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THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE
Claim No CV 2011 - 01798
Between CHRISTINE BERNADETTE DEBORAH PETRA BRENDA DOLORES
FOSTER PRESCOTT ZAKEN PRESCOTT RASUL PRESCOTT Claimants And
GAIL KINGSLEY CHRISTOPHER EMMANUEL CANDACE MARLON
PRESCOTT PRESCOTT PRESCOTT PRESCOTT PRESCOTT SIMON Defendants
Before the Honourable Mr. Justice R. Rahim
Appearances: Mr. S. Saunders for the Claimants Mr. R. Cameron for the Defendants
1. This claim involves a dispute as to who is entitled to possession of the premises situated at 19 Independence Square Port of Spain.
2. It is agreed as follows;
a. The Claimants are all sisters and the daughters of Angela Prescott deceased.
b. The First Defendant is the niece of the Claimants, the daughter of their sister Julia Prescott deceased.
c. The Second, Third, Fourth and Fifth Defendants, are the children of the First Defendant.
d. The Fifth Claimant and the Defendants live in the premises known as and situate at No. 19 Independence Square, Port-of-Spain and which is more particularly described in Deed of conveyance registered as No. 1228 of 1918 (hereinafter referred to as “the said premises”).
e. The said premises were originally owned by Christina Harris an ancestor of the Claimants. Christina Harris became the owner of the said premises by virtue of Deed of Conveyance dated the 18th day of September 1916 and registered in the Protocol of Deeds as No. 1228 of 1918. f. By her will dated the 8th day of March 1926 and by a codicil to the said Will dated the 25th day of September 1927 the said Christina Harris devised the said premises to her reputed husband Thomas Robert Prescott for his life and after his death to his six sons namely Randolph Harris, Robert Harris, Eric Prescott, Thomas Prescott, Albert Prescott and Henry Prescott as tenants in common.
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g. Christina Harris died on the 19th day of April 1928 and her Will and Codicil were proved in the Supreme Court of Trinidad and Tobago by her sole Executor Randolph Harris, on the 17th day of November 1928. h. Albert Prescott died on the 2nd day of September 1930. i. By virtue of Deed of Assent dated the 6th day of October 1942 and registered in the Protocol of Deeds as No. 7456 of 1942 five undivided sixth part or shares in the said premises were vested in Randolph Harris, Robert Harris, Eric Prescott, Thomas Prescott and Henry Prescott as tenants in common. j. Henry Prescott was the father of the Claimants and he died intestate on the 26th day of January 1976. Letters of Administration of his estate were granted to Angela Prescott, his wife on the 2nd day of July 1976. k. Angela Prescott died on the 18th day of December 1992 survived by the Claimants and their sister Julia Prescott (now deceased).
l. A survey of the said premises was done in 1986 by Angela Prescott.
m. The Claimants all lived and grew up in the said premises and the Fifth Claimant still lives in same. n. Julia Prescott deceased, born on the 20th day of December 1943, also lived and grew up on the said premises.
o. The said premises contained four separate structures of varying sizes.
p. The structure at the front on the northern side of the said premises was a two bedroom building with a living room. The second building from the north comprised two rooms while the third building comprised three rooms, two bedrooms, a living room and a
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kitchen. The last structure was a seven room barracks situate on the southern side of the said premises. All the buildings were built with wood.
q. The kitchen for the front structure was initially located on the eastern side of the said premises.
r. Upon the request and at the expense of Brenda Rasul the Fifth named Claimant, the Sixth named Defendant renovated a gallery which comprised the second building and converted it into the second room referred to at Paragraph 15 of the Statement of Case.
s. The Fourth and Fifth Claimants lived in the second building and the third building respectively while the Defendants lived in the first building. t. Julia Prescott died on the 24th day of February 2000. u. Prior to it becoming inhabitable the last building or the “barracks” was occupied by Rubia Prescott, a sister of the first named Defendant together with her four children, Tanesha, Jerome, Jayshawn and T’hera. When Rubia migrated to the United States of America the children continued living in the barracks until on or about 2003.
v. The Sixth Defendant effected repairs to the front building. w. The First and Sixth Defendants received a letter dated the 6th day of July 2005 from the Claimants’ Attorney-at-Law. They did not vacate the said premises as requested.
x. The Sixth Defendant broke down the front of the first building and the old kitchen and replaced the wood with concrete.
y. The Sixth Defendant constructed an open shed between the first building and the second building and tiled the floor thereof.
