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					REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

NO. S-728 of 1999

BETWEEN

GANESH MAHABIR

PLAINTIFF

AND

1st

SAMAI BIR 2nd 3rd 4th 5th CHANDRA BIR SUNIL BIR RAMCHARAN MAHABIR SAVITRI MAHABIR DEFENDANTS

6th

CHANARDAYE SOOKHAI

Before the Honourable Mr. Justice Gregory Smith Appearances: Mr. Devindra Rampersad for the Plaintiff Mr. Hansraj Bhola for the Defendants

REASONS

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This is a family dispute over one of the houses on a parcel of land situated at 3 Rambhaju Trace, Aranguez (which said parcel of land is hereafter referred to as “the said premises”). The Plaintiff is the brother of the First, Fourth and Sixth Defendants. The Second Defendant is the wife of the First Defendant; the Third Defendant is the son of the First and Second Defendant; the Fifth Defendant is the wife of the Fourth Defendant. The parents of the Plaintiff and the First , Fourth and Sixth Defendants were Mahabir Bhadhai (also called “Bir”) (hereafter referred to as “Bir”) and Poorandaye Bhadhai (hereafter referred to as “Poorandaye”) who died on the 7th January, 1997 and 23rd August, 1997, respectively.

The Dispute on the Pleadings:The Plaintiff alleged in his Statement of Claim that Bir and Poorandaye were the joint tenants of the said premises, where Bir had constructed a house (hereafter referred to as “the main house”) which was extended and renovated into a six bedroom concrete house from the 1960‟s until 1976, using monies from a common fund contributed to by the Plaintiff and Bir. In or around 1970 Bir constructed a house for the First Defendant and in or around 1974, Bir constructed another house for the Fourth Defendant. Up to 1979 the Plaintiff, along with, Bir, Poorandaye, two other brothers (Roopdeo and Jewan) and two nieces of the Plaintiff, lived in the main house. In 1979 the Plaintiff got married and went to live with the Fourth Defendant for “sleeping

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purposes” only until in or around 1984 when Bir encouraged or persuaded the Plaintiff to return to the main house with his family on condition that if he looked after Bir and Poorandaye, he would be given the main house after their deaths. In reliance on this promise which was constantly repeated to him, the Plaintiff moved into the main house. It was alleged that the Plaintiff acted to his detriment by (a) staying in the main house instead of seeking accommodation or building his home elsewhere (b) looking after his parents on a daily basis (c) contributing over $30,000.00 on repairs, maintenance and improvements to the main house. The Plaintiff also alleged that he had such a good relationship with his father and that he would give his father all of his wages, which was added to a common fund and which was used to make disbursements to the Plaintiff and his family and his parents for the amenities of life as needed. It was alleged that upon the death of Poorandaye, the Third Defendant moved into the front portion of the main house without the licence of the Plaintiff. In or around June 1997, Poorandaye transferred the tenancy of the said premises to herself, the Plaintiff, the First Defendant and the Fourth Defendant, at the offices of Aranguez Estates Ltd. After the death of Poorandaye and up to the date of the Statement of Claim, it was alleged that the Defendants harassed the Plaintiff and caused damage to his trees, plants and other garden equipment and the Plaintiff claimed a declaration that the main house belonged to him absolutely, damages for trespass to his goods and belongings, damages for trespass to the Plaintiff‟s house and his peaceful enjoyment thereof and an injunction to prevent the Defendants from harassing him in his occupation of the main house; there was also a claim for aggravated damages and costs.

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In their Defence the Defendants contended that the Plaintiff never assisted in the renovation and extension of the main house since at the relevant time he was only fifteen years of age and was a complete drug addict by 1976. It was Bir, Poorandaye and other siblings who did the extensions and renovations. The First and Second

Defendant contended that they constructed their house in 1976 and not in 1970. The Defendants went on to state that between 1986 to 1987 Bir and another daughter named Roopdaye constructed an extension to the main house which was only separated by a step; (hereafter referred to as “the Extension”); in 1988 Bir covered over this step area to keep off the rain water. It was the Plaintiff‟s parents who gave him permission to occupy the Extension in 1986 or 1987. The Defendants stated that there were no promises made to the Plaintiff with respect to either the main house, the Extension or both and that only the Extension devolved unto the Plaintiff pursuant to the Will of Bir. The Defendants denied that the Plaintiff ever looked after his parents and contended that the conduct of the Plaintiff and his wife hastened the death of his parents. The Defendants contended that the Third Defendant was the first grandson of Bir and Poorandaye and that he lived with them from birth and they had a special love for him and eventually the main house less the Extension devolved unto the Third Defendant under Bir‟s Will. The Defendants contended that they paid the rent for the said premises and that the genesis of the problems between the Plaintiff and the Defendants was the hostile behaviour of the Plaintiff and his wife toward the Defendants.

