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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE CLAIM NO: CV2012-01634

BETWEEN

ANNA ZORINA MOHAMMED

CLAIMANT

And

NASIF RAMPERSAD

FIRST DEFENDANT

SALINA REHANNA MOHAMMED

SECOND DEFENDANT

Before the Honourable Madame Justice C. Pemberton Appearances:

For the Claimant: Mr. G. Raphael

For the Defendants: Mr. A. Manwah

JUDGMENT

[1] BACKGROUND

The matter at bar is a “family affair” concerning a property dispute. The

following genealogical illustration depicts the relevant parties in this

conundrum.

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FFAAMMIILLYY TTRREEEE

[2] UNDISPUTED FACTS

The undisputed facts in the matter at bar are as follows:

Mrs. Margaret Pariage Rampersad was the holder of a

tenancy for a disputed parcel of land situate in Barataria,

Trinidad, from Aranjuez Estates Limited (In Voluntary

Liquidation)1.

On June 3rd 1975 Mrs. Pariage Rampersad transferred this

tenancy to her son Mr. Hilton G. Rampersad.

1 All and Singular that certain piece or parcel of land situate at No. 69 Eastern Main Road, Barataria, San Juan, in the

ward of St. Anns, in the Island of Trinidad comprising FIVE HUNDRED AND ELEVEN POINT TWO SQUARE METERS or Five Thousand Five Hundred and Three Superficial Feet be the same more or less and bounded on the North by the Eastern Main Road, Barataria on the South intersected by a drain 2.0 meters wide and by Lot No. 10 in a circle on the East by Lot No. 67 in a circle and on the West partly by Lot No. 71 in a circle and by a Drain 2.0 meters wide.

Margaret Pariage Rampersad

(d. 08-13-1975)

Violet Mohammed ---- Shaffic Mohammed

(d.11-03-2004) (d. 04-05-1961) Hilton G Rampersad

(d. 12-16-1992)

Anna Zorina

Mohammed

Lincoln Rampersad --- Nasame Rampersad

(d. 08-14-2004)

Nasif Rampersad --- Salina R Mohammed

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On August 13th 1975 Mrs. Pariage Rampersad passed away.

During Mrs. Pariage Rampersad’s lifetime Violet and Shaffic

Mohammed lived on this parcel of land.

After Mrs. Pariage Rampersad’s death Violet and Shaffic

continued to live on the parcel of land until their death.

AZM is the daughter of Violet and Shaffic Mohammed.

AZM lived on the parcel of land with her parents until her

marriage in 1972.

After AZM’s marriage ended in 1976, she returned to live

with her parents at the premises with her children.

The above rendition of events is AZM’s lineage to the parcel

of land.

The Defendants, Mr. Nasif Rampersad (NR) and Mrs. Salina Rehanna

Mohammed (SRM), are entitled to statutory lease from the Aranjuez

Estates Limited (In Voluntary Liquidation).

[3] DISPUTED FACT AND ISSUE

The disputed fact and parallel issue is when did time begin to run

against the Defendants so as to extinguish their paper title?

[4] PLEADINGS

CLAIMANT’S CASE

The Claimant, AZM, is claiming ownership and possession of the disputed

parcel of land. AZM was born and raised on the property which was

originally tenanted to her grandmother Ms. Pariage Rampersad of

Aranjuez Estates Limited. During 1972 and 1976 AZM did not reside on

the property. On September 10th 19742 Ms. Pariage Rampersad

transferred the tenancy to the First Defendant’s grandfather, Mr. Hilton

George Rampersad.

2 This date was incorrectly pleaded as June 3

rd, 1975 in the Statement of Case.

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[5] On September 14th 2011 AZM penned a letter to NR and SRM, claiming a

“possessory title” of the parcel and offering to pay them “a nominal sum for

their interest”. NR and SRM responded by letter dated November 29th

2011 denying AZM’s claim to adverse possession of the land. AZM’s case

is grounded in the provisions of the REAL PROPERTY LIMITATION

ACT3.

[6] DEFENDANT’S DEFENCE AND COUNTERCLAIM

NR and SRM state that AZM’s claim does not disclose a cause of action

against them and state that they are the owners of the disputed parcel by

virtue of Deed dated January 31st 2011 and registered as No.

DE20110365179D001. Additionally NR and SRM claim that AZM resided

on the property with permission granted under an oral family arrangement.

