THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...
Transcript of THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE...
Page 1 of 19
THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CLAIM NO. CV 2015-00277
IN THE MATTER OF THE REAL PROPERTY ACT CHAP 56:02 AND IN THE
MATTER OF THE REAL PROPERTY LIMITATION ACT CHAP 56:03
BETWEEN:
IRENE NORIEGA
IRVIN MCLEAN
FELIX HERNANDEZ
RICHARD HERNANDEZ
AUDREY NORIEGA
DIANA NORIEGA
EVANGELIST DE VERTEUIL
JUANITA BURNELY
RITA CASTILLO
HILTON GODEN
Claimants
and
ROSS MC LEAN
Defendant
Page 2 of 19
Before the Honourable Madame Justice Margaret Y Mohammed
Dated the 20th
day of October, 2015
Appearances:
Mr. Stefan Mungalsingh for the Claimants
Ms. Veena Badri Maharaj for the Defendant
JUDGMENT
1. On the 21st May 2015 the Defendant applied to strike out paragraph 4 of the Amended
Statement of Case on the basis that it was not compliant with pleadings, it was highly
speculative, frivolous, evidential, and an abuse of process. On the 22nd
July 2015 I ruled
that while paragraph 4 was not the best manner of pleading I did not share the
Defendant’s view that it was not a proper pleading. I therefore dismissed this aspect of
the application.
2. The Defendant also sought an order for summary judgment (“the summary judgment
application”) pursuant to 15(2) (b) CPR on the basis that the Claimants have no realistic
prospect of success on the Claim or the issue.
3. The grounds in support of the summary judgment application are: the Defendant has an
indefeasible title of a piece of land situated in Las Cuevas which comprises of five acres,
three roods and thirty four perches which is delineated and coloured pink on the plan
attached to Crown Grant Volume 288 Folio 429 and bounded on the North and East by
Crown Lands on the South by a road and on the west by a road and by the lands of W.
Mc Lean and which is now described in Volume 4289 and Folio 335 (“the lands”)
pursuant to section 37 of the Real Property Act (“the RPA”); the allegation of fraud as
stated in the Amended Statement of Case is not sufficient to succeed in a claim for fraud
to defeat the Defendant’s indefeasible title as contemplated under section 141 of the
RPA; the Claimants gave no particulars as to the specific portion of lands they occupy;
the Claimants are seeking to void a court order which they were not a party to and there is
Page 3 of 19
no sustainable claim on the facts as leaded of a claim for adverse possession since the
pleadings fall short of the requirements to support a claim of possessory title.
4. In support of the summary judgment application was an affidavit of Ross McLean which
repeated the grounds for the application and in opposition was the affidavit of Irvin
McLean (“the Claimants’ affidavit”) on behalf of all the Claimants. In the Claimants’
affidavit they contend that the Defendant’s indefeasible title obtained pursuant to section
37 of the RPA can be impugned for fraud under section 61 of the RPA and that they have
set out material facts which demonstrate the Defendant’s fraud in procuring his title. The
Claimants also contend that they are living on portions of the land and although the
Defendant has denied their occupation of portions of the lands in his Defence filed 28th
April 2015, there are letters dated 14th
October 2014 addressed to Irvin McLean on behalf
of the Defendant, stating that he was occupying a house spot on the lands and that there
are other letters sent on behalf of the Defendant which demonstrate that the Claimants
were occupying the lands.
The Claim
5. The Claimants’ case is that they have all lived on various portions of the lands. By order
of the Court on the 14th
April 2000 and entered on the 12th
September 2000 (“the vesting
order”), a Certificate of Title dated the 2nd
August 2001 Volume 4289 Folio 335 (“the
Defendant’s CT”) was issued whereby the Defendant became the registered proprietor of
the lands.
6. They allege that the information contained in the affidavits which the Defendant relied on
to obtain the vesting order was untrue; that the Defendant knowingly misled and deceived
the court with the statements made in the said affidavits which taken collectively gave a
false impression to the court and which falsely suggested to the court that he was entitled
to be endorsed as the registered owner.
