JENSEN LA VENDE

Se­nior Re­porter

jensen.lavende@guardian.co.tt

The San Fer­nan­do City Cor­po­ra­tion was on Thurs­day or­dered to com­pen­sate the es­tate of a man on whose land they built a drain with­out his con­sent.  

In a 15-page judg­ment, Jus­tice Maris­sa Robert­son or­dered the cor­po­ra­tion to pay the es­tate of Seukaran Ram­per­sad $61,017.00 for the 94.1 square me­tres of land on which it con­struct­ed the con­crete drain.

This, she said, rep­re­sent­ed 18.49 per cent of the $330,000 prop­er­ty. She al­so or­dered that the es­tate be com­pen­sat­ed $15,000 for gen­er­al dam­ages and that the cor­po­ra­tion pay le­gal costs.

Ram­per­sad claimed that some­time in Sep­tem­ber 2004, work be­gan on a drain on his Mara­bel­la prop­er­ty.  

A 2007 sur­vey re­port done by Win­ston Ram­cha­ran showed that the drain had en­croached on his prop­er­ty. Ram­per­sad claimed this en­croach­ment de­prived him of the use and en­joy­ment of his prop­er­ty and hin­dered him from ob­tain­ing con­struc­tion ap­provals. He sued the state for ei­ther the drain’s re­moval or to be com­pen­sat­ed.

The cor­po­ra­tion claimed that pri­or to the con­struc­tion of the con­crete drain, there was an earth­en drain which it main­tained, adding that it was a nat­ur­al wa­ter­course.  

The Cor­po­ra­tion sought to seize pos­ses­sion of the por­tion of the prop­er­ty through its pow­ers un­der the Mu­nic­i­pal Cor­po­ra­tions Act Chap­ter 25:04 and the San Fer­nan­do Cor­po­ra­tion Or­di­nance, Chap­ter 39 No. 7, to oc­cu­py the area.

The cor­po­ra­tion al­so sought pos­ses­sion through ad­verse pos­ses­sion, as it claimed to have had oc­cu­pan­cy of the land un­in­ter­rupt­ed for 16 years, adding that per­mis­sion was grant­ed for the con­struc­tion.

Robert­son re­ject­ed the cor­po­ra­tion’s claims, say­ing there was no ev­i­dence in sup­port of an earth­en drain be­ing main­tained by the cor­po­ra­tion.

She said there was no work or­der to sub­stan­ti­ate that.

She added that the cor­po­ra­tion failed to prove it sought per­mis­sion or oth­er­wise made at­tempts to ac­quire use of the prop­er­ty in ac­cor­dance with the Mu­nic­i­pal Cor­po­ra­tions Act and the Land Ac­qui­si­tion Act.

She said the cor­po­ra­tion could not prove it ex­clu­sive­ly tend­ed to the prop­er­ty and there­fore could not claim ad­verse pos­ses­sion.

“It would, in fact, be dif­fi­cult to ac­cept that one could as­sert com­mon law ex­clu­siv­i­ty over an open and pub­lic com­mod­i­ty or good. Ac­cord­ing­ly, the de­fen­dant’s at­tempt to es­tab­lish ad­verse pos­ses­sion must fail.”

Robert­son ruled against or­der­ing the re­moval and repo­si­tion­ing of the drain, not­ing that ei­ther op­tion re­quired the use of state re­sources. She said the drain was cur­rent­ly serv­ing its in­tend­ed pur­pose and that com­pen­sa­tion was the ap­pro­pri­ate ap­proach.

Ram­per­sad’s es­tate was rep­re­sent­ed by Ron­dell Don­awa, while Chanka Per­sads­ingh and Ra­jiv Rick­hi rep­re­sent­ed the cor­po­ra­tion.