[7] After the exchange of letters between AZM and NR and SRM in which

AZM claimed a possessory title of the parcel of land, NR and SRM served

AZM with a “Notice to Quit” effectively terminating her licence on July 30th

20124. AZM has since refused to vacate the property and as such NR and

SRM have counterclaimed inter alia for possession of the said parcel of

land and for damages for the use and occupation of the subject premises.

[8] CLAIMANT’S REPLY AND DEFENCE TO COUNTERCLAIM

AZM denied NR and SRM’s claim that she resided on the parcel of land

under a family arrangement and put them to strict proof such

arrangement. AZM maintained that “since1975 Violet Mohammed, Shaffic

Mohammed and herself have been in sole exclusive and undisturbed

possession of the said parcel of land”5 and deny that NR and SRM are

entitled possession of the property. She however admitted that she

received the “Notice to Quit” terminating her licence to occupy the said

3 Laws of Trinidad and Tobago. Chap. 53:03.

4 See Exhibit 16 in Trial Bundle of Documents.

5 Reply and Defence to Counterclaim. Para. 3. Filed Jul. 16 2012.

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land and confirmed that she has refused to leave/vacate the premises.

She denied that NR and SRM were entitled to the reliefs claimed on the

Counterclaim.

[9] EVIDENCE

Neither party’s evidence strayed from their pleaded cases. The parties

only joined issue with this point, whether there was in existence a family

arrangement which allowed AZM and her parents to reside on the

premises. I shall address the evidence as I analyse Counsel’s

submissions.

[10] SUBMISSIONS

As I said, I have chosen to examine Counsel’s helpful submissions on this

matter.

CLAIMANT’S SUBMISSIONS

Counsel submitted that after the transfer of the tenancy to Mr. Hilton

George Rampersad on September 10th 1974, Mrs. Pariage Rampersad

continued to reside on the property. She was no longer entitled to

possession and Counsel invited the Court to draw the inference of a

licence in her favour. On the date of her death on August 13th 1975, Mrs.

Pariage Rampersad’s license to reside on the property ended. AZM’s

parents, Violet and Shaffic, resided with Mrs. Pariage Rampersad at the

time of her death when the permission granted to her to continue to reside

on the property would have ended. Consequently, Violet and Shaffic

would have been in adverse possession of the property from the date of

Mrs. Pariage Rampersad’s death. AZM submitted that “to successfully

challenge the Claimant’s claim to a possessory title the Defendants would

have to establish … that the Claimant has lived on the land with

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permission under a family arrangement.6” NR and SRM have been unable

to produce any evidence to support the allegation of a family arrangement.

[11] The evidence contained in NR’s witness statement dated September 27th

2013 and his supplemental witness statement dated December 13th 2013

is hearsay and should be disregarded by the Court “since the maker of the

statement is dead the age of the witness now giving the statement and

further the evidence is clearly self-serving”7. Contradicting statements

exist between the letter dated November 29th 2011 which claims that Mrs.

Margaret Mohammed, the first Defendant’s great grandmother, gave AZM

permission to reside on the property, and the pleadings which allege that

permission to stay on the property was granted by both Hilton and Lincoln

Rampersad, The evidence that a family arrangement for AZM to reside on

the property does not exist.

[12] The case of EDWARDS v. BRATHWAITE8 relied on by NR and SRM was

distinguished by AZM by the fact that there was a “clear admission [by the

claimant in that case] that he was in occupation with permission9”. There

is no evidence in this matter that AZM or her mother was residing on the

premises under permission granted to them by either Hilton or Lincoln

Rampersad.

[13] In CHUN KEUNG v. KUNG KWORKWAI DAVID AND AONTHER, Lord

Hoffman states that, “the Limitation Ordinance is not concerned with

whether the defendant has acquired a title but with whether the plaintiff’s

right of action as been barred” not with the rights of successors of the

6 Written Submissions of the Claimant. Para. 7. Filed Mar. 21 2014.

7 Id. at para. 14.

8 32 W.I.R. pg. 85.

9 Claimant’s Submissions. Para. 18.

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defendants.10 Counsel quoted extensively from the judgment, his main

point being:

“It follows therefore that the Defendants and their

predecessors–in-title not having been in possession of the

said property after the assignment to Hilton Rampersad on

the 10th September 1974 or for the latest at the death of

Margaret Pariage on the 13th August 1975 the Defendants’

right of action would have been barred sixteen (16) years

from either date and the rights inter se of Violet and the

Claimant, successive persons who have been in possession

adversely to the Defendants since they discontinued their

possession are for this purpose irrelevant.”11 (emphasis

mine).