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Summary of the Evidence The first witness to testify on behalf of the Plaintiff was Hilton Rampersad, an accounts clerk at Aranguez Estates Ltd. He stated that pursuant to a transfer by Poorandaye, dated 16th June, 1997, the registered tenants of the said premises were Poorandaye, the Plaintiff, the First Defendant and the Fourth Defendant. In cross-examination he stated that it was possible that Bir and Poorandaye were also tenants of one acre of agricultural lands of Aranguez Estates Ltd., and that Poorandaye, the Plaintiff, the First Defendant and the Fourth Defendant would probably have attended the offices of Aranguez Estates Ltd to sign a document to effect the transfer of the tenancy. The second witness to testify on behalf of the Plaintiff was one Prematee Mahabir. She was the wife of Roopdeo Mahabir (deceased), (hereafter referred to as “Roopdeo”), a brother of the Plaintiff and of the First, Fourth and Sixth Defendants. She was married to Roopdeo on the 1st May, 1977 and went to live from then at the main house, which comprised three bedrooms upstairs and two bedrooms downstairs. At that time, Bir, Poorandaye, the two daughters of the Sixth Defendant, the Plaintiff and another brother, Jewan (a cripple) also lived in the main house. Roopdeo, the Plaintiff and Bir cultivated a market garden in Aranguez and sold the produce at the Central Market, Port-of-spain. Bir collected the money but never gave the Plaintiff nor Roopdeo a share. Bir would give them money upon their request. They were never paid a salary. At that time too, the First and Second Defendants occupied a house behind the main house and the Fourth and Fifth Defendants also occupied another house to the rear of the main house. According to her, all the brothers used to live well together except Samai, who would drink and behave badly, and would even beat Bir,

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Poorandaye and Jewan (the cripple).

Bir used to tell each of the children what

belonged to them; in particular, Bir had said that the main house was to belong to the Plaintiff and Roopdeo. From the day that the Plaintiff got married, he and his wife had gone to live at the house of the Fourth and Fifth Defendants but they would spend most of their time at the main house. Later, Bir extended the family house and the Plaintiff returned there. According to her, Bir used to state his intentions about how the houses were to devolve about three to four times a year. Roopdeo died on the 6 th June, 1993 but this witness had left the premises before, some twelve years ago. She stated that her daughters lived with Bir and Poorandaye and, to use her words, “they take the children from me.” In cross-examination she described the Extension as comprising of three bedrooms, a living room and a kitchen. She stated that her husband drank poison and died. According to her, she never knew that the Plaintiff had a bad relationship with or quarrelled with any of the Defendants. She stated that the Third Defendant used to live at his parents‟ home and that Bir and Poorandaye did not raise him as their son. She stated that it was Samai and Roopdeo who used to take drugs and that she did not know that the Plaintiff was a drug addict. While she found that the common fund relationship with Bir, Roopdeo and the Plaintiff was strange, she couldn‟t question it because Roopdeo would beat her if she did. According to this witness the Plaintiff got married around 1986 or 1987. The third witness to testify for the Plaintiff was his wife, Shanti Mahabir. She stated that she and the Plaintiff were married on the 10th June, 1979. At that time, the main house comprised five bedrooms, three upstairs and two downstairs. She stated that it was two to three weeks after they got married that they went to live with the

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Fourth and Fifth Defendants, for sleeping purposes. Two of her nieces (the daughters of the Sixth Defendant) used to help with the housekeeping and she stated later in evidence that when these nieces got married and left the main house, she “would help sometimes”. She described the common fund arrangement between the Plaintiff,

Roopdeo and Bir but stated that it was Poorandaye who would give the Plaintiff money “to buy things”. Bir had the Extension to the main house built and this extension was merely an addition to the main house since there was only one electricity meter and one common water supply for the main house and the Extension. In fact, according to her, the only toilet and bath for the main house was in the Extension. She stated that when she first went to live at the said premises all the brothers had a good relationship, however, Samai used to give “a little trouble” such as by quarrelling and cursing his parents and picking up a cutlass for them and even shooting a gun in the air. Bir would discuss with her that he wanted to give the main house to her husband and Roopdeo since these were the only ones who assisted him in the garden. Up to the death of Poorandaye, the relationship between the Plaintiff, herself and the Defendants was good but after the 13th day of prayer following Poorandaye‟s death (the Bandara) this relationship began to sour since the First, Second and Third Defendants started to take over the main house, so much so that the Third Defendant began sleeping there. The First, Second, Third and Sixth Defendants also embarked on a course of harassing the Plaintiff and herself; one area of irritation was by leaving on the lights in the premises thereby escalating the electricity charges which she paid for. Later on, the Defendants started turning off the electricity to the Extension and created a situation whereby the Police were eventually called in to intercede in this dispute. In cross-examination, when