7. The Claimants set out the details of their allegation of fraud at paragraph 4 of the
Amended Statement of Case as:
Page 4 of 19
“ PARTICULARS OF FRAUD
AFFIDAVIT OF ROSS MC LEAN SWORN ON THE 30TH
NOVEMBER, 1999
AND FILED ON THE 20TH
NOVEMBER, 1999.
i. The Defendant fraudulently and dishonestly represented himself to be a farmer,
when the Defendant at all material times was, and known to all persons in Las
Cuevas and otherwise, as a taxi driver, a hunter, a life-guard, and the proprietor of
the bar located at the Las Cuevas Beach Facility.
ii. The Defendant fraudulently and dishonestly stated that he had lived on the said
Land all his life. The Defendant’s father, Johnny Mc Lean and his mother, Henora
Villoreal were not living on the said Land when the Defendant was born. The
Defendant only came to live on the said Land when the Defendant’s father
became extremely ill. The Defendant’s parents asked the First Claimant’s father,
Errol Mc Lean for permission to live on the said land. Permission was granted by
Errol Mc Lean and the First Claimant, so the Defendant did not spend his
childhood living in Las Cuevas.
iii. The Defendant fraudulently and dishonestly stated that he has cultivated the said
Land. The said Land has never been cultivated and is unsuitable for farming. No
portion of the said land was ever used for agricultural purposes or cultivated by
the Defendant at any time before or after that Defendant’s fraudulent acquisition
of title.
iv. The Defendant fraudulently and dishonestly stated that he has sold crops to
villagers and visitors of Las Cuevas, when he has never been engaged in the sale
of produce.
SUPPLEMENTAL AFFIDAVIT OF ROSS MC LEAN SWORN TO ON THE 6TH
APRIL, 2000 AND FILED ON THE 6TH
APRIL, 2000.
i. The defendant fraudulently and dishonestly stated that the land was free from
encumbrances. The Defendant knowingly misled the Honourable Court by failing
to disclose that the Claimants and/or their predecessors were living on the said
Land.
ii. The Defendant fraudulently and dishonestly stated that he had rented parts of the
land to persons for the purpose of erecting dwelling houses. The Defendant failed
and/or refused to disclose to the Honourable Court that the claimants aver that the
Defendant has never rented any portions of the said Land to any persons living
thereon. The Claimants and/or their predecessors who lived on the said Land at all
material times, never recognized the Defendant as the owner or paid rent to the
Defendant. The Claimants and/or their predecessors, who had rent for their
Page 5 of 19
occupation of the said Land, paid the rent to Errol Mc. Lean who was recognized
by all as the person entitled to ownership of the said Land. Said Errol Mc Lean is
the father of the First Claimant. True copies of rent receipts issues by the said
Errol Mc lean to occupiers of the said Land are attached herein and marked
“L.C.4”.
AFFIDAVIT OF BONIFACIA HERNANDEZ SWORN ON THE 30TH
NOVEMBER, 1999 AND FILED ON THE 30TH
NOVEMBER, 1999.
i. Ms. Hernandez now deceased, was an alcoholic and lived in the Las Cuevas area.
She frequented the local bar operated by the Defendant. The Defendant
dishonestly induced Ms. Hernandez on the 30th
November, 1999 to swear, the said
Affidavit knowing that Ms. Hernandez did not have the capacity to understand the
contents of the said Affidavit or the consequence of her actions in swearing to the
said Affidavit.
ii. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.
Hernandez to swear, and dishonestly and fraudulently stated therein that the
Defendant was cultivating the said Land and selling the produce.
iii. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.
Hernandez to swear, and dishonestly and fraudulently stated therein that the
Defendant was planting and harvesting cocoa, coconuts, and other agricultural
produce from time to time.
iv. The Defendant and/or his Attorney at Law prepared the said Affidavit for Ms.
Hernandez to swear, and dishonestly and fraudulently stated therein that the
Defendant’s house was on the said Land where his parents lived. The house that
the Defendant has occupied at all material times and continues to occupy on the
said Land was the house of Vera Mc Lean, which was abandoned for some time
before the Defendant began occupying same. The Defendant’s parents have never
occupied the house of Vera Mc Lean, presently occupied by the Defendant.