[14] Under the LAND TENANTS (SECURITY OF TENURE) ACT12 NR and

SRM’s option to purchase is an existing right which was created on

January 31st 2011. Consequently, if it is found that AZM is in adverse

possession of the property then NR and SRM would be barred from

asserting their rights to purchase the property.

[15] DEFENDANT’S SUBMISSIONS

NR and SRM submitted that in order for AZM to succeed in extinguishing

their title she must meet the requirements of Sections 3, 4 and 22 of the

REAL PROPERTY LIMITATION ACT13. These sections require AZM to

have been in “physical custody and control for 16 years without consent or

permission. There is also the requirement that there is an “intention to

10

[1997] 1 WIR 1232 at pg. 1236. Id. at para. 21. 11

Id. at para. 22. 12

Laws of Trinidad and Tobago. Chap. 59:54. Sec. 5(5). 13

Defendants’ Submissions. Para. 2. Filed on Feb. 21 2014.

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exercise such custody and control on her own behalf and for her own

benefit”14.

[16] From AZM’s own evidence it is undisputed that she did not have exclusive

possession of the property until 2004 after the death of her mother. Prior

to mother’s death AZM had always shared residence with someone else

on the property who had permission to live there from the title holder.

Consequently, AZM’s occupation does not meet the 16 year limitation

period. AZM also did not present any evidence which would have

demonstrated her intention to possess the property adversely to the rights

of NR and SRM. In fact, on cross examination, AZM admitted that she

received permission from her mother to return to live at premises in 1976

and this permission continued up until the death of her mother in 2004.

[17] NR and SRM’s evidence is that AZM’s predecessors have always resided

on the property with the permission of the title holders and under a family

arrangement; effectively, her predecessors were licensees.

[18] LAW AND ANALYSIS

The general rule “he who asserts must prove” is expanded by the authors

of Phipson on Evidence to state, “he who invokes the aid of the law

should be the first to prove his case...the burden of proof is fixed at the

beginning of the trial by the state of the pleadings, and it is settled as a

question of law, remaining unchanged throughout the trial exactly where

the pleadings place it, and never shifting.”15

[19] This principle, the corner stone of the law of evidence, is at the heart of

the matter at bar; an apparently simple but most interesting case of

adverse possession. Contrary to AZM’s submission that the burden of

14

Id. 15

Malek, Hodge M. Chap. 6-06. 17th

Ed. Pg. 151.

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proof rests on NR and SRM to prove that a family arrangement existed,

the legal burden in this matter, in fact lies squarely on her shoulders to

prove that which she first asserted; that she holds the property adversely

to the rights of NR and SRM. AZM must bring therefore evidence that her

right as an adverse possessor of the property has accrued by

demonstrating first, that her entry into the property was adverse as against

the paper title holders NR and SRM or their predecessors in title; second,

that she had the requisite animus or intention to dispossess the paper title

holders; third, that she has exercised her rights for the duration of the

statutory limitation period; that as a consequence the paper title holder’s

rights and the title are extinuguished.

[20] Adverse possession actions are grounded squarely in the REAL

PROPERTY LIMITATION ACT16. Thus AZM must satisfy Sections 3 and

4 of the Act. Section 3 of the Act speaks to the statutory limitation period

of 16 years which must be met before a claim for adverse possession can

be successfully made17. It is telling that AZM did not plead any date on

which she advances that time began to run against NR and SRM.

Instead, AZM claims that her parents’ possession was adverse to that of

the paper title owners upon the death of her grandmother in 1975. She

has provided no pleading that any action had been taken by those paper

title holders to end the arrangement with Margaret’s family upon her

death. In other words, where is the act actively evidencing the

commencement of the adverse possession period? If there is no date

speaking to when the entry became adverse the case has no basis upon

which to stand.

[21] Further, AZM has not provided any evidence that her parents possessed

the requisite animus. I wonder if this was to avoid the snare of “self-

16

Chap 56:03. 17

Id.

