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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015 -03484

BETWEEN

DEOSARAN BOODOORAM Claimant

AND

KRISHNA KHADAR CHANDOOL

THATAREE LEWIS

PHOOLMATIE CHANDOOL LOBAI

BERTINA CHANDOOL

HARRISCHAND CHANDOOL Defendants

Before the Honourable Madam Justice Margaret Y Mohammed

Dated the 21st September, 2017

APPEARANCES

Mr. Jerome Rajcoomar instructed by Ms. Alisa Khan Attorneys at law for the Claimant.

Mr. Brent Hallpike instructed by Ms. Kamini Persaud-Maharaj Attorneys at law for the

Defendants.

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JUDGMENT

1. The Claimant is the owner of all and singular that certain piece or parcel of land situate

at Lopinot, Arouca in the Ward of Tacarigua in the Island of Trinidad comprising one

thousand six hundred and seventeen point nine square metres and bounded on the

North and East by lands of Chandool on the South by lands of Roopnarine Singh and

on the West by Lopinot Road and which said piece or parcel of land is also described

firstly in Deed registered as No. 2683 of 1972 as measuring one hundred and fifty on

the East and West and one hundred and twenty-five feet on the North and South be

the same more or less and bounded on the North by lands of A. Besson on the South

by lands of Ramnath of the East by lands of A. Besson and on the West by Lopinot

Road together with the buildings thereon and appurtenances thereto belonging

subject to the reservations contained in deed registered as No. 14218 of 1941 (“the

disputed land”). The disputed land is described in Deed dated 6th January 1992 and

registered as No. DE 199200692088 (“the 1992 Deed”). The Claimant commenced the

instant claim after the Second Defendant caused a concrete structure to extend over

the northern boundary of the disputed land. The reliefs which the Claimant seek

against the Defendants are:

a. An order for possession of the disputed land.

b. An order that the Claimant is the registered owner of the disputed land.

c. An order that the Defendants and their servants/agents forthwith remove

themselves from the disputed land.

d. Damages for trespass to the disputed land.

e. An injunction restraining the Defendants whether by themselves or by their

servants and/or agents or otherwise howsoever from entering, being in

occupation of or in any way interfering with the Claimant’s occupation of

the disputed land.

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f. An injunction to restrain the Defendants whether by themselves or by their

servants and/or agents or otherwise howsoever from molesting,

threatening, annoying or in any way interfering with the Claimant’s

occupation and use of the disputed land.

g. An injunction to restrain the Defendants whether by themselves or by their

servants and/or agents or otherwise howsoever from remaining on or

continuing occupation of the disputed land.

h. An order setting aside the orders of:

i. Deyalsingh J in H.C.A. 4171 of 1982 (“the 1982 action”) Bertina

Chandool v Balla Boodram and Rookmin Boodram.

ii. Ramlogan J in H.C.A. No. 721 of 1992. (“the 1992 action”) Bertina

Chandool v. Deosaran Boodooram and Marilyn Boodooram.

The Claim

2. The Claimant has grounded his claim on three limbs. He averred that he has a superior

title to any title of the Defendants. He pleaded that the root of title associated with the

disputed land is as follows:

(a) By Deed dated the 12th March 1941 and registered as No. 1418 of 1941 (“the

1941 Deed”) the Administrator General, Thomas Malcolm Milne sold to the

Claimant’s uncle, Dokin Boodooram, the disputed land.

(b) By Deed dated the 25th July 1958 and registered as No. 9400 of 1958 (“the

1958 Deed”) Dokin Boodooram sold the disputed land to George Adolphus

Jack.

(c) By Deed dated the 17th February, 1972 and registered as No. DE 1972 0268

3098 (“the 1972 Deed”) Eltha Dorothy Jack, the legal personal

representative of George Adolphus Jack, deceased conveyed the disputed

land to Eltha Dorothy Jack, Peter Jack and Gemma Jack.

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(d) By the 1992 Deed Eltha Dorothy Jack, Peter Jack and Gemma Jack conveyed

the disputed land to the Claimant.

3. The Claimant averred that since he purchased the disputed land in 1992 he left it

vacant, while he saved money with the intention of constructing a house thereon.

4. The Claimant contended that the Defendants are not the owners of the disputed land

but that they are the owners of ALL that parcel of land situate formerly in the Ward

of Caura but now in the Ward of Tacarigua comprising Four Acres and abutting on

the North and West upon lands of Rajkalia, on the South upon lands of Ramsaroop

Maraj and on the East by Little Arouca River (which said parcel of land forms part of

the parcel of land comprising twelve acres three roods and five perches described in

a certain deed registered as No. 2141 of 1901) together with the buildings thereon and

the appurtenances thereto belonging ( “the four acre parcel”).

5. The Claimant asserted that the root of title associated with the four acre parcel is as

follows:

(a) By Deed of Conveyance dated the 11th November, 1976, and registered as

No. 19763 of 1976 (“the 1976 Deed”) Gladys Claire Harris, the legal

personal representative of Conrad Knowlson Harris, deceased conveyed to

James Francis Chandool the four acre parcel.

(b) By Deeds of Assent dated the 6th September, 1983 and registered as No.

20868 of 1983 (“the 1983 Deed”) and No. 20869 of 1983, Bertina Chandool,

the legal personal representative of James Francis Chandool, deceased

conveyed from the estate of the deceased to herself the four acre parcel in

fee simple on trust for herself and the children of the deceased.

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(c) By Deed of Conveyance dated the 1st September, 2003 and registered as No.

DE 2003 036532 (”the 2003 Deed”), Bertina Chandool, the legal personal

representative conveyed to herself and to the children of the deceased,

Harrischand Chandool, Krishna Khadar Chandool, Thataree Lewis and

Phoolmatie Chandool Lobai, the four acre parcel in fee simple as tenants in

common in the following shares- a one third share and interest to herself

and a one sixth share and interest for each child.

6. The Claimant also pleaded that there were three previous High Court actions

instituted by the Defendants and their ancestors concerning the four acre parcel and

that the orders obtained in those matters were obtained by fraud and was an attempt

by James Chandool and later the Fourth Defendant to mislead the Court. The Claimant

averred that the Defendants predecessor in title James Francis Chandool, the Fourth

Defendant’s husband commenced High Court Action No. 3692 of 1979 (“the 1979

action”) against the Claimant’s parents Bala and Rookmin Boodram who were

occupiers and not the owners of the disputed land. The claim was in respect of an

alleged wrongful occupation by the Defendants. Bala and Rookmin Boodram’s

defence was that the disputed land was owned by members of the Jack family who

had permitted occupation of the disputed land. In support of the claim, a survey plan

was prepared by a licensed surveyor Michael Boucaud in 1978 (“the 1978 plan”) for

James Chandool. In the 1978 plan Mr Boucaud concluded that the parcel of land

owned by James Chandool was three acres two roods and twelve perches.

7. James Francis Chandool passed away during the 1979 matter and his wife Bertina

Chandool, the Fourth Defendant commenced High Court proceedings HCA 4171 of

1982 (“the 1982 action”) against Bala and Rookmin Boodram. According to the

Claimant’s pleading, the issues in dispute were the same as in the 1979 action. The

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Honourable Mr Justice Deyalsingh consolidated the proceedings in the 1979 action

and the 1982 action and on 21st November, 1983 (“the 1983 order”) he granted an

injunction against Bala and Rookmin Boodram ordering them to break down wooden

structures which they had built on the disputed land.

8. The Claimant asserted that the 1983 order was obtained by fraud and was an attempt

by the Fourth Defendant to mislead the Court since the 1983 Deed the Defendants

were entitled to a four acre parcel of land, however the 1978 plan showed the area of

land claimed by the Defendants consisted of three acres, two roods and twelve perches

and it wrongfully claimed the land which was occupied by Rookmin Boodram.

Further the 1978 plan failed to take into account four other parcels of land which were

owned by the Defendants situated to the west of the three acre two roods and twelve

perches parcel which the Fourth Defendant failed to disclose to the Court.

9. The Claimant also averred that after he purchased the disputed land, the Fourth

Defendant instituted the 1992 action against him and his wife Marilyn Boodooram.

On 16th March, 1992 (“the 1992 order”) the Honourable Mr Justice Ramlogan granted

an interim injunction restraining the Claimant and his wife (the Defendants in those

proceedings) from entering onto the four acre parcel. The 1992 action did not go to

trial and was not disposed of on the merits.

