REPUBLIC OF TRINIDAD AND...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2007 - 03780

BETWEEN

CHARLES EDWARD PORTER

MARY BERNADETTE PORTER

CLAIMANTS

AND

ROBERT STOKES

(Personal Representative of the Estate of

Walter Edward Stokes, deceased)

DEFENDANT

BEFORE THE HON. MADAME JUSTICE JOAN CHARLES

Appearances:

For the Claimant: Mr. Kerwyn Garcia

Instructed by Ms. Andrea de Matas

For the Defendant: Mr. Ramesh Lawrence Maharaj S.C.

Leads by Vijaya Maharaj

Instructed by Ms. Nyala Badal

Date of Delivery: 17th December 2013

JUDGMENT

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BACKGROUND

[1] The Claimants’ case is that they entered into an agreement for sale

dated 15th May 1982 with Walter Stokes, the father of the Defendant

to purchase two freehold parcels of land at and for the price of

$180,000.00, the first comprising 5,340.35 square meters together

with the buildings and appurtenances thereto (herein after referred

to as “the First Parcel”) and the second comprising 430 square

meters (subject to a right of way over the same being granted to

Walter Stokes by the Claimant) (hereinafter referred to as “the

Second Parcel”). The said purchase price was duly paid to Walter

Stokes and a Deed of Conveyance dated 18th August 1982 was

prepared by the Claimants’ attorney which sought to give effect to

their agreement aforesaid.

[2] The Claimants assert that due to an error and by way of a mistake

common to all the parties thereto the deed did not accord with the

said agreement and or the true intention of the parties in that the

said deed inadvertently did not convey to the Claimants the second

parcel or grant to Walter Stokes the said Right of Way.

[3] They further claimed that it was only in the month of February 2006

that they discovered that the said deed had only conveyed the First

Parcel to them; as soon as was reasonably practicable they contacted

their attorneys at law and procured the preparation of a Deed of

Rectification for execution by the Claimants. They assert that this

deed, if executed, would carry out the terms of the agreement and or

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the true intention of the parties. The Defendant, however, refused to

execute the said Deed of Rectification.

[4] The Defendant on the other hand contends that the Deed of

Conveyance is a true representation of the intention of the parties in

that the vendor, Walter Stokes, only intended to convey the First

Parcel of land to the Claimants.

[5] The Defendant states that the agreement for sale erroneously

recorded that the agreement between Walter Stokes and the

Claimants included a sale by Walter Stokes to the Claimants of the

Second Parcel of land; that the subject matter of the agreement

entered into by Walter Stokes and the Claimants was for the sale by

Walter Stokes to the Claimants of only the First Parcel of land for the

price of $180,000.00.

[6] The Defendant states further that Walter Stokes discovered the error

in the agreement for sale before the Deed of Conveyance was

executed. He brought the error to the attention of the Claimants who

agreed with Walter Stokes that steps should be taken to correct it.

Mr. Stokes asked that the agreement be cancelled and a new

agreement be prepared. However, the Claimants informed him that

the agreement had already been submitted to a financial institution

in order to pay for the said land and any cancellation could cause

delay in the grant of the loan. The parties then agreed that the

agreement for sale would be allowed to expire and after its

expiration a Deed of Conveyance would be executed a few days

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later. They further agreed that that Deed of Conveyance would only

convey the First Parcel of land to the Claimants.

[7] Pursuant to the above oral agreement the agreement for sale was

allowed to expire on 15th day of August 1982 and on the 18th day of

August 1982 Walter Stokes executed the Deed of Conveyance

transferring the First Parcel of land to the Claimants.

[8] The Defendant further stated that pursuant to the agreement

between the parties for Walter Stokes to sell and the Claimants to

buy the first parcel they agreed that the Claimants would prepare a

survey plan drawn by Winston Sylvester showing the parcel of land

to be conveyed. It was also agreed between the parties that after the

survey was done and the plan drawn that the written agreement for

the sale of the land would be entered into.

[9] Accordingly, a survey plan dated 23rd March 1982 was prepared by

Mr. Sylvester and this plan depicted the First Parcel coloured pink.

The Claimants and the vendor signed this plan and it was annexed

to the agreement for sale. This plan was also annexed by the

Claimants to their Statement of Case as the plan showing the parcel

of land that they agreed to purchase from Mr. Walter Stokes.

[10] The Defendant asserts further that from the facts and surrounding

circumstances the true intention of the parties up to the execution of

the deed was that the first parcel be conveyed to the Claimants.

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[11] The particulars relied upon by the Defendant are –

a) The close relationship between the Claimants and Walter Stokes and

his family which resulted in Walter Stokes placing great trust in the

Claimants and signing the agreement for sale without closely

examining same when presented to him by the First Claimant.

b) Because Walter Stokes trusted the Claimants he agreed to their

proposal that the agreement for sale be allowed to expire as opposed

to having it immediately cancelled and a new one drawn up upon

the discovery of the error therein.

c) The said agreement for sale refers to the subject matter to be sold as

the first parcel of land and the right of way. The Deed of

Conveyance refers to the subject matter to be sold as the said first

parcel of land.

d) The said agreement for sale refers to the Claimants giving the

vendor a right of way over the said Right of Way. The Deed of

Conveyance does not convey the right of way to the Claimants and

does not give the Defendant a right to pass and repass along the said

Right of Way.

e) The Deed of Conveyance at clause ii page 2 contains a clause

reserving unto Walter Stokes and his successors in title certain

drainage rights of the said lands and required Walter Stokes and his

successors in title to pay to the Claimants one half of the cost of

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repairing, cleaning and maintaining the existing drain. This

provision was not part of the said agreement for sale.

