REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
Claim No.: CV2012-03876
BETWEEN
GANESH MADHO
Claimant
AND
CHANDERDAYE RAMDHANIE
RAJINDRA RAMDHANIE
Defendants
Before the Honourable Mr. Justice Vasheist Kokaram
Date of Delivery: 17th
December 2013
Appearances:
Ms. Alicia Baksh-Clarke instructed by Mr. Gerard Gray for the Claimant
Dr. Charles Seepersad for the Defendants
ORAL JUDGMENT
1. Ganesh Madho, the Claimant, has been living on a parcel of land at 163 Cacandee Road,
Felicity, Chaguanas with his family for over fifty years. It is a sliver of land rectangular in shape
with a frontage of 15.5metres on Cacandee Road and 160metres long comprising some
2451.7square metres. The property was previously owned by his father Mahabir Madho and
after he died intestate in 1994, Mr. Madho obtained a grant of Letters of Administration Ad
Colligenda Bona on the 22nd
November 2006. He does not to date possess the legal title to the
said lands. Just next door on Cacandee Road, living immediately to the North of this property
are his neighbours Chanderdaye Ramdhanie and Rajindra Ramdhanie, the Defendants, owners
of 165 Cacandee Road. They, together with Mr. Ramdhanie’s wife Savitri purchased that parcel
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of land at 165 Cacandee Road in 1998. Prior to that purchase he was living some 300feet away
at 178 Cacandee Road.
2. Between these two properties there lay a boundary drain which ran along the boundaries of both
properties from the back of their properties on the East running in a westwardly direction to the
main drains on the Cacandee Road which lies to the front of their properties. The length of that
drain from East (the back) to West (the front) measured approximately 100feet from the
Cacandee Road. The boundary drain had served the purpose of taking surface water from the
two properties out to the concrete drains under the pavement on the Cacandee Road or the Main
Road. In 2005 Mr. Ramdhanie began filling the drain for the purpose of constructing a boundary
wall between the neighbouring properties and a paved driveway on his own property. Mr.
Madho complained that this construction blocked the boundary drain and caused his premises to
be flooded and later to become waterlogged. Mr. Madho made several requests of Mr.
Ramdhanie, he reasoned with him and when his pleadings were ignored he turned to the Court
in 2005 when an injunction was granted by the Honourable Justice Narine, as he then was,
against the Defendants to clear the drain and refrain from blocking the drain. I will return to that
judgment of Justice Narine later on.
3. That injunction was later discharged by Justice Pemberton in July 2010 due to a procedural error
on the part of the Claimant’s lawyers. Prior to the discharge of that injunction the Claimant
alleged that the Defendant had failed to comply with the order and made an application for
contempt on the 9th
November 2006. Of course all those applications as a consequence were
dismissed by the order of Justice Pemberton for the reasons that I have alluded to. With no
finding of contempt being made against him and with the claim having been dismissed and the
injunction discharged subsequently, Mr. Ramdhanie completed the wall in 2012.
4. At the end of the construction in 2012 the boundary drain that previously existed was no more.
In its place if one were to walk from the Cacandee Road along the boundary of both of these
properties of these two neighbours one would find a boundary drain of some 30feet in length
and then a concrete wall of about 70feet varying from heights of 56inches and 88inches and
then after that wall some of the structures that lie on the Claimant’s property. The surface water
on Mr. Madho’s property since the construction has been hindered from gaining access to the
main drains on the Cacandee Road as there is no longer any drain on Mr. Madho’s Northern
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boundary to take his surface water to the Cacandee Road save of course for the 30feet of drain
to the front of his property. As a result of this obstruction there has been constant flooding and
unsafe and unsanitary conditions and as such Mr. Madho subsequently brought this claim
against his neighbours the Ramdhanies’ for an injunction compelling them to restore the
boundary drain; to restrain the Defendants from trespassing on the lands of the Claimant;
seeking a declaration that the Claimant has an easement in the boundary drain and seeking
damages for nuisance and or trespass to land.
5. The nub of the Claimant’s case is to be found in paragraph 6 and 7 of the Statement of Case
where the Claimant contends that he has been in occupation of the premises at 163 Cacandee
Road for over fifty years and throughout that period until sometime in 2005 they enjoyed the
use of a drain of approximately 100feet that ran in a westerly direction along the boundary of
the said lands and the lands belonging to the Defendants which drain emptied into the Cacandee
Road. In paragraph 7 he says that in 2005 the Defendants began filling and obstructing the
boundary drain and that act prevented the outflow of water from the Claimant’s premises and
caused the property to become waterlogged and flooded.