10. The Claimant asserted that the Fourth Defendant also obtained the 1992 order based

on fraud and an attempt to mislead the Court. The Claimant averred that the Fourth

Defendant relied on a survey plan dated 16th June 1984 (“the 1984 plan”) prepared by

Mr Michael Boucaud and she failed to disclose that she had conveyed lands situated

to the left of the Lopinot Road to The Church of God of Prophecy by Deed of

Conveyance dated the 8th February 1985 and registered as No. 4575 of 1985 (“the 1985

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Deed”) and to The Incorporated Trustees of the Sanatan Dharma Maha-Sabha of

Trinidad and Tobago by Deed of Gift dated 28th September 1987 and registered as No.

19353 of 1987 (“the 1987 Deed”).

11. In the 1985 Deed the Fourth Defendant conveyed onto The Church of God of

Prophecy, all and singular that piece or parcel of land situate in the Ward of Tacarigua

in the Island of Trinidad comprising six hundred and ninety-six point eight square

metres (696.8 m2) (being portion of a larger parcel of land comprising four acres

described in the 1983 Deed) and bounded on the North by other lands of Bertina

Chandool on the South by a Temple Site on the East by the New Lopinot Road and on

the West by Old Lopinot Road.

12. In the 1987 Deed, the Fourth Defendant conveyed onto The Incorporated Trustees of

the Sanatan Dharma Maha-Sabha of Trinidad and Tobago all and singular that certain

piece or parcel of land situate in the Ward of Tacarigua in the Island of Trinidad

measuring approximately fifty-five (55) feet on the Northern and Southern boundary

lines and one hundred (100) feet on the Eastern and Western boundary lines (being

portion of a larger parcel of land comprising Four Acres described secondly in the

Schedule to the 1983 Deed) and bounded on the North by other lands of Bertina

Chandool on the South by lands of Soogandai Sirpatsingh and others on the East by

New Lopinot Road and on the West by lands of Sookdeo.

13. After the 1992 action commenced, the Claimant averred that the Fourth Defendant

further sold two other properties out of the four acre parcel and she failed to disclose

it to the Court in the 1992 action. In particular the Claimant pleaded that by Deed of

Conveyance dated the 3rd September 1992 and registered as No. 16737 of 1992 (“the

1992 Deed”), the Fourth Defendant conveyed onto Felix Valere all and singular that

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certain piece or parcel of land situate at Lopinot Road, Arouca in the Ward of

Tacarigua in the Island of Trinidad comprising one thousand and fifty point two

square metres (1050.2 m2) and bounded on the North and East upon the New Lopinot

Road on the South upon other lands of Bertina Chandool and on the West partly by

other lands of Bertina Chandool and partly by the Old Lopinot Road.

14. Further, by Deed of Conveyance dated 22nd July 1994 and registered as No. 3910 of

1995 (“the 1995 Deed”), the Fourth Defendant conveyed to the Republic of Trinidad

and Tobago all and singular that piece or parcel of land situate in the Ward of

Tacarigua in the Island of Trinidad comprising one thousand and forty three point

two (1043.2 m2) be the same more or less and shown coloured pink being a portion of

a larger parcel of land comprising Four Acres which is secondly described in the

Schedule to the 1964 Deed.

15. The Claimant contended that the total acreage of land comprised in the above

mentioned four deeds which were sold out of the four acre parcel, when added to the

three acre two roods and twelve perches amounted to 4.39 acres which is 0.39 acres

more than what the Defendants was entitled to by 0.39 acres (equivalent to 1578 square

metres) which is almost equivalent to the disputed land.

16. The Claimant averred that he has paid land and building taxes from 1992 until 2009

for the disputed land. The Claimant’s allegations of trespass are: the Second

Defendant and her husband had built a foundation adjoining the land to the disputed

land prior to January 2014 and in or about January 2014 they encroached by

approximately twelve to fifteen feet onto the disputed land by extending the said

foundation. On or about the 17th May 2014, the Second Defendant and her husband

filled the said foundation with concrete.

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17. On the 1st June 2014, Bobby Chandool and his son began digging holes and casting

steel posts on the south-eastern end of the boundary of the disputed land. At that time

six pillars were erected and work had begun to enclose the disputed land.

18. On the 11th June 2014, a pre-action protocol letter was sent to the Defendants asking

them to refrain from their actions on the disputed land. In the Defendants reply dated

25th July 2014 they indicated that they will relate information to the Claimant’s

attorney regarding the location of the lands described in the 1941 deed. However, no

action was taken by the Defendants after they replied by letter 25th July 2014.

19. On or about April, 2015 the Defendants erected a few rows of bricks on the disputed

land and then stopped. On Saturday the 1st August, 2015 the Claimant observed that

the disputed land was being cleared by the Fifth Defendant, and other persons. On

the 16th January, 2016 the Defendants deposited a load of sand on the disputed land.

On the 17th January 2016, the Defendants cleared the disputed land again by cutting

the grass, and continuing the building of the structure and on the 19th January, 2016

the Defendants continued the building of the structure.

The Defence

20. The Defendant admitted that they are the owners of the four acre parcel described in

the 2003 deed. They asserted that the four acre parcel was surveyed by Mr Michael

Boucaud in 1984 and the plan dated 16th June 1984(“the 1984 plan”) is registered as No

87302 in the Land and Surveys Division. The Defendants have disputed the Claimant’s

case on three grounds. They pleaded that the Claimant does not have a reasonable

cause of action since he has failed to demonstrate that he has title/or superior title to

the disputed land. The Defendants averred that their title is superior to the Claimant’s

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title since in addition to the Deeds pleaded by the Claimant they also rely on Deed No

2141 of 1901 (“the 1901 Deed”) and Deed No 3153 of 1964 (“the 1964 Deed”) to prove

their superior title.

21. The Defendants admitted the 1979 action, the 1983 action and the 1992 actions.

However, they contended that there was no fraud or attempt to mislead the Court in

obtaining the orders in the said actions. They averred that the instant claim is an abuse

of process since the issue of title to the disputed land was decided by the 1983 order

and it has been res judicata for over 30 years. The Defendants pleaded that in the 1982

action there was due process of law whereby the Defendants (Bala Boodram and

Rookmin Boodram) offered evidence, were represented by Counsel were granted an

opportunity to cross examine the Fourth Defendant and the surveyor Mr. Michael

Boucaud. After the decision in the 1982 action i.e. the 1983 order, the Claimant’s

predecessor in title failed and/or refused to appeal the said decision.

22. The Defendants also averred that the Claimant’s insertion of a cause of action of fraud

is an abuse of process since he is attempting to quash the 1983 order without an appeal

and/or adhering to the due process of the law. They asserted that fraud does not arise

as the Claimant’s complaint is based on facts subsequent to the decision in the 1983

order.

23. In response to the Claimant’s allegations of fraud, the Defendants averred that they

owned the four acre parcel and that the 1984 plan correctly identified the Defendants’

land south of the New Lopinot Road which includes the disputed land. The 1984 plan

also identified the Defendants land South of the Lopinot Road and in particular to the

illegal occupation and/or trespass of Rookmin Boodram. Further, the Defendants

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averred that the conveyances were done after the 1983 order and concerned land

which are not in dispute.

24. With respect to the allegations of fraud concerning the 1992 action the Defendant

averred that the Fourth Defendant disclosed to the Court materials that demonstrated

her title in the disputed land. In the 1992 action the Claimant (who was the Defendant)

had his opportunity to file responses and engage in the due process of the law.

25. On the Claimant’s allegation of the calculation of the four acre parcel, the Defendants

averred that the Claimants’ arithmetic is flawed since all four parcels of the four acre

parcel together with the property described in the 1984 plan constituted the four acres.

26. In response to the Claimants allegations of trespass, the Defendants averred that all

works done by the Second Defendant her servants and/or agents were done on the

four acre parcel. They averred that since 1988 the Second Defendant has been

constructing her home on a portion of the four acre parcel when the foundation

measuring 24 feet by 40 feet was dug out and four posts were erected. The Second

Defendant then halted construction until in or around 1993 when the foundation

works continued and materials were purchased. In or around 2010 foundation blocks

were placed and filled with dirt from time to time, until it was finally completed in or

around 2012. The Second Defendant received WASA connection in 2010.

27. The Defendants denied that the Fifth Defendant who is also called “Bobby Chandool”

dug holes or enclosed the disputed land. They averred that all works done by the

Fifth Defendant were conducted on the four acre parcel.

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28. The Defendants also averred that their former Attorney at Law, Mr. Maurice Haynes

exchanged several correspondences between himself and the Claimant’s Attorney at

Law relative to this matter, which went beyond 2014.The Defendants pleaded that

since January 2016 despite great hardship being experienced in their living

arrangements they gave an undertaking not to carry out further construction on the

four acre parcel until the determination of the instant matter.