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it was put to this witness that her husband was in the habit of using drugs and alcohol, I remembered, that after a short hesitation, this witness smiled and coyly replied “Everyone takes a little smoke and drink sometimes.” In cross-examination too, she stated categorically that since the death of Bir and Poorandaye, it was she who paid for the electricity consumed at the main house and that the Third Defendant never paid these charges. Soon after, when it was suggested to her that the Third Defendant paid the light bills which were in the name of the Sixth Defendant since 1999, she stated that she did not know whether this was so, yet, immediately after this, when it was again suggested that the Third Defendant paid the same Bills since, 2000, she admitted that is was so. According to this witness, the reason for the “bad blood” that existed between the Plaintiff and the Defendants was that the Plaintiff wanted possession of the premises. The Plaintiff was the next witness to give evidence. He was born on the 14 th October, 1957. From early on in his examination in chief, it became apparent that his memory was faulty on even very material matters; he could not remember when the main house was renovated and extended; after some probing by his attorney, he stated that it was, maybe, about 1976 that these works were done. At that time Ramcharran and Jewan (the cripple) used to help in the garden too. He started to work in the garden since age 14 and he went on to describe the common fund arrangement that existed in the family. The Plaintiff could not remember from when the First and Second

Defendants began living in their own house, but after some probing by his Attorney he stated it was around the 1970‟s, after the renovations to the main house which he later said was in 1976. However, in the Statement of Claim, at paragraph 5, it was stated

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that the house occupied by the First and Second Defendants was constructed and occupied by them from the year 1970. The Plaintiff testified that the Fourth and Fifth Defendants started to live in their own house since 1984 or 1985, but later on in evidence, he stated that it was one year after the renovations to the main house (1976) that these Defendants moved into their own house. Another example of the Plaintiff‟s faulty memory was that at first he said that after the renovations to the main house, it was only his parents, himself, the Fourth Defendant and his brothers Roopdeo and Jewan who lived in the house, but later in evidence he said that the First and Second Defendants moved out of the main house after the renovations and even after the Fourth Defendant had moved out of the house; again, he later said that he could not remember if the First Defendant was in prison before or during the renovations. The Plaintiff admitted that he never liked the First Defendant since the latter used to quarrel with and beat his parents and even put a cutlass to his parents‟ throats and a razor to Jewan‟s throat; the Plaintiff also stated that the First Defendant threatened to chop him and he stayed clear of him; this testimony seemed contrary to what was stated by Prematee Mahabir and the Plaintiff‟s wife, namely, that the Plaintiff‟s relationships with his siblings was “okay” at least up to Poorandaye‟s death. While it is alleged in

paragraph 7 of the Statement of Claim that Samai had been in prison from about 1964 to 1968, the Plaintiff could not remember if Samai had been in prison before or during the renovations to the main house (1976). According to the Plaintiff, Bir had promised to give the main house to him since he used to help Bir in the garden and he helped “see about him”; however this does not accord with the evidence of his wife and of Prematee Mahabir, who indicated that Bir promised to give the main house to Roopdeo

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and the Plaintiff. The Plaintiff also went on to state that Bir “got a heart attack and died” and that he was not sick before this. He stated that the problems that occurred after Poorandaye‟s death mostly related to his wife, however, he then went on to describe problems and nuisances created by the Defendants toward himself and, in particular, a threat by the First Defendant to kill him and his family. He described the premises where he now lived as comprising one big building and one small building. The big building had five bedrooms upstairs and two downstairs and the small one comprised two rooms; according to him, the small building was used for a kitchen; this description of the main house was confusing and did not seem to cater for the Extension and also, the description was not in accordance with that given by Prematee. Cross-examination of the Plaintiff re-inforced my impressions of his faulty memory and revealed more inconsistencies and contradictions. He restated the positions that the main house

became a five- bedroom house in 1976, however, later on in cross-examination he stated that he could not remember the year from which the main house became a five bedroom house. He described the Extension as comprising two bedrooms and a study whereas Prematee Mahabir described it as comprising three bedrooms, a living room and a kitchen. He re-stated that he could not recall when the house of the First and Second Defendant was constructed, and also, that he could not recall when the First Defendant had gone to prison, he added though that he did not give instructions to his Attorney relative to when the First Defendant had been in prison (but see paragraph 7 of the Statement of Claim). He stated at first, that the Extension was attached to the main house and that the walls and roof of both of them form one building, however, immediately after this he stated that it was not true that the roofs of the Extension and

