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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

H.C.A. No. 2712 of 2004

CV2006-01911

BETWEEN

DON SO’BRIEN

PLAINTIFF AND

RAJINDRA MAHADEO

FIRST DEFENDANT

FELIX TOUSSANT also called PHILLIP TOUSSANT

Also called PHILLIP TOUSSAINT

SECOND DEFENDANT

BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES

Appearances:

Mr. Ramischand and Ms. Boodoo instructed by Mr. Debideen

Mr. Furlonge-Kelly instructed by Mr. John

JUDGMENT

1. The Plaintiff holds the paper title for a parcel of land, the subject matter of the

action, comprising 2 acres situate at Lady Chancellor Road, St. Anns (“the land”). The

Defendants by counterclaim claim an interest in the land. Both parties seek damages.

History of the Proceedings

2. By an order made ex parte on the 14th October 2004 an injunction was granted the

Plaintiffs. This injunction, inter alia, restrained the Defendants from entering, re-entering

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and/or remaining on the land. On the 5th November 2004 the injunction was varied by

consent and the parties undertook not to enter upon or occupy or use a portion of the land

comprising 5,000.00 square feet.

3. On the 6th July 2006 the action was converted to the Civil Proceedings Rules 1998

as amended (“the CPR”). On the 17th October 2006 the action was adjourned to give the

parties the opportunity to settle the matter. The action was not settled and on the 15th

December 2006 directions were given for the hearing of the action and a trial date set.

The Pleadings

4. It is not in dispute that:

(i) the Plaintiff holds the paper title to the land;

(ii) the Defendants have been in the occupation of a house on the land from at

least the year 2002;

(iii) the Plaintiff on the 20th September 2004 served the Defendants with a notice

to vacate the lands and

(iv) on the 7th and 15th October 2004 the Plaintiff entered onto the land,

demolished the house and ejected the Defendants from the land.

5. The Plaintiff pleads that his father, his predecessor in title, had given permission

to one Ms. Ramsaroop to reside on the land until her death. Some time after his purchase

of the land in the year 2002, he noticed the Defendants on the land and in the occupation

of the shack originally occupied by the said Ms. Ramsaroop. After some discussions and

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negotiations with the Defendants, on the 20th September 2004 he served notices on them

giving them 7 days to vacate the land and thereafter physically ejected them from the

land.

6. With respect to their claim to an interest in the said land the Defendants’ case on

their pleading is that the parcel of land resembles a 2 acre parcel of land originally

occupied by their deceased grandparents as tenants from about the year 1951 and that at

all material times they were in the possession and control of the land. They aver that from

the year 1984 no rents were demanded or paid for the land.

7. With respect to their interest in the land the Defendants plead that:

(i) their grandfather was a tenant of the said land from the year 1951;

(ii) they were born and grew up on the said land in a house constructed by their

grandfather;

(iii) over the years their grandfather built his house on various portions of the land;

(iv) their grandfather planted long and short term crops around the house and

throughout the land,

(v) they were in the possession and control of the land via a duplex house one

part of which was given to the Second Defendant by his grandfather and the

other part given to the First Defendant by his mother, Lucy May Ramsaroop a

beneficiary of the estate of the grandfather,

(vi) the house was metered for electricity provided by the electricity company

(“T&TEC”);

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8. The Defendants admit receipt of the notices requiring them to vacate the land but

aver that because of their interests in the land inherited from their grandparents and the

length of time that no rent was collected and/or demanded these notices were of no effect,

null and void. With respect to their damages the Defendants claim special damages in

excess of $100,000.00.

9. The issues raised by the pleadings for my determination are:

(i) Do the Defendants have an interest in the land?

(ii) If so, is this interest sufficient to (a) deny the Plaintiff a declaration that he

is beneficially entitled to the land and an injunction denying the

Defendants access to the land and (b) nullify the effect of the notices; and

(iii) Damages.

The Evidence

10. It has not been disputed that

(i) Victor Ramsaroop, the grandfather of the Defendants was the tenant of the

land;

(ii) no rents have been paid or demanded with respect to the land since 1984;

(iii) the Ms. Ramsaroop referred to in the Statement of Claim is Theresa

Ramsaroop, the grandmother of the Defendants, and the wife of Victor

Ramsaroop.

(iv) Lucy May Ramsaroop, the mother of the First Defendant lives on a parcel of

land adjoining the land on its south-eastern boundary.

