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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012 -02080

BETWEEN

SHANAZAR PERSAUD

Claimant

AND

ASHMED TAJMOOL

Defendant

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012- 04126

BETWEEN

ZAHARA ALI

JAMEEL ALI

NAZMUN KHAN

RAFEEK ALI

SHARRIRAN ALI

ASHMED TAJMOOL Claimants

AND

SHAZARD ALI

SHANAZAR PERSAUD

MOHANDAYE PERSAUD

RAMKARAN RAMPARAS

Defendants

BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Appearances:

Mr. S. Saunders instructed by Ms. G. Figaro for the Claimants.

Mr. G. Raphael instructed by Ms. N. Jaglal for the First, Second and Third-named

Defendants.

Mr. M. Mitchell instructed by Ms. A. Murphy for the Fourth-named Defendant.

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Reasons

Before me are two related actions. Both actions concern the use of Jameel Street also called

Jameel Trace. For the purpose of this judgement I shall use the name Jameel Street simply

because that is what it is called in the earlier of the two actions. The main issue for determination

on both claims is whether Jameel Street is a public road and, if not, whether the parties who

occupy land to the south of Jameel Street are entitled to a right of way from their homes along

Jameel Street to get to the Caroni Savannah Road and back. In addition raised in one of the

actions is a claim in trespass against the Fourth Defendant, Ramkarran Ramparas.

In CV 2012-02080 (“the first action”) the Claimant Shanazar Persaud seeks against Ashmead

Tajmool a declaration that he is entitled to a right of way for all purposes along Jameel Street to

get to Caroni Savannah Road and back and an injunction restraining Tajmool from obstructing or

interfering with his access to the street at any point either at its entrance or along the street. In

this action Persaud, the owner of a parcel of land to the south of Jameel Street, alleges that

Tajmool has prevented him access to the street by erecting a gate across it. He relies on a user of

the street since the year 1977 by himself his predecessors in title and other occupants in

accordance with section 2 of the Prescription Act Chap 5 No 8.

By way of defence Tajmool alleges that Jameel Street is a private road owned by and reserved

for the use of the owners of lands to the north of the street. Tajmool further avers that any user

by Persaud’s predecessors in title was by permission and personal to the predecessors in title. He

alleges that the Claimants have enclosed an area of land through which the water mains running

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to the houses of the owners of the road lie and counterclaims for declarations that Persaud is not

entitled to use Jameel Street or the water mains reserve and that Jameel Street is a private road.

He also seeks an order of possession with respect to the water reserve.

The second action, CV 2012- 04126, was instituted by the owners of the lands to the north of

Jameel Street including Ashmead Tajmool. By this action the Claimants seek against Persaud,

his wife, Mohandaye Persaud, and Shazard Ali declarations that Jameel Street is not a public

road and that neither of the first three Defendants or their servants and/or agents is entitled to use

Jameel Street and an injunction restraining its use by them. The position taken by the Claimants

with respect to this relief is exactly the same as that taken by Tajmool in the first action except

that the Claimants allege that the permission granted by them to Shazard Ali to use Jameel Street

has since been withdrawn.

With respect to the Fourth Defendant the Claimants seek a declaration that this Defendant had no

authority under the Bailiffs Act to break and remove their gate. They also seek damages for

trespass against all the Defendants.

In addition to adopting the position taken by Persaud in the first action by way of defence the

first three Defendants to the second action deny that the user by Persaud’s predecessors in title

was by way of permission granted. They plead that Jameel Street is a public road and has been

used by members of the public as such from prior to 1975 and deny the existence of a water

mains reserve. In addition these Defendants allege an entitlement to the use of Jameel Street as a

way of necessity. With respect to the allegations against the Fourth Defendant they admit that

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they retained the Fourth Defendant to remove the gate and no more. Save that he admits being

present as an innocent bystander on the day the gate was removed the defence presented by the

Fourth Defendant is a blanket denial.

I will deal with the main issue first and thereafter the trespass claim against Ramparas. To this

end where appropriate I will refer to the Claimants in CV 2012-04126 collectively as “the

Claimants” and the First to Third Defendants to that action collectively as “the Defendants.”

Where it is necessary to refer to any other party individually I will use that party’s name.

Is Jameel Street a public road and, if not, are the Defendants entitled to a right of way from

their homes along Jameel Street to the Caroni Savannah Road and back.

Facts not in dispute

Insofar as this issue is concerned these are facts relevant to the issue which the Claimants and the

Defendants by their pleadings, the agreed documents and their statement of agreed facts filed on

the 1st May 2013 either accept or fail to deny.

The Claimants are all owners of lots of lands situate at Jameel Street (hereinafter collectively

called “the Claimants’ land”). The Claimants’ land originally formed a part of a larger parcel of

land comprising one acre, two roods and 16 perches and is described as being bound on the

North by lands of Ramatally, on the South by lands of Habiban and Ramjohn, on the East by the

Caroni Savannah Road and on the West by lands of Gandeah (“the northern parcel”). By a deed

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of partition registered as number 10569 of 1961 the northern parcel was partitioned into lots

some of which are now owned by the Claimants.

Jameel Street runs along the length of what was the northern parcel. It is a dead end on its

western side and meets the Caroni Savannah Road on its eastern side. The Claimants’ houses are

all located on their various lots of land and to the North of Jameel Street. With respect to the

Claimants’ lands the lot now owned by Ashmead Tajmool is the eastern-most lot and abuts the

Caroni Savannah Road on that lot’s eastern boundary.

