaining those premises.

4. I know that over the years they have occupied No. 1 Freeling Street,

Tunapuna until it was broken down. The empty lot of land was used

by Ms. Beharry to plant vegetables and rear poultry…”

32. Mr. Mohammed was cross-examined. He was unable to say when last he visited the

subject premises. Mr. Mohammed also indicated that he was aware that the house

which stood on the subject premises had been demolished. He was unable to say when

the house was demolished, but he testified that the house, at the time of demolition, was

in a very dilapidated condition.

33. Mr. Mohammed indicated that he did not visit the subject premises regularly, but knew

what transpired at No. 1 Freeling Street because he visited the property which adjoined

the subject premises.

34. Mr. Mohammed testified that there was cultivation on the subject premises from 1990,

when Mr. Mohammed returned to live on Freeling Street. This witness referred

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however, to an incident with a tractor demolishing everything. Mr. Mohammed

indicated that the incident occurred two to three (2-3) years prior to the date of the trial.

Evidence for the Defendants

35. Four (4) witness statements were filed on behalf of the defendants. They were those of:

Elgin Seupersad

Wendy Dawn Patel, the first defendant

Aldwin Beharrysingh

Gerard Pettier

The third and fourth witnesses named above failed to attend Court to be cross-examined.

Their witness statements were accordingly struck off the record.

Evidence of Mr. Elgin Seupersad

36. By his witness statement4, Elgin Seupersad also called Sam Seupersad testified that he

was the sibling of the claimant and of the first defendant. He stated that their

grandmother, Mungaree Bhuddu had been the beneficial owner of the parcels of land at

Nos. 1, and 3, Freeling Street, Tunapuna.

37. Mungaree Bhuddu died on the 12th

November, 1970 leaving the beneficial ownership of

the property to her two daughters:

Veronica Bhuddu Singh and

Dora Seupersad, who was the mother of the parties.

4 Filed herein on the 12

th December, 2011

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38. Dora Seupersad died testate in 1985. By her will, No. 3, Freeling Street was bequeathed

to the claimant and No. 1 Freeling Street to the first defendant.

39. This witness testified that he received a Grant of Probate of his mother’s Will on the

28th

November, 1986 and executed a deed of assent, transferring the property to the first

defendant by deed dated the 14th

May, 2007.

40. Mr. Seupersad testified that all siblings got married and left the subject premises,

leaving the claimant and her family who lived at the subject premises until 19855, when

they moved into No. 3, Freeling Street.

41. Mr. Seupersad testified that the claimant and her family vacated the property and the

house was boarded up until he (Mr. Seupersad) hired Bartholomew Transport Limited

to break down the house.

42. Mr. Seupersad claimed that he paid the claimant’s husband to have the grass cut and

cleared by a friend, whose name was Boogie. Although he resided in Calgary, Alberta,

Canada, Mr. Seupersad would visit Trinidad at least once per year and would

communicate with the claimant at all times.

43. Mr. Seupersad claimed that he formed a company together with his wife. The company

formed was Marielvi Company Limited, the second defendant. The second defendant

purchased the second undivided share of the subject property which had been vested in

Veronica Bhuddu Singh, sister of the late Dora Seupersad.

44. On March, 2011, according to Mr. Seupersad, the defendants entered into a written

agreement for the sale of the subject property. Mr. Seupersad then informed the

claimant of his intention to sell the subject property.

5 See paragraph 5 of the witness statement of Elgin Seupersad

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Cross-examination of Mr. Seupersad

45. Mr. Seupersad was cross-examined by learned Attorney-at-law, Mr. West. Under cross-

examination, Mr. Seupersad told the Court that the claimant was born at No. 3, Freeling

Street and moved to No. 1, Freeling Street about 1977.

46. Mr. Seupersad told the Court that he got married in 1970 and lived both in Couva and

Freeling Street. He alleged that he lived in Couva because of “his job” but that he

would return to Freeling Street on the weekend. Mr. Seupersad stated that he left No. 1,

Freeling Street in 1975 and No. 3, Freeling Street in 1968.

47. Mr. Seupersad stated that the first defendant, Wendy Patel, lived at No. 1. Freeling

Street from her birth until her marriage in 1982. He accepted that the house at No. 1

Freeling Street was demolished on the 15th

November, 1994 and admitted that he had

not been in Trinidad when the house was demolished by Bartholomew and Company.

48. Mr. Seupersad stated that he was in possession of the subject premises from 1985 as

executor of his mother’s estate. However neither No. 1, nor No. 3, Freeling Street had

ever been his place of residence.