AFFIDAVIT OF JOYCELYN MC LEAN SWORN ON THE 30TH
NOVEMBER,
1999 AND FILED ON THE 30TH
NOVEMBER, 1999.
i. Joycelyn Mc Lean is the wife of the Defendant as stated in the said Affidavit.
Page 6 of 19
ii. The Defendant through Joycelyn Mc Lean dishonestly and fraudulently stated that
“We have always cultivated and reaped the produce from the said parcel of
land”, when she knew same to be untrue.”
8. The Claimants averred that although they lived on portions of the lands they did not have
notice of the proceedings in the application leading up to the vesting order (“the vesting
order application”) prior to the vesting order being made and they only became aware of
the vesting order application in October 2014 when their attorney received a copy of the
court file.
9. The Claimants also averred that the Defendant attempted to assert his ownership of the
lands by writing to them and/or their predecessors from November 2000. He requested
them to either pay rent or to purchase the portion of the lands which they occupied. The
Claimants admitted that they ignored the letters since they never recognized the
Defendant as the owner. Instead they recognized Errol McLean as the person entitled to
ownership of the lands and after his death the First Claimant was recognized as the
person entitled to ownership of the lands. They had asked the Defendant to produce his
title documents but his servants and/or agents refused to do so. The Claimants first
became aware of the Defendant’s CT in 21st July 2014 when it was attached to a letter
which called upon them to pay rent or buy the portion of the land they occupied.
10. They also pleaded that they have been in undisturbed occupation of their respective
portions of the lands in excess of 16 years.
11. The reliefs which the Claimants seek in their claim are: to declare the Defendant’s CT
void since it was procured by fraud; for the Registrar General to remove the Defendant as
the registered owner of the lands from the Register Book; to declare them as the owners
who are entitled to possession of the respective portions of the lands they occupy and an
injunction to stop the Defendant from obstructing or interfering with their enjoyment of
the lands.
Page 7 of 19
The Defence
12. The Defendant set out various alternative positions in his Defence. Firstly he pleaded that
the claim is unsustainable since the Claimants are seeking to set aside the vesting order
and they were not a party to the vesting order application. He also pleaded that there is no
cause of action against him. Alternatively, he contends that the receipts which the
Claimants have annexed as proof of their occupation of the lands are with respect to other
lands and not the lands. He relies on a memorandum dated 14th
February 2000 which is
the Field Investigator’s report in the vesting order application1 (“the Field Investigator’s
report”).
13. He admits that he became the registered owner of the land by virtue of the Defendant’s
CT. He has called upon the Claimants to prove their pleaded allegations of fraud. He
pleaded that he and his parents reaped the cocoa planted on the lands and sold same. He
pleaded that he was born and grew up on the lands and his parents were always there. The
lands have always been cultivated and planted with fruit trees, in particular coconut.
14. He denied that Errol McLean owned the lands but instead pleaded that Acty Antoine
owned the lands and that Errol McLean was the owner of lands adjacent to Acty
Antoine’s land which was 6A 2R and 29 P (“the Errol McLean lands”) which Errol Mc
Lean sold in 1974 to Errol Hosein. As proof he exhibited the memorandum of transfer2.
15. He contended that neither Errol McLean nor the First Claimant could have given the
Claimants permission to occupy the lands since they were not the owners after 1974. He
denied the allegations of fraud against Ms. Hernandez and puts the Claimants to strict
proof. He also denied that Vera Mc Lean was the owner of the lands or the house on the
lands in which the Defendant’s parents lived. He pleaded that he and his siblings grew up
on the lands.
1 Exhibit A to the Defence
2 Exhibit E to the Defence
Page 8 of 19
16. The Defendant also denies the Claimants’ allegation that no notice of the vesting order
application was placed on the lands. He pleaded that Notice was placed upon the lands
for all persons including the Claimants to become aware of the vesting order application
in compliance with the RPA in order to allow them to lodge any objections. He also
pleaded that the vesting order application was advertised in local daily newspapers. He
relies on the letters which were sent on his behalf to the Claimants on the 23rd
November
2000 where he informed them that he became the registered owner of the lands by the
vesting order and the letters dated 2nd
January 2007 and 30th
August 2009 where he called
upon them to regularize their occupation of their respective portion of the lands which
they occupy.