The Defendants’ houses are located to the south of Jameel Street. The Defendants’ lands

(hereinafter collectively called “the Defendants’ lands”) originally formed a part of a larger

parcel of land owned by Sakit Hosein and Rajeedan as joint tenants and is described as being

bound on the North by lands of Sahadat, on the South by lands of Moliman, on the East by

Caroni Savannah Road and on the West by lands of Karimbocas (“the southern parcel”). In 1977

the southern parcel was divided into two. The western portion was conveyed to Shazard Ali and

his father, Naz Ali, and the eastern portion to Korisha Sakit Hosein the sister of Naz Ali.

At the time of the 1977 conveyances Shazard Ali, Naz Ali and Korisha Sakit Hosein were all

living in the same house. In 1993 by deed of conveyance No 4855 of 1993 Shazad Ali and Naz

Ali divided their land in two and sold the eastern portion to Shanazar Persaud. Shazard Ali

continues to occupy the western portion of the land. The land purchased by Persaud is described

in his deed as being bounded on the north by Jameel Street. After his purchase Shanazar Persaud

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constructed two buildings on his land. Both Shanazar Persaud and his wife reside abroad but visit

Trinidad regularly and when in Trinidad reside in the first building.

In 1990 Jameel Street was paved by the LID program, an agency of the State, with funds

amounting to $29,762 issued for this purpose by the State. In the month of December 1990 in a

formal ceremony the Minister of Works, Infrastructure and Decentralisation cut the ribbon to

formally open Jameel Street.

On the 30th

January 2007 an injunction was granted in favour of Zahara and Jameel Ali

restraining persons, not parties to these actions but all occupants of land to the south of Jameel

Street, from using the street. This injunction is still in place. By a letter dated the 19th

July 2007

written on behalf of some of the Claimants the Persauds were informed of the injunction, advised

to stop using Jameel Street and threatened with legal action.

In 2010 the Claimants erected a gate across Jameel Street, thereby restricting access to the street

by Shanazar Persaud, Mohandaye Persaud and their servants and/or agents. On 17th

September

2012 Shazard Ali allowed the Chaguanas Borough Corporation’s backhoe to enter Jameel Street

and undertake work on his premises. In May 2012 Shanazar Persaud commenced the first action.

The Evidence

With respect to the question of whether Jameel Street is a public road evidence was given by

Ashmead Mohammed the Chief Executive Officer of the Chaguanas Borough Corporation (“the

Corporation”). This witness’ evidence was that Jameel Street is not a public street. He bases this

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conclusion on the fact that, despite the street being situated within the Borough’s geographical

boundaries, Jameel Street is not listed in the relevant order which vested streets in the

Corporation. He accepts however that, as a public service, the Corporation has undertaken

maintenance work on the street and continues to collect the garbage placed on it by the residents.

He says that despite this there has been no acceptance of responsibility for the street by the

Borough. In this regard he says, apart from the vesting order, there is a procedure to be followed

for the Corporation to assume responsibility for a street. This procedure has not been undertaken

with respect to Jameel Street. He admits however that there is on the Corporation’s file a letter

signed by someone on behalf of a former Chief Executive Officer which contains a contrary

opinion. He disassociates himself from the opinion expressed in that letter.

With respect to this issue the Claimants: Zahara Ali; Ashmed Tajmool and Nazmun Khan gave

evidence. In the main their evidence was more or less consistent with each other and their

pleading with respect to the establishment of Jameel Street. In general nothing turned on their

cross-examination neither was their evidence shaken in any material particular.

According to the main witness, Zahara Ali, she and her husband, Jameel Ali began to occupy

their land in 1969. She says at that time only four of the lots were occupied. Rather than use the

established right of way to the North of the lands the residents all used a footpath running along

the southern boundary of the land to gain access to and from their houses and Caroni Savannah

Road. She says at that time the footpath ran from the Caroni Savannah Road to the lot furthest

west from that road. There was a wooden bridge connecting the footpath to the Caroni Savannah

Road.

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In 1979 she and her husband began to construct a concrete house on the land. With the consent

of the other families they widened the footpath and deposited broken bricks on it so that vehicles

could pass. The residents of the Claimants’ lands, including her husband and herself, all

contributed to the construction of a wider concrete bridge to replace the original wooden bridge.

Over the years as more of the lands became occupied the footpath was widened and improved

and made into a road which they later named Jameel Street.

According to her all the water mains for the houses on the Claimants’ lands are located on a strip

of land immediately to the south of Jameel Street. She says when she began to live on the land

her water mains were already located on the southern boundary of the land. As the other

occupants of the Claimants’ land obtained a water supply they also installed their water lines on

the southern side of Jameel Street.

In 1990 the residents of the Claimants’ land applied to the Self-Help Commission to pave Jamaal

Street. Pursuant to that application Jamaal Street was paved by the workers of the LID program

who also constructed a curb wall and a drain on the southern side of Jameel Street. The water

mains reserve was however not paved. Thereafter a street sign was erected with the name Jameel

Street on it. She says her husband also put a sign on the sign post with the words “private road”

on it. This sign was removed shortly afterwards.

According to this witness, except for Naz Ali and his family, Jameel Street was only used by the

persons who lived on what was originally the northern parcel. She says the persons who lived on

the southern side of the street, the Defendants’ side, all used Mohammed Lane to gain access to

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Caroni Savannah Road. There was never any problem with persons other than the residents of

the lands comprising what was the northern parcel using Jameel Street until March 2000.

According to her it was around that time that persons living on the southern side of Jameel Street

began to use the street. As a result she and husband in the year 2000 instituted a court action

against those persons. Those persons are not parties in the actions before me.

The Defendants to that action also in the same year instituted an action against her husband and

herself. In the later action an injunction was obtained in 2002 preventing her husband and herself

from denying those persons access to Jameel Street. She says as a result of that injunction she

and the other Claimants stopped trying to limit the access of other persons to Jameel Street

pending the outcome of the court actions. On the 30th

January 2007 she and her husband obtained

judgement in their favour against those Defendants and a permanent injunction preventing those

Defendants’ use of Jameel Street.