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z. The Claimants’ Attorney-at-Law wrote a letter dated the 11th day of September 2009 to the Defendants. The Defendants’ Attorney-at-Law replied by letter dated the 17th day of September 2009. It has also been agreed that he said premises were re-surveyed on the 10th day of March 2007. 3. Witness Statements were filed on behalf of the Claimants by Petra Prescott and Murchison Craigg. While Petra Prescott testified, the witness Craigg failed to show and the Claimant indicated to the court that they would not be relying on his witness statement. 4. Witness Statements were filed on behalf of the Defendants by Gail Prescott, Marlon Simon, Ricardo Kirton and Damian Granger. All of the witnesses for the Defence testified at trial. 5. The Claimants claim that they are owners of the said premises by way of adverse possession, they having been in uninterrupted possession by virtue of the possession of the Fourth and Fifth Claimants since the 18th December 1992. They claim that prior to that date their mother Angela Prescott was in like possession from the date of death of their father Henry Prescott in 1976. They therefore claim possessory title. In their closing submissions they claim adverse possession. 6. The Defendants counterclaim for a declaration that any right title share or interest the Claimants or either of them may have in the front portion of the said premises has been extinguished by virtue of the provisions of the Real Property Limitation Ordinance Chapter 5 No. 7 and for a declaration that the first named Defendant is the owner of, and entitled to possession of the front portion of the said premises. The Defendants therefore only pursue their case in so far as the front portion of the premises is concerned. The Defendants therefore also claim possessory title on the part of the First Defendant. 7. It is also the case for the Defendants that by virtue of Deed of Conveyance dated the 18th day of September 1916 and registered in the Protocol of Deeds as No. 1228 of 1918, Christina Harris became the owner of the said premises. By Will dated 8th day of March, 1926 and a Codicil to the said Will dated 25th day of September, 1927 Christina Harris Page 5 of 19
devised the said premises to her reputed husband Thomas Prescott for life with remainder to Randolph Harris, Robert Harris, Eric Prescott, Thomas Prescott, Albert Prescott and Henry Prescott as tenants in common. Following the death of Christina Harris on 19th day of April, 1928 and by virtue of a Deed of Assent dated 6th day of October, 1942 and registered in the Protocol of Deeds as No. 7456 of 1942 five undivided sixth part or shares in the said premises were vested in Randolph Harris, Robert Harris, Eric Prescott, Thomas Prescott and Henry Prescott as tenants in common. Henry Prescott who died on 26th day of January, 1976 was the father of the Claimants and Julia Prescott, the mother of the 1st named Defendant. Angela Prescott was his wife and the mother of the Claimants and Julia Prescott.
8. Through the occupation of the said premises by Angela Prescott and Henry Prescott and following their demise, by the occupation of Julia Prescott of the portion of the said premises situated on the northern side and comprising approximately 1,500 square feet more or less (hereinafter referred to as “the front structure”) and thereafter by the 1st named Defendant, the latter is entitled to possession of the front structure. 9. The court understands this argument to be that the First Defendant has a beneficial interest in the one fifth undivided sixth part or share in the said premises by virtue of succession but in any event, the First Defendant is entitled to possessory title of the northern portion of the premises by virtue of not only her possession but through the possession of her mother prior to her death. 10. It is not in issue that the Claimants are all entitled to a share in the estate of their father Henry Prescott upon intestacy. A Grant of Letters of Administration was issued out of the High Court of Justice to the widow of Henry on the 2nd July 1976. Under the rules of intestacy as they then were under the Administration of Estate Ordinance Chapter 8 No.1, the Claimants as well as Julia Prescott, being all lawful children of Henry would have been entitled collectively to a two third share in the estate. (This was eventually changed by the provisions of the Administration of Estates Act 2000).