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(v) Victor Ramsaroop died on the 19th February 1987 and Theresa Ramsaroop

died on the 6th November 1998.

The Plaintiff’s Evidence

11. The evidence led on behalf of the Plaintiff is that his father purchased the land in

the year 1987. In the year 1988 the land was surveyed. This survey plan, put into

evidence by consent, does not show any house on the land. In the year 1992 the land was

again surveyed, this time by another surveyor. This second survey plan shows a structure

on the land identified in evidence as the house occupied by the Defendants.

12. According to the evidence, this house was in the year 1992 occupied by Theresa

Ramsaroop who was at that time an old woman. The house was located on the south-

eastern boundary of the land and identified on the agreed plan as a rectangular building

touching and protruding slightly over the south-eastern boundary of the land. The house

was approximately 12 feet by 14 feet and made of board. There was no electricity. In the

year 1992, Theresa Ramsaroop was given permission by the Plaintiff’s father to remain in

the house on the lands. Ms. Ramsaroop died soon afterwards.

13. The Plaintiff purchased the land from his father in the year 2002. After purchasing

the land he discovered that the Defendants were in the occupation of the house on the

land. At that time he also saw two electricity meters on the land in the vicinity of the

house.

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14. According to the Plaintiff and his witness they have never known or seen anyone

cultivating crops or planting trees on the land since the year 1988. Indeed the evidence of

the Plaintiff and his witnesses was that the land was covered with bush and trees. The

Plaintiff or his predecessor in title state that they never rented, let or demised the land or

any portion of it to the Defendants or any other person.

15. An examination of the evidence led on behalf of the Plaintiff reveals that at all

material times he and his predecessors in title only made occasional visits to the land.

These visits were in the year 1988 and between the years 1992 and 1998. Thereafter the

Plaintiff visited the land in 2002, saw the Defendants on the land and entered into

negotiations with the Defendants in an attempt to resolve the impasse presented by their

occupation of the house on the land. These discussions continued until the year 2004.

The Evidence led on behalf of the Defendants

16. Before examining in detail the evidence led on behalf of the Defendants it is

appropriate to make one observation relevant to the weight to be placed on the evidence

of both Defendants. Part 29.5 of the CPR provides that a witness statement must “so far

as reasonably practicable, be in the intended witnesses own words.” The reason for this is

obvious. The witness statement replaces a witness’ oral evidence in chief. When a

witness gives oral evidence the manner and demeanour of the witness in giving evidence

is always relevant to any assessment of that witness’ credibility and the weight to be

placed on that evidence. So to is the manner by which the evidence is placed before the

Court when the evidence is by witness statement. It is precisely to give the Court the

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ability to properly assess the credibility of the witness that the CPR requires that as far as

reasonably practicable the statement be in the witness’ own words.

17. In the instant case the witness statements of both Defendants are remarkably

similar. This is particularly so with respect to those parts of the witness statements

dealing with the interest of the Defendants in the house and the land.

18. According to the First Defendant he was born in 1966 on the subject lands and

lived there until the year 2004. The Second Defendant states that he was born in the year

1960 and he too lived on the land until 2004. According to the Second Defendant he

installed electricity in the year 1983 and the meter, 495810, is in his name.

19. According to both Defendants their grandfather died testate leaving their

grandmother the sole executrix and trustee of his estate and together with Lucy May

Ramsaroop, the mother of the First Defendant, the beneficiaries of his estate. The will

was never probated. Their grandmother died intestate.

20. Both Defendants claim that in the year 1982 their grandfather gave them a part of

the chattel house on the land. According to them the house was built of strong mora wood

and was approximately 49 feet by 16 feet.

21. With respect to their occupation of the land the Defendants state that:

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(i) together with their grandparents and other members of their family they planted

long and short crops on the land. According to the Defendants these crops were

planted on the land and around the chattel house their grandfather built and

relocated 3 times on various parts of the land over the years;

(ii) they describe various trees planted by their family and themselves and state that

these trees remained on the land until they were destroyed in 2004 by the

Plaintiff;

(iii) in 1979 they widened an access road to the land that had been built by their

grandfather in 1958;

(iv) they each had been in the undisturbed possession of the land and the portion of

the house given to them by their grandfather until 2004.

