Massy Properties (Trinidad) Ltd v Basel Algharbi et Al

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: Mde. Justice Agnes Actie
• Judgment Date: 06 March 2025
• Judgment citation (vLex): [2025] ECSC J0306-1
• Year: 2025
• Docket Number: CLAIM NO. GDAHCV2022/0020

Between:

Massy Properties (Trinidad) Ltd.

Claimant

and

[1] Basel Algharbi

[2] Toni Algharbi

[3] Norab Mansour

[4] Rohit Persaud

[5] Jason Fleming

Defendants

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2022/0020

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Ms. Melissa Modeste-Singh for the Claimant

Mr. Anslem Clouden for the Third Defendant

ORAL RULING

1 The main issue arising in this claim is whether the claimant's claim for possession of Lot No. 35 situate at True Blue, St. George, (hereafter referred to as “the disputed lot”) is statute barred.

Background facts

2 The claimant is the paper title owner of the disputed lot by virtue of an Indenture of Conveyance made 4 ^th June 1975 between True Blue Beach Resorts Ltd. and others and the claimant (formerly “Grell and Company Ltd.”).

3 The claimant avers that in or about 2021, the defendants wrongfully entered and took possession of the disputed lot and have remained in possession. By fixed date claim form filed on 14 ^th January 2022, the claimant claims for possession of the disputed lot, mesne profits at the rate of $8,000.00 per month until possession is delivered up, and damages against the defendants.

4 On 5 ^th December 2024, the claimant filed a notice of discontinuance against the fifth defendant, as well as requests for entry of judgment on admission against the first, second and fourth defendants. The third defendant, Norab Mansour, is the only defendant to contest the claimant's claim.

Third Defendant's case

5 The third defendant admits that he entered into possession of an area on the disputed lot for the purpose of carrying on a fast-food business and bar, currently operating under the name “Abomaya”. He states that he was let into possession by his cousin Saed Saad and continued in joint possession of the disputed lot until Saad relocated in or about the year 2008.

6 The third defendant states that he first operated a fast-food truck business situated partially on the disputed lot and partially on the kerb side which was eventually replaced with a chattel structure with concrete flooring and toilet facilities. He avers that the business is well established and frequented by locals, SGU students and tourists. He avers that he has performed all acts openly, without seeking permission, paying any rent or answering to anyone in excess of twelve years.

7 The third defendant contends that the claimant's claim is statute barred and counterclaims for a declaration of possession of an area of the disputed lot.

Legal Analysis

Whether the defendant has been in adverse possession of the disputed lot

8 It is not in dispute that the claimant is the registered paper title owner of the disputed lot and has a superior title. In Powell v McFarlane 1 it was stated by Slade J that:

“In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.”

9 However, the third defendant asserts that he has been in adverse possession of a part of the disputed lot in excess of twelve years and has accordingly dispossessed the claimant for the part of lot 35 that he occupies.

10 Both parties refer to the House of Lords locus classicus decision in JA Pye (Oxford) Ltd. et al v Graham et al 2, on adverse possession where it is stated that:

“There will be a ‘dispossession’ of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word… Therefore if the squatter is in possession, the paper owner cannot be.”

11 It is further stated in Pye 3 that:

“If the law is to attribute possession of land to a person who can establish no proper title to possession, he must be shown to have both factual possession and the requisite intention to possess.”

12 Factual possession is described in Powell 4 by Slade J as follows:

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession…. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”

13 With respect to intent to possess, the House of Lords in Pye 5 held that legal possession required an intention to exercise such custody and control on one's own behalf and for one's own benefit. As Slade J in Powell 6 stated:

“In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.”

14 The third defendant states that he was not aware of the claimant's paper title. He states that Mr. Saed Saad first occupied the disputed lot from late 2004 after the passage of Hurricane Ivan. Thereafter in the year 2008, the third defendant states that he took over the area and began his business operation and has made significant improvements since his occupation in 2008.

15 Evidence for the claimant is given by Joel Jack, a national of Trinidad and Tobago appointed as the financial consultant for the claimant in 2022. Mr. Jack recalls that in the year 2003 during his period of study at SGU, Lot 35 only consisted of shrubs, trees and natural vegetation. It was in 2022, the year of his appointment, that Mr. Jack states he observed a number of structures with several owners on Lot 35. Mr. Jack admits that the third defendant occupies and expanded his business on the disputed lot without permission. Mr. Jack in his witness statement states that the claimant, in order to dissuade the third defendant, undertook the fencing of the parameter of the Lot, but did not enclose the portion occupied by the third defendant.

16 Mr. Gilbert Marsell, Licensed Land Surveyor who conducted a survey of the disputed lot in 2019 on behalf of the claimant, admits that the third defendant was in occupation of a chattel structure on the disputed lot at the time of the survey.

17 Evidence in support of the third defendant is also given by Mr. Don Purcell who is the owner of a business named “Options” which is situate directly opposite the disputed lot. It is Mr. Purcell's evidence that he has operated his business in True Blue for approximately twenty years, sixteen of which he has known the third defendant conducting the fast food business openly in the exact same spot. Mr. Purcell recalls the year of the commencement of the third defendant's business operation to be 2008.

18 Mr. Albert Joseph states that he was a driver by profession responsible for the transportation of divers and fishermen to the St. George's University which is located in True Blue, near to the disputed lot. He recalls the third defendant's enterprise as starting business since 2008 in selling food on a table, then extending to a “food wagon”, and continuing to expand the business on the part of the disputed lot.

19 From all accounts the third defendant's occupation is akin to that of a squatter. Counsel for the claimant drew the court's attention to the case of Avon Estates Ltd v Evans 7 where it was observed at paragraph 51 that:

“In Pye v Graham, the squatter had possession of a whole field that was in the paper ownership of the Claimant. It was bounded by hedges and accessible only on foot or through locked gates controlled by the squatter. There was no doubt that whatever the squatter did, and whatever his intentions were, they applied to the whole of the land up to the actual boundaries of the paper owner's title. There is, it seems to me, a significant difference between such a case and one such as this which involves a boundary that is fairly ill defined on the ground, the areas of land in dispute are very small and necessarily at the margins of the alleged possessor's land, and the use made by the possessor of his own land is such that in truth the extent to which it affects the disputed margins is minor and intermittent. Such usage is likely by its nature to be inconclusive as to both whether it can in truth be said to be a sufficient exercise of physical control, and also whether it demonstrates the necessary intention to exclude others from the small areas concerned.”

20 However, the Chancery Court continued at paragraph 52 stating 8:

“[52] Lord Hutton in Pye v Graham drew attention to the existence of such inconclusive situations, again quoting from the judgment of Slade J in Powell:

“76 I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the Claimant with the paper title can adduce other evidence which points to a contrary conclusion … . It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open...