17. The Defendant also denies that they have been in undisturbed possession of their
respective portion of the lands for at least 16 years. He pleaded that in or about
September or October 2014 the Second Claimant began to clean and construct on another
portion of the land comprising 5000 square feet and he caused his then attorney to write a
letter dated 14th
October 2014 calling upon the Second Claimant to desist from
trespassing and cease construction.
18. The Defendant also averred that he relies on section 37 of the RPA and that the allegation
of fraud pleaded by the Claimants is not of the nature contemplated under section 141 of
the RPA to impeach the indefeasible title of the Defendant.
19. Based on the pleaded case of the respective parties the issues that arise for determination
at trial are:
(a) Who owns the lands which the Claimants admit they are occupying, the
Defendant or Errol Mclean?
(b) If the Defendant owns the 5 acre parcel of land, can his title be impugned?
(c) Have the Claimants been in undisturbed possession of the lands for at least 16
years?
Page 9 of 19
The law to be applied
20. Rule 15.2(b) CPR empowers the Court to give summary judgment on the whole or part
of the claim if the claimant has no realistic prospect of success on his claim or part of
claim or issue. In Western Union Credit Union Co-operative Society Limited v
Corrine Amman3 Kangaloo JA was dealing with an application for summary judgment
by the Claimant. The learned Judge applied the English approach on applications for
summary judgment and gave the following guidance in dealing with applications for
summary judgment:
“The court must consider whether the Defendant has a realistic as opposed to
fanciful prospect of success: Swain v Hillman [2001] 2 AER 91
A realistic defence is one that carries some degree of conviction. This means a
defence that is more than merely arguable: ED &F Man Liquid Products and
Patel [2003] EWCA Civ 472 at 8.
In reaching its conclusion the Court must not conduct a mini trial Swain v
Hillman [2001] 2 AER 91:
This does not mean that the court must take at face value and without analysis
everything the Defendant says in his statements before the court. In some cases it
may be clear there is no real substance in the factual assertion made, particularly
if contradicted by contemporaneous documents: ED & F Man Liquid Products
v Patel EWHC 122
However in reaching its conclusion the court must take into account not only the
evidence actually placed before it on the application for summary judgment but
also the evidence which can reasonably be expected to be available at trial Royal
Brompton NHS Trust v Hammond (No 5) [2001] EWCA Cave 550
Although a case may turn out at trial not to be really complicated, it does not
follow that it should be decided without the fuller investigation into the facts at
trial than is possible or permissible on summary judgment. Thus the court should
hesitate about making a final decision without a trial, even where there is no
obvious conflict of fact at the time of the application, where reasonable grounds
exist for believing that a fuller investigation into the facts of the case would add to
or alter the evidence available to a trial judge and so affect the outcome of the
case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100
Ltd [2007] FSR 63.
3 CA 103/2006 Kangaloo JA
Page 10 of 19
21. The Defendant’s application to dismiss the claim is based on four broad grounds. Firstly
that his registered title is indefeasible and the allegations of fraud by the Claimants are
insufficient to defeat his title as contemplated by section 141 of the RPA. Secondly, the
Claimants did not give particulars of the portions of the lands they occupy. Thirdly, the
effect of the relief the Claimants are seeking is to impugn a court order where they were
not a party and lastly the claim for adverse possession is not sustainable since the
pleading fall short of the requirements to support a claim for possessory title.
22. While I am mindful that a Court should be hesitant to shut out a party before the trial the
guidance of Abdulai Contej CJ in Belize Telemedia Limited v Magistrate Usher4 is
also useful as he considered the interaction between striking out under the court’s case
management powers in Part 26 and the power to award summary judgment under Part 15.
His comments on the powers of the Court under Part 26 are relevant to the instant
application. He stated:
“15. An objective of litigation is the resolution of disputes by the courts through trial
and admissible evidence. Rules of Court control the process. These provide for pre-
trial and trial itself. The rules therefore provide that where a party advances a
groundless claim or defence or no defence it would be pointless and wasteful to put
the particular case through such processes, since the outcome is a foregone
conclusion.