f) The agreement for sale refers to the said survey plan which was

signed by all of the parties and which showed that the land agreed

to be sold between the parties was the said parcel of land. The Deed

of Conveyance attaches a plan dated 21st April 1982 which appears

to be altered by hand in the footnote to the plan with the

substitution of “2” instead of the letter “a” and by the inclusion of

the letter “s” at the end of the word parcel. The words “&green” also

appear to be typed into the document after it was created. The

footnote now reads as follows: “Plan of “2 parcels of land coloured

pink and green” This plan unlike the said survey plan includes the

identification of the drainage which was not part of the terms of the

written Agreement for Sale.

g) The said Deed of Conveyance on page 2, paragraph 2 specifically

conveys onto the Claimant certain rights and privileges more

particularly described in a Deed Registered as No. 2695 of 1924. The

said agreement did not include this agreement.

[12] The Defendant denies that the Claimants only became aware that

the Right of Way was owned by the estate of Walter Stokes in 2006.

They allege that the Claimants knew at all times that the land

belonged to the Defendant and relied upon a series of acts and

events from 1982 to 2007 in support of his allegation. 1

1 See paragraph 7 (a) to (j) of the Defence

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[13] The Defendant further contended that the Claimants’ alleged right

of action, if any, is barred by Section 3 of the Real Property

Limitation Act Chap 56:03 and that the Claimants’ right, if any, and

the title, if any, to the said Right of Way were extinguished by virtue

of Section 22 of the said Act. They also assert in the alternative that

the action herein cannot be maintained owing to laches acquiescence

delay and waiver of the Claimants as well as estoppel by conduct.

[14] They counterclaim against the Claimants for:

1. nuisance for their wrongful and unlawful interference in the

Right of Way by dumping a large amount of blue metal stone

and gravel thereby obstructing its use.

2. an injunction restraining the Claimants from obstructing the

said Right of Way

3. an order of possession of 16.3 square meters of land (the said

triangular parcel of land) which the Claimants unlawfully

entered and took possession of in 2006.

[15] The Claimants deny that they placed any material upon the said

Right of Way obstructing its use; they contend that material was

placed at the side of the Right of Way. With respect to the triangular

parcel of land they claimed that they have been in exclusive

occupation of the triangular parcel of land firstly since 1972 as

tenant of Walter Stokes and since 1982 after the Deed of Conveyance

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was executed. Accordingly they contend that they acquired an

adverse possessory title to the said 16.3 square meters of land.

Alternatively, they claim that the paper title of anyone else to the

said 16.3 square meters of land has been extinguished by operation

of the Real Property Limitation Ordinance, no action for the

recovery of possession of same having been brought within 16 years

of the Claimants first entering into possession.

EVIDENCE

[16] The Claimants, in support of their case, relied upon the evidence of

Charles Porter, Emrick Brown and Winston Sylvester whilst the

Defendant, in support of his case, relied upon the evidence of

himself, Robert Stokes, Carl Victor, Odai Ramishchand and Nigel

Pechenik.

[17] In his witness statement, the first Claimant herein testified that he

and Mr. Stokes agreed “that it would be best to have a survey plan

prepared showing exactly the land my wife and I were buying from

him. Accordingly, I engaged Mr. Sylvester to prepare a survey plan

showing the lands and he did so. A true copy of the survey plan

prepared by Mr. Sylvester showing the land Mr. Stokes agreed to

sell to my wife and me, dated March 23rd, 1982, appears as

document A2 in the agreed bundle.” The survey plan A2 shows the

first parcel of land delineated and coloured pink with the size of the

said parcel noted therein. It also depicts the Right of Way which is

not coloured nor does it show the area thereof. The portion of land

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belonging to the Stokes family is depicted. To the top of the plan are

the signatures of Walter Stokes and the Claimants.

[18] In answer to Counsel in cross examination Mr. Porter repeated the

above statement that this survey plan showed the land that Mr.

Stokes agreed to sell to him.2 He also testified that after the

agreement for sale was prepared by his attorneys, Sellier and

Company, he took that agreement and the survey plan, A2, to Mr.

Stokes. There they both signed the agreement and the survey plan. 3

[19] In further answer to Counsel he admitted that although the

agreement for sale referred to the first and second parcel of land, the

plan A2 did not have any measurements with respect to the second

parcel; that although the agreement referred to a plan which showed

the first and second parcel coloured pink and brown respectively A2

did not show any parcel of land coloured brown.

[20] Mr. Porter also testified that a few days before the date fixed for

completion of the sale, he, his wife and Mr. Stokes attended the

office of Mr. Sellier to execute the Deed of Conveyance. However, on

that occasion Mr. Sellier advised that the drain reserve be depicted

on the said survey plan A2. As a result the deed was not executed on

that day. Mr. Stokes therefore took the plan back to Mr. Sylvester,

the surveyor, to have it amended by the insertion of the drain

reserve.4 He specifically stated that the sale was not completed on

2 Page 7, Transcript of Evidence dated 14th November 2012 3 Page 8, Transcript of Evidence dated 14th November 2012 4 Page 10, Transcript of Evidence dated 14th November 2012

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that day in August because the plan had to be amended and that Mr.

Stokes agreed to this. He also stated quite clearly that the

amendments to the drain reserve were done in August 1982. The

amended plan was marked A4 in the agreed bundle of documents.