22. According to both Defendants in their witness statements:

“We, all the occupants of the land over the years from 1951 had the

full control and undisturbed possession of it until 2004”

“In the latter years around 2004 my cousin and I mainly occupied

approximately 26,000 sq. ft of land where the long term trees were

concentrated on the western boundary: 50 feet north of where the right

of way / access road entered into the land and 100 feet south of the

right of way tapering diagonally towards the Southern boundary, and

approximately 228 feet along the Eastern boundary from the Southern

boundary, and the width of the land approximately 124 feet” “….at

the time of the destroyed home in 15th October 2004, I and my cousin

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occupied and maintained and were in full control of the area above but

from time to time would traverse the entire land to Lady Chancellor

undisturbed.”

“My grandfather died testate leaving my grandmother who died

intestate, sole executrix and trustee and …… Lucy May Ramsaroop

and my grandmother as beneficiaries equally entitled to his estate.

Because of their deaths, my aunt and mother are entitled to the interest

my grandparents have in the subject land, along with my own and

cousin’s independent interest in the land.”

23. Also giving evidence on the Defendants’ behalf was Lucy May Ramsaroop, the

mother of the first Defendant. According to her, her father, Victor Ramsaroop, was the

tenant of the land and paid an annual rent of $7.00. By consent receipts for rent in the

name of Victor Ramsaroop were put into evidence. She states that while growing up she

knew her father and mother to be planting the entire parcel of land. According to her she

and her siblings and their children also assisted in cultivating the land with short crops.

She says: “My parents also planted other long term crops ….which stood up to the time

my family’s chattel house/home was destroyed on 15th October 2004.”

24. According to this witness part of the house was built for and given to the Second

Defendant by her father in 1982 and electricity installed to that part of the house in the

same year. The electricity for the original house was installed in 1972 in her name. The

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reason for this she states was because she used to do business for her father. After her

father died she went to live on land at LP1 Hutton Road which abuts the southern

boundary of the land. She now has a different electricity meter.

25. She states: “We, my father and my mother, the Defendant and I had undisturbed

and full control of the entire parcel of land and……. no one objected to where he placed

the house on any part of the land. It was only in the latter years around 2004 that the

defendant focused on regularly maintaining about 26,000 square feet of the southern part

of the land where most of the full grown trees were although they would traverse from

time to time the entire land.”

26. With respect to the Second Defendant she says that he continued to live with her

father and mother up to their respective deaths in 1987 and 1998.

27. There was put into evidence by consent correspondence passing between the

Attorneys for the parties. Of relevance here is the fact that in their correspondence the

Defendants were claiming the entitlement to a statutory lease of the land. Also put into

evidence by consent was a copy of the death certificate of Theresa Ramsaroop, the

grandmother of the Defendants. Of note is the fact that the Second Defendant is recorded

as the informant on the death certificate with his address being noted as Winnie

Mohammed Road Diego Martin.

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28. Also put into evidence by consent were three affidavits deposed to on behalf of

the Defendants in the injunctive part of the proceedings. The purpose for putting these

affidavits into evidence remains unclear. These persons were not brought to give

evidence nor was any application made pursuant to the Evidence Act Chap. 7: 01 to

have these affidavits used as evidence in the action. What is clear is that the contents of

these affidavits were not before me and the only use that I can make of these affidavits is

that these persons swore affidavits in interlocutory proceedings.

The Law

29. It cannot be disputed that the Plaintiff being the holder of the paper title his

entitlement to the beneficial interest in the land can only be challenged by proof that the

Defendants have acquired the land by way of their adverse possession thereof. The

Defendants however merely claim an interest in the land. The extent of this interest is not

specified.

30. Nor did the Plaintiff seek particulars of or interrogate the Defendants prior to or at

trial in this regard.

31. The difficulty in the evidence presented by the Defendants is that their case can

only be that they are entitled to a tenancy or to the possession of the land by virtue of

their adverse possession. These are to my mind two inconsistent claims. In one the

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parties acknowledge the title of the owner and claim of the owner. In the other the parties

deny the title of the owner and set up title in themselves.

32. To my mind in doing this the Defendants walk a narrow and dangerous path. It is

trite law that it is a cause for forfeiture of a tenancy if a tenant from year to year sets up

either in writing or orally that the title to the land is in another: Hill and Redman 18th

edition paragraph A [2181]. The effect of that denial of title is that the tenancy may be

determined by the landlord without a notice to quit. The issue of whether a tenant is

asserting title adverse to the landlord is a question of fact to be determined by the Court.