16. An appropriate response in such a case is to move to strike out the groundless
claim or defence at the outset.
17. Part 26 of the powers of the Court at case management contains provisions for
just such an eventuality. The case management powers conferred upon the Court are
meant to ensure the orderly and proper disposal of cases. These in my view, are
central to the efficient administration of civil justice in consonance with the
overriding objective of the Rules to deal with cases justly as provided in Part 1.1 and
Part 25 on the objective of case management.”
4 (2008) 75 WIR 138
Page 11 of 19
Ownership of the lands occupied by the Claimants
23. The Claimants have admitted that they occupy portions of lands but their position is that
the lands are owned by Errol Mclean and that both Errol McLean and later the First
Claimant gave them permission to occupy the said portions. The proof of ownership of
the Errol McLean lands which they annexed is the Defendant’s CT.
24. They also admit that they were aware since November 2000 that the Defendant became
the registered owner of the lands and that although the Defendant has been asserting his
rights over the land they have chosen to ignore it since 2000 to 2014 since he failed to
provide them with proof of his ownership.
25. The Defendant’s contention is that the lands were never owned by Errol McLean and that
the previous owner was Acty Antoine. He exhibited the same Defendant’s CT which the
Claimants exhibited as proof of ownership of the lands. He also pleaded that the Errol
McLean lands which was south of the lands which was sold to Errol Hosein in April
1974. He annexed the memorandum of transfer to support his assertion. He also averred
that Errol Mclean could not have given them permission to occupy the lands since he
never owned it.
26. For the Claimants to succeed in their claim they first have to prove that the lands which
they occupy was owned by Errol Mclean, and secondly if it is that he and later his
daughter the First Claimant gave them permission to occupy portions of the lands. At this
stage there is no real substance in the Claimants’ factual assertion for the following
reasons.
27. Firstly, based on the undisputed documentary evidence Acty Antoine, not Errol Mclean
owned the lands which the Claimants admitted they presently occupy. Secondly, the
Claimants have not placed any evidence in their pleading or in the Claimants’ affidavit to
contradict the Defendant’s plea that the Errol McLean lands were adjacent to the lands.
The plan attached to the Memorandum of Transfer clearly indicates lands owned by Errol
Mclean which is adjacent to the lands. Thirdly, the Claimants have also failed to refute
Page 12 of 19
the Defendant’s plea and or the Memorandum of Transfer that the Errol McLean lands
were sold in 1974 to Errol Hosein.
28. On the first issue who owns the lands which the Claimants admit they occupy, the
contemporaneous documents namely the Defendant’s CT which was exhibited by both
the Claimants and the Defendant shows that Acty Antoine and not Errol Mc Lean was the
original owner of the lands and that the lands owned by Acty Antoine are now owned by
the Defendant.
The indefeasible title
29. Section 37 and 45 of the RPA sets out the conclusiveness of the register in the system of
registration under the RPA. Section 37 provides:
“37. Every certificate of title duly authenticated under the hand and seal of the
Registrar General shall be received, both at law and in equity, as evidence of the
particulars therein set forth, and of their being entered in the Register Book, and
shall, except as hereinafter excepted, be conclusive evidence that the person
named in such certificate of title, or in any entry thereon, is seized of or possessed
of or entitled to such land for the estate or interest therein specified, and that the
property comprised in such certificate of title has been duly brought under the
provisions of this Act; and no certificate of title shall be impeached or defeasible
on the ground of want of notice or of insufficient notice of the application to bring
the land therein described under the provisions of this Act, or on account of any
error, omission, or informality in such application or in the proceedings pursuant
thereto by the Judge or by the Registrar General.”