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the main house were joined; even a cursory examination of the pictures of the main house and the extension which were put in evidence seemed to show that they both shared one joined roof. According to the Plaintiff, Bir promised him the main house since he was aged 14, which would have beeen in or about 1971, but at that time the Fourth Defendant and Roopdeo, (who both helped in the garden till at least 1976), along with Jewan, were still living in the main house and it seemed odd that the Plaintiff was singled out for the benefit of the main house; indeed no explanation or suggestion was made that he was treated by Bir in any way different to the other siblings. The Plaintiff also denied that he stated that he did not build a home for himself because Bir promised him the main house (but see paragraph 11 (a) of the Statement of Claim). He denied that he did not look after his parents when they were ill but led no evidence of his parents being ill, and had even stated clearly in examination in chief that Bir was not sick before he died.

Samai Bir, the First Defendant, was the first witness to testify on behalf of the Defendants. He stated that the main house was renovated or extended to become a five-bedroom house in 1976. His house was also built in 1976. The Fourth and Fifth Defendants‟ house was built between 1974 and 1976. The Extension which was built between 1985 and 1986, comprised three bedrooms and was a “high house”, with only a step separating it from the main house. At first the extension and the main house did not share a common roof, but in 1988 the main house and the Extension were joined by a common roof to prevent rain wetting the step which connected the main house and the extension. He stated that Bir and another sister, Roopdaye, were responsible for

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building the Extension, and that Bir gave the Plaintiff permission to occupy the same. He denied that Bir gave the house to the Plaintiff. He stated that it was the children of the Sixth Defendant who looked after Bir and Poorandaye when they were ill and that the Plaintiff and his wife never did so. He stated that the Third Defendant, who is his son, had been living in the main house since birth and continued to do so. This

Defendant denied that he or any of the other Defendants harassed the Plaintiff and his wife. In cross-examination this Defendant indicated that he did not know when the tenancy of the said premises had been transferred into the names of himself, Poorandaye, the Plaintiff and the Fourth Defendant. He only became aware of this when he went to pay his rent. According to him, the Plaintiff did not work in the garden up to Bir‟s death (1997) since Bir stopped working in the garden after Roopdeo‟s death in 1993; however, he stated later on that Bir stopped working in the garden around 1988 or 1989, and again, later on, he tried to correct himself by saying that Bir used to work in the garden off and on up to Roopdeo‟s death; finally, he admitted that he could not remember the year when Bir had stopped working in the garden. He also stated that he used to help Bir in the garden and stopped doing so after he got married but he would assist Bir there off and on, after work, on a part time basis; however, later on he stated that he helped his father in the garden very often, nearly every day after work and this was so for even up to 1988 or 1989 when Bir stopped working in the garden. He stated that the Plaintiff used to help Bir sell their produce in the Central Market every week and that Bir had no choice to do this, yet he denied that Bir trusted the Plaintiff since Bir never gave the Plaintiff the money.

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The Sixth Defendant was the last witness to testify. On the 19 th May, 2000, she obtained a grant of Probate of Bir‟s Will dated 3rd October, 1996. Apparently a caveat filed on behalf of the Plaintiff to the grant had lapsed. On the 22 nd October, 1999 she obtained a Grant of Administration of the Estate of Poorandaye. Under the Will of Bir, Poorandaye was given a life interest in all the houses on the said premises; the main house was to be given to the Third Defendant subject to the authority of the Sixth Defendant and Roopdaye (a daughter of Bir) to enter and live in the main house. The Extension was given to the Plaintiff; half share of the remaining one acre parcel of land (the garden) was given to the Plaintiff, the First Defendant and the Fourth Defendant and the other half share was left to whoever chose to use it. Certain returns of

ownership and assessments for the said premises were tendered in evidence through this witness. She stated that the premises comprised a five bedroom house and a three bedroom Extension and that the Third Defendant had lived in the five bedroom house since he was a baby. The Extension belonged to the Plaintiff. In cross-examination she indicated that she did not tell the Plaintiff of the existence of a Will since Bir had instructed her not to do so because the Plaintiff used to harass him about the main house; after Bir‟s death Poorandaye also told this Defendant not to tell the Plaintiff about the Will since he used to harass her too about the main house. She stated that as far as she was aware, there was no trouble between the Plaintiff and the Defendants and that the Plaintiff only stopped talking to them after he was shown Bir‟s Will; however, later in cross-examination she was shown certain paragraphs in an affidavit sworn to by her on the 2nd March, 2000 and used in previous injunction proceedings, whereby she stated that there was animosity between the parties; inspite of this she

