IN THE HIGH COURT OF JUSTICE
Before the Honourable Mr. Justice R. Rahim
Claim No. CV2020-00718
Between
Nicole Denise Taylor
Claimant
and
Robert Mark
Defendant
Appearances:
Claimant: Mr. K. Mc Quilkin instructed by Ms. J. Hosein
Defendant: Unrepresented and in person
DECISION ON APPLICATION FOR INJUNCTION
1
This is a decision on the application of the claimant of February 21, 2020 for an interim injunction prohibiting the defendant from entering unto, clearing or removing things on a strip of land measuring approximately two thousand and sixty eight square feet allegedly belonging to the claimant.
The case of the claimant and the case of the defendant
2
It is the case for the claimant that by deed of April 14, 1991 (DE 16728 of 1991), she purchased two parcels of land from George Wilberforce Craigwell. The two parcels are situated next to each other but the parcel that is much smaller (the disputed land) measured 2,086 square feet and appears to have been a parcel left over from a larger parcel of 11,718 square feet located to the east of it, 9,650 square feet of that larger parcel having been sold prior to the sale to the claimant of the disputed land. When facing north therefore, the large parcel owned by the claimant is to the west, the strip of land in dispute is to the east of that larger parcel and the defendant's land is to the east of the disputed land. The defendant therefore is the person who has had possession of the parcel measuring 9,650 square feet referred to above. Prior to the purchase by the claimant there was a boundary fence along the eastern boundary of the disputed parcel between that land and the land owned by the defendant. The boundary area within the claimant's property contained trees close to the fence which the claimant continued to maintain and to which she added several other trees after she assumed possession in 1991.
3
On October 5, 2017, the defendant who provided her with a copy of a survey plan done by registered Surveyor Hugo Somarsingh on August 2, 2012. That survey plan appeared to be in direct conflict with that set out in the cadastral plan attached to the deed of the claimant. The said plan purports to show the disputed land with the wire fence thereon as being part of the parcel owned by the defendant and not the claimant. The defendant therefore asked the claimant to adjust the fence to align it with what he alleged was her true boundary.
4
The defendant, it appears had obtained the land occupied by him by way of an application to bring the lands under the provisions of the Real Property Ordinance (RPO) he and his parents having owned and occupied another parcel of adjoining lands to the east. So that the defendant would have applied to bring the vacant west of land next to the parcel upon which he and his parents lived under the RPO and in so doing would have included the strip of land which is the subject of the dispute. He therefore in September 2017, obtained a Certificate of Title (CT) for the entire parcel which contained the disputed strip of land as part thereof in total amounting to 11, 719 square feet. The claimant subsequently obtained a survey plan form registered Surveyor Ivan Laughlin which supports her deed. So that the claimant possesses a deed for the disputed land and the defendant is the registered proprietor of the disputed land by way of a Certificate of Title.
5
On February 17, 2020 the defendant removed part of the fence without permission of the claimant and entered the disputed land. Branches of trees were cut, crops were damaged and a trough was relocated. Holes were dug for posts and a fence was partially erected by the defendant in keeping with the plan he obtained. It is the claimant's case that the defendant is attempting to sell the entire parcel owned by him inclusive of the disputed land as a sign was erected to that effect. On February 27, 2020, this court made an interim ex parte order restraining the defendant from further works on the disputed land and entry thereon until further order.
6
The defendant claims that he is the owner by way of the CT and that he obtained planning permission for the construction of five townhouses on the entire parcel comprising 11, 719 square feet and completed same in December 2019. It is therefore his case thus far (he having failed to file a defence within the time prescribed by the CPR) that his RPA title prevails over the deed of the claimant and therefore he is entitled to possession. In February 2020 he proceeded to move his fence, according to him, to correct its location in keeping with his CT which he says must be done because of approvals granted to him for the townhouses it appears by way of inference have already been constructed.
7
The claimant also claims declarations of ownership, damages for trespass, an order for the demolition of structures erected on the disputed land, an order that the Registrar General be directed to amend the CT issued to the defendant or cancel and reissue a CT in keeping with the findings of the court. Alternatively, the claimant seeks an order that she has acquired the disputed land by way of adverse possession and that the Registrar General be ordered to issue a CT to her in respect of the disputed land.
8
This court has tried on several occasions to impress upon the defendant the need to obtain legal representation in this case because of the technical nature of both the legal issues involved and the legal process but to no avail. He has insisted that he represents himself and of course the court must allow him so to do. While the court has a duty to assist the unrepresented litigant, it must be done within the parameters of fairness to both sides as the court is not the legal representative of the defendant, neither is it his legal advisor. To that end the defendant has chosen to file submissions in this matter on his own, despite what some may consider pleas by this court to seek legal assistance to file those submissions. Further, he has also filed an affidavit in person without, it may be reasonably inferred, recourse to legal advice. The court has strived nonetheless to be as fair as it could be to him in the circumstances but it cannot and ought not to descend into the arena.
The law
9
The well-established and well-known principles for consideration of the court when treating with interim injunctions are set out in the cases of American Cyanamid v Ethicon (1975) AC 396, Jetpak Services Ltd v BWIA International Airways Ltd (1998) 55 WIR 362, East Coast Drilling and Workover Services Ltd v Petroleum Company of Trinidad and Tobago Ltd (2000) 85 WIR 351, National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) [2009] UKPC 16 and Chief Fire Officer and Others v Felix Phillip and Others (7 th December 2013) (Unreported). These principles are widely accepted so that the court does not propose to traverse them in these reasons but directs itself in terms of the cases. However, for the purpose of the unrepresented defendant in this case the court will simplify the test for the grant of injunctions as being that the claimant must demonstrate that there is a serious issue to be tried, that damages are not an adequate remedy and that the balance of justice lies with the grant of the injunction.
10
Further, it is not the court's duty at this stage to make findings of fact so that none has been made. The court is however entitled to examine the relative strengths of the cases of the parties in making a determination as to whether to grant the injunction.
Serious issue to be tried
11
The claimant claims title by way of a deed registered in the year 1991 and the defendant by way of a Certificate of Title issued in the year 2017 pursuant to an application to bring the said lands under the provisions of the RPO. There is therefore a serious issue to be tried in this case in relation to who possesses the better right to possession based on paper title and further, if the claimant does not possess the better right to title based on her deed then whether she has been in adverse possession of the disputed land.
The competing strengths of the cases
12
The principle of indefeasibility of title becomes a central one in this case as the defendant is the registered proprietor of the disputed land. While the court is yet to hear and determine full submissions on the law which can only be done after evidence is lead, he court is entitled to view the matter in a preliminary manner having regard to general principles of law.
13
In Smith Lewis v Anjan Sookdeo, CV App 236 of 2012, Their Lordships of the Court of Appeal set out the law as applies to the legal principle. It is important that the court quote extensively from the decision as it provides sound guidance by which this court is bound. In that case, the competing interests were between that of title by way of a CT and an unregistered lease. In delivering the judgement Mendonca JA said the following:
“19. The RPA is based on the Torrens system of registered conveyancing. The central feature of that system is that registration confers upon the registered proprietor an indefeasible title. This in essence means that the registered proprietor's title cannot be defeated by a prior unregistered interest and his title is subject only to what appears on the register. In the words of Edwards J, in Fels v Knowles (1906) 26 NZLR 604, at 620 “…the register is everything.”
20. Although that is the central feature of the Torrens system, it is nevertheless subject to certain exceptions. As the Privy Council observed in British American Cattle Co. v...