49. Mr. Seupersad admitted that the claimant lived at the subject premises continuously

between 1977 and 1985 and that during those years, he never asked her to leave.

50. Under cross-examination, Mr. Seupersad told the Court that he left Trinidad to live in

Canada in 1990 and that he had lived in Couva from 1968 to 1972.

51. Mr. Seupersad stated further that between 1972 and mid-1975 he lived at No.1 Freeling

Street and from 1975 to 1990 he lived at Santa Cruz, though he would visit No. 3

Freeling Street regularly.

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52. Learned counsel, Mr. West put to Mr. Seupersad that No. 1 Freeling Street was not

boarded up in 1985, but that those premises were furnished with the claimant’s

belongings in 1985.

53. In answer to a suggestion that there had been no agreement as to who owned No. 1

Freeling Street, Mr. Seupersad had this to say:

“My grandmother died in 1970. My mother who lived next door controlled

it until her death in 1985 and I controlled it after that as executor…”

54. Mr. Seupersad insisted that he was in possession of No. 1 Freeling Street as executor.

He insisted that he paid land and building taxes for three (3) years from 2002 to 2005.

55. Mr. Seupersad was questioned about crops on the subject premises. He was shown a

photograph in which he recognized Mr. Lloyd Beharry, spouse of the claimant,

displaying crops in a garden. Mr. Seupersad agreed that the photograph was taken in

1995 and that Mr. Beharry was engaged in cultivating the garden. Mr. Seupersad

insisted that the planting was done at his request and with his permission, but admitted

that he had inscribed at the back of the photograph the words: “…a man in his

garden…”

56. Mr. Seupersad was shown a photograph which had been tendered and marked “E.S. 1”.

The subject of the photograph was a lady dressed as a bride. Mr. Suepersad recognized

the bride to be his niece “Shivanna”. He recognized the background to be the subject

premises. Mr. Seupersad provided a vague answer to a suggestion that there were

animal pens in the photograph.

57. Mr. Seupersad was shown a photograph tendered and marked “E.S. 23” and admitted

that the claimant’s daughter kept dogs on the property within the past five (5) years. He

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was shown the photographs which had been tendered and marked “E.S. 26”. Mr.

Seupersad identified a chain link fence and told the Court that the galvanize fence

“came down” more than five (5) years ago.

58. This witness admitted that the galvanize fence was removed in 2011 and that it was

replaced by a chain link fence. He admitted that at the material time he had been

abroad.

Evidence of Wendy Patel

59. Wendy Patel testified in her witness statement that together with the second defendant,

she was joint owner of the subject premises.

60. Ms. Patel testified that after her mother’s death, the claimant continued to occupy the

subject premises until the claimant moved to No. 3, Freeling Street with the permission

of their brother, Elgin Seupersad.

61. Under cross-examination, Ms. Patel agreed that she had been the beneficiary under her

mother’s will of one half share in the subject premises, and that her aunt Veronica

Bhuddu Singh held the second half.

62. Ms. Patel agreed further that between 1985 and 2011, she had no dealings with the

subject property. She accepted that the claimant lived at No. 1, Freeling Street between

1977 and 1985.

63. Ms. Patel, clarifying portions of her witness statement, told the Court that during her

lifetime, the grandmother, Mungaree Bhuddu, lived at No. 1, Freeling Street, and that

she left No. 3 Freeling Street in 1982 when she got married. The claimant then moved

into No. 3, Freeling Street in 1985.

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64. Ms. Patel agreed that she had no control over the subject premises, proffering that her

brother had control since the property was part of her mother’s estate. She agreed that

she neither paid taxes nor cut the grass.

65. Ms. Patel said that she had walked the subject property, not to inspect it but that she

walked on it. This witness agreed however, that her visits to the subject land took place

when the claimant lived at No. 3, Freeling Street.

66. Ms. Patel admitted that in April, 2011, she caused a galvanise fence to be removed from

No. 1, Freeling Street. This witness also agreed that before the 24th

April, 2011, there

was no dispute between herself and the claimant regarding the land.

67. Ms. Patel insisted that she never saw vegetation on the land, but that she saw a couple of

ducks and chickens on the land.

68. Ms. Patel was shown the photograph exhibited as “S.B.3”. The witness was unable to

recognize the premises indicating that she had not been on the premises for a number of

years.

Evidence of Mr. Paul Anthony Williams

69. Paul Williams testified as an expert witness. He told the Court that he was a Registered

and Licensed Trinidad and Tobago Land Surveyor and Photogrammetric Engineer.

70. Mr. Williams told the Court that photogrammetry was a specialized area of surveying

and is the process of making precise measurements by means of photography or the

process of making maps or scale drawings from photography.