With respect to the lands occupied by the Defendants she says that from about the year 1981 Naz

Ali, the father of the Defendant Shazard Ali, began using the footpath to gain access to and from

the Caroni Savannah Road from his land. In 1993 Shazard Ali and his father sold the eastern part

of their land to Shanazar Persaud. In 1995 Shanazar Persaud began the construction of a house

on that land. This building she says was used as their residence whenever they were in Trinidad.

In 2002 Persaud constructed another house on his land. During the construction of the second

building Persaud’s workmen used Jameel Street to access his property. At that time the

injunction was in place. According to the witness as a result of the injunction she felt powerless

to prevent anyone from using Jameel Street.

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As a result of the injunction the Persauds began to use Jameel Street more frequently. Shanazar

also erected some gates on the water mains reserve. She says after they obtained the judgment in

their favour they wrote the Persauds informing them of the position and requiring them to stop

using Jameel Street. Despite the letter both of the Persaud’s as well as their tenants continued to

use the street and as a result the gate was erected across the street. Shazard Ali was however

given a key to the locked gate. Thereafter, according to her, the Persauds and their tenants

resumed passing over the lands of Korisha Sakit Hosein to access their premises.

Unlike Zahara Ali however both Nazmun Khan and Ashmed Tajmool accept that despite their

objections during the period of the construction of both buildings on the Persaud’s land, 1995

and 2002, Jameel Street was used to access the land. They both confirm that Naz Ali and his

family, including Shazard Ali, used Jameel Street but state that permission was given to them by

their mother to use the track and walk through their land to get to and from Caroni Savannah

Road. Thereafter as Jameel Street was developed Naz and Shazard Ali continued to use the street

with permission of the owners of the Claimants’ land. According to Ashmed Tajmool as a result

of Shazard Ali bringing the Corporation’s backhoe onto to Jameel Street and cursing Zahara Ali

a letter was sent to Shazard Ali dated the 21st September 2012 revoking his permission to use

Jameel Street.

Also giving evidence on behalf of the Claimants was Isha Ali the mother of Shazard Ali and the

widow of Naz Ali. She confirms the Claimants’ evidence of her family’s removal from the

premises that they occupied with Korisha Sakit Hosein, her husband's sister, on lands on the

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southern side of the street adjacent to the Caroni Savannah Road. According to her while they

lived together her sister-in-law promised them that she would give them a road to access their

lands. She says sometime in the year 1980 her husband and sister in law had a “falling out” and

as a result they vacated the house. About one year afterwards they began living in a board house

on the lands to the south of the street owned by her husband and her son. As a result of the

argument they could no longer pass through her sister-in-law’s land to access the Caroni

Savannah Road and she refused to give them the road as she had promised. She says they then

sought and got permission from Shairoon Mohammed to pass through her property to get to and

from Caroni Savannah Road.

According to her at that time Jameel Street was still a track as yet unnamed and was used by the

residents of the Claimants’ land to gain access to Caroni Savannah Road. She and her family

would walk along the track and pass through the lands occupied by Shairoon, now owned by

Nazmun Khan and Ashmed Tajmool, to access Caroni Savannah Road. According to her they

were the only persons living on the lands to the south of Jameel Street who were allowed to use

Jameel Street. This permission she says was on condition that the user was limited to members of

her family and that if the lands were sold the purchaser would not have the right to use Jameel

Street.

According to her before Shanazar Persaud bought the land she spoke to him and informed him

that Jameel Street was a private street and that he would have to get his own access to Caroni

Savannah Road. She said he agreed to this and told her that he would not put anybody to live on

the land and that all he wanted was a place to stay when he came to Trinidad.

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Under cross-examination this witness was shown a statutory declaration sworn to by her in

which she declares that she and her son were the owners of the land. She admits under cross-

examination that this statement was not true and that at all times the land belonged to her

husband and her son. She says she never read the document and just signed what was given her

by the Attorney. I do not think that this affects her credibility. I accept her evidence as to the

circumstances of her signing the declaration. It is clear that she was a simple woman aged 71

years and employed as a domestic. Before me she readily accepts that she had no legal interest in

the land. Under cross-examination she gave her answers in a forthright and direct manner.

Indeed her spontaneous responses to the questions put to her in cross-examination made a good

impression with respect to her credibility. More importantly she had no interest to serve.

While there may have been some ambiguity in some of her answers with respect to length of

time that Jameel Street was in existence. I am satisfied that this confusion arose from the manner

in which the questions were posed and the development of the street from a track to a paved

road. When taken in this context her answers are consistent with her evidence in chief with

respect to the development of the track or footpath into what is now called Jameel Street. It is

also consistent with the evidence of the Claimants. I accept her evidence. In any event it seems to

me that even if I reject her evidence as to the conversation with Shanazar Persad this

conversation has no real impact on the issue for my determination.

The evidence on behalf of the Defendants was given by Shanazar Persaud and Shazard Ali. With

respect to the development of Jameel Street according to Persaud in his evidence in chief he

knew the street before he purchased the land. He says that from the time he knew the area he was

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aware that there was a road reserve called Jameel Street formerly called Jameel Trace running in

an easterly direction on the northern boundary of the parcel of land he purchased. He denies any

conversation with Isha Ali at the time of his purchase.

He says in chief that the first building on his land was constructed between the years 1993 to

1995 and the second building between the years 1998 to 2000. In 1995 upon the completion of

the first building he rented out the downstairs and kept the upstairs vacant. After its construction

in 2000 he rented out the second building.