Section 45 provides:
“Notwithstanding the existence in any other person of any estate or interest,
whether derived by grant from the State or otherwise, which but for this Act
might be held to be paramount or to have priority, the proprietor of land or of any
estate or interest in land under the provisions of this Act shall, except in case of
fraud, hold the same subject to such mortgages, encumbrances, estates, or
interests as may be notified on the leaf of the Register Book constituted by the
grant or certificate of title of such land; but absolutely free from all other
Page 13 of 19
encumbrances, liens, estates, or interests whatsoever, except the estate or interest
of a proprietor claiming the same land under a prior grant or certificate of title
registered under the provisions of this Act, and any rights subsisting under any
adverse possession of such land; and also, when the possession is not adverse, the
rights of any tenant of such land holding under a tenancy for any term not
exceeding three years, and except as regards the omission or misdescription of
any right of way or other easement created in or existing upon such land, and
except so far as regards any portion of land that may, by wrong description of
parcels or of boundaries, be included in the grant, certificate of title, lease, or
other instrument evidencing the title of such proprietor, not being a purchaser or
mortgagee thereof for value, or deriving title from or through a purchaser or
mortgagee thereof for value.” (Emphasis mine)
30. One of the exceptions whereby the indefeasibility of the title can be challenged is by
fraud within the meaning of section 141 of the RPA. Section 141 provides:
“141. Except in the case of fraud, no person contracting or dealing with or taking
or proposing to take a transfer from the proprietor of any estate or interest shall be
required or in any manner concerned to enquire or ascertain the circumstances
under, or the consideration for which, such proprietor or any previous proprietor
of the estate or interest in question is or was registered, or to see to the application
of the purchase money or of any part thereof, or shall be affected by notice, direct
or constructive, of any trust or unregistered interest, any rule of law or equity to
the contrary notwithstanding, and the knowledge that any such trust or
unregistered interest is in existence shall not of itself be imputed as fraud.”
31. There is no definition of what constitutes “fraud” in the context of section 141 of the
RPA. In Zanim Ralphy Meah John v Courtney Allsop and ors5 Kokaram J examined
the authorities on the nature of fraud as contemplated under section 141 to impeach the
prima facie indefeasible title of the registered owner and he summed up the position,
which I respectfully adopt, as :
“25.The fraud of a purchaser of property therefore under the system of
registration in the context of section 141 means some act of dishonesty. Actual
fraud. It is not constructive or equitable fraud. A deliberate, dishonest trick
causing an interest not to be registered. An object of the transfer to cheat a man of
a known right. Although fraud is fact specific, the litmus test must be an act of
dishonesty, moral turpitude which is more than mere knowledge of an
unregistered interest.
5 CV 2010-04559
Page 14 of 19
26. Facts which therefore only amount to mere knowledge by the purchaser of
unregistered interests would fail to pass this litmus test. Facts which impute some
further act of dishonesty will not. Under this system of registration of title
therefore if a purchaser acquires land on which exists clear signs of occupation he
is not guilty of fraud.
32. There are two limbs which the Claimants seek to impugn the Defendant’s title on the
basis of fraud. Firstly, the lack of notice of the vesting orders proceedings. It was not in
dispute that the Claimants were not a party to the vesting order proceedings. The
Claimants averred at paragraph 5 of the Amended Statement of Case that although they
lived on the land they did not have any notice of the vesting order application since they
did not see any summons or affidavits prior to 2014. The Defendant pleaded that notice
of the vesting order proceedings was placed on the land in compliance with the RPA and
it was advertised in the local newspapers for persons who wished to raise objection.
33. Section 52 of the RPA provides for notification of the vesting order application by
posting a copy of the summons and affidavit on the lands and by publication in local
newspapers. The rationale is to enable affected persons to be given the opportunity to
raise any objection to the application before the Court makes a determination on the
vesting order application. The Claimants have only pleaded that they did not see any
summons or affidavits prior to 2014. They did not plead that such notification was not
placed on the lands as required by section 52. Neither have they pleaded that the notice
was not published in the newspapers. Even if the Claimants can prove that they did not
see the summons and affidavit on the lands, they still had the opportunity to intervene and
raise objection to the vesting order application since the Defendant pleaded that the
notice was published in the newspapers.
34. On this basis, even if the Claimants are able to prove the alleged lack of notice by posting
of the vesting order application on the lands, this is still insufficient to impugn the
Defendant’s title since they have not disputed the publication in the newspapers.