29. The Defendants also averred that they have been in exclusive and undisturbed

possession of the disputed land for an excess of 16 years, whereby they have cleaned,

cleared, planted, harvested and lived on it. They averred that during the period 1992

to 1998 they have been subjected to ridicule and threats and on the 5th June 2014 the

Claimant, his servants and/or agents destroyed posts which were installed on the four

acre parcel.

30. The Defendants have counterclaimed that they are the owners of the four acre parcel;

special damages for the acts of trespass in June 2014 in the sum of $2,150.00; damages

for the acts of trespass in June 2014; aggravated damages and costs.

31. In the course of the instant matter, the Third Defendant passed away and nobody was

substituted to represent her interest.

The issues

32. The issues for determination are as follows:

(a) Whether the Claimant ought to be prevented from litigating this claim on

the ground of res judicata or abuse of process;

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(b) Where is the location of the disputed land and is it within the four acre

parcel ; and

(c) If the disputed land is where the Claimant alleges, whether the Defendants

are now entitled to same by reason of adverse possession.

33. At the pre-trial review the parties agreed to the appointment of a joint expert in the

field of land surveying. They agreed on Christian Persad (“the Expert”) who prepared

a report (“the expert’s report”) for the Court and who presented himself for cross-

examination at the trial.

34. At the trial, the Claimant gave evidence on his behalf and he also called three

witnesses namely, Lena Kalloo, Kern Sargeant and Joseph Sookhoo Maltin. The

Second, Fourth and Fifth Defendants gave evidence on their behalf and they also

called Mr. Michael Boucaud.

Whether the Claimant ought to be prevented from litigating this claim on the

ground of res judicata or abuse of process

35. Halsbury’s Laws of England1 describes the doctrine of res judicata as:

“The doctrine of res judicata provides that, where a decision is pronounced by

a judicial or other tribunal with jurisdiction over a particular matter, that same

matter cannot be reopened by parties bound by the decision, save on appeal. It

is most closely associated with the legal principle of cause of action estoppel',

which operates to prevent a cause of action being raised or challenged by either

party in subsequent proceedings where the cause of action in the later

1 Vol 11 (2015)) para 1603

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proceedings is identical to that in the earlier proceedings, the latter having been

between the same parties (or their privies), and having involved the same

subject matter. However, res judicata also embraces 'issue estoppel', a term that

is used to describe a defence which may arise where a particular issue forming

a necessary ingredient in a cause of action has been litigated and decided, but,

in subsequent proceedings between the same parties involving a different cause

of action to which the same issue is relevant, one of the parties seeks to reopen

that issue. For this reason, res judicata has been described as a portmanteau

term which is used to describe a number of different legal principles with

different juridical origins upon which the courts have endeavoured to impose

some coherent scheme only in relatively recent times.”

36. Halsbury’s Laws of England 2 describes estoppel by record as:

“Under the doctrine of res judicata, a matter that has been adjudicated on by a

competent court cannot be re-litigated; thus a form of estoppel known as

estoppel by record arises when a judgment has been given which is a matter of

record, principally matters appearing on the records of courts of law. Estoppel

by record may now arise whether or not the judicial decision in question has

been pronounced by a tribunal that is required to keep a written record of its

decisions.

The rationale for the existence of estoppel by record can be summed up in two

expressions:

(1) that it is in the public interest that there should be an end of litigation; and

(2) that no one should be proceeded against twice for the same cause.

2 Vol 11(2015)) para 1610

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It accords with the first of these expressions that a party relying on estoppel

by record should be able to show that the matter has been determined by a

court of competent jurisdiction in a judgment which is final.”

37. The elements that give rise to issue estoppel are:

(a) The issue in the previous proceedings must have been the issue raised in

the current proceedings;

(b) The issue must have been determined by a Court of competent jurisdiction;

(c) The decision on the issue must have been conclusive; and

(d) The litigant in the existing claim must have been the litigant in the previous

proceedings or his privy.

38. Halsbury’s Laws of England3 categorises three classes of privies namely:

(1) privies in blood (for example, ancestor and heir) ;

(2) privies in law (for example, (formerly) tenant by the curtesy or in

dower) and others that came in by act in law (for example, testator

and executor, intestate and administrator, bankrupt and trustee in

bankruptcy);

(3) privies in estate or interest (for example, testator and devisee ,

vendor and purchaser, landlord and tenant, a husband and his wife

claiming under his title and a wife and a husband claiming under

hers , successive incumbents of the same benefice , assignor and

3 4th ed Vol 11 (2015) at paragraph 1634

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assignee of a bond, and the employee of a corporation defending a

claim of trespass at the cost of his employers and justifying under

their title and the corporation itself ).

39. The question of whether someone is to be regarded as a privy is a question of fact. In

Carl-Zeiss-Stiftung v Rayner 4 Lord Guest stated that:

“The next requirement is that the judgment should have been between the same

parties or their privies…There is a dearth of authority in England on the

question of privies…"Privies" have been described as those who are "privy to

the party in estate or interest"5.”

40. It was submitted on behalf of the Defendants that the 1983 order granted possession

of the four acre parcel to Bertina Chandool (ie the Fourth Defendant); ordered Bala

and Rookmin Boodram to tear down the structures they had constructed and it

restrained them from re-entering. Counsel for the Defendants contended that the 1983

order made the order for possession based on the 1978 plan, therefore the Court

considered the issue of the location of the four acre parcel and the land Bala and

Rookmin Boodram were occupying. Counsel also submitted that the Claimant is a

privy of Bala and Roookmin Boodram since they were his parents and that the

Claimant’s plea of fraud which was designed to set aside the 1983 order was a bare

pleading and was not made out on the evidence.

41. In response the Counsel for the Claimant argued that in the absence of a written

judgment for the 1983 order it is impossible to determine with certainty whether that

issue, which the Claimant concedes was raised on the pleadings, was determined at

4 [1966] 2 All ER 536 5 Supra page 566

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the trial. Further, even if it was determined and may raise the estoppel, the Claimant

cannot, as a matter of law, be regarded as a privy of Bala and Rookmin Boodram in

this matter and therefore cannot be bound by the 1983 order; and the Claimant’s

pleading of fraud is an alternative pleading which only becomes relevant if the Court

finds that the Claimant is a privy and that there is evidence of fraud.

42. In light of the submissions, it appeared that the Defendants did not pursue that the

1992 order gave rise to the issue of res judicata and abuse of process. In any event, the

1992 action was not determined at trial and it was only with respect to an interim

injunction order where the Defendants (the Claimant in the instant case and his wife)

had given an undertaking.

43. Is the Claimant a privy of Bala and Rookmin Boodram? In my opinion, he is not a

privy of his parents by virtue of blood neither is he a privy of estate or interest. In

Spencer and Spencer v Williams6 the Court held that a child is not automatically a

privy of the parent unless the child is claiming rights through the parent. In that case

the children commenced probate proceedings in their own right after previous

proceedings involving their parents had been dismissed on the merits. Lord Penzance

noted at pages 235-236:

“In the suit before me the parties are not the same as in the suits in the Court

of Chancery, nor do they claim under the same. The parties in the suits of

Chancery were Sarah Spencer, Samuel Williams, and others. Here the

plaintiffs are the children of Sarah Spencer, but they do not claim through

their mother as such, or under her in her character of administratrix of their

father; they rest their claim on the ground that Mary Emsley died intestate,

leaving certain next of kin, who have all renounced and refused to take

6 (1871) L.R. 2 P. & D. 230

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administration, and that they are the next of kin of one of the next of kin of

the deceased, and that without a grant they cannot obtain that to which they

are entitled. They invoke the rule of this Court under which, if the next of

kin choose to stand aside and renounce their rights, the next of kin of the

next of kin is entitled to represent the intestate. It would be improper to say

that, applying in that character, they derive their title through their mother,

Sarah Spencer. She might have applied herself, but she elected to stand aside.

If she had come here, it is hardly necessary to say that Williams would have

been bound by the decision of the Court of Chancery as against her; but is

he barred as against the children? They claim this grant on the ground that

they are the children of their father, and kin of the next of kin of Mary

Emsley; but they do not claim the grant through their father, still less do they

claim it through their mother in the character of their father's executrix.

They stand on an independent right which accrued to them in relation to

Mary Emsley's estate upon the renunciation of the next of kin who had the

prior right.”