33. If the Defendants’ claim is in adverse possession then the onus is on them to

prove that they or their predecessors in title have been in the exclusive and undisturbed

occupation of the land for 16 years or more: Richardson v Lawrence (1966) 10 W.I.R

234. The evidence is that at least up to and until the year 1984 the Defendants were on

the land pursuant to a contract of tenancy vested in their grandfather. Time does not begin

to run for the purpose of adverse possession unless the land is in the possession of some

person in whose favour the period of limitation can run. In particular with respect to a

person in possession of land as a tenant time does not begin to run until the determination

of the period for which any rent payable in respect of such tenancy shall have been paid:

section 3 of the Real Property Limitation Act Chap. 56:06. On the Defendants’ case

therefore time would not begin to run until at least the year 1984.

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34. In this regard I am therefore required to examine the evidence of the Defendants

with respect to their occupation of the land subsequent to the year 1984 so as to ascertain

whether acts sufficient to establish exclusive and undisturbed possession of the land for

the requisite16 year period have been proved. In other words the Defendants must prove

to the satisfaction of this Court acts of occupation sufficient me to come to the conclusion

that they were in the possession of the land and that that possession was adverse to the

true owner.

35. The only evidence by the Defendants in this regard is:

(i) the bald statement by them and their witness that they were in the undisturbed

possession and in the full control of the land until 2004;

(ii) the evidence of the continued existence of fruit trees planted by members of

the Ramsaroop family until the year 2004; and

(iii) the fact that there were electricity meters attached to the house.

36. Of note is the fact that, the only evidence given by the Defendants of their actual

occupation of the land is in respect of the period which they both describe as “the latter

years around 2004”. That evidence apart the Defendants use only words like “possession”

and “control” to describe their relationship with the land prior to 2004. In similar vein the

only evidence given by the Defendants of the actual cultivation of the land is during the

lifetime of their grandparents.

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37. The only evidence as to the actual occupation of either of the Defendants of the

house after 1984 comes from Lucy May Ramsaroop. She says: “My son, Rajindra

Mahadeo, continued to live with my father and mother up to their respective deaths in

1987 and 1998…”

38. Even if I accept the evidence presented by the Defendants, in my opinion,

this evidence is not sufficient to establish occupation sufficient to found a claim in

adverse possession. In the first place statements as to their being in the undisturbed

possession or in full control of the land are conclusions of fact not open to the Defendants

to make and are of no evidentiary value. What is required of the Defendants is for them to

present to the Court evidence upon which I can come to such a conclusion.

39. In the second place the existence of fruit trees without more is not evidence of

occupation. It is the fact of planting and cultivation and/or the reaping of produce that

provides the evidence of occupation. Except perhaps with respect to the period around

2004 the Defendants presented no such evidence to this Court for any period subsequent

to 1984. Indeed, of significance is the comparison of the quality of the evidence of the

Defendants of their occupation of the land between the years 1984 and 2004 and their

evidence of occupation in or around 2004.

40. Similarly without more the fact that electricity meters were attached to the house

in the years 1972 and 1983 is not evidence of the continuous occupation of the house.

Evidence of the continued use of electricity over the period would however be an

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indicator of the occupation of the house over the period. In this regard the letter from

T&TEC is instrumental. Firstly the letter does not address the location of the meters. The

letter merely states that meters were installed in the name of the Second Defendant on the

7th July 1983 and in the name of Lucy May Ramsaroop on the 24th November 1972 and

that both accounts are “currently in receipt of electricity as at today’s date 26th October

2004”.

41. Indeed the electricity bills put into evidence only show electricity charges

accruing to both meters for the period ending 11th May 2004 to 26th October 2004. There

is no dispute that during the period May to October 2004 the house was occupied. Further

the dates of the installation were during the period when it is not in dispute that the

Defendants’ grandfather was the tenant of the land and in the occupation of the house.

The installation of the meters therefore could not in my opinion be evidence referable to

the Defendants’ adverse occupation of the land. There is no evidence before me that

electricity was consumed on the premises between the years 1984 and 2002.

42. In the circumstances even if I accept the evidence of the Defendants in my

opinion the Defendants have not discharged the onus upon them to establish continuous

and undisturbed occupation of the land sufficient to found a claim in adverse possession.