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serving evidence” as she claimed in relation to NR and SRM’s assertion of

a family arrangement? Additionally, in relation to the standard of proof

expected, suffice it to say that in cases in which a case of adverse

possession is being advanced Jourdan states that “a high standard of

proof is required from a squatter who takes possession without the true

owner’s consent.”18 Jourdan referred to the case of POWELL v. MC

FARLANE per Slade J.,

“the Courts will in my judgment, require clear and affirmative

evidence that the trespasser, claiming that he has acquired

possession, not only had the requisite intention to possess,

but made such intention clear to the world. If his acts are

open to more than one interpretation and he has not made it

perfectly clear to the world at large by his actions or words

that he has intended to exclude the owner as best he can,

the Courts will treat him as not having the requisite animus

possidendi and consequently as not having dispossessed

the owner.”19

[22] Jourdan gives guidance as to the manner in which Licences and

Tenancies at Will should be treated20. I associate myself with that

learning. Although a licence may not be implied simply by the fact that the

squatter may be using the land in a manner which may be inconsistent

with the “true owner’s present or future enjoyment of the land”, there are

circumstances under which a licence for occupation and use of land may

be implied. Jourdan continued, “however, that does not prevent a finding

to the effect that a person’s occupation of any land is by implied

permission of the person entitled to the land in any case where such a

18

Jourdan Q.C., Stephen and Oliver Radley-Gardner. “Adverse Possession”. Chap. 9-103. Pg. 221. 2nd

Ed. 19

Id. 20

Id.

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finding is justified on the actual facts of the case.”21 AZM’s parents were

allowed by Mrs. Pariage Rampersad to occupy the premises. The

property was transferred by Mrs. Pariage Rampersad to her son who in

turn permitted his sister, her husband and children to live on the land rent

free for a significant period of time. Additionally, the property is close in

proximity to the residence of the current paper title holders, another

property which was also transferred by Mrs. Pariage Rampersad to her

son Hilton George Rampersad, and was constantly being “dealt with” by

the paper title holders so that it clearly did not fall in abeyance. The

current paper title holders were conscious of the fact that AZM lived on the

property with permission granted to her by his predecessors.

[23] In fact, not only did AZM reside on the property under an implied license,

but so did her parents Violet and Shaffic. Mrs. Pariage Rampersad

granted a general licence to Voilet and Shaffic to live on the property with

her in 1943. That situation remained until her death in 1975, sometime

after she transferred the tenancy to her son, Hilton George Rampersad.

There was no evidence adduced by AZM to assert that by Violet’s

continued possession was adverse to Hilton’s paper title. I can draw the

inference that Violet’s brother, Hilton permitted his sister Violet and her

husband Shaffic to continue in1976 to stay on the property under an

implied licence. Shaffic died in 1961.

[24] While under this licence, Violet granted AZM a sub-license and upon

Voilet’s death on November 3rd 2004 and the simultaneous revocation of

AZM’s sub-licence due to Violet’s death, AZM was permitted to reside on

the property under an implied licence. Hilton George Rampersad died in

1992. There is again no evidence adduced by AZM that Lincoln’s son

objected to the continued use and occupation by his aunt. That remained

so until Lincoln’s death in August 2004. In fact, I draw the inference again

21

Id. At Chap. 35-15.

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that Violet’s continued occupation was permissive. His heirs allowed

Violet to remain there without any “fuss” until her death some months after

his, in November 2004. AZM continued there until 2011 when she wrote

to NR and SRM claiming a possessory title. That letter in itself was

evidence of the start of any period of adverse relations among the parties.

[25] Further there is no pleading that Mrs. Pariage Rampersad revoked her

licence from Violet and Shaffic during her lifetime, nor is there a pleading

that Voilet and Shaffic revoked the sub-licence granted to AZM in 1976.

Either of these actions would have acted as a catalyst for the time for

adverse possession to begin running against the paper title holder.

However, the evidence simply does not indicate that AZM’s parents, Violet

and Shaffic, intended to dispossess the paper title holders.

[26] An illustration of the relationship of the parties to the property is attached

as “A” to this Judgment.

[27] INTENTION TO CREATE LEGAL RELATIONS

AZM asserted that there was no family arrangement. If there was none,

then there had to have been evidence of an intention to create legal

relations between and among the parties. Among family members, the

law does not infer an intention to create legal relations unless the contrary

is proved. Has AZM proved the contrary? There is no evidence that

either AZM or Violet and Shaffic had a landlord/tenant relationship with NR

and SRM or any of their predecessors in title. There was never an

attempt to collect rent or to enforce any written agreement for tenancy. As

such I draw the inescapable inference that there was no intention to create

legal relations between the parties. AZM was a licensee of the property

and authorised possession of a property can never be said to be adverse

to the rights of the true title holder. Jourdan referred to Sir Raymond

Evershed MR’s who stated that “a possession may fail to be adverse by

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reason of the rule that ‘possession is never adverse if it can be referred to