Mr. Porter admitted that this amended plan was dated 21st April

1982 and not August 1982.5 He also admitted that there were other

changes on this plan apart from the insertion of a drain reserve; that

the second parcel was now delineated and marked, that there was

now a reference to two parcels of land coloured pink and green6 and

this plan was not signed by Mr. Walter Stokes or himself and his

wife. He also agreed that before the agreement for sale he had had a

plan signed by Mr. Stokes and another plan not signed by him. He

also admitted to having taken A4 to Mr. Sellier before the agreement

was prepared but then said that he could not recall whether Mr.

Sellier was given two plans or one. He later admitted that more

likely than not he gave to Mr. Sellier the second plan, A4, which

Walter Stokes had not signed.7

[21] Mr. Porter did not address the allegation that he had obstructed the

Right of Way in his witness statement. However, in answer to

Counsel in cross examination he admitted to depositing debris on

the Right of Way in front of Mr. Ramischand’s gate which gave

access to the Right of Way. He described such access as

unauthorized. He admitted to dumping blue metal stones and

gravel on the side of the Right of Way. He denied having blocked

5 Page 11, Transcript of Evidence dated 14th November 2012 6 Page 11, Transcript of Evidence dated 14th November 2012

7 Page 11, Transcript of Evidence dated 14th November 2012

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the Right of Way with the gravel and blue stones, and that the

Defendant repeatedly asked him to remove it.8

[22] Mr. Sylvester, the surveyor who had drawn both plans, also gave

evidence. He testified that he had prepared the survey plan dated

21st March 1982 (A2). He also testified that he was instructed to

amend that plan (sometime towards the middle of August 1982) and

that the said amended plan is document A4. He agreed that the date

of the 21st April 1982 which appeared at the bottom of that plan is

the date that he would have amended the plan. He also testified that

the only amendment to that plan was the insertion of the drain

reserve. 9

[23] Mr. Robert Stokes testified that after his father entered into the

agreement for sale with the Claimants to sell the first parcel of land

his father showed to him the agreement whereupon he pointed out

that two parcels of land were referred to therein to be sold and not

one. His father then spoke to the Claimants who agreed to correct

the error by allowing the agreement to expire. He testified as he did

in his witness statement that because of the relationship of trust

existing between the Claimants and his father the latter had signed

the agreement without reading same.

[24] He also asserted that from 1988 to present he and his wife

continually used and maintained the Right of Way. However, in

8 Page 22, Transcript of Evidence 9 Page 27, Transcript of Evidence dated 14th November 2012

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cross examination he admitted that during the period 1988 to 1992

he together with his wife and children had migrated to Canada;

further, that during the period February 2005 to November 2006 he

and his wife lived in Canada; further, that between 1976 to 2005 he

was out of the country regularly on account of his job as a pilot with

BWIA. He agreed that during the times that he was out of the

country he did not personally maintain the Right of Way but

asserted that he had workmen do so on his behalf; that whenever he

was in the country he did in fact maintain the Right of Way.10

[25] He also testified that after the death of his father but prior to 1992

the Claimants approached him to purchase the Right of Way but

that he refused. Mr. Stokes in his witness statement stated that in

1992 Mr. Odai Ramischand contacted him while he was in Canada

and offered to purchase from him the said Right of Way and the

adjoining property to the first parcel of land at a price of 2.5 million

dollars. He initially agreed but subsequently changed his mind.

[26] The Defendant also stated that in 2005 he gave permission to Mr.

Ramischand to build a gate on the northern boundary of his land in

order to give him access to his property from the Right of Way and

that Mr. Ramischand built that gate in or about 2006 to 2007. Shortly

thereafter the Claimants deposited a huge amount of debris in front

of the said gate thereby preventing Mr. Ramischand from using the

10

Page 27, Transcript of Evidence dated 14th November 2012

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Right of Way. The Claimants removed the said debris after the

Defendant demanded that they did so.11

[27] The Defendant further testified that sometime in 2009 to 2010, the

Claimants, whether by themselves, their servants and or agents

dumped a large load of blue metal stones and gravel on the Right of

Way near the entrance to Mr. Ramischand’s property. As a result

they have obstructed the use of the Right of Way and reduced its

width.

The Defendant was not cross examined on this aspect of his

evidence.

[28] He also testified that it was reported to him that in 2006 the

Claimants unlawfully entered into 16.3 square meters of land

belonging to the estate. In his witness statement the Defendant

testified as to several surveys conducted between 1982 and 1999

which did not show any encroachment by the Claimants onto the

said lands of the Defendant. The surveys were conducted in 1982,

1999 and 2007. The Defendant also testified that a survey was done

in 1999 for the subdivision of three lots in order to obtain Town and

Country Planning Division approval. No encroachment was seen on

this plan. He however testified that he would be prevented from

building on these lots by the Claimants’ encroachments.

[29] Mr. Victor, in his witness statement, testified that during the period

2005 to 2006 when the Defendant and his wife were abroad he was

11 Paragraphs 28-29, Witness Statement of Robert Stokes

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asked watch the property. It was at this time that he saw the

Claimants carrying out work on an underground drain; when this

was completed they backfilled the area and extended the driveway

on to the disputed triangular lands. Mr. Ramischand also testified

that in 2006 after another tenant vacated the property the Claimants

paved the triangular portion of land and used it as their driveway.

[30] Odai Ramischand testified on behalf of the Defendant. He stated

that he purchased a parcel of land in 1992 south of the Right of Way.