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11. Angela however, by will of the 13th August 1992, bequeathed to the Claimants and Julia a parcel of land in Arima and also bequeathed the residue of her estate to her executrix, the First Named Claimant. It follows that Angela would only have been entitled to a One Third Share in the estate of her husband Henry at the date of her death and therefore could only have bequeathed her one third share to her executrix Christine by way of the residuary disposition. It also follows that the other claimants and Julia would have been entitled to a share in the two third share of the part held by Henry. The evidence is, that having obtained the Grant in relation to the estate of Henry, his wife Angela pre-deceased her daughter Julia. That being the case, all the Claimants and Julia would have retained their entitlement to equal shares in two thirds of the estate of Henry. This would have been the position when Julia died. It therefore follows that in the usual course of events upon intestacy, Julia's daughter Gail would be entitled to either the Julia's share of the two thirds portion of the estate of Henry or a share of Julia's Share in the said estate depending on the circumstances of whether there were other children (of which there is no evidence).
12. Taken in context therefore the counterclaim of the First Defendant lies in a claim for adverse possession in relation to the front portion of the premises alone (the Defence having so restricted their arguments) to the exclusion of the others (Claimants) who are also entitled to an unascertained share in the legal title to the entire premises together with the First Defendant.
The Issue to be decided 13. When the chaff is therefore dusted off, the Claimants are claiming adverse possession as against the First Defendant who may be beneficially entitled to legal title together with the Claimants of the front of the premises (the claim now having been so reduced) while the First Defendant is also claiming adverse possession as against the Claimants who may be equally entitled to legal title with her of the said front of the premises. The other Defendants are in occupation at the behest of the First Defendant and the success of their Defence is therefore dependent upon the outcome of the case for the First Defendant. The Page 7 of 19
determination of the issue as to whether the possession of either party has been adverse and has extinguished whatever entitlement to legal title that the other may have depends on the court's assessment of the evidence of possession given by both sides.
Evidence of Petra Prescott
14. Petra testified that she, together with the Fifth Claimant Brenda Rasul and all of the Defendants reside at the said premises to date. This witness stated that she resides both at the premises and in the United States of America. According to this witness, all the Claimants and Julia Prescott grew up on those premises. They however all moved out at varying times upon attaining adulthood. The premises originally comprised four structures of varying sizes. Two survey plans were admitted, one dated 9th September 1986 and the other 10th March 2007. Both survey plans appear to be similar in content as far as the layout of the structures on the land is concerned. All buildings were made of wood. In relation to the building at the front, which the court interprets to mean the building situated at the northern boundary of the land abutting Independence Square, the evidence is that this building comprised two bedrooms, a living room and a kitchen.