He says that when he purchased the land he knew that his predecessors, Naz and Shazad Ali,

freely used the street. According to him he saw other members of the public using the street

before he purchased the land. Since his purchase he claims that his only access to his land has

been Jameel Street. According to him in his evidence in chief he and his wife have resided

abroad since the year 1991 and return occasionally to visit. He says that from the start of the

construction of the first building in March or April 1993 he, his family and his friends began

using the street to visit the parcel of land. During the period of the construction of his buildings

on the land his workmen and vehicles bringing materials to the land also used the street. He says

that until the erection of the gate he was never stopped from using the street.

There are some major contradictions in Persaud’s evidence. In his evidence in chief he says he

built the first building in 1995, rented out a portion of this building and kept upstairs vacant.

This however contradicts the plea in his defence to the second action when he states that the first

building was retained by him for his personal use and that it was the second building that was

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rented out from 2000. Further in his defence he states that he began the construction of the

second building in the year 1996. In chief he says 1998. Under cross-examination however he

accepts that it could have been as late as 2000.

In his evidence in chief he says that he and his wife migrated in 1991. Under cross-examination

however Persaud claims that while he migrated in 1991 his wife only migrated in 1996. He says

for the first time under cross-examination that his wife occupied the first building before she

migrated to Canada and he returned to Trinidad about two to three times a year to see his wife

and son.

In answer to the question in cross-examination whether apart from himself and Shazard Ali he

knew anybody who lived on the southern side of Jameel Street who used the street to access their

homes he says that while he knew that persons living on the southern side of Jameel Street used

the street to access their homes he did not personally know their names but knew that “they go

down to the back”. While he gives no evidence in chief with respect to the water mains under

cross-examination he accepts that there are some water lines located on the southern edge of

Jameel Street.

The inconsistencies between his pleadings, his evidence in chief and his cross-examination apart

this Defendant did not present as a reliable witness. He came across as evasive, to some extent a

bit shifty and generally a little too smart for his own good. For example he presents in the bundle

of agreed documents filed on the 24th

May 2013 receipts and bills the dates on which range from

April 1993 to January 1999. According to him in his witness statement filed on the 7th

June 2013

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these represent bills and receipts for materials purchased for the construction of the first building.

This is the construction he says was completed in 1995.

None of these receipts bear his name. Only three make any reference to Jameel Street. He

explains his failure to present any other receipts with respect to this construction by reference to

a theft of his suitcases and bags in September 2012. With respect to the problem of the names on

the receipts he says some of the receipts are in the name of friends whom he had requested to

purchase materials on his behalf. Given his evidence that during the period of the construction

of the first building his wife was in Trinidad this of itself sounds strange. One would expect that

if anyone was to purchase materials for him during his absence from Trinidad it would be his

wife. He provides no evidence from any of these persons neither does he give their names. I do

not accept his evidence that these receipts are with reference to his construction of the first

building on the land.

In his witness statement he states that he knew the parcel of land before purchase and was aware

that there was a road reserve called Jameel Street which was formerly called Jameel Trace

running in an easterly direction on the northern boundary of the parcel of land he purchased.

Under cross-examination it transpires that he only knew the area since 1984. Despite his attempts

at evasion, it is clear that, even if I accept his evidence that he had no discussion with Isha Ali

prior to his purchase, his claim to be entitled to use Jameel Street was based on assumptions

made by him from the fact that his land bounded the street; the street was paved; there was some

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maintenance work and garbage collection being done by the Corporation and it was being used

by his predecessors in title.

With respect to his evidence in chief that members of the public were freely using the street to

gain access to Caroni Savannah Road he gives no details as to who these persons are. His blanket

statement in chief does not assist him particularly it is clear that the street legitimately provided

access to a number of lots created from the northern parcel and the user by other persons living

on the southern parcel was the subject of court proceedings and between the years 2002 to 2007

protected by way of an injunction. Further even if I accept that persons, not the Defendants in

this or other court proceedings, used the street there is nothing to suggest that these persons were

members of the public in the sense used by Persaud. They may just as easily have been licensees

of the owners or the occupiers of the Claimants’ land or of the Defendants in the other court

proceedings. In his witness statement he glibly says that he was never stopped from using Jameel

Street until the erection of the gate but fails to mention the letter from the Claimants in 2007.

Shanazar Parsaud was not a credible witness. I do not accept his evidence. In particular I do not

accept his evidence that his wife was in Trinidad up to and until 1996. This being such a crucial

fact in their favour I do not believe that there would be no reference to this in his witness

statement or indeed in the Defendants’ pleading. In any event what is clear from his evidence is

that he provides no proof of any usage by the public as of right.

The evidence in chief of Shazard Ali is direct and to the point. He says he knew the street since

birth having lived at Caroni Savannah Road with his grandmother. According to him he and his

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family have been using Jameel Street to get to Caroni Savannah Road since 1979. He says that

he is not aware of any water mains four feet wide immediately south of Jameel Street. With

respect to his mother he says she had nothing to do with the sale of the land to Shanazar Persaud.

He says that his mother and Zahara Ali became good friends and behind his back Zahara got his

mother to swear a statutory declaration which was not true. According to him in his evidence in

chief he knows of no permission given to his father and his family to use Jameel Street. His

evidence is that he uses the street by right as a member of the public. According to him the other

Defendants, their family, friends and others have used the street since 1993.

Unfortunately for the Defendants there is an almost complete turnabout by this Defendant under

cross-examination. The result of which being that he confirms much of the evidence given on

behalf of the Claimants. He accepts that up to and until around 1980 his family lived with his

aunt Korisha Sakit Hosein and that as a result of a dispute with his aunt they moved out of her

home in or around 1980. Since Korisha’s land in fact borders the Caroni Savannah Road it is

clear that his evidence of user of Jameel Street since 1979 is not accurate.