In his witness statement he had testified that from 1992 he had

observed the Defendant and his wife cleaning and maintaining the

road way. He asserted that he also saw their sons and their

workmen maintaining the road way. He admitted in cross

examination that since the Defendant his wife were out of the

country for several periods of time that he could not have seen them

maintaining the Right of Way continuously as he stated in his

witness statement.12

[31] Mr. Ramischand in his witness statement also testified that

sometime between 2006 and 2007 he obtained permission from the

Defendant to use the Right of Way to transport building materials to

construct his house on his lands situate at the southern end of the

Right of the Way. Mr. Stokes also gave him permission to build a

gate on the northern boundary of his lands in order to access the

said Right of Way. After this gate was constructed the Claimants 12

Page 9, Transcript of 15th November 2012

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caused their workers to deposit heaps of rubble comprising blue

metal stones, old galvanize and other debris in front of the said gate

thereby denying him access to the Right of Way.13 He complained to

Mr. Stokes and there was a confrontational meeting at his gate at

which the Claimants Mr. and Mrs. Stokes were present. Mr. Stokes

pointed out to the Claimants where the boundary to their property

met the Right of Way; he also asserted his ownership of the roadway

and demanded that the Claimants remove the debris in front of Mr.

Ramischand’s gate. He further testified that sometime in 2009 to

2010 the Claimants deposited a large amount of blue metal stones

and gravel on the Right of Way in the vicinity of his gate as a result

of which he is unable to use the gate in order to access the Right of

Way and the width of the Right of Way has been reduced.

Mr. Ramischand was not cross examined on this aspect of his

evidence.

SUBMISSIONS

Defendant’s Submissions

[32] The Defendant submitted that the Claimant’s case fails in limine

because it does not fulfill the conditions precedent which the law

imposes upon them to satisfy in order to establish a case of

rectification of the Deed of Conveyance on the ground of common

mistake of the parties to the Deed of Conveyance. In Spry on

Equitable Remedies (8th Edition), the learned authors at page 610

13 Paragraph 17 of the Witness Statement of Odai Ramischand

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describe the principles of rectification of an instrument based on a

common mistake of the parties in the following terms:

“Where all parties who execute a document intend that the

provisions of the document should accord with an agreement

entered into by them or with a common intention possessed by

them, but due to a mistake shared by all of them it does not do

so, rectification is ordered by the Court, in the absence of

special circumstances that renders this course unjust.”

[33] He submitted further that the evidence is that the Agreement for

Sale expired and that subsequent to the date of expiration of the

Agreement for Sale which was on or about the 15th day of August

1982, the Deed of Conveyance was executed on the 18th day of

August, 1982.

[34] He argued that the Deed of Conveyance shows that the oral

agreement made following the discovery of the error on the

Agreement for Sale was carried into effect by the parties in that:

1. The Deed of Conveyance did not recite that it was being

made pursuant to the said written Agreement for Sale.

2. The Deed of Conveyance conveyed only the first parcel of

land to the Claimants and it did not convey the second

parcel of land.

3. The Deed of Conveyance did not contain as the

Agreement for Sale did that the sale was subject to the

Vendor having a right of way over the said strip of land.

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4. The Deed of Conveyance recited that the Vendor and the

Claimants agreed for the sale of the first parcel of land

subject to the Right of Way. The Deed of Conveyance

further recited that the Vendor was the owner of the lands

and herditaments described in the First Part of the

Schedule. In the First Part of the Schedule it referred to the

First Parcel of Land. The conveyance referred to this Parcel

of Land as “the said lands” and then recited as follows:

“And whereas the Vendor has agreed with the Purchasers for

the sale to them of the said lands together with the Privileges

and with the benefit if the Covenant by Subject to the Right of

Way.....”

[35] He contended that the Deed of Conveyance clearly conveyed the

first parcel of land subject to the Right of Way over the second parcel

of land. It would have been clear to the parties to the Deed of

Conveyance that it was a conveyance only of the first parcel of land

and that the right of way was over the second parcel of land. Both

the Vendor and the Claimants signed the Deed of Conveyance.

[36] The Defendant argued that the contents of the Deed of Conveyance

therefore corroborate the Defendant’s case that both the Vendor and

the Claimants acknowledged that there was an error in the written

Agreement for Sale and instead of cancelling the Agreement for Sale,

they agreed to allow it to expire and for the error to be corrected in

the Deed of Conveyance which would be executed a few days after

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the expiration of the written Agreement for Sale. He further argued

that the Deed of Conveyance was contemporaneous with this oral

agreement made between the Vendor and the Claimants for the

error to be corrected in the Deed of Conveyance after the expiration

of the written Agreement for Sale.

[37] It was submitted on behalf of the Defendant that based on the case

of the Claimants as outlined above the reason the Deed of

Conveyance was executed after the date fixed for completion of the

agreement was that the survey plan had to be amended and that it

was amended in August, 1982. It was then attached to the Deed of

Conveyance at the time the said deed was executed. The amended

Survey Plan which is attached to the Deed of Conveyance is

however not dated August, 1982. It is dated the 21st day of April,

1982. Mr. Sylvester in cross-examination after looking at the said

amended plan agreed that he amended the plan on the 21st day of

April, 1982. It is significant that this amended plan was done before

the Agreement for Sale was signed on the 15th May, 1982. Counsel

contended that the evidence of the First Claimant that the reason for

the postponement of the completion of the sale was to have the

survey plan amended is therefore not supported by the

documentary evidence, namely the amended Survey Plan. His

evidence is inconsistent with the date of the amended survey plan

which is the 21st April, 1982.

[38] He submitted that since the contemporaneous documentary

evidence corroborates the Defendant’s version of the reasons for the

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parties allowing the written agreement for sale to expire and the

Claimant’s version is inconsistent with the documentary evidence,

the Court ought reasonably to accept the Defendant’s version in

preference to that of the Claimants. He relied upon the case of

Attorney General v K.B Samlal (1987) 36 WIR at page 382. Lord

Ackner at page 387 opined that on the assessment by a Court of facts

“it is essential when weighing the credibility of the witness to put

correctly into the scales the important contemporaneous

documents.”