6. Mr. Ramdhanie on the other hand contends that the wall was built on his lands and the
Ramdhanies’ allege that the duty is on the Claimant to discharge the excess water on the
Claimant’s lands into the drains on the Cacandee Road. The nub of the Ramdhanies’ defence is
that the flooding experienced on 163 Cacandee Road has been caused by the inadequate
drainage of that land by Mr. Madho as well as the encroachments of buildings and structures
erected by Mr. Madho on that property which also lie on the Defendants’ land and the discharge
of water by the structures of the various buildings on 163 Cacandee Road. The Ramdhanies’
contend that they did construct the wall at great expense to themselves and drained their lands
so that no water escapes unto the Madho’s land and no surface water escapes unto Mr. Madho’s
property because of the under-water drains which were built by the Ramdhanies’ on their
property at their expense.
7. The Defendants further contended in their defence that Mr. Madho unlawfully built on the
Ramdhanies’ property at the Southern boundary a steel structure about 20feet high and 40feet
long with a roof about 20feet by 20feet and the Claimant had lodged plastic water tanks on that
steel structure and extended his dwelling house unto the Defendants’ lands in the vicinity of the
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Cacandee Road. These were some of the structures which the Defendant contended in this
matter which would have caused the blockage of the drain and the consequent flooding on the
Claimant’s property however there is no such pleading to that effect. The purpose of the
pleading of the construction of these structures in paragraph 21 of the Defendant’s defence was
to launch a counterclaim that those structures constituted a trespass on the Defendants property
and as a result the Defendant counterclaimed that they were the owners of 165 Cacandee Road;
that the Claimant do remove so much of his unlawful structures built by the Claimant which
stands on the lands of the Defendant and sought an order that the Claimant build a drain on his
land stretching from the unlawful structure built by the Claimant on the Defendants’ land on his
Southern boundary to remove wastewater into the State drain.
8. The Defendant also sought an injunction against the Claimant from using obscene language and
threatening and/or harassing the Defendants. At the commencement of this trial having
examined the pleadings and the witness statements I asked the parties to agree certain relevant
facts so as to narrow the issues for determination at this trial those agreed facts which set the
parameters for the determination of this matter are as follows:
i. That 163 and 165 Cacandee Road are neighbouring parcels of land.
ii. Mr. Madho was at all material times the occupier of 163 Cacandee Road.
iii. That 165 Cacandee Road was owned by the Defendant.
iv. An earthen drain ran in 2005 between both of these properties in an East to West
direction.
v. That the said drain ran between both properties taking water from both properties
into the drains under the pavement of the Cacandee Road.
vi. That the length of that drain was approximately 100 feet.
vii. That the said drain is shown on the survey plan drawn by the surveyor Trevor
Koylass dated 6th
April 2005 (“the Koylass Plan”) and that plan shows that the
drain ran on the lands that belonged to the Defendant the Ramdhanies’.
viii. The drain was blocked by the construction of a wall in 2005. It was built where
the drain existed. The wall is not 100 feet in length but about 70 feet in length
with a remaining portion of 30 feet of drain which has been left to the front of
both of the properties emptying into the drain in Cacandee Road.
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ix. That the wall which was constructed and completed in 2012 was built on the
Defendants land.
x. The wall is preventing water from the Claimant’s land going into the drain that
existed for that 70 feet in length.
9. At an earlier pre trial review I had struck out several parts of the second Defendant’s witness
statement. He was the only witness for the Defendants and in answer to my query whether
having regard to that ruling whether the Defendant intended to proceed with his counterclaim
Counsel for the Defendant elected not to do so and permission was granted to the Defendant to
withdraw its counterclaim with costs reserved.
10. The main issue therefore for determination at this trial was whether Mr. Madho as the occupant
of 163 Cacandee Road enjoyed an easement in the boundary drain which was filled or blocked
by the Defendants’ construction of the boundary wall. If so what is the nature of easement and
what should be the appropriate relief; whether damages or the grant of a mandatory injunction
or both. After reviewing the evidence in this case I am of the view that Mr. Madho did enjoy an
easement in a boundary drain which was located on the Defendants lands as a means to direct
the outflow of water from his property into the main drains on the Cacandee Road. 165
Cacandee Road was the servient tenement and 163 Cacandee Road was the dominant tenement.
It was the only surface drain on Mr. Madho’s property which was so configured to rely upon
that drain as the sole means of taking water from his lands and excess water falling from the
roofs of their structures to the main waterway running in the Cacandee Road. It was an easement
that Mr. Madho enjoyed by implication of law he having enjoyed as part of his occupation of
163 Cacandee Road for over fifty years and for the reasons set out in this judgment I will order
the demolition of that wall in so far as it is necessary to re-construct the boundary drain which
lay between the two properties at 163 and 165 Cacandee Road. The drain having been located
entirely on the Defendants land I see no merit in the claim for trespass and that claim would be
dismissed.