44. The case of Liverpool and North Wales Steamship Company v Mersey Docks 7

provides learning on privies in estate or interest in land matters. This case involved a

parcel of land which had been leased to a company by crown leases. On the parcel of

land was a jetty which had been constructed outside of the boundaries approved

contained in the provisional order giving the company the parcel of land. The

company was wound up and dissolved and eventually the portion of land containing

the jetty was acquired by the Plaintiff. After discovering the issue with his title, the

7 [1909] 1 Ch 209

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Plaintiff procured new crown grants in respect of the area of the land on which the

jetty was located. The Court noted that in litigation involving a parcel of land, a litigant

who does not derive title from a previous owner is not to be regarded as a privy of the

previous owner. Farewell LJ commented at page 217:

“Notwithstanding what has been urged before us, I do not understand any

ground on which the defendants can be debarred from setting up the truth

unless it is by estoppel. Even assuming that the original company would

have been estopped, as to which I express no opinion, I cannot see how Mr.

Horton, claiming as he does under an independent title by grants from the

Crown, can be said to be either party or privy to any estoppel so as to bring

himself within any recognized doctrine of the law.”

45. The Court found that since Mr Horton did not claim through the company but through

an independent grant of title from the crown, he could not be regarded as a privy to

an estoppel against the company (if there was one).

46. In Lady Wenman v McKenzie 8 the Court found that a landlord is not bound by

litigation against a tenant unless the tenant was litigating with the landlord’s express

authority.

47. The Defendants in the 1982 action Bala and Rookmin Boodram were not the owners

of the disputed land. They were occupiers, either as tenants, licensees or adverse

possessors. The Claimant does not derive title from his parents but he purchased the

disputed land which title can be traced to the 1941 Deed, the 1958 Deed, the 1972 Deed

and the 1992 Deed. Therefore, the Claimants title is from a separate grant and not

8 (1855) 5 E & B 477

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through his parents rendering him a privy of the Jack family and not of his parents. In

my opinion, the Claimant could have only been bound as a privy of the Jacks but the

Jacks themselves were not bound by the 1983 order since they were not made a party.

48. Is the instant action an abuse of process? It was common ground that the test for

striking out a claim on the ground of abuse of process was considered by the Court of

Appeal in The Attorney General v Trevor Mahabir 9 which applied the test

formulated by the House of Lords in Johnson v Gore Wood10. Mendonca JA stated at

paragraph 23 that:

“23. In our judgment the approach recommended in Johnson v Gore

Wood in relation to the Henderson type abuse and endorsed in Glauser

in a case that more approximates this matter, is the appropriate one.

What is required is a balancing exercise of the competing public and

private interests taking into account all the circumstances of the case

focusing attention on the question whether in all the circumstances the

claimant is misusing or abusing the process of the Court by seeking to

pursue the second claim. Of course, as we have mentioned, the Court

must seek to give effect to the overriding objective which is to deal with

cases justly (see rule 1.1 of the CPR) and one of the factors that must be

taken into account is whether in pursuing the second claim there is a

disproportionate use by the claimant of the Court’s resources. This

entails an appreciation of the extent to which the combined effect of the

earlier proceedings and the present claim places a disproportionate

burden on the Court’s resources (see Wahab v Khan and Ors [2011]

EWHC 908). After considering all the relevant circumstances the Court

9 Civ Appeal P238 of 2013 10 [2001] 1 All ER 481

Page 21 of 52

must then form a judgment as to what justice requires overall.”

(Emphasis added).

49. In Johnson v Gore Wood & Co11the House of Lords examined privies on the basis of

res judicata. The Court noted that the Court should be cautious in shutting out a party

where he is not the same party in an earlier action but his privy. Lord Millet stated at

page 526 at paragraph g as follows:

“Particular care, however, needs to be taken where the plaintiff in the second

action is not the same as the plaintiff in the first, but his privy. Such situations

are many and various, and it would be unwise to lay down any general rule.

The principle is, no doubt, capable in theory of applying to a privy; but it is

likely in practice to be easier for him to rebut the charge that his proceedings

are oppressive or constitute an abuse of process than it would be for the original

plaintiff to do so.”

50. Counsel for the Defendants submitted that there are no special circumstances and

that the only further material was the expert’s report by the Expert.

51. However, it was argued by Counsel for the Claimant that it would be unjust to prevent

the Claimant from ventilating his claim since he never had the opportunity to litigate

his entitlement to the disputed land. It was also argued that based on the pleaded facts

it is impossible to conclude that the Claimant is pursuing a second claim and is

misusing the Court’s process since the Claimant is the first person in his line of title to

litigate the title to the disputed land.

11 [2001] 1 All ER 481

Page 22 of 52

52. I am not of the opinion that the Claimant has misused or abused the Court’s process

in pursuing the instant claim. The Claimant was not a privy to the 1982 action therefore

the issue of where the disputed land is situated in the context of the four acre parcel

was not put forward by the respective owner of the disputed land. Further, through

no fault of the Claimant, the 1992 action was not determined on its merits since he was

a Defendant and the onus was on Bertina Chandool who was the Claimant to

prosecute the matter.

53. The underlying purpose for the doctrine of res judicata is that there may be finality in

litigation. However, one of the exceptions to the doctrine is where the decision has

been obtained by fraud or the Court was misled in arriving at its decision. Having

found that the Claimant was not a privy of Bala and Rookmin Boodram, it is not

necessary at this stage to address the allegations of fraud made by the Claimant in the

obtaining of the orders in the 1982 action and the 1992 action. In my opinion, it is more

appropriate to deal with this issue after I examine the evidence.

54. Did the Defendants waive their rights to raise the objections on the grounds of res

judicata and abuse of process? It was submitted by Counsel for the Claimants that the

Defendants are not entitled to rely on res judicata or abuse of process as they have

waived any entitlement to do so by engaging in a dispute on the merits of the matter

despite raising res judicata and abuse of process in their pleadings.

55. It was argued on behalf of the Defendants that the issue of waiver does not arise since

at the case management stage the Court took the approach that a swift trial will

determine all the issues between the parties in the matter.

Page 23 of 52

56. In Chambers v An Bord Pleanala12 the Supreme Court of Ireland stated that the

subsequent actions of a party amounted to waiver where it had raised res judicata.

Egan J stated at page 145 that:

“It was argued but the Court was not really pressed to hold that this

question had been answered inferentially by Blayney J on the 11th

February, 1990, when he refused the applications then before him. It is

true that the first defendant did not join the second defendant in its claim

but this would not necessarily, in my view, have prevented the matter

from being res judicata. I have decided, however, that any inference to be

drawn from the decision of Blayney J was effectively waived by the

plaintiffs when they consented to the actual trial of the issue with which

we are dealing. I would have thought that the plaintiffs would not have

consented to the trial of the issue if they were satisfied that the issue had

already been decided.”

57. It was not in dispute that the Defendants raised a plea of abuse of process. In my

opinion the Defendants actions amounted to a waiver of it pleas of res judicata and

abuse of process as raised in their Defence. During the case management stage of this

matter, the boundaries of the disputed land in the context of the four acre parcel was

identified as one of the main substantive issue to be determined at trial. At the request

of Counsel for the Claimant and to which Counsel for the Defendants agreed, the

parties visited the site and engaged in discussions to resolve the matter at the pre-trial

stage. The discussions having not borne fruit, the Court took the position that the only

way that the matter was to be resolved between the parties was by a trial of the main

substantive issue. When the Court indicated this approach there was no objection by

12 [1992] 1 IR 134

Page 24 of 52

Counsel for the Defendants and instead both the Claimant and the Defendants agreed

to the appointment of the Expert to assist the Court in the determination of the main

substantive issue. Further, both the Claimant and Defendants actively participated in

the expert’s survey; they complied with all the Court’s direction in preparation for the

trial in particular they agreed in the agreed facts and issue filed on the 21st October

2016 that an agreed issues was “what constitutes the original four acre parcel which

belonged to the Defendants”. Counsel for the Defendant also appeared with Counsel

for the Claimant before the Court on 2nd May, 2017 and agreed to vacate the first day

of trial to allow for the expert’s report to be completed on the basis that this would

substantially deal with most of the matter.

Where is the location of the disputed land and is it within the four acre parcel?

58. The major issue in dispute between the Claimant and the Defendants relate to the

location of the disputed land and the four acre parcel since both have claimed that

their respective parcels are located in the same area, opposite the Shiv Mandir off of

the Lopinot Road.

59. The boundaries for the disputed land as described in the 1992 Deed are:

(a) North and East by lands of Chandool;

(b) South by lands of Roopnarine Singh and

(c) West by Lopinot Road.

60. The boundaries for the four acre parcel as described in the 1983 Deed are:

(a) North and West by land of Rajkalia but now of Sookram Samaroo and Mc

Kenzie;

Page 25 of 52

(b) South upon land of Ramsaroop Maraj but now of Soongandai Sirpatsingh

and

(c) East by the Little Arouca River but now of Panchoo and the Little Arouca

River.