With respect to Jameel Street he admits that it was originally a dirt track and eventually accepts

that it was Jameel and Zahara Ali who in around 1979 first deposited material on the dirt track.

He also accepts that it was the residents of the Claimants’ land who developed Jameel Street by

throwing more and more rubble onto the track and who built the concrete bridge which joined

Jameel Street to Caroni Savannah Road.

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Most importantly with respect to his family’s user of Jameel Street he eventually accepts that this

user was pursuant to permission granted to his father and that initially he, Shazard, was given a

key to the gate erected across the road. With respect to the water mains he accepts that there are

water mains running along the southern side of Jameel Street and that all the persons living on

the northern side of the street have their water lines there. It is clear to me that looking at the

evidence of Shazard Ali as a whole he does not assist the case of the other Defendants. In fact

given his cross-examination it is very difficult to put any weight on his evidence in chief.

One of the effects of Shazard Ali’s evidence under cross-examination is that given my rejection

of Shanazar Persaud’s evidence in this regard there is absolutely no evidence of the use of

Jameel Street by members of the public as of right from the year 1975 as pleaded or at all.

I accept the evidence led on behalf of the Claimants with respect to the creation of Jameel Street

and the user of the street by the Defendants. I find as a fact that Jameel Street was created by the

owners and occupants of the northern parcel of land from a track or footpath which originally ran

along its southern boundary to the Caroni Savannah Road. I am satisfied that this track was used

from at least 1969 by the residents of the northern parcel to gain access from their land to the

Caroni Savannah Road.

With respect to the user of Jameel Street by the residents of the southern parcel I find that Naz

Ali and his family apart none of the residents of the southern parcel used Jameel Street prior to

its being paved in 1990. I am satisfied that the use of Jameel Street by Naz Ali and his family,

including the Defendant Shazard Ali, was pursuant to the consent given to them by Nazmun

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Khan and Ashmed Tajmool’s mother and the other residents of the Claimants’ land. I find that

this permission was withdrawn in September 2012.

In accordance with the evidence of Zahara Ali, I find that the Defendants apart other residents of

the southern parcel did not use Jameel Street until after 2000. I also accept her evidence that

between the years 2002 and 2007 as a result of the injunction obtained against them no attempt

was made to prevent access to the street by any of the residents of the southern parcel and that

although protests were made after January 2007 by way of letters access was only prevented to

these residents, including the Persauds, by the erection of the gate in 2010.

With particular reference to the user of the street by the Persaud’s I do not accept the evidence of

Shanazar Persaud that they have used Jameel Street to gain access to their land since 1993.

Neither do I accept his evidence that upon their construction both buildings were rented out. I

find as a fact and in accordance with the evidence of both Nazmun Khan and Ashmead Tajmool

that Jameel Trace was initially used by Shanazar Persaud during the period of the construction of

both of his buildings on the land in 1995 and then again in 2002. I am satisfied that it was only

after the second building was constructed that tenants were put in the premises. This coincided

with the grant of the injunction against Zahara and Jameel Ali. In those circumstances it is

reasonable to expect that Shanazar Persaud’s tenants would have taken the opportunity of using

Jameel Street to access the premises.

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With respect to the water mains I accept the evidence of Zahara Ali that from at least 1969 when

they purchased the water mains supplying water to the lands which originally comprised the

northern parcel were situated on a strip of land to the south of Jameel Street.

I find therefore that the Persauds and their licensees first used Jameel Street in 1995 to gain

access to their land for the purpose of the construction of a building. After that building was

constructed it remained empty except for the periods when the Persauds visited from abroad.

They have however provided no details of these visits. I am satisfied that between the

construction of the first building and the construction of the second building on the Persauds’

land there was no continuous user of Jameel Street by the Persauds or persons on their behalf.

Thereafter the Persaud’s used Jameel Street to gain access to their land from the Caroni

Savannah Road in 2002 initially for the construction of the second building and thereafter when

the building was rented out. I am prepared to accept that their tenants gained access to the

premises by Jameel Street from the year 2002 until 2010 when the gate was erected.

The Defendants submit that the Claimants’ case to the ownership of the land over which Jameel

Street runs should be rejected because on a mathematical calculation of the square footage of

each lot Jameel Street could not form a part of the land conveyed to each of them. This to my

mind is a too simplistic approach to the undisputed facts. In my opinion the proper approach is a

consideration of the boundaries of the two original parcels of land and in particular a

consideration of what must be the common boundary.

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From the evidence it is clear that if there is a common boundary it is the southern boundary of

the northern parcel and the northern boundary of the southern parcel. The deeds to the northern

parcel refer to this boundary as the lands of Habiban and Ramjhan. The deeds to the southern

parcel refer to the boundary as the lands of Sahadat. While there is no evidence before me

linking any of these names with either parcel of land given the history of land tenure in Trinidad

this is unfortunate but not surprising.

There is also no evidence of either of these parcels of land ever being bounded by a road, a track

or a footpath. If then the lands are in fact on opposite sides of what is now Jameel Street, as is

agreed by both sides, then it is not unreasonable to conclude that the name Sahadat must refer to

an earlier owner of the northern parcel and the names Habiban and Ramjhan to an earlier owner

of the Southern parcel. More importantly the land over which Jameel Street now runs must have

been a part of one or the other parcel.

The fact that Shanazar Persaud’s deed places Jameel Street as his northern boundary together

with the evidence of the development of Jameel Street by the residents of the northern parcel in

my opinion leads to the inescapable conclusion that Jameel Street was developed over lands

which originally formed a part of the northern parcel. This conclusion is also supported by the

fact that at no time does Shazard Ali claim the ownership of the lands over which Jameel Street

runs.