Page 15 of 19
35. Secondly, the aforesaid allegations of fraud which the Claimants pleaded are deliberate
acts of dishonesty which they averred were intended by the Defendant to deliberately
mislead the court. In essence the allegation of fraud relates to issues which were before
the judge dealing with the vesting order application and the effect of the instant claim is
to reverse the vesting order application.
36. In Thomas v Stoutt and Ors6, a decision on the Court of Appeal of the Eastern
Caribbean Supreme Court Byron CJ (as he then was) confirmed that for a judgment to be
set aside the “alleged fraud came to light since the hearing which it sought to impugn.
Such an action would normally be stayed or dismissed as being vexatious, unless it is
founded on a discovery of new and material evidence since the judgment.”7 Byron CJ
also went on to state that :
“The requirement that there must be a reason other than mere falsehood for
setting aside the judgment, was referred to in Flower v Lloyd (1879) 10 Ch D 327
at pages 333 and 334:
‘Assuming all the alleged falsehood and fraud to have been substantiated,
Is such a suit as the present sustainable? That question would require very
grave consideration indeed before it is answered in the affirmative. Where
is litigation to end if a judgment obtained in an action fought out adversely
between two litigants sui juris and at arm’s length could be set aside by a
fresh action on the ground that perjury had been committed in the first
action, or that false answers had been given to interrogatories, or a
misleading production of documents, or of a machine, or of a process had
been given? There are hundreds of actions tried every year in which the
evidence is irreconcilably conflicting, and must be on one side or the other
wilfully and corruptly perjured… Perjuries, falsehoods, frauds, when
detected, must be punished and punished severely; but in their desire to
prevent parties from obtaining any benefit from such foul means, the court
must not forget the evils which may arise from opening such new sources
of litigation, amongst such evils not the least being that it would be certain
to multiply indefinitely the mass of those very perjuries, falsehood and
frauds”8
6 (1997) 55 WIR 112
7 Supra at page 119
8 Supra at page 120
Page 16 of 19
37. The procedure to set aside an order obtained by fraud was elucidated by the Privy
Council in Boodoosingh v Ramnarace9 which stated:
“There is no doubt that a judgment obtained by fraud can be set aside either by
order made in afresh action brought in fraud to impeach it or on appeal to the
Court of Appeal by adducing fresh evidence sufficient to establish the fraud.
Sometimes the more appropriate remedy will be by original action…. Certainly an
appeal rather than a fresh action in fraud is the appropriate course where part only
of a judgment is being impugned. A fresh action, if well-founded, is apt to set
aside a judgment10
.
38. While the Claimants state that they only became aware of the information in the
affidavits which they allege are fraudulent, in October 2014, the facts which they seek to
impugn the vesting order are not new and certainly were available during the vesting
order application. In this regard, the issue of notice and the allegations of the fraud are
inextricably bound.
39. In my view at best the Claimants may have an arguable case based on the allegations of
fraud but they have set out no grounds to warrant a fuller investigation of the allegations
at trial given the circumstances arising from the pleadings for the following reasons.
Firstly, there was no dispute that there was an opportunity given to affected parties to
intervene in the vesting order application since there was a publication of the vesting
order application. Secondly, the affidavits which the Claimants seek to impugn were
available since 1999 to 2000. Thirdly, the Claimants have not been able to establish on
their own pleading that the lands were owned by Errol McLean as they averred. And
fourthly, the Claimants have not challenged the contents of the Field Investigator’s report
in the Claimants’ affidavit.
40. I therefore find that while the Claimants may have an arguable case, there are no
reasonable grounds presented for a fuller investigation which would add or alter the
evidence available at trial given the documents.
9 All England Official Transcripts (1997-2008)
10 Paragraph 18
Page 17 of 19
Adverse possession
41. The plea for adverse possession was not an alternative plea. I understand the Claimants’
case to be that the land is not owned by the Defendant for two reasons namely; it is
owned by Errol Mclean and if the Defendant is the registered proprietor, he procured
ownership through fraudulent acts. At the hearing of the summary judgment application I
pointed out to Counsel for the Claimants that based on the Claimants’ pleading if they
succeeded in setting aside the Defendant’s title it did not necessarily mean that they
would have extinguished the rights of the paper title owner since their case was that the
paper title owner was Errol Mclean and that neither Errol Mclean nor the person entitled
to his estate were joined in a capacity to defend an action for adverse possession.