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was not willing to accept that there was animosity or “bad blood” between the parties. She stated that she did not know of an incident involving the Police, but was again referred to her previous affidavit where such an incident was referred to and she then admitted that it was not true of her to say that she did not know of an incident involving the Police. She stated that she was the eldest girl and had a good relationship with Bir and that Bir would confide in her. According to her, Bir gave all of his sons money until they stopped working for him and that he had stopped giving the Plaintiff money when he went to live at the Fourth Defendant. Interestingly enough, she testified that Bir had spoken to her about the First Defendant‟s behaviour and had asked her to speak to the First Defendant because he was drinking; however, she stated that the First Defendant never threatened Bir, Poorandaye or Jewan. While this Defendant stated that the

relationship between the Plaintiff, his wife and the Defendants only changed after the Plaintiff saw Bir‟s Will, (October, 1998) she later stated that the relationship between the parties changed after Poorandaye‟s death (August 1997). She testified that it was her daughters who used to help look after Bir and Poorandaye and not the Plaintiff or his wife.

Analysis of the Evidence Except for Hilton Rampersad, whose evidence was relatively insignificant, none of the witnesses could be regarded as independent as they were all related to each other in some way and each chose the Plaintiff‟s side or the Defendants‟ side.

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It was suggested that Prematee Mahabir was an independent witness since she was no longer in close association with the family, having been separated from her former husband twelve years ago. I did not agree with this suggestion since, on the evidence, Prematee Mahabir had interacted with the family and appeared to harbour some resentments. In particular, I noticed that when she spoke about having to go to the said premises from time to time to visit her daughters who had lived with Bir and Poorandaye, it was with some measure of hostility that she remarked that Bir and Poorandaye had taken the children from her. When describing the common fund

arrangement between her former husband and Bir, I again noticed some hostility in her responses that if she tried to question the system, her husband would beat her. Further, it could not be ruled out that she had a financial interest in the outcome of this matter since, according to her, Bir had promised to give the main house to her former husband and the Plaintiff; her husband being now deceased, she might be the beneficiary of part of his interest in the main house. A further difficulty with the evidence is that both the case for the Plaintiff and for the Defendants contained inconsistencies and contradictions so that it could not be said that one case was more credible than the other. With respect to the evidence of Prematee Mahabir, while she had stated in examination in chief that all the brothers used to live well together except for Samai, in cross-examination she stated that she never knew that the Plaintiff had a bad relationship with or quarreled with any of the Defendants. This statement in crossexamination was very strange since she still visited her children at the said premises and must have been aware by now that there has been some serious hostility between

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the parties. Indeed, this evidence was not in harmony with the testimony of the Plaintiff and his wife who both testified to the fact that for some time now there had been some bad blood as between the Plaintiff and the First Defendant. While Prematee Mahabir stated that Bir promised to give the main house to her husband and the Plaintiff, a story supported by the Plaintiff‟s wife, the Plaintiff stated that Bir promised to give the main house to him alone. Whereas Prematee Mahabir stated that the Plaintiff and his wife went to live with the Fourth Defendant for sleeping purposes from the day they got married, the Plaintiff‟s wife indicated that they only went there two weeks after they were married. Also, Prematee Mahabir‟s evidence showed that her recollection was a bit faulty, for she could not remember even the approximate year when the Extension was built nor its approximate size and she stated that the Plaintiff and his wife got married in 1986 or 1987 when in fact it was in 1979. With respect to the evidence of Shanti Mahabir (the Plaintiff‟s wife), it has already been shown how her testimony differed in some respects from that of Prematee Mahabir and that of her husband (see pages 10 and 16 above). She also testified that it was Poorandaye who would give money to the Plaintiff out of the common fund whereas Prematee Mahabir and the Plaintiff stated that it was Bir who would disburse money to the Plaintiff from the common fund. Shanti Mahabir contradicted both the Plaintiff and Prematee Mahabir in a material way by admitting that her husband used to drink and take illegal drugs. In addition, her cross-examination revealed a contradiction when she testified about the payment for electricity consumed. (See page 8 above). With respect to the evidence of the Plaintiff, it has already been shown how he gave testimony inconsistent with that of his wife and Prematee Mahabir. Further, in