[39] The Defendant therefore submitted that the Claimants have not

established that the written Agreement for Sale reflect the common

intention of the parties for the sale by the Vendor of two parcels of

land. He argued that the evidence establishes to the contrary, that

the parties agreed that the said written Agreement for Sale

erroneously stated that there was an agreement to sell the second

parcel of land and the parties agreed to have that error corrected in

the Deed of Conveyance. Counsel submitted that the conditions

precedent therefore for establishing the claim for rectification is not

made out in that it is not established by the evidence that by any

error of a mistake common to the parties to the Deed of Conveyance

that the Deed of Conveyance did not accord with the true and real

agreement of the parties or true intention of the parties.

[40] He went on to argue that the common intention of the parties at the

time the conveyance was executed was that the parties agreed that

the sale only involved the first parcel of land and that in respect of

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the second parcel of land the Claimants had a right of way over it.

The Deed of Conveyance was therefore consistent and in accord

with their common intention. There was no mistake or common

mistake. The Claimants are contending that the Deed of Conveyance

is not in accord with the written agreement for sale. The evidence

shows that the parties agreed for this agreement to expire because it

contained an error in recording the real and true agreement of the

parties. The Deed of Conveyance was not prepared pursuant to the

written agreement but was prepared pursuant to the oral agreement

which the parties had for the written agreement to expire and for the

error in the written agreement to be corrected in the Deed of

Conveyance.

[41] It was also argued on behalf of the Defendants that since the first

condition for this claim to be established was not satisfied, namely,

that there was no common mistake in the Deed of Conveyance, the

claim fails in limine. It was incumbent on the Claimants to show

that the alleged mistake of omitting the sale of the second parcel of

land was the result of an error common to both parties not the result

of one party. Rectification must accurately reflect the bargain struck

between the parties. No evidence has been adduced to show up to

the time of execution of the deed there was a common intention for

the sale of the two parcels of land or any bargain to that effect. On

the contrary, the evidence shows otherwise, that the Deed of

Conveyance reflected the common intention of the parties.

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Claimants’ Submissions

[42] The Claimants submitted firstly that the terms upon which the

parties agreed that Walter Stokes would sell and the Claimants

would buy the first and second parcels of land are provided by the

agreement for sale. They argue that paragraph 1 of the said

agreement is clear and unambiguous; the parties clearly intended to

act upon what was contained therein so their words must be

construed literally. In the circumstances they submit that this

intention must be given effect to in the Deed of Conveyance by

rectification of same to evidence the common intention of the

parties.

[43] The Claimants also submitted that the Defendant’s account about an

oral agreement subsequent to the written agreement for sale to

correct an error that appeared in the said agreement for sale is

incredible, and not supported by the evidence and therefore should

not be accepted by the court. Counsel argued that from the totality

of the evidence before the court it was more probable that the

intention of the Defendant’s father as gleaned from clause 1 of the

agreement for sale continued up to the execution of the Deed of

Conveyance. In support of this argument the Claimants relied upon

the following:

1. The fact that the Defendant’s father bought the first parcel

together with the second parcel; it was therefore more likely

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that when disposing of the first parcel he would also have

agreed to sell the second.

2. The fact that the Defendant’s father had reserved unto himself

and his heirs the right to pass and repass over the second

parcel by clause 1 of the agreement. Having made these

arrangements it was more likely that the Defendant’s father

would have maintained his intention to sell the second parcel.

3. The purchase price for the two parcels referred to in the

agreement for sale was the same as the price for one parcel

referred to in the Deed of Conveyance. If there had been a

subsequent oral agreement to excise the second parcel then

this should have been reflected in the price. The fact that in

the Deed of Conveyance the sale of the first parcel was subject

a Right of Way over the second parcel. If the Defendant’s

father had changed his intention pursuant to an oral

agreement and intended to sell only the first parcel then this

could have been done independently without reference to the

Right of Way.

[44] In the circumstances they argued that the Defendant’s plea of an oral

agreement between the vendor and the Claimants was not made out

on a balance of probability.

[45] The Claimants further submitted that their action was not barred by

Section 3 of the Real Property Limitation Act. They argued that the

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Claimants’ claim for rectification is a claim for equitable relief to

rectify a mistake; therefore it is not an action caught by Section 3 of

the Real Property Limitation Act. They relied upon the case of

Menary v Welsh 1973 1 O.R. (2d) 393 which held that an action for

rectification of a deed is not an action to recover land and thus the

statutory limitation period did not apply to bar the claim.

[46] They further submitted that their right of action was not barred by

laches, acquiescence delay or waiver since the Claimants only

discovered in 2005 that the second parcel was not conveyed was and

that they acted soon thereafter to have the problem rectified.

[47] In response to the Defendant’s argument that the survey plans A2

and A4 lend support to their case that the parties’ common

intention was to convey the first parcel alone, they submit that that

is not so because:

1. The fact that Mr. Sylvester resiled from his evidence and

stated that the plan was amended in April and not August

cannot be used to negate the evidence of the Claimant that the

plan was indeed amended in August.

2. That the evidence of Carl Victor and Nigel Pechenik is

inadmissible since the matters contained in these witness

statements were not pleaded by the Defendant.

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3. That the fact that the plan of 21st March 1982 was attached to

the agreement for sale could not amount to evidence of a

common intention by the parties for the sale to the Claimants

by Walter Stokes of the first parcel of land only.