61. Two land surveyors gave evidence on the location of the disputed land, the Expert

and Mr Michael Boucaud a witness for the Defendants. The expert’s report was dated

the 5th May 2017 and filed on the 8th May 2017. In the expert’s report he stated that he

is a Trinidad and Tobago Land Surveyor, registered with the Land Survey Board. In

July 2005 he obtained a B.Sc. Degree in Surveying and Land Information from the

University of the West Indies, and in July 2008 he obtained his license to undertake

Cadastral Surveys in Trinidad & Tobago. He is a Director of the land surveying firm

Ali, Deonanan & Associates Ltd and he has been practicing land surveying at that firm

since January 2012. He has conducted numerous surveys in Trinidad and Tobago, for

both private and public clients.

62. The Expert stated that he received joint instructions by letter dated 17th February 2017

from Instructing Attorneys at law for the Claimant and the Defendants. Attached to

the said letter were copies of the 1992 Deed and the 1983 Deed, two Cadastral index

sheets and a copy of the 1978 plan. He subsequently received from Instructing

Attorney at law for the Claimant copies of portions of two Cadastral index sheets, and

a copy of a survey plan dated September 1978.

63. To prepare the expert’s report, the Expert stated that he examined deeds, cadastral

sheets, survey plans and he conducted a survey and prepared a survey plan (“the

Expert’s plan”). With respect to the disputed land, the Expert examined a Deed

Registered as No 637 of 1925 (“the 1925 Deed”), the 1941 Deed, the 1958 Deed, the

Page 26 of 52

1972 Deed and the 1992 Deed. The Deeds which were provided to him which he

examined concerning the four acre parcel were the 1964 Deed, the 1983 Deed and the

2003 Deed. He acquired a copy of the 1901 Deed which he also examined.

64. The cadastral sheets which the Expert examined were portions of Cadastral Sheets

B.19, B.19.I and 14E from the Lands and Surveys Division which he used to identify

the survey plans.

65. The following survey plans were examined by the Expert:

a. A survey plan titled “Plan of Settlers on the Bon Air Estate” dated

December 1889 from the Lands and Surveys Division.

b. A survey plan dated 18thAugust 1978 showing a survey of two parcels of

land comprising together 4.784 Acres for Soogandai Sirpatsingh & Others

from the Lands and Surveys Division.

c. The 1978 plan.

d. The 1984 plan.

e. A survey plan dated 20th December 1984 showing a survey of a parcel of

land comprising 696.8m2 for Bertina Chandool from the Lands and Surveys

Division. This plan was identical to the plan attached to the 1985 Deed.

f. A survey plan dated 3rd May 1985 showing a survey of a parcel of land

comprising 1050.2m2 for Bertina Chandool from the Lands and Surveys

Division. This plan was identical to the plan attached to the 1992 Deed.

g. A survey plan with a date of survey stated as July 1990, showing a survey

of 11 parcels of Roopnarine Singh & others. This plan, signed by Hugo

Somarsingh – Land Surveyor, was acquired from the records of another

Land Surveyor, Mr. Anwar Ali.

Page 27 of 52

h. A survey plan dated 3rd June 1994 showing a survey of a parcel of land

comprising 1043.2m2 for Bertina Chandool for a transfer to the Republic of

Trinidad and Tobago from the Lands and Surveys Division. This plan was

identical to the plan attached to the 1995 Deed.

i. A survey plan dated 3rd January 1992 showing a survey of a parcel of land

comprising 1617.9m2 for the E. Jack & Others. This plan was attached to the

1992 Deed.

j. A survey plan dated 3rd October 1994 for a parcel of land comprising

511.0m2 for the Sanatan Dharma Maha-Sabha which he received with his

instructions on 17th February 17th 2017.

k. A survey plan dated 17th July 2009 showing a survey of a parcel of land

comprising 1938.9m2 for Bertina Chandool from the Lands and Surveys

Division.

66. The Expert also visited the site and conducted a survey. The Claimant and the Second

Fourth and Fifth Defendants were present for the survey. The Claimant pointed out

the area he claimed to be the disputed land and the Fifth Defendant pointed out some

markers which he claimed to be along the four acre parcel. The expert prepared a plan

(“the expert’s plan”) after his survey which he attached as “CP 7” to the expert’s report

and which is now reproduced as:

Page 28 of 52

67. After examining the aforesaid documents and conducting the survey the Expert made

the following observations in the expert’s report:

“a. The Claimant’s root of title in the 1941 Deed illustrated that the disputed

land is on the North and East bounded by the lands of A Besson which now

belong to the Defendants.

Page 29 of 52

b. The Claimant’s root of title in the 1941 Deed stated that the disputed land

is bound on the West by Lopinot Road.

c. The area of the smaller parcels of land sold by Bertina Chandool and those

retained by her add up to 16,012.4 m2 or 3.96 acres.

d. The 3.96 acres did not match four acres referred to in the 1983 Deed ie the

Defendants’ title deed.

e. The 1983 Deed described the four acre parcel as being bounded on the East

by the Little Arouca River but that the Little Arouca River was north of the

four acre parcel as shown in the 1978 plan.

f. The 1983 Deed does not refer to a road whereas the 1978 plan shows the

Old Lopinot Road to the West.”

68. The Expert therefore concluded that the boundaries in the 1992 Deed matched those

of the disputed land which the Claimant surveyed and the boundaries described in

the Defendants Deeds, namely the 1964 Deed and the 1983 Deed did not match the

parcel of land which the 1978 plan had shown as belonging to the Defendants.

69. The Expert was questioned extensively by Counsel for the Defendants. The material

evidence which was elicited from the questioning were the 1901 Deed and the 1941

did not have survey plans annexed to them. In the 1901 Deed there was no South

boundary for Ramsaroop Maharaj. In the 1981 Deed there was no South boundary for

Ramsaroop Maharaj/ Boodooram/ George Jack. The Lopinot Road was around in 1970.

Page 30 of 52

70. The Expert accepted that the Defendant’s root of title was earlier in date than that of

the Claimant’s. He stated that the four acre parcel was surveyed in 1978 by Michael

Boucaud and that the procedure adopted in conducting a survey includes informing

all neighbours. He stated that surveys were based on instructions which were not

necessarily from the paper title owner. He could not say if the Little Arouca River and

the Lopinot River were the same. He could not give the precise measurements for a

lot of land but he stated that when the total acreage of the Defendants’ surveys were

combined the four acre parcel was just less than four acres. He confirmed that there

are other properties in the Bon Air Estate belonging to A. Besson. He admitted that he

did not walk around the entire property of the Defendants during the survey since it

was not necessary and in preparing the expert’s plan he considered the 1978 plan.

71. The Expert also confirmed that the names on the cadastral sheets and plans are not

indicative of owners and that that the use of names in deeds and survey plans as a

guide to confirming boundaries was unreliable since the records of the Lands and

Survey Division were poorly updated and not every survey plan was lodged at that

Division. Accordingly, property could be sold to several new owners without the

descriptions of adjacent parcels ever being updated. He stated that the use of more

permanent landmarks such as rivers and roads were more reliable.

72. Mr Michael Boucaud has been a registered land surveyor in Trinidad and Tobago

since May 1972. He first became familiar with the Fourth Defendant, her husband,

James Chandool, deceased and the First, Second, Third and Fifth Defendants when he

was engaged in 1978 to survey the four acre parcel described in the 1964 Deed. Mr

Boucaud stated at paragraphs 4 and 5 of his witness statement that he used the

description of the four acre parcel in the 1964 Deed in order to conduct his survey and

Page 31 of 52

that he then produced the 1984 plan which identified the boundaries of the four acre

parcel.

73. In cross-examination, Mr Boucaud confirmed that the description in the 1964 Deed

had been the basis upon which his survey was conducted and upon which the 1984

plan was produced. Mr Boucaud also confirmed that the names of lots are only

updated on deeds after a survey has been conducted. Mr Boucaud was shown the

1984 plan and he was asked how was it possible that the 1984 plan stated that it was

done at the request of Bertina Chandool and dated after the decision in the 1983 action.

Mr Boucaud’s response was that there was a previous survey plan which he had

produced for her husband James Francis Chandool in 1978 which he had not been

referred to nor annexed to his witness statement. Mr Boucaud was presented with a

copy of the 1978 plan which the Expert had exhibited as the 3rd document in exhibit

CP6 to the expert report. Mr Boucaud confirmed that this document was the 1978 plan

prepared by him. The following is CP 6:

Page 32 of 52

74. Mr Boucaud was then asked to compare the boundaries on the 1978 plan to the

boundaries stated of the four acre parcel in the 1964 Deed by reference to the cardinal

points. The description of the boundaries in the 1964 Deed (which was used by Mr

Boucaud to conduct the survey) were as follows:

“a. On the North by the lands of Rajkalia;

b. On the West by the lands of the lands of Rajkalia;

Page 33 of 52

c. On the South by the lands of Ramsaroop Maraj; and

d. On the East by the little Arouca River.”