15. Petra married and moved out in 1971 but returned to residence at those premises in 1979. She has lived there periodically ever since. It is her evidence that the Defendants all at one time lived in the first building which is referred to above and that she has always lived in the third building and Brenda lives in the second building. She states that the Second Defendant, the child of the First Defendant now lives in a two room structure which is built on the spot where the fourth building was located. That fourth building was occupied by Rubia Prescott (the sister of Gail) and her children with permission from 1999 until they migrated to the USA in 2003. 16. According to Petra, Julia moved out of the premises at age 22 years but no precise date was given. She returned to the premises to reside in either 1981 or 1982. Subsequently she resided at those premises form time to time until 1990 when she returned full time
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and began to reside at the front of the first building with her mother Angela. After Angela's death on the 18th December 1992, Julia continued to reside at the first building until her (Julia's) death in the year 2000. With the permission of all of her siblings, Julia in 1999 or 2000, prior to death permitted her daughter Gail and her children the second, third, fourth and fifth defendants to reside with her in the first building. After Julia's death, Gail continued to reside in the said building with the permission of the Claimants. In 2003, the Sixth Defendant moved into the said building and shortly thereafter the relationship between aunts and niece broke down. 17. During the lifetime of Angela, the front of the first building had been rented out to a tailor Mr. Nathan. According to Petra, after Angela's death the rented portion of the first building was locked. However, in the month of May or June 2005, the Sixth Defendant, Marlon broke and entered the rented portion, removed the floor boards and replaced it with a concrete floor without the permission of the Claimants. 18. Further, it is alleged that Marlon then proceeded to rent out a portion of the fourth building to a tenant. Demand letters were sent to Gail as a consequence but no remedial action was taken. 19. Subsequently, the Defendants broke down a part of the first building and the kitchen and rebuilt it with concrete. Additionally, in the year 2008, the Defendants built an open shed between the First and Second building. 20. In 2009, the fourth building was demolished and a concrete structure erected in its place. This structure is now occupied by the Second Defendant. 21. Under cross examination, Petra admitted that at all times Julia occupied only the front building whether with her mother Angela or after Angela's death. She was employed overtime at St. Anns hospital and would therefore only go abroad for three weeks periods every three years or so when she was granted leave. This changed in 2008 when she received residence status in the USA. Thereafter she would spend more time in the USA and return to live at the premises. She denied that Gail lived at those premises all her life and moved in 1980 when she first became pregnant. She also denied that Gail moved Page 9 of 19
back and forth from time to time during all her subsequent pregnancies or that Gail has lived in the first building since the date of her mother's death. She accepted that Brenda and she were given the buildings they both now occupy (i.e. the second and third buildings respectively) by way of word of mouth from their mother, Angela Prescott. Evidence of the Defence
22. It is convenient to deal firstly with the evidence of the witnesses Ricardo Kirton and Damian Granger. Both witnesses are tradesmen in the business of construction. They both testified that they were hired by Marlon to not only work on the first house but also on the back of the premises. In particular, Kirton testified in cross examination that he was in fact hired by Marlon to demolish the fourth building and reconstruct it. It is the court's view that these witnesses take the case for the Defence no further and does not assist this court in the determining the issues germane to this claim and so the court need not spend much time on their evidence.
23. Gail testified that she had been living in the front structure since her birth in June of 1965. She left the residence in 1980 when she became pregnant with child. When she returned a few months later on the eve of giving birth, Julia and Angela were living in the front structure. The Claimants were not residing on the premises at the time. During the birth of her other five children, it is her evidence that she moved out on each occasion but always returned to the front structure to live. In 1993, she continued to live in the front structure with all her children and her mother Julia up to the date of Julia's death and continuing thereafter. She stated that it was in fact Julia who had rented the front of the building to Nathan Mendez and then to his brother Peter Mendez. She confirmed that when Peter Mendez vacated in 2004, Marlon took possession and began renovations. In 2003, they renovated the kitchen area which was in advanced state of disrepair. This was completed in 2004. While the renovations were ongoing, Petra informed Marlon that he should stop the renovations as the house belonged to her father. So that on the evidence
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of Gail, the first time a complaint in relation to the works was registered was sometime in 2003 to 2004. Renovations to the front structure were completed in 2009.
24. Under cross-examination Gail admitted to taking up residence elsewhere at various times and returning to live at the premises intermittently until 1993 when she remained with her children and proceeded to reside consistently. By then her grandmother Angela had died. She admitted in cross examination that on this occasion she asked requested and obtained the permission of her mother to reside at the premises. She testified that she was unaware whether her mother discussed the issue of her residence with the Claimants prior to the grant of permission. She was adamant that it was Julia who rented out the front portion of the first structure to Peter Mendez and that Marlon did not break and enter the said rented portion. However she subsequently admitted that it was in fact Christine, the First Claimant who instructed her to collect the rent and that she placed it in an account, the number of which was provided to her by Christine. 25. In relation to Marlon's entry to the premises, the evidence elicited was as follows:
When Mr. Simon began living with you isn’t it true that the front part of the front building, the part closest to the road was locked.