42. On the other hand, if the Claimants failed to set aside the Defendant’s title then their plea
of adverse possession was limited to paragraph 1 of the Amended Statement of case
where they pleaded that they have been in occupation of the land, paragraphs 7 , 8 and 9
where they admitted to being in receipt of correspondence since November 2000 to July
2014 wherein the Defendant indicated that he was the owner of the lands and that he has
been calling upon them to either pay rent or purchase the portion of the lands which they
occupy. They also admitted that they ignored all the correspondence except the July 2014
letter since the Defendant failed to provide proof of ownership and he first did so in July
2014. Their last plea to ground their claim in adverse possession was paragraph 14
which stated: “Each and every Claimant and/or their predecessors, has been in
undisturbed occupation of their respective portions of the said land in excess of 16
years.”
43. In Bernard v Seebalack11
the Privy Council reiterated the importance of a proper
pleading as: “Pleadings are still required to mark out the parameters of the case that is
being advanced by each party. In particular they are still critical to identify the issues
and the extent of the dispute between the parties. What is important is that the pleadings
should make clear the general nature of the case of the pleader...”
11
77 WIR 455
Page 18 of 19
44. There has been no shortage of case law emanating from this jurisdiction on the extent and
clarity which is required in pleading a claim for adverse possession. In Nelson v De
Freitas12
Pemberton J opined that the facts relied upon to establish ‘adverse possession’
must be cogent and clearly stated in the defence. In Lystra Beroog & Anor. v Franklin
Beroog13
Kokaram J observed that a claim for adverse possession “pits the rights of
persons in occupation against the title owners of the property. It is a short hand
expression for the type of possession which can, with the passage of years, mature into a
valid right. It is therefore a very serious and significant claim where that type of
occupation will trump a legal right. The claim must therefore be carefully scrutinized to
determine the character of the land, the nature of the acts done upon it and the intention
of the occupier. The onus of establishing the defence of adverse possession is on the
Defendant who put it forward”.
45. The pleading must establish that the entry on the land was unlawful; that the possession
was for a period of at least 16 years; and the intention to dispossess. Anything short of
establishing this will not suffice. See Atkins Court Forms Volume 25(1).
46. In my view, the Claimants pleading fall very short in establishing such a claim. The only
facts which the Claimants have pleaded are that they have been in occupation of their
respective portion of the lands for over 16 years. They have failed to plead when or how
they came unto the land. They have failed to plead any facts to support an assertion of
their intention to dispossess the title owner, the Defendant. Indeed their pleading is that
they were aware that the Defendant was asserting his rights of ownership since 2000,
some 15 years before they mounted their claim for adverse possession.
47. Further, even the Claimant’s factual assertion of being in undisturbed possession of their
respective portions of the lands for 16 years is contradicted by the Filed Investigator’s
report which the Court is entitled at this stage to examine. The Field Investigator’s report
12
CV 2007-0042 13
CV 2008-04699
Page 19 of 19
was done by an independent third party from the Chief State Solicitor’s Department
during the vesting order application. The Field Investigator’s report named the persons
who were in occupation of portions of the lands, who were the Defendant’s children and
relatives namely: Solomon Mc Lean, Ricardo Mc Lean, Theresa McLean, Dianne Mc
lean and Aldywn McLean. Notably absent is any mention of any of the Claimants. In my
view the Filed Investigator’s report is a contemporaneous document which was important
and would have been considered by the Court before granting the vesting order.
48. For the aforesaid reasons I am not satisfied that the Claimants have any realistic prospect
of proving a claim for adverse possession.
Order
49. Summary judgment is granted against the Claimants.
50. The Claimants are to pay the Defendant’s costs of the summary judgment application.
51. Pursuant to Part 67.5 (2) (c) I have assessed the costs in the sum of $7,700.00 which is
55% of $14,000 since the claim was not for a monetary sum.
Margaret Y Mohammed
High Court Judge