75. The boundaries in the 1978 plan were:

“a. On the North, partially by the lands of Sookram Samaroo;

b. On the West by the Lopinot Road;

c. On the South by the lands of Soogondar Sirpatsingh and Others; and

d. On the East, partially by the lands of Panchoo and partially by the Lopinot

River.”

76. When the contradictions between the boundaries stated in the 1964 Deed and the 1978

plan were pointed out to Mr Boucaud, he first insisted that his survey showed a river

to the East in order to give the impression that the 1978 plan matched the 1964 Deed.

Yet he subsequently admitted that the 1978 plan showed a river only partly on the

East. Mr Boucaud also admitted in cross-examination that at the time he conducted

his survey in 1978 he was not aware of the Claimant’s predecessor’s in title. He stated

that he only learned of these names subsequent to the 1978 survey.

77. Mr Boucaud was also questioned on his participation in two other matters before the

High Court namely CV 2007-02343 Pundit v Pundit and CV No. 2009-02354 Lochan

v Jagpersad and Republic Bank. He stated that he could not recall what happened

with regard to his participation in those cases.

78. There was evidence from two other witnesses on the location of the boundaries of the

four acre parcel and the disputed land. Mr Maltin’s evidence was that he is 72 years

and he lived in Lopinot all his life. In cross-examination he stated that he knew the

New Lopinot Road in 1962 and the Old Lopinot Road was there since he was a child.

Page 34 of 52

79. The Fourth Defendant’s evidence in her witness statement was that in 1964 her

husband James Francis Chandool purchased two parcels of land, one of which was

the four acre parcel, from Conrad Harris. The said Conrad Harris showed her husband

the boundaries of the four acre parcel. In 1978 Michael Boucaud was hired to conduct

a survey of the four acre parcel to determine if Bala and Rookmin Boodram had

encroached on the four acre parcel. After the 1983 order she sold four parcels of land

from the four acre parcel. The 1979 action was brought by her husband against Bala

and Rookmin Boodram since they had wrongly entered and erected a wooden house

on the four acre parcel. After her husband died she instituted the 1982 action against

the same parties. She also instituted the 1992 action since the Claimant had trespassed

on the four acre parcel.

80. In cross-examination, the Fourth Defendant admitted that in the 1964 Deed there was

no road on the West of the four acre parcel. Yet she stated that the four acre parcel was

bounded by two roads, the Old Lopinot Road and the New Lopinot Road. The Fourth

Defendant accepted that in the 1979 action the Western boundary of the four acre

parcel was stated as the New Lopinot Road.

81. The Fourth Defendant was shown her affidavit filed in the 1982 action13. She accepted

that in her affidavit filed in the 1982 action the Western boundary was stated as the

Old Lopinot Road. The Fourth Defendant initially refused to accept that if Mr Boucaud

and James Francis Chandool were wrong regarding the location of the four acre parcel,

then she too would be wrong regarding the location. However, after being pressed

repeatedly, she admitted that this would be the case.

13 Filed the 28th January 1982

Page 35 of 52

82. The evidence of the other witnesses for the Defendants with regard to the boundaries

of the four acre parcel was of little use since they have all stated that their knowledge

of the location of the four acre parcel claimed by them was derived from what James

Francis Chandool had shown them and the 1978 plan. Further like Fourth Defendant,

the Second Defendant initially refused to accept that if Mr Boucaud and James Francis

Chandool were wrong regarding the location of the four acre parcel, then she too

would be wrong regarding its location. However, after being pressed repeatedly, she

admitted that this would be the case.

83. In my opinion, the Expert’s evidence and the expert’s report were untarnished in

cross-examination. He answered all questions asked with forthrightness. He was able

to defend all of his conclusions by reference to the documents and by his knowledge

of surveying practice and his conclusions were independently verifiable on a review

of the agreed documents. I also find that the Expert’s position that the use of more

permanent landmarks such as rivers and roads would be more accurate in the

description of a boundary rather that the use of names of a person, because they did

not move, to be reasonable given that the records of the Lands and Surveys Division

were not always updated.

84. On the other hand, the reliability of Mr Boucaud’s survey exercise in 1978 was

undermined since he admitted that he was not aware of the Claimant’s predecessor’s

in title when he conducted his survey. In cross-examination he stated that he only

learned of these names subsequent to the 1978 survey. Therefore by his own admission

when he conducted his survey, he did not have the usual background information that

a reasonable and prudent surveyor would have when conducting a survey. As such

the reliability of the 1978 plan was undermined.

Page 36 of 52

85. In my opinion, the weight of the evidence presented on the location of the disputed

land supports a finding that it is highly probable that the disputed land which was

described in the 1941 Deed was the same land which was conveyed to the Claimant in

the 1992 Deed. I have arrived at this position since the description of the boundaries

using the more reliable landmark of a road, the Western boundary was described as

the Lopinot Road and Mr Maltin’s unchallenged evidence was that the New Lopinot

Road was in existence when he was a child in the 1940’s.

86. On the other hand, the 1978 plan which was the main plank of the Defendants claim

that the four acre parcel included the disputed land was proven to be unreliable in

demonstrating their contention. The 1964 Deed which was executed over 20 years after

the construction of the New Lopinot Road (which logically came after the Old Lopinot

Road had already been in existence) did not refer to the Old or New Lopinot Road and

it stated that the entire Western boundary is bounded by land (ie of Rajkalia). Mr

Boucaud’s 1978 plan for the first time suggested that there are two roads, the New

Lopinot Road running through the four acre parcel and the Old Lopinot Road which

bounds the four acre parcel on the West. It was patently clear that the boundaries in

the 1978 plan using the more reliable features of roads and rivers were very different

from that of the four acre parcel in the 1964 Deed. In particular, in the 1964 Deed the

Eastern boundary was described as the Little Arouca River and in the 1978 plan it was

described as being bounded partially by lands of Panchoo and partly by the Lopinot

River. In my opinion, there was no reasonable explanation for this significant

difference in the Eastern boundary and I absolutely reject the submission by Counsel

for the Defendants that the river changed its course over a 100 year period. In my

opinion there was no evidence presented to support the contention that the river

completely changed direction and to make such a finding would be at best speculative.

In any event, the 1964 Deed referred to the river on the Eastern boundary and the 1978

Page 37 of 52

plan shows a river in the South East. Further the river in the 1964 Deed is the Little

Arouca River and the river in the 1978 plan is the Lopinot River.

87. Further despite the 1978 plan quite remarkably in the 1983 Deed the Eastern boundary

was described as the Little Arouca River.

88. For these reasons I have concluded that the expert’s plan is an accurate representation

of the location of the disputed land in the context of the four acre parcel.

89. Having found that the description of the four acre parcel in the 1978 plan is

inconsistent with the description of the four acre parcel in the 1964 Deed it is apt at

this juncture for me to address the Claimant’s allegations of fraud on the part of the

Fourth Defendant in obtaining the 1983 order.

90. In Thomas v Stoutt and Ors14, 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.”15 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,

14 (1997) 55 WIR 112 15 Supra at page 119

Page 38 of 52

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 willfully 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”16

91. The procedure to set aside an order obtained by fraud as stated by the Privy Council

in Boodoosingh v Ramnarace17 is:

“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

16 Supra at page 120 17 All England Official Transcripts (1997-2008)

Page 39 of 52

part only of a judgment is being impugned. A fresh action, if well-founded, is

apt to set aside a judgment18.”

92. It was submitted on behalf of the Claimant that the 1978 plan was so obviously and

patently inconsistent with the description of the four acre parcel in the 1964 Deed, that

it could have only been deliberately prepared in that manner in order to unlawfully

acquire lands surrounding the Old and New Lopinot Road since no reasonable and

honest person conducting a survey based on the 1964 Deed could conclude that the

parcel of land shown in the 1978 plan matched the description in the 1964 Deed.

93. It was also submitted by the Claimant that Mr. James Chandool, the husband of the

Fourth Defendant was aware of the difference between what was described in the 1964

Deed and what was surveyed in the 1978 plan and he attempted to obtain an order in

the 1979 action which referred to the 1964 Deed but which better matched the 1978

plan.

94. As stated previously, the boundaries of the four acre parcel in t the 1964 Deed are:

(a) North and West upon the lands of Rajkalia.

(b) South upon lands of Ramsaroop Maraj.

(c) East by the Little Arouca River.