Even with respect to their occupation of the house the evidence is scant and lacks

particulars. Further I must bear in mind the evidence presented by the death certificate of

the Defendants’ grandmother as to the address given for the First Defendant in the

year1998. This would have been information given to the Registrar of Births and Deaths

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by the informant, the First Defendant. The inescapable inference to be drawn from this

fact can only be that at that time, November 1998, the Second Defendant was not living

in the house on the land as the Defendants claim but rather in Diego Martin.

43. In all the circumstances I am of the view that the Defendants have not established

an interest in the land based on adverse possession.

Have the Defendants established an entitlement to a Tenancy?

44. It must be noted that the Defendants’ case is not that there is a tenancy vested in

someone else and they have a licence from that person to occupy the land. The

Defendants’ case is that they have an interest in the land. I accept that at the time of his

death the Defendants’ grandfather was the tenant of the land and the owner of the house

situate thereon. The quantum leap that the Defendants ask this Court to make is that the

facts disclose a tenancy vested in them.

45. It is not in dispute that the will of the Defendants’ grandfather was never

probated. Nor is it in dispute that the will leaves the beneficial interest in the

grandfather’s estate to his wife and daughter. As I understand it the case presented by the

Defendants is that in those circumstances the legal estate vests in the Administrator

General and the beneficial interest vests in the executrix of his estate. The difficulty with

this submission is that it does not take into account the death of the executrix nor does it

establish in the Defendants any beneficial interest to the tenancy.

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46. The Defendants submit that:

(i) the defendants, the grandchildren of the tenant, were there by his permission/

assignment/ operation of law or otherwise;

(ii) the grandfather orally transferred the chattel house to them since 1982 and

automatically his statutory lease.

47. In their submissions the Defendants therefore conclude that they “could be tenants

under the 1981 Act by operation of law (when the probate and Letters of Administration

are settled and deed of gift would be done to encompass the gift the grandparents made to

the defendants and that would include the land). While the exact meaning and effect of

this submission remains unclear to me I am however prepared to assume that the effect of

such a statement is that the Defendants submit that the tenancy has evolved to them by

operation of law. There is no evidence of any assignment of the tenancy to the

defendants.

48. It cannot be disputed that on the evidence the Defendants’ grandfather was prior

to his death the statutory lessee of the land. By section 2 of the Land Tenants (Security

of Tenure) Act Chap. 59:54 (“the Security of Tenure Act”) “tenant” is defined as “any

person entitled to the possession of the land under a contract of tenancy whether express

or implied and whether the interest of such person was acquired by original agreement or

by assignment or by operation of law or otherwise.” The real question therefore is

whether the Defendants can claim the benefit of this section and consequently the benefit

of a statutory tenancy, a claim maintained by them in all the pre-action correspondence.

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49. It is clear that on the evidence presented the Defendants cannot claim an

entitlement by virtue of an original agreement or assignment. The sole question is

whether they can claim a tenancy by virtue of the operation of law. Section 5 of the

Security of Tenure Act provides that the terms and conditions of any subsisting tenancy

converted into a statutory lease, where not inconsistent to the provisions of the Act, shall

be incorporated in the statutory lease as terms and conditions of such lease.

50. At the time of the conversion the tenancy was a tenancy of building land under

the Rent Restriction Act Chap 59:50 (“the Rent Restriction Act”). This Act established

the terms and conditions of the tenancies subject to the Rent Restriction Act.

51. Pursuant to section 5 of the Security of Tenure Act therefore the terms and

conditions of the statutory lease held by the Defendants’ grandfather were those

established by those provisions of the Rent Restriction Act not inconsistent with the

provisions of the Security of Tenure Act.

52. Of relevance therefore are the provisions of the Rent Restriction Act with respect

to the transmission of tenancies from an original tenant to a tenant whose tenancy is

created not by way of contract with the landlord but by the provisions of the Rent

Restriction Act. In other words those sections which deal with the establishment of a

tenancy by operation of law. If therefore the Defendants can establish a tenancy pursuant

to the provisions of the Rent Restriction Act then, by operation of law, the Defendants

would be tenants of the land and entitled to the benefit of the statutory tenancy.

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53. In my opinion therefore in order to establish such entitlement the Defendants must

bring themselves within the definition of a tenant under the Rent Restriction Act Chap.