[48] With respect to the Claimants’ unlawful occupation of the triangular

piece of land, the Claimants submitted that the evidence of Carl

Victor is inadmissible since the content of his witness statement was

not pleaded. They also point to an apparent inconsistency in the

evidence of the Defendant when being cross examined. The

Defendant there stated that the Claimants prevented him from

exercising his rights over the triangular piece of land since 1999. He

also stated that they took possession of the land in 2006.

[49] The Claimants contend further that the fact that the survey plans did

not show encroachments is not evidence that the Claimants did not

exercise sole dominion and control over the said lands; that there

was no evidence that the surveyors had been asked to show any

encroachment. They also relied upon the evidence of Mr. Brown and

in particular paragraph 5 of his witness statement to the effect that

he and his family used the triangular piece of land to access their

home with the acquiescence of the Porters.

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Issues

(a) Whether the evidence in this case supports the rectification of the

Deed of Conveyance in order to include the second parcel of land.

(b) Whether the Claimants have been in uninterrupted possession of the

said triangular portion of land from 1972 to date and have thereby

extinguished the Defendants title thereto by operation of the Real

Property Limitation Orindance or alternatively whether the

Claimants have acquired an adverse possessory title to the

triangular piece of land.

(c) Whether the Claimants committed acts of nuisance by dumping loads of

blue metal stones, gravel and other debris on the Right of Way thereby

obstructing it.

ANALYSIS

Issue (a)

There was no dispute between the parties that the law as stated

hereunder was applicable to the facts of this case.

[50] In the book Private Rights of Way by Smith, Francis, Jessel and Shaw

(2012) the Learned Authors outlined the principles of Rectification.

At page 129 the learned authors opine:

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“Generally, the remedy of equitable rectification is available in the

following circumstances:

(a) There is a written instrument;

(b) Which fails to record with the true agreement between the

parties;

(c) Which failure to record arose either:

(i) from a common mistake (sometimes. ‘mutual’ or

‘bilateral mistake’);

or

(ii) from a mistake by one party which the other remained

silent about as to profit therefrom (‘unilateral

mistake’); and where no other remedy is suitable to

correct the mistake.”

(d) where no other remedy is suitable to correct the mistake.”

[51] In Fowler v Fowler (1859) 4 De G & J. 250 at page 106 upon the

question of rectifying a deed, the denial of one of the parties that it is

contrary to his intention ought to have considerable weight. Lord

Thurlow, in Irnham v Child (1 Bro. C. C. 93) stated:

“The difficulty of proving there has been a mistake in a deed is

so great, that there is no instance of it prevailing against a

party insisting that there was no mistake.”And Lord Eldon in

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Marquis of Townshend v Stangroom (6Ves. 334) after

observing that Lord Thurlow seemed to say that the proof

must satisfy the Court what was the common intention of all

the parties, adds “And it must never be forgot to what extent

the Defendant one of the parties, admits or denies the

intention.

Under all these circumstances therefore, I cannot bring myself

to the conclusion that the schedule is contrary to concurrent

intention of both the parties, and I must therefore decline to

hazard the exercise of a jurisdiction by which I might be

imposing a different agreement upon one of them at least from

that which he has deliberately executed.”

[52] In that case the instrument sought to be rectified was a deed. The

Court held that for the purpose of reforming the instrument clear

and unambiguous evidence must be produced.

[53] In Murray v Parker (1864) 19 Beav. 305 the Master of the Rolls (Sir

John Romilly) opined:

“In matters of mistake, the Court undoubtedly has

jurisdiction, and though this jurisdiction is to be exercised

with great caution and care, still is to be exercised, in all cases,

where a deed, as executed, is not according to the real

agreement between the parties. In all cases the real agreement

must be established by evidence, whether parol or written; if

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there be no previous agreement in writing, parol evidence is

admissible to show what the agreement really was; if there be a

previous agreement in writing, parol evidence is admissible to

show what the agreement really was; if there be a previous

agreement in writing which unambiguous, the deed will be

reformed accordingly; if ambiguous, parol evidence is admitted

to explain ambiguities in a written instrument.”

[54] The Court at page 95 referred to the dictum of Simonds J. in Crane v

Hegeman-Harris Co. Inc (1939) 1 All E.R. 662 at 664:

“….., it is not necessary to find a concluded and binding

contract between the parties antecedent to the agreement

which it is sought to rectify. . The judge held, and I

respectfully concur with his reasoning and his conclusion,

that it is sufficient to find a common continuing intention in

regard to a particular provision or aspect of the agreement. If

one finds that, in regard to a particular point, the parties were

in agreement up to the moment when they executed their

formal instrument, and the formal instrument does not

conform with that common agreement, then this court has

jurisdiction to rectify, although it may be that there was, until

the formal instrument was executed, no concluded and

binding contract between the parties. That is what the judge

decided, and, as I say, with his reasoning I wholly concur, and

I can add nothing to his authority in the matter, except that I

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would say that, if it were not so, it would be a strange thing,

for the result would be that two parties binding themselves by

a mistake to which each had equally contributed, by an

instrument which did not express their real intention, would

yet be bound by it. That is a state of affairs which I hold is not

the law, and, until a higher court tells me it is the law, I think

I shall continue to exercise the jurisdiction which Clauson J.,

as I think rightly, held might be entertained by this court.”

“Secondly, I want to say this upon the principle of the

jurisdiction. It is a jurisdiction which is to be exercised only

upon convincing proof that the concluded instrument does not

represent the common intention of the parties. That is

particularly the case where one finds prolonged negotiations

between the parties eventually assuming the shape of a formal

instrument in which they have been advised by their

respective skilled legal advisers. The assumption is very strong

in such a case that the instrument does represent their real

intention, and it must be only upon proof which Lord Eldon, I

think, in a somewhat picturesque phrase described as '

irrefragable' that the a court can act.” The Court referred to

the following passage: “For let it be clear that it is not

sufficient to show that the written instrument does not

represent their common intention unless positively also one

can show what their common intention was.”