This front part that was locked is the part that used to be rented out.
Yes it used to rent out, yes sir.
Isn’t it true that is your aunts who kept that front portion locked.
No sir, no sir, no sir.
You had four children living with you.
And you all were living in the back portion of the front building.
How long you and your four children lived in the back portion of the front building.
Since 93, since 1993 we are living to the back there.
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Do you recall for how long the front portion of the building was locked.
It was not locked because somebody was renting there. Mr Nathan was renting there.
After the tenants left the front portion of the building was locked.
The last person who was there was Mr. Peter and we asked him to leave so that we could fix the place cause the place was in an dilapidated state.
Do you recall just about five minutes ago you said to me when Mr. Simon began living with you the front portion of the building was locked.
No, somebody was, that is a mistake sir. Somebody was renting there.
That the front portion building was in fact locked.
26. Further, Gail testified that when she broke down the barracks at the back, she did not ask for her Aunts' permission so to do as she was of the opinion that her mother was part owner so she did not have to obtain permission. She also admits that Marlon constructed a building on the spot where the barracks were located and that her son the second defendant presently resides there. This too she says was built without permission as she was of the opinion that she did not have to obtain permission as her mother was part owner.
Evidence of Marlon Simon
27. Marlon testified in examination in chief that he moved into those premises in the year 2000 and not in 2003 as claimed by Petra. Between the years 2001 and 2002 he renovated the second structure for the fifth claimant and he commenced renovation works on the kitchen in 2003. He commenced renovation work on the first structure in 2004 or 2005. He gave details of the men he hired and the money spent on the renovation works. He admits tiling an open shed area which appears to be the shed spoken of by the witness Petra in her evidence.
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28. Under cross examination the witness testified that all the renovations he did were done on the instructions of Gail, including the demolition of the barracks, the construction of a new building and a concrete wall to the back of the premises. He testified that he followed her instructions because as far as he was concerned her mother was the owner of the first building. When pressed however, he went on to testify that it was in fact the First Claimant who gave him permission to do all the works and that she in fact gave him $7,000.00 to construct the wall. Then later on in cross examination, in what can only be described as an about turn, the witness testified that he discussed the construction with Brenda and Petra who gave him permission. Findings on evidence
29. This court has not had difficulty in making its findings on the evidence. The evidence is quite clear in the court's view. The court finds that the evidence of Marlon is highly unreliable to say the least. In addition it is also unhelpful to the case for the Defence. The court does not believe this witness when he testified in cross examination for the first time, that permission was granted to him by Petra, Brenda and Christine to carry out renovations to the first structure, to construct and renovate the shed, to demolish the barracks and to construct a new structure in its place. If this was the case then the court would have expected to have seen such averments in the Defence and Counterclaim. What is in fact pleaded is that the Claimants were aware of the construction, not that they consented. As a matter of common sense having regard to the nature of the construction those residing on the property would have had to be aware of the construction. In fact it is reasonable to conclude that it is because of their awareness, that they were in a position to instruct their attorney to write to the Defendants calling upon them to stop construction.