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summarizing his evidence at pages 8 to 12 above, it was shown that his memory of events was faulty and his testimony proved to be contradictory on some material aspects of his case. With respect to the Evidence of the First Defendant, while he alleged that he was not aware of when Poorandaye had transferred the tenancy of the said premises into the names of Poorandaye, himself, the Plaintiff and the Fourth Defendant, this seemed inconsistent with the evidence of Hilton Rampersad that the transferors and transferees of tenanted premises would usually attend the offices of Aranguez Estates Ltd. to effect a transfer. Further, in summarizing his evidence at pages 12 and 13 above, certain contradictions in his testimony were revealed. With respect to the evidence of the Sixth Defendant; in summarizing her evidence at pages 13 to 15 above, certain material contradictions were revealed. A major flaw in the case presented by the Defendants was that the Third Defendant, against whom many allegations were made, who was a major beneficiary of Bir‟s Will, and who, it was alleged, had been living on the premises from birth (a fact denied by the Plaintiff and his witnesses), was not called to give evidence, which evidence would probably have resolved many of the major disputes in this case. I also could not rule out the suggestion of Counsel for the Plaintiff, that this witness may have given evidence which would have helped the Plaintiff‟s case.

Since I could not rely entirely on the viva voce evidence presented in deciding the disputes of fact in this case, I sought assistance from other undisputed facts and the documentary evidence.

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It was suggested that the returns of ownership and assessment sheets put in evidence through the Sixth Defendant supported the case for the Plaintiff since there was one return of ownership dated 3rd September, 1998 which showed that the main house was owned by the Plaintiff; further, the Assessment Sheets gave a description of the premises that was in keeping with that given by the Plaintiff. The difficulty with these documents was that they created more uncertainties rather than answers and it would have been necessary to call the makers of the documents or the persons who gave the information for the making of the documents to explain or clarify these difficulties; so, with respect to the return of ownership dated 3 rd September, 1998 while the Plaintiff was described as the owner of the building, the owner of the property was stated to be one “Jaideo Sunil Bir”. Who was this “Jaideo Sunil Bir”? And to what premises did this assessment relate? The owners of the premises which was the subject matter of this action were either Aranguez Estates Ltd or perhaps Poorandaye, the Plaintiff, the First Defendant and the Fourth Defendant (pursuant to the transfer of the tenancy by Poorandaye on the 16th June, 1997). Who supplied the information from which this return was prepared? Further, the document stated that a building was

owned by the Plaintiff but gave two assessments for an Annual Taxable Value (relating to two buildings). With respect to the second return of ownership made in 1987 and processed on the on the 25th February, 1988; there were three buildings assessed, two in the name of Bir and one in the name of the First Defendant; what about the Fourth Defendant‟s building? Was the Extension which was already completed by then

included in this assessment? With respect to the Assessment Sheets relative to and inspection made on the 14th August, 1998, “Jaideo Sunil Bir” was stated to be the owner

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of the buildings assessed. In one Assessment Sheet, his age was stated as twenty-two years, in the other, twelve years. Assuming that this assessment of buildings owned by “Jaideo Sunil Bir” and not the Plaintiff, related to the main house and the extension (which was not clear) then it seemed to conflict with the evidence of the Plaintiff and his wife that it was all really one connected structure with one electricity meter and one water supply; why was it assessed separately? Assuming again that the first

Assessment sheet related to the Extension, it was described as comprising two bedrooms and apparently one sitting/living room, which description was not in keeping with that of Prematee Mahabir and the First Defendant (a three bedroom annex), the Plaintiff‟s wife (since she stated that there was also a bath and toilet there) and the Plaintiff (who stated that there was a study in the Extension). In the circumstances, the returns of ownership and Assessment Sheets were of little assistance to the Plaintiff‟s case. Counsel for the Plaintiff submitted that the transfer of the tenancy of the said premises by Poorandaye to herself, the Plaintiff, the First Defendant and the Fourth Defendant was the clearest evidence of the intention of Bir and Poorandaye as to the beneficial ownership of the said premises; more specifically, it showed that the Third Defendant was to be excluded from any beneficial ownership in the said premises. I did not agree with this submission since, at best, this transfer of the tenancy was only the act of Poorandaye and not of Bir, and there was no evidence that this transfer of Poorandaye was done in accordance with the wishes of Bir or reflected his intentions or promises. In any event, the transfer of the legal title to the tenancy would not in this case have had the effect of erasing any previous proprietary estoppels which might