a lawful title’22. The Privy Council has also upheld this point in law and I

adopt the sentiments of Lord Walker in stating,

“a person who is in occupation of land as a licensee cannot

begin to obtain a title by adverse possession so long as his

licence has not been revoked. Unless and until it is revoked

his occupation of the land is to be ascribed to his licence and

not to an adverse claim.”23

The same may be said of AZM. The licence which allowed AZM to be in

possession of the property cannot be used to ground a claim in adverse

possession. The evidence reveals that NR’s predecessors permitted

AZM’s grandmother and mother to stay on the property due to the close

familial relationship. Consequently it follows that NR and SRM having

purchased the property in 2011 and knowing that AZM was staying on the

property without paying any type of rent, permitted her to continue to stay

on the property under a licence. I reiterate, there has been no evidence

put before the Court to show that AZM’s mother Violet intended to

possess the property adverse to the rights of anyone. On the contrary, the

inference from the pleadings is that she operated under a license granted

to her under a family arrangement and subsequently invited AZM to stay

at the premises under the same license.

[28] AZM’S LETTER OF SEPTEMBER 14TH 2011

On one part AZM claims a possessory title of the property; while on the

other hand, she offers to pay NR and SRM for their interest in the

property. This letter seems contradictory in its terms However it seems

22

Preston and Newsom’s Limitation of Actions. (2nd

edn) pg. 71 23

CLARKE V. SWABY [2007] 2 P & CR 2 at para. 11.

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that AZM formed and made known her intention to dispossess as of

September 14th 2011.

[29] To my mind AZM’s evidence therefore reveals that the earliest date at

which she could attempt to claim that the time for adverse possession

began to run against the interest of the paper title holders is September

14th 2011. Other dates in contention seem to be the effective date

contained in NR and SRM’s “Notice to Quit” which was served upon AZM

on May 7th 2012, after the filing of the action. It should be noted that time

stopped on June 29th 2012 when NR and SRM filed their Counterclaim.

Though AZM did not plead the fact that she was served with a “Notice to

Quit”, she conceded the existence of the Notice in her Reply and Defence

to Counterclaim and subsequently attached it to her Witness Statement.

In any event, whichever date is taken, it is clear that the 16 year statutory

limitation period requirement for claims rooted in adverse possession has

not been met. Consequently, this claim cannot qualify as a viable claim in

adverse possession.

[30] COUNTERCLAIM

The claim for damages for use and occupation filed by the Defendants

was not supported in the pleadings. Neither evidence nor submissions

was received. I therefore make no comment on that relief.

[31] CONCLUSION:

This claim fails on the ground that AZM and her parents, Violet and Shaffic

resided on the property under a licence granted to them by the paper title

holders. It follows that the time only started to run against the rights of the

paper title holder when AZM form the clear animus to dispossess – the

letter of September 14, 2011 at best. This does not satisfy the 16 year

time period required by the Act.

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IT IS HEREBY ORDERED AS FOLLOWS:

1. That the Claimant’s Statement of Case filed on April 23, 2012 be and is hereby denied.

2. That the Claimant do pay the Defendant’s costs prescribed in

the sum of $14,000.00. 3. That there be judgment for the Defendants on paragraphs 1

and 3 of the Counterclaim filed on June 29, 2012. 4. That the Claimant do vacate the said premises within 90 days

of the date of this Order. 5. That the Claimant do pay the Defendants’ costs on the

Counterclaim in the sum of $14,000.00.

Dated this 17th day of June 2014.

/s/ CHARMAINE PEMBERTON HIGH COURT JUDGE

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“A”

TTIITTLLEE TTRREEEE

09-10-1974

Transferred Tenancy

Licence Transferred through

1943 - 1975 Estate After Death

1975 Implied Licence

1992 Implied Licence

Sub licence 2009

1976 – 2004 2004 Implied Licence Grant of

Letters of Administration

2004 Implied Licence

2011

01.31.2011 Implied Licence Tenancy Assigned

Until letter of 09.14.2011 And

evincing intention to possess. Freehold Reversion

NOTICE TO QUIT: MAY 2012 Purchased

Aranjuez Estates Limited

Margaret Pariage Rampersad

(Statutory Tenant)

d. 08-13-1975

Hilton George Rampersad

(statutory tenant)

d. 12-16-1992

Lincoln Rampersad

(statutory tenant)

d. 08-14-2004

Nasame Rampersad

(statutory tenant)

Nasif Rampersad & Salina R.

Mohammed

(statutory tenant)

Violet and Shaffic

d. 11-03-2004 d. 04-05-1961

Mohammed

Anna Zorina

Mohammed

2004 – 09-14-2011

Anna Zorina Mohammed

in

adverse possession

09-14-2011 – 06-29-2012