30. Additionally, and in direct conflict with the evidence of Marlon, it has been pleaded in the Defence and Counterclaim that it was Petra who in fact demolished the Barracks. Even if the court accepts that Brenda asked Marlon to renovate the second building for her and that Christine contributed to the cost of the back wall (which is not pleaded), those findings do not change the complexion of Marlon's evidence. The inconsistencies
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led the court to believe that Marlon's testimony in cross examination was a last minute effort to introduce the element of permission in relation to the construction thereby changing the case for the Defence as originally pleaded. This became obvious as his answers changed substantially during cross examination. 31. In relation to Gail, she testified that the premises were rented out to Peter by her mother. She at first admitted to counsel that at the time Marlon moved in to live with her the rental premises were locked. She later said that that was a mistake. The court accepts her explanation as a reasonable one. It is the case for the Claimants that Marlon only moved unto those premises in 2003 and that he began renovations thereafter. The Defendants say that Marlon in fact moved unto the premises in the year 2000. The receipts relied on by the Defendants show expenses incurred since the year 2000 so that it is more likely than not that Marlon would have expended those monies upon his assuming residence in the year 2000. The expenses detailed therein appear to be minor but they nonetheless support the contention of the defence. 32. The court considers that the evidence of Petra was in large measure unshaken in cross examination and considers Petra to have been a reliable and credible witness and has given much weight to her testimony. 33. Save and except for other minor issues which do not materially affect the main issue to be decided there is no grave conflict between the evidence on both sides. For instance, it is unnecessary for this court to decide whether Marlon in fact broke the lock to the rented premises. The means of entry is not relevant. What is relevant is whether he entered with the permission of those who were vested with the lawful authority to give such permission and whether the renovations were conducted with the same authority properly obtained. 34. The court therefore has made the following specific findings on the evidence: i.
That Julia lived in the First Structure with the permission of Angela.
That at all times during which Gail resided at the said first structure up until the death of Julia, such residence was with the permission of the Claimants and Julia. Page 14 of 19
(Petra testified that permission was given by the Claimants for Gail to reside at the premises and Gail testified that she did not in fact know whether Julia had discussed the issue of permission with the Claimants. Gail has therefore not disproven this fact established by Petra). iii.
That upon the death of Julia in 2000, Gail continued to reside at the first structure with the permission of her aunts, the Claimants.
That Marlon moved in with Gail in 2000 after the death of Julia.
That the rent collected by Gail was not done on behalf of Julia alone but on behalf of all the Claimants and deposited into an account provided by Christine.
That Gail was not the person who rented the front of the first structure to Peter and therefore did not exert any proprietary rights over the property to the exclusion of the Claimants in collecting rent.
That permission was revoked in the year 2005 when Marlon began to do substantial renovations to the premises.
That the renovations done by Marlon on the First Structure, the shed, the demolition of the barracks and construction of a new structure in its place were all done without the consent of the Claimants.
35. The Claimant pleaded their entitlement to the said land by way of adverse possession.
36. The Real Property Limitation Act Ch. 56:03 sections 3, provides: 37. “3. No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to some person through whom he claims, or if such right shall not have accrued to any person through whom he claims, then within sixteen years next after the time at which the right to make such entry or Page 15 of 19
distress, or to bring such action, shall have first accrued to the person making or bringing the same.” 38. In this case, the paper title holder is deceased and all things being equal, the Claimants appear to be prima facie entitled to the title of the property. However from the evidence, it appears that no steps have been taken in relation to the estates of Angela and Henry to regularise the title of the Claimants although Angela did in fact leave a will. So while the Claimants are not in the strict sense the paper title holders they do appear prima facie to be the beneficial owners of the said premises. In those circumstances the law of adverse possession cannot apply to the Claimants' occupation of premises in respect of which they are the beneficial owners. Further, if it is claimed that the Claimants are in adverse possession of Julia's share, this is equally unsustainable as Julia remained in possession up to the date of her death in 2000. In so far therefore as the claim is brought on the basis of adverse possession, the claim is misconceived and it must therefore fails. 39. The Defendants must show (a) factual possession of the land for a period of 16 years before the commencement of an action for possession; and (b) the animus possidendi, or the intention to possess the land if they are to exclude the paper title owner (or those entitled to paper title) so far as is reasonably practicable: Megarry’s Manual of the Law of Real Property. A.J. Oakley; 8th Edn pgs. 551-552