59:50. Section 2 of the Rent Restriction Act defines “tenant” as including:

(a) a sub-tenant and any person deriving title from the original tenant or sub-

tenant as the case may be;

(b) the widow of a tenant who was residing with him at the time of his death, or,

where a tenant leaves no widow or is a woman, such member of the tenant’s

family as was residing with the tenant for not less than six months

immediately before the death of the tenant as may be decided in default of

agreement by a court or by a Board.”

54. On the evidence presented it is clear that the Defendants were not subtenants nor

are they persons deriving title from the original tenant. The only persons who could claim

such an entitlement would have been the Defendants’ grandmother and Lucy May

Ramsaroop and only if the will had been probated. The evidence is that the Defendants’

grandmother lived with her husband, survived him and continued her occupation of the

house until her death. There was therefore a surviving widow who was entitled to the

benefit of (b) above. In the circumstances even if I accept that the Defendants or either

one of them lived with their deceased grandfather for not less than six months

immediately prior to his death the tenancy would vest in their grandmother Theresa

Ramsaroop by operation of law upon the death of their grandfather and not in the

Defendants. In the circumstances, in my opinion, the Defendants have failed to establish

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a tenancy. I find therefore that the Defendants are not the statutory tenants or entitled to a

statutory lease of the land.

55. In all the circumstances therefore the Defendants have failed to establish an

interest in the land. On the evidence presented therefore I find that the Defendants were

trespassers on the land.

Damages

56. The Plaintiff claims damages for trespass, damages for nuisance and aggravated

and/or exemplary damages. No evidence of nuisance has been placed before me and

indeed it would be difficult on the facts as presented to conceive of a successful claim in

nuisance. In the circumstances of this case the proper measure of damages would have be

the loss of mesne profits. In the absence of any evidence in this regard I award the

Plaintiff no damages.

57. Despite the lack of precision in terms of the relief sought I am prepared to accept

that the Defendants seek damages as a result of the destruction of their house and the loss

of their possessions. There is no evidence before me that the Defendants were anything

other than trespassers on the said land and in the circumstances will not be entitled to an

award of damages as against the true owner of the land with respect to the damage to the

house on the land: Hemmings v The Stoke Poges Golf Club, Limited and another

[1920] 1 KB 720; Vashti Sampson and others and The National Housing Authority

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Cv. No. 96 of 2003. Indeed in the case of Jones v Foley [1891] I QB 730 referred to by

the Court of Appeal in the Sampson case, Day J. stated at page 733:

“The Plaintiff had no right to be in the house; he was a trespasser. Any

injury that happened to his furniture was not due to any unlawful act of the

defendant, but was as a result of his own obstinacy in unlawfully insisting

upon remaining where he was, and he must put up with the consequences.”

58. In similar circumstances the Defendants have not shown a right to be on the land.

Any injury to their belongings was as a result of their determination to remain on the land

after notice was given to them to vacate the land.

59. That is not to say that an owner of land will in all cases be justified in entering

onto lands which he alleges are in the occupation of trespassers and forcibly ejecting

them. An owner doing so not only runs the risk that a Court may be of the view that the

alleged trespasser in not a trespasser at all. Indeed even if the occupant were a trespasser

the owner may, on the facts, still be liable for damages in assault or criminally liable for

forcible entry: In the matter of an application of Shyroon Mohammed HCA No.1128

of 1980.

60. In the instant case however there is no plea nor are there any facts to justify a

finding of assault. Neither is there in my view any satisfactory evidence upon which this

Court can assess the Defendants’ damages even if I was of the view that the Defendants

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were entitled to damages. In support of their claim for special damages the Defendants

merely present a list of items lost at the time of the destruction of the house together with

figures presumably representing their value. In my opinion this evidence does not meet

the requirement that special damages must be specially proved.

61. In all the circumstances of the case therefore the Defendants have not proved their

case and the counterclaim must fail.

62. In my opinion it is extremely unfortunate that the Defendants did not avail

themselves of the opportunity presented to settle this matter both before the filing of the

action and by virtue of the conversion of the proceedings to the CPR. In my view the

CPR by providing an opportunity to parties to resolve disputes based on their interests

rather than on strict law places an additional responsibility on Attorneys to carefully

advise their clients not only on the law but on the “pros and cons” of continuing with

litigation in the face of offers to settle.

63. The Plaintiff is therefore entitled to the declaration he seeks and a permanent

injunction restraining the defendants from entering onto the land.

Dated this 1st day of April, 2008.

…………………………. Judith A. D. Jones Judge