71. Mr. Williams referred to an image of the two properties at Nos. 1, and 3, Freeling Street

and to a fence between the buildings. He provided evidence as to how the report was

prepared, stating that he had obtained aerial photographs captured during the years

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1987, 1988, 2001 and 2003. These photographs had been captured by Mr. Williams’

company for the Government of Trinidad and Tobago.

72. Mr. Williams at paragraph 20 of his witness statement told the Court that he had

photographed the area in question in 1987. He identified the buildings known as Nos. 1,

and 3, Freeling Street.

73. Mr. Williams referred to the photographs which had been taken in 1994 at this time, and

testified that he observed only one building on the two parcels. This witness concluded

as follows:

“The building that was situated immediately north of the library (No. 1,

Freeling Street) has been demolished and the site is partly cleared and

partly covered by vegetation: There are large trees on the northern and

southern boundaries of No. 1 Freeling Street and the middle portion of the

plot is cleared.”6

74. Mr. Williams referred to photographs captured in January, 2001, in respect of the

subject premises, and stated:

“The structure immediately north of the library (known as No. 1, Freeling

Street) is missing. There is a cleared space and short vegetation on the

cleared site and large trees on the northern and southern boundaries of No.

1 Freeling Street.”7

75. In respect of year 2003, Mr. Williams painted a similar picture referring to:

“…a cleared space and short vegetation on the cleared site…”8

6 See paragraph 4 of the Witness Statement of Paul Anthony Williams filed on the 16

th January, 2012.

7 Ibid at paragraph 23

8 Ibid at paragraph 24

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76. At paragraph 28 of his witness statement, Mr. Williams provided his expert conclusions

and had this to say:

“The southern building immediately north of the library was removed

sometime after February 21st, 1987, the date of the 1987 photograph and

before March, 20th

, 1994… I did not see any visible evidence of organized

farming or horticulture of the vacant plot from 1987 forward…”

Viva Voce Evidence of Mr. Williams

77. Mr. Williams provided viva voce evidence-in-chief and requested that a power point

screen be provided to assist his presentation.

78. Mr. Williams told the Court of his conclusions on the 1994 photograph, in respect of

which he said:

“One building has been removed and the land is cleared”

79. In respect of 1998 photograph, Mr. Williams stated:

“…there is a clearing, there is a space between and its cleared and the

vegetation appeared short…”

80. In his conclusion, Mr. Williams repeated his observation that from 1987 he had not seen

any evidence of organized farming or horticulture.

Cross-examination of Mr. Williams

81. Under cross-examination, Mr. Williams asserted continuously that he was relying on a

three dimensional view of photographs which would be viewed together using a

stereoscope. Mr. Williams was asked:

“You are relying on your report from the slide show?”9

He answered:

9 See page 60 of 103 of the Notes of Evidence

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“I am not relying on this I am relying on the three dimensional views that I

looked at.”10

82. The Court asked Mr. Williams:

“Well what’s this? Is this the slide show?”11

Mr. Williams answered:

“No. The two pictures with the bundle, if you put them together and use a

stereoscope they stand up in the air…”12

83. No stereoscope has been requested and none was available. The evidence of Mr.

Williams could not be supported by the images projected at the trial. The equipment

upon which he relied was not available. The Court found the evidence of Mr. Williams

to be confusing and unhelpful.

84. Under cross-examination, Mr. Williams was asked what he meant by short vegetation.

Mr. Williams was unable to assist the Court because he had no “stereoscope…”

Law and Submissions

85. Written submissions on behalf of the claimant were filed on the 19th

of December, 2013.

Attorney-at-law for the claimant submitted that the claimant was entitled to the Lot No.

1 Freeling Street since she was in sole exclusive possession of the land since 1977 and

that there has always been an intention to possess the land. It is also the claimant’s

submission that although the house was broken down in 1994, she was in exclusive

occupation of Lot No.1 without the consent of the Defendants up until April 24th

, 2011.

10

Ibid 11

Ibid 12

Ibid

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86. Attorney-at-law for the claimant relied on the following authorities in support of the

submissions:

1. J.A Pye (Oxford) Ltd. & Ors v Graham et al [2002] UKHL 30

2. Buckinghamshire County Council v. Moran [1990] Ch. 623

87. Attorney-at-law of the defendants filed written submissions on the 22nd

of December,

2013. It was submitted that the claimant’s occupation of Lot No.1 came with the

consent of the defendants and that the only act whereby the claimant exercised control

of the subject land is the alleged construction of a chain link fence. It was also

submitted that the payment of land and building taxes by the claimant does not

constitute any evidence of actual occupation by the claimant.