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have been previously created by Bir and/or Poorandaye and which proprietary estoppels were essential to the Plaintiff‟s case as pleaded and the evidence led. In the grounds of appeal, I noticed that the argument was advanced in a slightly different way, namely, it was stated that the tenancy and the ownership of the property was joint between Bir and Poorandaye and since the house was a fixture, the title to both land and house passed to Poorandaye upon the death of Bir, thereby excluding the house from Bir‟s estate upon his death. This is a difficult submission to make, since there was no proof that Bir and Poorandaye held the tenancy as joint tenants. In fact, the Return of Ownership processd on 25th February, 1988, when both Bir and Poorandaye were alive, only gave the name of Bir as the owner of the property. Secondly, if it was now being alleged that the proper title to the said premises, the main house, and the Extension passed to Poorandaye, who then properly transferred it to herself, the Plaintiff, the First Defendant and the Fourth Defendant, then the Plaintiff‟s action for a declaration that he was the owner of the main house and damages for trespass for his enjoyment of the said house and injunctive relief, could not be maintained as against the First Defendant and the Fourth Defendant as joint owners thereof, as well as against the 2nd, 3rd, 5th and perhaps the 6th Defendant who were merely the servants or agents of the First and the Fourth Defendants. Thirdly, and more importantly, this submission was contrary to the Plaintiff‟s case as pleaded and the evidence led since it was the Plaintiff who claimed a proprietary estoppel to these buildings through the promises and representations of Bir and sought to rely on equities created in respect of the buildings contrary to whatever the legal interest in them might now be. Counsel for the

Defendants rightly pointed out the learning in the 1997 Supreme Court Practice at

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paragraph 18/7/10 and submitted that this would be a new case being advanced which was not pleaded, and if the Plaintiff were to succeed on these findings that the Court was now being asked to make, such findings will be overturned on appeal. In the circumstances, the transfer of the tenancy by Poorandaye to herself, the Plaintiff, the First Defendant and the Fourth Defendant was not such as showed the clearest intentions of Bir and Poorandaye as to the beneficial ownership of the main house and the Extension. The most material document to be considered on the case pleaded and the evidence led was Bir‟s Will dated 3rd October, 1996. It was important to note that the Plaintiff had filed a caveat against this Will and did not pursue it since the Sixth Defendant had probated this Will. It was at the least, the best evidence of Bir‟s

intentions as to the beneficial ownership that he wished to create in the property that he had. Under this Will, it was Bir‟s intention that the Third Defendant was to acquire the front house (which, on the undisputed evidence was the main house) and the Plaintiff was to acquire the house to the back (which on the undisputed evidence was the Extension). Also, I did infer from the fact that the Plaintiff ”„allowed” the probate of this Will to proceed, that he did not contest its contents and that the gifts left there were those intended by Bir. This subsequent action seemed like an afterthought to frustrate the Defendants. In all the circumstances, bearing in mind the unsatisfactory nature of the viva voce evidence presented and considering the clear intentions expressed in the undisputed Will of Bir, I preferred the case advanced for the Defendants to that of the

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Plaintiff on a balance of probabilities and found as a fact that the Plaintiff had failed to prove that he was entitled to anything other than the Extension.

The Law: Both Counsel accepted as an accurate statement of the law on proprietary estoppel a quotation from the case Re Basham deceased 1987 1 All ER 405 at pg 414 “In this, as in other branches of the law, it is not difficult to find statements of principle couched in terms which are broad enough to cover the facts of the particular case under consideration, but which subsequent cases show to have been narrower than is necessary to encapsulate the developed law. The law, in Lord Tennyson‟s words, „slowly broadens down from precedent to precedent‟, and in few areas is this more clear than that with which I am concerned. The broadening process is brought out by Oliver J‟s consideration of the authorities in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 1 All ER 897 at 915-916, [1982] 1 QB 133 at 151-152, which is summed up as follows: „…the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed to ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour‟.”

The essential elements in this type of estoppel are detrimental reliance on a promise or encouragement held out to another which makes it unconscionable for the promisor to resile therefrom.