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[55] The common intention must appear in the written document sought

to be rectified. The Court of Appeal at page 97H referred to what

Harman L.J. in Earl v Hector Whaling Ltd. (1961) 1 Lloyd’s Rep. 459

at p. 470:

“……that you do not need a prior contract, but a prior

common intention, is right: and here, as it seems to me, both

parties always intended that there should be a written

agreement, and they came to a common intention as to what

that written agreement was to be, or thought they did: and if

the evidence satisfied one that that common intention did not

appear in the written document, then you would have a case

for A rectification."

[56] Consistent with the principles outlined in the authorities above I

examined the evidence in this case in order to determine what was

the common intention of the parties prior to the execution of the

Deed of Conveyance. I bore in mind during this exercise the fact that

the real agreement or intention of the parties could be evidenced by

both written and parol evidence; that where there was a previous

agreement in writing as in this case, if such agreement was

ambiguous parol evidence was admissible to explain any

ambiguities in the written document.

[57] I start from the events surrounding the creation of the agreement for

sale. The vendor, having died, direct evidence with respect to what

the parties did prior to and up to the execution of that agreement

was obtainable from the Claimant. His clear testimony was that he

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and the vendor agreed to have a survey plan drawn up to clearly

depict the land that the vendor agreed to sell to him and his wife. He

identified that plan as A2 which was annexed to his Statement of

Case as well as his witness statement. He repeated this evidence in

the witness box. It was also Mr. Porter’s evidence that his attorney,

Mr. Sellier, drafted the agreement for sale and he took that

agreement and the survey plan to Mr. Stokes. Both the Claimants

and Mr. Stokes signed the agreement and the survey plan A2. It

should be noted at this point that by the agreement for sale the

vendor agreed to sell to the Claimants the first and second parcels of

land which were described as coloured pink and brown respectively

in the said agreement. On A2 the first parcel of land was coloured

pink. The second parcel was not coloured nor was the area of that

land included on the plan.

[58] The date fixed for execution of the Deed of Conveyance by the said

agreement for sale was 15th August 1982. It was Mr. Porter’s

evidence that the deed was not executed on that date because when

the parties went in to Mr. Sellier’s office in August in order to sign it

Mr. Sellier advised that the survey plan A2 should be amended to

include the drain reserve thereon. Accordingly, Mr. Porter gave

instructions to Mr. Sylvester to amend the plan. Mr. Sylvester

returned the plans to him a day or two later and he and Mr. Stokes

returned to his attorney’s office where the deed was executed on 18th

August. The amended plan was dated 21st April 1982; not only did it

include the drainage plans but the area of the second parcel was

now inserted as 430 square meters. Additionally, the second parcel

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was coloured green; at the bottom of that plan an ‘s’ was added to

the word parcel so it now read ‘parcels’. Mr. Porter, in cross

examination, agreed that he had not submitted in evidence any

amended plan dated August 1982. Mr. Porter also testified that he

gave to Mr. Sellier the plan dated 21st April 1982 before he prepared

the agreement for sale.

Also of note is the fact that although Mr. Porter testified that A2 was

amended, the signatures of Walter Stokes and the Claimants do not

appear on A4, the amended document. This further excited my

suspicion about the Claimants’ account of what transpired among

the parties and what was their common intention before the

execution of the Deed of Conveyance. Interestingly, no explanation

has been proffered by the Claimants for the missing signatures on

A4.

[59] Mr. Sylvester clearly stated that the date of the amendment of the

plan was the date recorded at the bottom of the plan which is the 21st

April 1982.

[60] The Defendant on the other hand disputed the Claimants’ account as

regards the delay in executing the Deed of Conveyance and

contended that the delayed signing was pursuant to an agreement

among the parties to allow the agreement of sale to lapse so that the

true common intention of the parties could be given effect to in the

Deed of Conveyance. I have come to the conclusion that the

Claimants have not satisfied me on a balance of probability that the

common intention of the parties was for the sale of the first and

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second parcels of land to the Claimants by the vendor. Their

evidence falls short of the convincing proof that is necessary to

persuade me that the Deed of Conveyance did not reflect the true

intent of the parties.

[61] I consider, on the evidence of the survey plan, A2, that what the

parties really intended was that only parcel 1 was to have been sold

to the Claimants. Secondly, the undisputed evidence before me is

that the said survey plan A2 depicting only one lot was amended in

April 1982 before the written agreement was entered into to include

the drain reserve. The Claimant therefore told a deliberate untruth

when he said that the reason for the delay in executing the deed was

to insert the drainage plans. There was no need for that gratuitous

fabrication to be told by the Claimant unless he was attempting to

proffer a reason for the delayed execution of the deed in order to not

disclose the true reason therefor. In all the circumstances the

inference that I draw from that evidence is that the delay was not for

the purpose of inserting the drain but was as the Defendant has

alleged to allow the agreement for sale to expire.

[62] I also take into account the fact that both the agreement for sale and

the Deed of Conveyance were drafted by the Claimants’ solicitors

Sellier and Company. Mr. Sellier was an experienced conveyancer

and this deed can be described as a “professionally drafted

document”. Strong proof would therefore have been needed to

satisfy me that the deed did not reflect the common intention of the

parties. Such proof was not provided the Claimants - indeed I form

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the view that on balance of probability the account as given by the

defendant is more probable that the deed does reflect the common

intention of the parties.