88. Authorities relied on in support of the submissions by the defendants are as follows:

1. Adverse Possession by Stephen Jordan QC and Oliver Radley –Gardner at

paragraph 13-82

2. J.A Pye (Oxford) Ltd. & Ors v Graham et al13

3. Horace Reid v. Dowling Charles and Percival Bain14

Law

89. By Section 3 of the Act15

the right of action to recover any land is statute barred after

16 years from the date of the accrued right of action. Section 3 provides:

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

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

which the right to make such entry or distress, or to bring such action, shall

13

[2002] UKHL 30, 865 14

P.C.A. #36 of 1997 15

Ch.56:03

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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.”

90. Section 4 of the Act16

identifies the time at which the right of action shall be deemed to

have accrued. By Section 4 (1) the right of action is deemed to have accrued when the

owners of the land were “dispossessed or have discontinued … possession…”

91. Section 22 of the Act17

provides for the extinguishment of the title of the owner of the

land in this way:

“At the determination of the period limited by this Act to any person for

making entry or bringing any action or suit, the right and title of such

person …shall be extinguished…”

92. The principles to be applied by the Court in determining whether a person was in

adverse possession were authoratively stated by the House of Lords in the case of J.A

Pye Oxford v Graham.18

To succeed in a claim for legal possession there are two

essential ingredients which must be satisfied:

1) A sufficient degree of physical custody and control- factual possession

2) an intention to exercise such custody and control on one’s own behalf

and for one’s own benefit (intention to possess) 19

16

The Real Property Limitations Act, Ch. 56:03 17

Ibid 18

[2002] UKHL 30 paragraph 40 19

Per Lord Browne- Wilkinson in J.A. Pye v Graham [2002] UKHL 30

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93. The principles expounded in Pye have been held to be applicable in the jurisdiction of

Trinidad and Tobago20

. Factual possession signifies an appropriate degree of physical

control. There must be a single and exclusive possession.21

94. The “intention to possess” was accepted by Lord Browne- Wilkinson as requiring:

“intention, in one’s own name and on one’s own behalf, to exclude the

world at large, including the owner with the paper title if he be not himself

the possessor, so far as is reasonably practicable and so far as the

processes of the law will allow”22

Findings of Fact

Reasoning and Decision

95. Prior to her death on the 12th

November, 1970, Mungaree Bhuddu had been the

beneficial owner of the two (2) parcels of land known as Nos. 1 and 3 Freeling Street,

respectively.

96. Upon her death, Mungaree’s beneficial interest in the two (2) parcels passed to her two

(2) daughters, Veronica Bhuddu Singh and Dora Seupersad.

97. According to the evidence before me, Dora Seupersad had three (3) children: the

claimant, Sucheta Beharry, the first defendant, Wendy Patel and Elgin Seupersad, who

together with his wife, was a director and shareholder of the second defendant, Marielvi

Company Limited.

20

See Latmore Smith v. Benjamin 78 WIR 42 21

Per Lord Browne- Wilkinson approving the words of Slade J. in Powell v Mc Farlane [1977] 38 P& CR 452 22

J.A. Pye v Graham [2002] UKHL 30, 865 at 877

Page 20 of 23

98. Dora Seupersad died in 1985, leaving a will.23

By her will she bequeathed her interest

in No. 3, Freeling Street to the claimant. Her interest in No. 1, Freeling Street she

bequeathed to the first defendant.

99. Three (3) years after the death of Dora, her sister, Veronica Bhuddu Singh, executed a

deed of assent transferring the interest of the late Mungaree to herself, Veronica Bhuddu

Singh and to Elgin Seupersad, as personal representatives of Dora’s Estate.

100. Accordingly in the year, 1988 and by deed dated the 6th

October, 1988, the parcels of

land known as Nos. 1, and 3, Freeling Street were held by Veronica Bhuddu Singh and

Elgin Seupersad in fee simple as tenants in common.

101. Elgin Seupersad held an interest in the properties qua personal representative of the

estate of his late mother. The first defendant, as beneficiary under the will of her

mother, held one half of the beneficial interest in the subject property. The claimant, as

beneficiary under her mother’s will, held one half of the beneficial interest in the

property known as No. 3, Freeling Street.

102. The claimant contends that she occupied the premises continuously from 1977 to 2011.

The defendants on the other hand, countered that after their mother’s death, the claimant

stayed at No. 1, Freeling Street for some time, but then returned to No. 3, Freeling

Street.

103. In my view however, the significant year for the purpose of these proceedings is 1994.

It was not disputed that in 1994, the house which stood on the subject premises had

been demolished by Bartholomew Transport Limited at the request of Mr. Seupersad.