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In this case, based on my findings of fact as stated before, I was satisfied that the Plaintiff had not established, on a balance of probabilities, that Bir had made a promise to him or encouraged him to believe that the main house would belong to him. The only promise or encouragement held out to the Plaintiff was that he would get the Extension. If, however, I am wrong on this, the Plaintiff had still failed to establish any detrimental reliance on an alleged promise by Bir to him. The case as pleaded by the Plaintiff (see pages 2 and 3 above) alleged that in reliance on Bir‟s promise to give him the main house and the Extension, the Plaintiff (a) stayed in the main house instead of seeking alternative accommodation or building his home elsewhere (b) looked after his parents on a daily basis (c) contributed over $30,000.00 on repairs, improvements and maintenance to the main house. As was stated in the Summary of Evidence above, the Plaintiff denied that he ever said that he did not build a house for himself based on Bir‟s promises, and he led no evidence of not looking for alternative accommodation based on the promises; he therefore failed to establish ground (a) of his detrimental reliance. Again the Plaintiff testified that Bir was not sick before he got a heart attack and died and his wife stated that she used to help sometimes with the household chores; the evidence led did not establish ground (b) of the detrimental reliance. No evidence was proferred as to ground (c) and, in fact, the case advanced was that Bir built all the houses on the said premises. It was only in his addresses that Counsel for the Plaintiff, for the first time, alleged that the detrimental reliance being relied on was that the Plaintiff subjected himself to the common fund arrangement, and worked without pay. Counsel for the Defendants rightly referred me once again to the Supreme Court Practice 1997 at paragraph 18/7/10 (op cit) and urged me to disregard this late and

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novel proposition. I accepted that this submission was an entirely new one, and only conjured up at this late stage in an attempt to fill an obvious gap in the Plaintiff‟s case and it would have been unfair to the Defendants to allow this submission to proceed, they not having had a chance to deal with it before. In any event, having regard to the fact that the Defendants disputed this new allegation of a common fund arrangement and the divergence from the Plaintiff‟s case as to how this common fund operated (viz whether it was Bir or Poorandaye who disbursed the money), I found that on a balance of probabilities, no such common fund arrangement did in fact exist. In any event, even if I were wrong on this, this Plaintiff did obtain a material benefit from the common fund arrangement, in that his material needs were provided for, he was given money when he needed it, and, he was even given the Extension from these funds for his family; he has not shown that his reliance on this arrangement was to his detriment. Neither he nor his witnesses testified that he changed or would have changed his position to accept or do otherwise than work on the common fund basis. In all the circumstances, on the evidence led, the Plaintiff failed to establish any promise or encouragement made to him by Bir, with respect to the ownership of the main house and/or a detrimental reliance on such a promise and the claim for declaratory relief based on his claim to the main house must fail.

With respect to the claims based upon the alleged harassment of the Plaintiff as pleaded, the Defendants disputed the allegations. I noted however, that the evidence presented showed that there was a continuing “battle” between the Plaintiff‟s wife (who was not a party to the proceedings) and the Second and Sixth Defendants; even the

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Plaintiff admitted this.

As against the Defendants, the Plaintiff‟s allegations of

harassment were generally vague and no one was generally named as the cause of harassment; the allegations made were that “they” committed acts, except for the Sixth Defendant who was alleged to have destroyed some flowers and trees. The only

substantiated act as against the Plaintiff was when the Third Defendant caused the electricity supply to the Extension to be cut. Counsel for the Defendants indicated that he had since instructed the Third Defendant to desist from this action since he recognized the right of the Plaintiff to an electricity supply at this time even though the Third Defendant allegedly paid the Bills. Nevertheless, apart from this allegation, based on the dispute of fact, the lack of credibility in the witnesses, the general, vague and unsubstantiated allegations of harassment of the Plaintiff, the minor nature of these acts, and the fact that there seemed, on the evidence to have been aggravation on both the Plaintiff‟s and the Defendants‟ part, I did not find the case for damages for nuisance to have been established on a balance of probabilities. With respect to the cutting of the electricity supply by the Third Defendant, this was a minor act and I awarded nominal damages to the Plaintiff as against the Third Defendant in the sum of $500.00 and granted an injunction to prevent him from interfering with the Plaintiff‟s electricity supply. Bearing in mind that the Plaintiff had succeeded on a minor part of his case (for nuisance) and that the Defendants had established their Defence in the most part I ordered that each side bear their own costs.

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Conclusion: In the circumstances, I made the following orders. 1. An injunction against the Third Defendant preventing him from interfering with the electricity supply to the Extension.

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2. 3.

The Third Defendant to pay the Plaintiff damages in the sum of $500.00 Each party is to bear his own costs. Dated this 16th day of July, 2001

Justice Gregory Smith JUDGE

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