In the circumstances I find as a fact that Jameel Street runs over lands which formed a part of the

northern parcel. Even if I am wrong with respect to the Claimants’ ownership of the land over

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which Jameel Street runs I am satisfied that on the evidence before me the Claimants are in

sufficient possession of the land over which Jameel Street runs to found a claim in trespass.

The fact that in subsequent deeds and survey plans Jameel Street has been described as a road

reserve is not indicative of anything more that it is an area of land identified and reserved by the

owners of the land from which it was carved out for use as a road. In my opinion it is not

necessarily indicative of the existence of a right of way except perhaps by way of grant and

certainly not indicative of a right of way to persons not the occupiers of the land the benefit of

which the road reserve was created.

It follows therefore that the fact that Shanazar Persaud’s deed of conveyance refers to the

existence of a road on his northern boundary is not necessarily indicative of a right of way over

that road for the benefit of his land. From the earlier deeds relating to the southern parcel it is

clear that the reference to Jameel Street in Persuad’s deed is merely descriptive of what is in fact

to be found on the northern boundary of the land and no more. It in fact replaces the description

of the northern boundary described earlier as the lands of Sahadat.

In support of their submission that Jameel Street is a public road the Defendants rely on section

14 of the Highways Act. On the facts before me it is clear that the Defendants have not gotten off

first base in this regard. In the first place the user relied on must be user which under the

common law would have given rise to a presumption of dedication as a highway. The Act merely

reduces the length of the period of such enjoyment to 20 years. At common law there are two

elements that must be proved to establish a public right of passage. The first is a dedication of

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the way to the public either expressly or by implication and secondly an acceptance by the public

that a public right of passage exists. The onus of proof of both these elements is on the person

alleging its creation.

There is no evidence of an express dedication of Jameel Street to the public. In this regard let me

say that the fact that the street was formally opened in 1990 is not, in my opinion, by itself

evidence of its dedication to the public. Nor given the evidence from the Borough as the nature

and reason for their activity on the street such evidence. Actual user of right by the public is

therefore necessary to prove both elements. Unfortunately as indicated earlier there is no

evidence upon which I can rely to show the use of Jameel Street by members of the public. At

best there is the blanket statement of Shanazar Persaud which in my opinion and for the reasons

stated earlier is devoid of any evidentiary value.

While there is evidence of user by Naz Ali and his family from around 1980 it is clear on the

evidence that this user was not as of right as members of the public but rather pursuant to

permission granted. On the evidence before me therefore the Defendants cannot establish the

type of user which would entitle them to a presumption of dedication as a highway or as a public

way under the common law. In the circumstances I am satisfied that section 14 of the Highways

Act does not apply.

At the end of the day I accept the evidence given by the Corporation and find that Jameel Street

is not a public road. That said such a finding does not prevent the acquisition by the Defendants

of a right of way over Jameel Street. Neither does my finding that Jameel Street runs over lands

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which originally formed a part of the northern parcel. In this regard the Defendants by their

pleading rely on an acquisition by way of necessity and by prescription pursuant to section 2 of

the Prescription Act.

I am satisfied that a right of way by necessity does not arise. A right of way of necessity arises

by implication of law. It is implied in favour of grantee of land over (a) the land of the grantor

where there is no other way by which grantee can get to the land so granted to him or (b) the land

of the grantee where the land retained by the grantor is landlocked. Such a way cannot exist over

the land of a stranger.1 The dominant and servient tenements must have been created from the

same parcel of land. On the facts before me this is clearly not so.

With respect to the acquisition of a right of way by prescription section 2 of the Prescription Act

provides that such right shall become absolute and indefeasible where the right has actually been

enjoyed by any person claiming it without interruption for the full period of 16 years unless the

right was enjoyed by consent or by some agreement expressly given or made for that purpose by

deed or writing. User by consent therefore prevents the acquisition of a right of way by

prescription. By section 4 of the Act the 16 year period must be the 16 years immediately before

action.

The Defendants therefore are required to prove user as of right for the full period of 16 years

before the year 2012 when the action commenced. Accordingly to succeed the Defendants will

have to show user without interruption from at least the year 1996. In this regard the Defendants

cannot rely on the consensual user by Naz Ali and his family and must rely on the evidence of

1 Halsburys laws of England, fourth edition, volume 14 paragraph 153, page 73.

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user by the occupants of the Persauds’ land. The only evidence of uninterrupted user of Jameel

Street by the occupants of the Persauds’ land is from the year 2002. Accordingly the Defendants

have not satisfied the 16 year requirement under the Act.

In the circumstances the Defendants’ claim to be entitled to a right of way along Jameel Street to

get to Caroni Savannah Road and back fails. Although, to my mind, the ownership of the strip of

land under which the Claimants’ water mains run has not been established I am satisfied that

these mains have run under that land for in excess of 40 years and in accordance with the

Prescription Act if the land did not form a part of what was originally the northern parcel the

Claimants have acquired an easement in this regard. In the circumstances I am satisfied that the

Claimants are entitled to access that strip of land for the purpose of maintaining these water

mains.

Claim against the Fourth Defendant

By the statement of case the Claimants allege that the Defendant, Ramkarran Ramparas, was at

all material times the servant and/or agent of the first three Defendants. According to the plea in

the Statement of Case: on the 15th

September Ramparas, accompanied by six other men, without

the permission of any of the Claimants or other owners of the Street entered onto Jameel Street

and claiming that it was a public road removed and took away the gate and three metal posts.

The Claimants seek special damages in the sum of $40,000.00 representing the original cost of

the gate and the cost of its replacement.