104. The claimant contends that between 1994 and 2011, she continued to occupy the subject

premises for the purposes of planting short term crops, orchids and of rearing poultry

23

The Will of Dora Seupersad is exhibited to the Witness Statement of Elgin Seupersad and marked “E.S. 2”

Page 21 of 23

and, in later years for the purpose of breeding dogs. The years 1994 and 2011 span

seventeen (17) years. Should the claimant succeed in proving adverse possession for

this period, she would have succeeded in extinguishing the title of those holding any

interest in the property.

105. The first defendant denies that the claimant used the premises as she contended. In an

effort to belie the claimant’s allegation, learned Attorney-at-law for the defendants

cross-examined the claimant seeking details as to the crops planted and the sums

expended on maintenance.

106. Although the claimant failed to supply details, she was consistent in asserting that she

had control of the premises. She distinguished between her brother’s control and the

control which she exercised.

“In the capacity as executor, my brother was executor of my mother’s

estate, but in the control of No. 1 Freeling Street, I felt then that I took

possession of it and I use it for my use over that period of time and as I said,

I use it for different reasons, for the poultry and for the planting and

maintaining it and everything that took place within that period of time. So,

when it comes to No. 1 Freeling Street, in particular, I was in control of that

portion of the land up to the point of 2011 when I was told about the sale.

My brother or sister did not take any interest in No. 1 Freeling Street.”24

107. Mr. Seupersad admitted under cross-examination that he had inscribed to the back of a

1995 photograph “a man in his garden”, which was positive evidence of cultivation on

the part of the claimant and her family.

24

See Notes of Evidence page 42 of 103

Page 22 of 23

108. It was my view that the defendants were not successful in eroding the testimony of Ms.

Beharry. Moreover, there was no positive evidence that the premises were occupied by

anyone other than the claimant. According to his own testimony, Mr. Seupersad was

abroad for the greater part of the relevant period. Similarly, by her own testimony, Ms.

Patel was unfamiliar with the premises.

109. The evidence of the expert also failed to contradict the allegations of Ms. Beharry. The

report of the expert was unequivocal in asserting that there was no structure on the

subject premises from 1994. Mr. Williams reported that there was no organized

farming or horticulture and that one would have expected the appearance of furrows.

Mr. Williams stated however, that he observed trees and short vegetation. In my view,

this would have been consistent with the short crops which the claimant allegedly

cultivated.

110. Moreover, the Court found the evidence of Mr. Williams to be unhelpful, in that he

expressed his inability to demonstrate his findings because he lacked access to a

stereoscope.

111. The defendants also contended assumingly in the alternative that Ms. Beharry occupied

the subject premises with the consent of Mr. Seupersad. Were this so, Ms. Beharry’s

occupation would not have been adverse.

112. By their defence, the defendants alleged that Mr. Seupersad “orally granted permission

to the claimant”25

. There were no particulars of the date or place at which or the

circumstances in which such permission was granted. In my view however, there was

no evidence to suggest that Ms. Beharry obtained anyone’s permission. From 1994 to

25

See paragraph 4 of the Defence filed on the 22nd

July, 2011

Page 23 of 23

2011, she exercised control over the subject premises and basically did what she liked

until April, 2011 when the defendants moved in and began their exercise of demolition.

113. It was my view that Ms. Beharry proved on a balance of probabilities that she had both

the intention to possess and factual possession for seventeen (17) years, that is to say

from 1994 to April, 2011. Although it is a cause for regret that the claimant did so

against the wishes which her mother expressed in her will, Ms. Beharry satisfied the

Court on a balance of probabilities that she had enjoyed continuous, uninterrupted

possession of the subject premises for more than sixteen (16) years. Accordingly I gave

judgment for the claimant in terms of paragraph 4 of the claim as follows:

“4. A Declaration that the Claimant is entitled to the property at No. 1

Freeling Street Tunapuna in the Ward of Tacarigua in the Island of

Trinidad situate on ALL AND SINGULAR that certain piece or

parcel of land situate at Tunapuna in the Ward of Tacarigua in the

Island of Trinidad measuring SIXTY FEET on the North and South

boundary lines and EIGHTY FIVE FEET on the East and West

boundary lines and bounded on the North by lands of Sucheta

Beharry on the South by the Central Library on the East by Freeling

Street and on the West by lands now or formerly of Armstrong being

the southern moiety of the parcel of land comprising ONE AND

ONE HALF LOTS described in Registered Deed Number

DE200801361940D001.”

Dated this 14th

day of October, 2014.

M. Dean-Armorer

Judge