95. The boundaries used to describe the four acre parcel in the 1979 action were as

follows:

(a) On the North by lands of Sookram Samaroo and partly by the Lopinot

River;

(b) On the East partly by lands Parahoo and partly by the Lopinot River;

18 Paragraph 18

Page 40 of 52

(c) On the West by the Public Road known as the New Lopinot Road; and

(d) On the South by lands of Soogandai Sirpatsingh.

96. The four acre parcel was described in the 1982 action as three acres, two roods and

twelve perches with the following boundary descriptions:

(a) On the North by lands of Sookram Samaroo and others and McKenzie.

(There are two owners instead of one and there is no reference to any river);

and

(b) On the South by lands of Soogandai Sirpatsingh and ors.

(c) On the East by the Lopinot River and lands of Parahoo

(d) On the West by the Old Lopinot Road (instead of the New Lopinot Road).

97. The 1979 action and the 1982 action were consolidated although on the face of it they

were with respect to two parcels of land with different acreage and boundaries. The

1983 order described the four acre parcel as comprising three acres two roods and

twelve perches and bounded:

(a) On the North by lands of Sookram Samaroo and other and Mc Kenzie,

(b) On the South by the lands of Soogandai Sirpatsingh & Ors.

(c) On the East by the Lopinot River and lands of Parahoo and

(d) On the West by Old Lopinot Road.

98. Based on the descriptions of the aforesaid boundaries for the four acre parcel it was

clear that in the 1982 action the Fourth Defendant, Bertina Chandool was claiming

land on both sides of the new Lopinot Road whereas in the 1979 action her husband

James Francis Chandool had only claimed lands to the West of the new Lopinot Road.

Page 41 of 52

99. It was also obvious that the boundaries of the four acre parcel in the 1964 Deed and

the 1979 action are different with the boundaries in the 1979 action being consistent

with that of the 1978 plan. Although the 1979 action referred to the 1964 Deed it did

not use the boundaries in the 1964 Deed but used boundaries which better matched

the 1978 plan, though not entirely.

100. It is difficult to accept that James Francis Chandool, deceased was unaware of the

obvious inconsistencies between the descriptions of the boundaries of the four acre

parcel in the 1964 Deed and the 1978 plan which was the basis of the 1979 action. In

my opinion it is highly likely that he knew.

101. Based on the Fourth Defendants admissions in cross-examination it is clear that she

too was aware that the description of the four acre parcel in the 1982 action was not

consistent with that in the 1964 Deed. Therefore the weight of the evidence supports

a conclusion that both James Chandool deceased and the Fourth Defendant misled the

Court in obtaining the 1983 order.

102. Further, while the aforesaid inconsistencies were in the knowledge of James Francis

Chandool deceased and the Fourth Defendant, Bertina Chandool the Claimant only

became aware of the material inconsistencies after the 1983 order since he was not a

party to the 1979 action or 1982 action nor was he a privy by blood or estate.

103. In the 1992 action which was commenced by the Fourth Defendant, Bertina Chandool

against the Claimant and his wife, the Fourth Defendant swore to an affidavit which

was filed on the 6th March 1992 where she described the four acre parcel as comprising

four acres in the Ward of Caura and bounded on the North and West upon lands of

Rajkalia but now of Sookram Samaroo and McKenzie, on the South upon lands of

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Ramsaroop Maraj but now of Soogandai Sirpatsingh and on the East by the Little

Arouca River but now of Panchoo and the Little Arouca River. The 1992 action was

not determined on its merits and given the new material which was available to the

Claimant after the 1983 order, the order obtained in the 1992 action is also set aside.

If the disputed land is where the Claimant alleges, whether the Defendants are now

entitled to it by reason of adverse possession.

104. Having found that the disputed land is where the Claimant has asserted, it necessarily

follows that I must now determine if his title to the disputed land has been

extinguished by the Defendants allegations of adverse possession.

105. Section 3 of the Real Property of Limitation Act19 prevents the paper title owner from

the right to recover lands either by action or entry within 16 years from the time when

the right to bring the action or make an entry first accrued. Section 22 provides that

where after the expiration of the limitation period prescribed by section 3 (i.e. 16 years)

the person entitled to do so has not brought an action or made an entry for the recovery

of the land his right and title to the land shall be extinguished. The conjoint effect is

the person making the claim extinguishes the right of the title of the paper title owner

to the land at the end of the statutory period. Time stops running when the owner

either makes an effective entry on the land or takes legal proceedings.

106. The law will presume that the paper title owner, in this case the Claimant was in actual

possession of the disputed land. At paragraph 40 J A Pye (Oxford) Ltd v Graham20

the House of Lords approved the following statement from Powell v Mc Farlane21:

19 Chapter 56:03 20 [2013] 1 AC 419 21 39 P&CR 470

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"(1) In the absence of evidence to the contrary, the owner of land with the

paper title is deemed to be in possession of the land, as being the person with

the prime facie right to possession. The law will thus, without reluctance,

ascribe possession either to the paper owner or to persons who can establish a

title as claiming through the paper owner. (2) If the law is to attribute possession

of land to a person who can establish no paper title to possession, he must be

shown to have both factual possession and the requisite intention to possess

('animus possidendi')."

107. According to the learning in J A Pye (Oxford) Ltd v Graham the two elements

necessary for legal possession are (a) a sufficient degree of physical custody and

control (“the factual possession”) and (b) an intention to exercise such custody and

control on one’s own behalf and for one’s own benefit (“an intention to possess”).

108. In Bligh v Martin22, Pennycuick J opined that:

“(1) Possession is a matter of fact depending on all the particular circumstances

of a case. In very many cases possession cannot, in the nature of things, be

continuous from day to day, and it is well established that possession may

continue to subsist notwithstanding that there are intervals, and sometimes

long intervals, between the acts of user.”

109. The onus is on the party claiming possessory title, in the instant case the Defendants

to prove, on a balance of probability that they have been in continuous undisturbed

possession for the 16 years prior to 2015 (ie 1999). They must prove the two elements

of factual possession and the intention to possess.

22 [1968] 1 WLR 804 at 811 F

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110. Slade J in Powell v Mc Farlane described “factual possession” as23:

“Factual possession signifies an appropriate degree of physical control. It must

be a single and [exclusive] possession though there can be a single possession

exercised by or on behalf of several persons jointly. Thus an owner of land and

a person intruding on that land without his consent cannot both be in

possession of the land at the same time. The question what acts constitute a

sufficient degree of exclusive physical control must depend on the

circumstances of the case in particular, the nature of the land and the manner

in which land of that nature is commonly used or enjoyed. Everything must

depend on the particular circumstances, but broadly, I think what must be

shown as constituting factual possession is that the alleged possessor has been

dealing with the land in question as an occupying owner might have been

expected to deal with it and that no one else has done so.”

111. Slade J in Powell v Mc Farlane24 described the “necessary intention to possess” as:

“3. ‘intention, in one’s own name and on one’s own behalf, to exclude the world

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

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

law will allow”.

112. It was not in dispute that the Claimants are the paper title owners of the property. Did

the Defendants have factual possession of the disputed land?

113. The Defendants case on adverse possession was based on the alleged construction on

the disputed land and the alleged planting of short crops on the disputed land.

23 [1977] 38 P& CR 452 at page 470-471 24 [1977] 38 P&CR 452 at page 470

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114. With regard to the alleged construction, the Second Defendant’s evidence according

to paragraphs 9-11 of her witness statement was that:

“9. … since 1988 I have been constructing my home on the disputed lands when

the foundation was dug out and four posts were erected on a 24 foot by 40 feet

foundation.

10. I halted construction until 1993 when the foundation works continued

and materials were purchased. Further foundation blocks were placed in or

around 2010 and being filled with dirt from time to time, until the foundation

was finally completed in or around 2012…

11. By early 2014, I then commenced erecting blocks unto the said

foundation for the construction of walls…. ”

115. In cross-examination, the Second Defendant denied that the disputed land was bushy

before 2013. She stated that between1988 to 1993 there was only a foundation which

was 24 ft x 40 ft. She admitted that she stopped construction in 1993 to 2010 and that

in 2013 she restarted construction when she started to put the blocks on the

foundation. She admitted that she did not return to the foundation until she started to

put up the blocks. She also admitted that for 17 years she did not do any construction

because she had to accumulate funds. She stated that in 2010-2012 she put blocks on

the foundation, which she said was 25 x 30 feet. At first she admitted that foundation

was north of the disputed land. She then changed her evidence to state that part of the

foundation was on the disputed land and that the original foundation was 24 x 40 feet.

116. In my opinion, the Second Defendant’s evidence did not support the Defendants

contention that she was in continuous undisturbed possession of the disputed land

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since 1999. The impression which the Second Defendant sought to convey in her

witness statement as that she had been building on the disputed land since 1988.