[63] I am also of the view that it was open to the Claimants to seek to

obtain the record of this transaction, if any, from the firm Sellier and

Company in proof of its case; whether the survey plan A4 was given

to Mr. Sellier before the agreement for sale; whether the parties had

agreed that the agreement for sale should expire before the

conveyance was executed; whether he had asked the Claimant to

amend A2 in August before the execution of the agreement.

[64] I also accept the evidence of Mr. Stokes, Mr. Ramischand, Mr.

Pechenick and Mr. Victor that Walter Stokes had no intention of

selling the Right of Way since all the other tenants on the property

use it to gain access to the Maracas Royal Road and that he had

informed the Claimants of this on numerous occasions. Further, that

at all material times the Claimants were well aware that Walter

Stokes and later on his estate owned the Right of Way. This is

particularly so in light of the tumultuous relationship between the

Claimants and Mr. Ramischand.

[65] From the totality of the evidence before me I do not consider Mr.

Porter to be a credible or reliable witness for the reasons stated

above. Additionally and very importantly I form the view on the

clear evidence before me that the Claimant had prepared two survey

plans before the execution of the agreement for sale - one depicting

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the first parcel only and the second depicting both parcels with the

drain reserve. In order to induce Mr. Stokes to sign the agreement

for sale, A2, which only depicted the first parcel was drawn to his

attention. He signed that plan at the same time that he signed the

agreement for sale. A reasonable inference to be drawn from these

events is that Mr. Stokes was never shown A4 and this was

deliberately planned by the Claimants. In my view the only reason

for this deception was that Mr. Stokes was adamant that he would

only sell to them the first parcel and not the second.

[66] Accordingly I hold that the common intention of the parties was

expressed in the Deed of Conveyance and what was conveyed to the

Claimants therein was what the parties intended. In the

circumstances the Claimants’ claim for a deed of rectification is

dismissed.

[67] Having determined that the Claimants have failed to prove on a

balance of probability that the common intention of the parties was

that the two parcels of land be conveyed to them, I do not need to go

on to consider the issues of laches, acquiescence, waiver, or the

operation of the provisions of the Real Property Limitation

Ordinance to this issue.

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Issue (b)

[68] In order to decide this issue I had to determine whose evidence I

accepted as true. Both Mr. Victor and Mr. Ramischand testified that

they witnessed the Claimants in 2006 extending their driveway by

including the said triangular portion of land. The Defendant’s

testimony is that this was reported to him by Mr. Victor whom he

had left to watch the property whilst he was abroad in 2005 to 2006.

He also relied upon several surveys undertaken from 1982 to 1999

which did not show any encroachment. The Claimants, on the other

hand, have asserted through the evidence of Mr. Porter that in fact

they have been in possession of that parcel of land since 1972. Mr.

Brown also testified that whilst a tenant on the subject lands they

used the said triangular portion of land to access their home but that

they did so with the acquiescence of the Claimants. I do not agree

with the Claimants’ submissions that the surveyors would only

show an encroachment if invited to do so during the conduct of a

survey. The evidence shows that when several of the surveys

conducted both sides were present and it was open to the Claimants,

certainly from 1999, to openly assert their ownership of the said

triangular parcel of land. This was not done. I therefore accept the

evidence of Mr. Ramischand and Mr. Victor that the Claimants took

possession of the said triangular parcel of land in 2006. Additionally,

I do not consider Mr. Porter to be a reliable witness having regard to

his evidence as a whole which I found to be inherently inconsistent

and contradictory. In all the circumstances I hold that:

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1. the Claimants have not extinguished the title of the Defendant

to the said triangular piece of land either by way of adverse

possession or the operation of the Real Property Limitation

Ordinance.

2. the Claimants have trespassed upon the said triangular

portion of land belonging to the Defendant.

Issue (c)

[69] I accept the unchallenged evidence of the Defendant and Mr.

Ramischand that the Claimants on two occasions dumped debris,

gravel and stone on the Right of Way thereby obstructing its use by

Mr. Ramischand in particular. I also accept the evidence of these

witnesses that as a result of the latest deposit of gravel and stone on

the said Right of Way in 2010 its width has been reduced. Since I

have already held that the Defendant is the rightful owner of the

second parcel of land over which this Right of Way exists it follows

that the Claimants’ acts were wrongful and amount to a private

nuisance.

CONCLUSION

[70] I therefore order:

a) The Claimants’ claim is dismissed.

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b) Declaration that the Claimants are not entitled to obstruct

and/or hinder the said Right of Way comprising 17 perches

more particularly described in the second part of the Deed

registered as Number 6152 of 1967.

c) Damages for private nuisance against the Claimants for

wrongly and unlawfully interfering with the said Right of

Way comprising 17 perches more particularly described in the

second part to the Deed Registered as Number 6152 of 1967.

d) A declaration that the Defendant is entitled to possession of

all the area of land comprising 16.3 square meters shown on

the Survey Plan of Camille Fortune –Rollock dated 30th July

2009 which is annexed to the Counterclaim as “F” which is

part of a large parcel of land described in the second part to

the Deed registered as Number 12491 of 1970.

e) An order for possession of the area of land comprising 16.3

square meters shown on the Survey Plan of Camille Fortune-

Rollock dated 30th July 2009 which is annexed to the

Counterclaim as “F” which is part of a larger parcel of land

described in the second part to the Deed registered Number

1241 of 1970.

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f) Damages for trespass to land by the Claimants to the area of

land comprising 16.3 square meters shown on the Survey Plan

of Camille Fortune-Rollock dated 30th July 2009.

g) Interest.

h) The Claimants to pay to the Defendant the costs of the claim

and the counterclaim fir for Senior and Junior Counsel.

Joan Charles

Judge

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