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There is no denial of these allegations in the defence filed on behalf of the first, second or third

Defendants and in particular there is no denial that at the material time Ramparas was the servant

and/or agent of the Defendants. Indeed as between the Claimants and the first to third Defendants

it was agreed that the Fourth Defendant was a licensed bailiff and was the agent of the first,

second and third Defendants and retained by them to remove the gate.

This admission is of course not evidence against Ramparas. In his defence Ramparas admits that

he is a licensed bailiff and that he was present on the date but denies all the other allegations

against him. In particular he denies being a part of any team involved in the removal of the gate.

This issue of whether Jameel Street is a public road has already been determined. The sole issue

here therefore is whether Ramparas was a part of the team involved in the removal of the gate

and in particular whether he was the person directing the workmen in this regard. This is not a

criminal trial. At the end of the day the Claimants are required to satisfy me of this fact on a

balance of probabilities.

Evidence for the Claimants was given by Zahara Ali, Nazum Khan and Ashmed Tajmool.

According to both Zahara Ali and Ashmed Tajmool Ramparas arrived on the scene on that date

by himself in a car which they say he parked on the land of Korisha Sakit Hosein. Zahara Ali in

her evidence in chief says that on the 15th

September at around seven a.m. she saw a group of

seven men, including Ramparas and one Felix Williams, armed with a cutting torch cutting down

the gate. She says there were also two police officers in a marked police vehicle present. She

spoke to the police officers and based on what they told her she then spoke to Ramparas and

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Felix Williams. Ramparas flashed some documents in her face and told her that Jameel Street is

a public road and that they could not stop anyone from using it. She says he and his men cut

down the gate, the three steel posts and the no trespassing sign, loaded them all up into a pickup

and took them away.

Under cross-examination she said that she came to the conclusion that Ramparas was responsible

because on asking one of the police officers what was happening the police officer pointed to

Ramparas and said talk to that man. She says she also spoke to Ramparas personally. According

to her he told her that he came to do a job and nobody was going to stop him. This statement did

not however find its way into her witness statement.

According to Nazmun Khan in her evidence in chief at around 6.50 am Ramparas together with

Feliz Williams and 5 other men came onto the street and began removing the gate. At around

7.30 a.m. she telephoned a police officer who came to the location shortly afterwards. While she

was speaking to the police officer Ramapras came up and asked the officer why he was

supporting the injustice of these people blocking the road. The police officer asked Ramparas if

he had any documents authorising him to cut down the gate. She says Ramparas walked away

without answering. Thereafter Ramparas and his men cut down the gate, a sign post and 3 steel

posts put them in a pick-up and left.

Under cross-examination she admits that the gate was removed by Felix Williams and the other

men and not Ramapras. She was of the opinion however that Ramparas was instructing the men

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to remove the gate. She admits that her conclusion was not as result of anything told to her by

Ramparas, Shazard Ali or the Persauds.

Ashmed Tajmool in his evidence in chief confirms the evidence of his sister and Zahara Ali

given in chief except that he says that the two armed police officers arrived while the gate was

being removed. Under cross-examination he admits that he did not see Ramparas actually

remove the gate. Unlike the other two witnesses his opinion as to the involvement of Ramparas

was not however challenged in cross-examination.

Shazard Ali gives no evidence in this witness statement with respect to this incident. Under

cross-examination by the Claimants’ attorney he admits that he was present when Ramparas and

his crew came and removed the gate but says that he did not authorise Ramparas to break down

the gate. Despite his earlier admission that Ramparas and his men broke down the gate under

cross-examination by Ramparas’ lawyer he says that Ramparas was not breaking down the gate

but rather “it had some men working”.

Like Shazard Ali Shanazar Persaud gives no evidence in chief of what occurred on the 15th

September. He says however that he and his wife decided to retain Ramparas to remove the gate

and allow them access to their buildings. According to him they never instructed him to take

away the gate and they do not know what was done with it. Under cross-examination by the

Claimant’s attorney he accepts that he and his wife hired Ramparas to remove the gate.

According to him he was not in Trinidad at the time but his wife was in the country and could

not access their house. He was not cross-examined by Ramparas’ Attorney.

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According to Ramapras in his witness statement about 2 days before the 15th

September he

received a telephone call from someone who he believed was Shanazar Persaud. He says that he

told Persaud that he could not perform the duty due to his already strenuous work schedule and

suggested she seek the assistance of another bailiff. He was not paid for the job. Nor was he

retained to lend his professional assistance.

He says on the morning of 15th

September while on his way to Port-of-Spain he saw a large

gathering on the roadway near Jameel Street. Out of curiosity and because of his nature of his job

he stopped his car and went to see what was taking place. He says he did not approach the

incident nor did he present himself in any capacity to the police officers on duty or to any of the

other participants. He denies being a part of the team of men removing the gate. He says they

were not acting under his instructions or authorisation. He stayed there for about 10 minutes.

Under cross-examination by attorney for the Claimants he denies knowledge of Felix Williams.

He claims that the person he spoke to on the telephone identified herself as a Mrs. Persaud. She

spoke to him about the removal of a gate from Jameel Street. He says that on the particular date

he got there at about 8.30 to 8.45 am he did not go onto Jameel Street but remained on the main

road. He had no conversation with either Zahara Ali or the police officers present on that day.

According to him he does not know Shazard Ali or Shanazar Persaud.

Photographs taken on that day were put into evidence. All the photographs do however is to

confirm that Ramparas was on the scene at the time.

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At the end of the day we have a confirmation by Shanazar Persaud that he employed Ramparas

to remove the gate. There is the admission by Ramparas that he was approached to do the job

and his claim that he refused the job. Despite that refusal Ramparas admits that he was present

at the date and time that the gate was being removed but claims that his presence was simply a

coincidence.