However in cross-examination this evidence was undermined since by her own

admission she ceased construction between1993 to 2010 and she only restarted in 2013.

117. Therefore, Defendants’ failed to prove that they had continuous undisturbed

possession based on the alleged construction before 2013.

118. The Defendants evidence of planting short crops was from the Second Defendant, the

Fourth Defendant and the Fifth Defendant. According to paragraph 13 of the Second

Defendant’s witness statement she stated that:

“In the meantime, my mother has always from time to time planted the

portion the said property that is in contention and my brother

Harrischand from time to time will clean it. We have been living on the

property without interference or issue from the Claimant or any other

person since 1992 until 2014.”

119. In cross-examination, The Second Defendant was cross-examined about the Fourth

Defendant’s (her mother’s) physical ability to plant the disputed land which she

agreed was a hilly terrain. She was adamant that her mother planted the land for all

the years the Defendants have been in occupation.

120. The Fourth Defendant’s evidence at paragraph 12 her witness statement was that:

“In the meantime, I have personally planted the land and my son Harishcand from

time to time will clean it. I have planted a variety of short crops on it: bodi, cucumber,

peas, sorrel, ochro and saim. From 1992 my children and I enjoyed peace from

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interference or disruption from anyone concerning the 4 acres of land, in particular

the portion now in dispute, until 2014.”

121. In cross-examination the Fourth Defendant admitted that her husband left lots of land

after his death including a Cocoa Estate in Arouca and a large estate in Arima and that

they had workers working the lands for them.

122. Counsel for the Fourth Defendant was asked whether in 1992 the Claimant went onto

the disputed parcel and started planting coconut trees. She denied knowing anything

about that. She was then taken to paragraph 11 of her affidavit in the 1992 action

which stated:

“(11) On the 27th February 1992, the Defendants, Deosaran Boodram and

Marilyn Boodram and other members of their family came upon the said

disputed land and started demolishing the barb wire fence and the wooden

posts and removed the entire fence and planted young coconut trees on the

western portion of the said disputed lands. Also they threatened Phulmatie

Chandool, my sixteen (1^) year old daughter.”

123. After reading the paragraph, the Fourth Defendant denied that she stated that in her

affidavit. It was also put to Fourth Defendant that she had used the 1979 action and

1982 action to grab land to which she remained silent.

124. The Fifth Defendant’s evidence at paragraph 7 his witness statement was:

“I, who live in my own house on the said property, have always cleaned

and cleared the said property, while my mother has planted short crops

from time to time.”

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125. The Fifth Defendant stated in cross-examination that he had a full time job as a

mechanic but maintained that he cleaned the entire four acre parcel. He also stated for

the first time that he also planted the disputed land but unlike the Fourth Defendant’s

evidence about planting short crops, he said that she planted other trees on the

disputed land. He also admitted that his family had a number of workers but

maintained that he cleared the lands personally.

126. On the other hand the Claimant’s evidence in his witness statement was that he had

planted on the land on two occasions subsequent to 1992 and that he observed that his

boundary markers and plants had been removed on each occasion. In cross-

examination, the Claimant stated that he visited the Mandir every morning to offer

prayer and that there was no evidence of the Defendants having entered onto the

disputed land save and except with respect when he observed that his boundary

markers and plants had been removed on each occasion.

127. The evidence of Kern Sargeant was that in 2008, the disputed land contained tall bush

and many stick trees and there was no evidence of anyone being in occupation. He

stated that he was hired by the Defendants to clear the bush on the disputed land in

2008 but that the Claimant caused him to cease his work due since he was told that the

Claimant was the owner of the disputed land.

128. Lena Kalloo who occupied a house to the south of the disputed land had a view of it

and she used a staircase on the southern boundary of it in order to access Lopinot

Road observed the Defendants first trespassing onto the disputed land in 2008, then

in 2010 and then in 2014.

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129. According to Joseph Sookoo Maltin, another neighbour who observed the disputed

lands and who was familiar with all persons involved, confirmed the aforementioned

timeline by Lena Kalloo. He also stated in cross-examination that between 1992-2010

the disputed land was covered in bush. He had never seen the Fourth Defendant’s

sons planting or clearing the disputed land. He had never seen any of the Defendants

on the disputed land after the board house on it was demolished in 1988.

130. In my opinion, it was highly improbable that the Fourth Defendant who is an aged

person was able to plant the disputed land due to its hilly terrain. It was also not

plausible that the Fourth Defendant who admitted that she had workers on other

lands which she owned planted the disputed land herself and that the Fifth Defendant

who was employed on a full time basis cleared the disputed land. Indeed even if the

Defendants did any planting of the disputed land, at best it may have been periodic

and not continuous since there is no evidence as to the periods in which planting

would have occurred and in 2008 the Claimant was exercising dominion over the

disputed land when he caused Kern Sargeant to stop clearing the bush on it.

131. I have therefore concluded that the Defendants have failed to discharge their burden

that they have been in continuous undisturbed possession of the disputed land since

1999.

Conclusion

132. The action is not struck out on the basis of res judicata or abuse of process. The

Claimant was not a privy of his parents by virtue of blood neither is he a privy of

estate of interest in the 1979 action and the 1982 action. In any event, the Defendants

subsequent actions after raising this plea in its Defence demonstrated that they had

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waived these defences. Further, through no fault of the Claimant the 1992 action was

not determined on its merits. In any event, fraud and misleading the Court are two

valid exceptions to the res judicata rule. Based on the inconsistencies in the

boundaries for the four acre parcel in the 1964 Deed, the 1978 plan, the 1979 action

and the 1982 action there was sufficient material to find that the Fourth Defendant

attempted to mislead the court in obtaining the 1983 order. The order in the 1992 action

is also since the substantive issue was not determined on its merits.

133. I accept the Expert’s evidence and the expert’s report. His evidence was untarnished

in cross-examination. I find that the evidence of Michael Boucaud was undermined in

cross-examination, which did not make him a credible witness. I also find that the 1978

plan was unreliable.

134. I have concluded that the disputed land as illustrated in the expert’s plan at CP 7 is an

accurate representation of its location. This location is consistent with the boundaries

for the Claimant’s root of title the 1941 Deed and his deed, which is the 1992 Deed.

135. The Defendants have failed to discharge their burden that they have been in

continuous undisturbed possession of the disputed land since 1999. The Second

Defendant’s evidence did not support the Defendants contention that she was in

continuous undisturbed possession of the disputed land since 1999. The impression

which the Second Defendant sought to convey in her witness statement that she had

been building on the disputed land since 1988 was undermined in cross-examination

since by her own admission she ceased construction between1993 to 2010 and she only

restarted in 2013.

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136. Further, it was highly improbable that the Fourth Defendant who is an aged person

was able to plant the disputed land due to its hilly terrain. It was also not plausible

that the Fourth Defendant who admitted that she had workers on other lands which

she owned planted the disputed land herself and that the Fifth Defendant who was

employed on a full time basis cleared the disputed land. Indeed even if the

Defendants did any planting of the disputed land, at best it may have been periodic

and not continuous since there is no evidence as to the periods in which planting

would have occurred and in 2008 the Claimant was exercising dominion over the

disputed land when he caused Kern Sargeant to stop clearing the bush on it.

Order

137. Judgment for the Claimant.

138. The Claimant is the registered owner of the disputed land as described in the expert’s

plan at CP7 aforesaid.

139. Possession of the disputed land to the Claimant.

140. The Defendants and their servants/agents forthwith remove themselves from the

disputed land.

141. No award is made for damages for trespass since no evidence was led to support this

loss.

142. The Defendants whether by themselves or by their servants and/or agents or

otherwise howsoever are restrained from entering, being in occupation of or in any

way interfering with the Claimant’s occupation of the disputed land.

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143. The Defendants whether by themselves or by their servants and/or agents or

otherwise howsoever are restrained from molesting, threatening, annoying or in any

way interfering with the Claimant’s occupation and use of the disputed land.

144. The Defendants whether by themselves or by their servants and/or agents or

otherwise howsoever are restrained from remaining on or continuing occupation of

the disputed land.

145. The order by Deyalsingh J in H.C.A. 4171 of 1982 Bertina Chandool v Balla Boodram

and Rookmin Boodram is set aside.

146. The order by Ramlogan J in H.C.A. No. 721 of 1992 Bertina Chandool v. Deosaran

Boodooram and Marilyn Boodooram is set aside.

147. The Defendants counterclaim is dismissed.

148. The Defendants to pay the Claimants the costs of the claim and the counterclaim in

the sum of $28,000.00 pursuant to Part Rule 67.5(2) (c) CPR.

………………………………………

Margaret Y Mohammed

Judge