40. In the instant case, it is additionally clear that the Fourth and Fifth Claimants have been in factual possession of part of the said premises and are so in possession up to now. What is in dispute is whether the Defendants have been in possession of the said front structure for the statutorily required time, that is a period of 16 years preceding the claim, Nec vi, nec clam, nec precario and with the necessary animus to have the effect of ousting the Claimants’ entitlement to the First structure. 41. In the court's view on the evidence the answer to this question must be in the negative. Having regard to the findings of the court supra, it is clear that Gail's occupation of the first structure has always been at the behest and with the permission of the Claimants. The Claimants only evidence of revocation of that permission was by letter of the 11th Page 16 of 19
September 2009 when the Defendants were called upon to vacate the premises by the 30th September 2009. 42. In addition, it is the finding of the court that Gail did not possess the necessary animus possedendi up to the date of Julia's death in 2000. Up to that point it was clear that she was there with permission either of her mother and/or her aunts. She would not have treated the first structure as if she was in possession. There is no such evidence. This applies equally to the years prior to the commencement of major renovations by Marlon. The fact that Gail collected rent is in the court's view insufficient as the evidence shows that the rent was collected on behalf of Christine and placed in a bank account provided by Christine. However the commencement of major construction works in 2005 at the behest of Gail leads the court to the inference that Gail may have possessed the necessary animus from that time. Certainly at this stage Gail had begun dealing with the front structure as an occupying owner might have been expected to deal with it to the exclusion of all others. See the judgment of Lord Browne-Wilkinson in J A Pye (Oxford) Ltd v Graham  UK HL 30,  1 AC 419.
43. However the period falls far short of that required by statute as the claim was filed in 2011. Taken at its highest, Gail would have been in possession adverse to the rights of the Claimants for about six years. It means that the counterclaim in adverse possession must equally fail. So too must the counterclaim in respect of the monies expended by the Defendants on renovations which the court has also found were conducted without permission. 44. But the matter does not end there. The evidence demonstrates that it is more likely than not that Gail is entitled prima facie to a share of her mother's estate or the entire estate depending on the circumstances. This is a circumstance that the court ought not to ignore. To so do may be to exclude from the premises a party who may be entitled to a share in the legal title when all is said and done. The finding of this court demonstrates that neither party is entitled to exclude the other. The Claimants are all in possession of that part of the property not occupied by the First Defendant. Likewise the assertion and inference from the evidence is that the Second, Third, Fourth and Fifth Defendants are all Page 17 of 19
in occupation of the first structure with the permission of the First Defendant. So too is the Sixth Defendant who appears to be in a relationship with the First Defendant. The parties are therefore strongly advised to resolve the issues touching and concerning the estates of Henry and Angela. Only when this is done can there be any meaningful resolution to the issue between them.
45. In relation to the occupation of the fourth structure by the Second Defendant, he is similarly in occupation with the permission of the First although he holds no beneficial entitlement.
46. Finally, the Defence submitted that the court was entitled to and should draw an adverse inference against the Claimants for their failure to call the witness Craigg in respect of whom a witness statement was filed and for whose absence no explanation was provided. In support the Defence relied on the authorities of Wisniewski v Central Manchester Health Authority  P.I.Q.R. p 324; Ramroop v Ganeias and others CV 2006-00075 HC of T&T. Surujbally Samaroo v Kishore Ramsaroop and Ann-Marie Ramsaroop H.C.A. No. S-1295 of 2005. Having regard to the findings of this court in relation to the Counterclaim, it follows that a prima facie case was not made out by any of the Defendants and therefore they have not met the threshold necessary for the court to consider the drawing of an adverse inference against the Claimants. None therefore has been drawn. Disposition
47. The order of the court is therefore as follows:
The Claim is dismissed.
The Counterclaim is dismissed.
Each party is to bear his own costs of the Claim and Counterclaim.