I do not accept Ramparas’ evidence. In the first place it is not consistent with his defence. The

defence filed presents a blanket denial. There is no reference in it to his being contacted by a

person holding herself out to be a Mrs. Persaud. Further it must be noted that the witness

statement of Ramparas was filed, with leave, after all the other evidence including the cross-

examination of the witnesses was completed. In those circumstances the fact that there was no

cross-examination of the statement by Shanazar Persaud that he and his wife hired Ramparas to

remove the gate becomes even more significant. It seems to me that on the state of the evidence

before me it is open to me to conclude that Ramparas’ evidence as to the refusal of the job is a

recent fabrication specifically designed by him in an attempt to meet the evidence already

received.

In addition all the Claimants present came to the conclusion that the work was directed by

Ramparas. The cross-examination in this regard was only directed to conversations with

Ramparas. It cannot be disputed however that there are many other valid means for these

witnesses to arrive at a conclusion that the work was being directed by Ramparas. These means

include what the witnesses might have seen. The only challenge to their opinion in cross-

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examination was to what was said to them. At the end of the day the opinions of all three

witnesses that Ramparas was involved and directed the operations of the men in the removal of

the gate that morning has not really been challenged.

I am satisfied that it was not pure coincidence that brought Ramparas to the scene on the

morning of 15th

September 2012. I accept the evidence of Shanazar Persaud that he and his wife

employed Ramparas to remove the gate and I accept the evidence of the Claimants as to

Ramparas’ involvement in its removal. I find as a fact that the gate was removed by the persons

acting on the instructions of Ramparas.

As against Ramparas the Claimants seek a declaration that he had no authority under the Bailiff’s

Act to break and remove the Claimants’ gate. In this regard the Claimants contend that in cutting

down the said gate and posts Ramparas has exceeded his jurisdiction and is in breach of section

9(1) and section 10(1) of the Bailiffs Act Chap 4:61.

In my opinion the submissions with respect to the Bailiffs Act are misconceived. This Act seeks

to regulate and licence bailiffs for the purpose of performing the functions as identified by

section 9 of the Act. It is with respect to those functions that a licensed bailiff can claim the

immunities provided for the bailiff’s protection under the Petty Civil Court Act2. With respect to

acts outside of the ambit of section 9 a bailiff, whether licensed or not, has no special protection

or immunity. Section 10 of the Act merely provides the procedure by which a licensed bailiff is

2 section 9A of the Bailiffs Act Chap 4:61

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to carry out the functions under the Act. A failure to comply with section 10 with respect to these

functions may render the bailiff liable to lose his licence as well as summary conviction.

In the instant case therefore, despite the fact that Ramparas is a licensed bailiff, on the evidence

it is clear that he was not employed to perform any of the functions to be performed by a licensed

bailiff under the Act. In the circumstances insofar as the Act provides the manner in which a

bailiff is to perform the statutory functions it is of no relevance in this case. The result of this is

that Ramparas has no special immunity with respect to his employment by the Defendants over

and above that which may be afforded a servant and/or agent. It would seem therefore that while

a declaration in the terms sought by the Claimants is theoretically correct no useful purpose will

be served by making such a declaration.

At the end of the day therefore I find that Ramparas wrongfully entered onto the Claimants’ land

and wrongfully removed the gate and three fence posts erected thereon. Bearing in mind the

admission by the other Defendants that Ramparas was their agent and retained by them for the

purpose of the removal of the gate I am satisfied that the Defendants, inclusive of Ramparas, are

jointly and severally liable in damages for the wrongful removal of the gate and the three fence

posts.

Damages

The Claimants claim the sum of $40,000.00 as special damages. This sum comprises the cost of

the erection of the old gate and the cost of erection a new one. The Claimants are not entitled to a

double recovery of damages. In the circumstances they may either recover the cost of the

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erecting of the old gate or its replacement value. With respect to the erection of the new gate

there was tendered into evidence an invoice from Envirotec Ltd in the sum of $25,300.00

representing the cost of erecting a new gate. In the circumstances the Claimants are entitled to

special damages in the sum of $25,300.00.

The Claimants seek an order for exemplary, punative and aggravated damages I do not think that

in all the circumstances of the case such an order is appropriate. I am satisfied that with the

exception of Shazard Ali all the other Defendants were under the impression, mistaken as that

impression was, that the road was a public road. That said the Claimants have consistently

protested the use of Jameel Street by anyone other than the owners of what was originally the

lands forming the northern parcel and their licensees. Indeed the order in the earlier proceedings

and the dismissal of the appeal in this regard ought to have provided some guidance to the

Defendants to the merits of their claim. In the circumstances the Claimants are entitled to a

nominal sum of $15,000.00 to be paid by the first, second and third Defendants representing their

general damages with respect to the trespass.

Accordingly the claim in CV 2012 -02080 and the counterclaim in CV2012-04126 are dismissed.

With respect to the claim in CV 2012-04126 and the counterclaim in 2012- 02080 the Claimants

are entitled to declarations that (i) Jameel Street also called Jameel Trace is not a public road and

(ii) the Defendants are not entitled to a right of way along Jameel Street to get to Caroni

Savannah Road and back. The Claimants are also entitled to an injunction restraining the

Defendants whether by themselves their servants and /or agents or howsoever from entering

upon Jameel Street also called Jameel Trace and an injunction restraining the Defendants by

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themselves their servants and or agents or howsoever from preventing the Claimants and their

servants and/or agents access to their water mains running along and or under a strip of land four

feet wide adjoining and running along the southern boundary of Jameel Street also called Jameel

Trace.

Dated this 18th

day of December, 2013.

Judith Jones

Judge