The boundary drain
11. A proper appreciation of the boundary drain in its original state prior to the construction can be
seen in the Koylass plan which was tendered into evidence as an agreed document. The survey
plan for ease of reference has been incorporated into this judgment and marked “A”.
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“A” Survey Plan of Trevor Koylass dated 6
th April 2005
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12. From that document the drain is shown as originating in the back of Mr. Madho’s residence
running parallel to the Cacandee Road originating from the South heading to the North to the
boundary. It then turns at a right angle and leads Westwards towards the Cacandee Road. The
drain is shown on the plan as located on Mr. Ramdhanie’s property and separated by a chain
link fence. It is clear from the evidence of both the Claimant and the Defendant that over the
years both properties enjoyed the use of that drain even though it was located on the
Defendants’ land. As seen on the plan the footprint of the Madho’s residence appears to be
one residence however from the evidence it really comprises of several buildings; and if one
were to take a walk from the Cacandee Road Eastwards on Mr. Madho’s land one would first
see a two storey building in which his sister lives, then further to the East walking along the
boundary one will come upon a two storey structure which covers the stairs of a dwelling
house and then a concrete structure supporting large water tanks that services the property.
13. It would appear from the Koylass plan that from the Cacandee Road the drain snaked along
the Defendants land and then turned Southwards along the back of the Madho’s residence.
Mr. Madho’s residence and water tank structures appear at times to be built right up along his
Northern boundary. After the wall was constructed, the drain was no longer visible save for
the thirty feet to the front of the property from the Cacandee drain running East on the
boundary of both properties. In answer to a question from the Court to Mr. Shane Gayle who
was the civil engineer who prepared a report as to the effect of the construction of the wall on
163 Cacandee Road; he explained that the topography of the Madho land generally sloped
from the South to the North and therefore the water naturally flows in the direction of where
the boundary drain stood. Due to the nature of the building structures, there are now stagnant
pools of water with no room to escape. So by way of an example the water falling off the
roofs in some instances falls into some paved areas and remains land locked unable to flow
towards the boundary drain which had existed before 2005 and now since 2012 finds in its
place the Ramdhanies’ wall.
The action in 2005
14. In 2005, the Claimant filed an application for an injunction in HCA1116 of 2005. The
application was determined by Justice Narine who granted an injunction against the
Defendants to clear the drain and to refrain them from blocking it pending the determination
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of the action. Importantly in that claim the facts bear a stark resemblance to the facts in these
proceedings and there is not much difference to date. The basic facts in those proceedings
were that the plaintiff Mr. Madho was the occupier and beneficial owner of the lands. The
land was owned by the Plaintiff’s father. He lived on the land for over fifty years. There was
a drain running in a Westerly direction along the boundary of the lands and lands belonging
to the Defendants. It emptied into the Cacandee Road, the Defendants filled the drain causing
water to collect on the lands of Mr. Madho creating a breeding ground for mosquitoes and a
health hazard to Mr. Madho. In opposition the Defendant contended that the Claimant’s sister
built a structure on the boundary of the said land which covered a part of the drain and
caused an encroachment on the Defendants land. The Defendant admitted that there was a
boundary drain of about 100 feet located on one foot of land of both parcels. The first
Defendant admitted that the Defendants did in fact fill the existing the drain for making a
driveway and erected a concrete wall and further contended that the Claimant, Mr. Madho’s
brothers and sisters who in occupation should landscape their properties so as to avoid
flooding and waterlogging on the Claimant’s land.
15. Importantly in that judgment of Justice Narine it was not in dispute, as it is not in dispute in
this case, that for the last fifty years there was a drain flowing between the respective parcels
of land in a westerly direction and emptying on the Cacandee Road. That drain has been
filled in by the Defendants they contend that part of that drain was on their property and that
they were entitled to erect a concrete wall on their land if they so wished. They further
contended that the drain was a breeding ground for mosquitoes and the smell of brackish
water was a health hazard however to date they have not built a drain to replace the one that
they filled.
16. Justice Narine concluded that it was clear that the parties should have considered settling the
matter however failing that settlement the Court had no difficulty in granting an injunction
along the principles of law that it is a nuisance to interfere with an easement or other rights
used or enjoyed with another neighbour’s land. See Clerk and Lindsell on Tort 16th
ed para
24(3) pg 1356. A private nuisance is a wrong only to the owner or occupier of the land
affected and possession or occupation of the land is what gives the right to sue a private
nuisance. This was a red flag which was raised by Justice Narine since his judgment in July
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2005 and heed should have been taken by the Ramdhanies’ of what was being said as to what
would amount to a nuisance which is now the main focus in this trial.
The expert report
17. On the 2nd
October 2013 at a pre-trial review I gave the Claimant permission to rely on an
expert report compiled by Mr. Shane Gayle. He is a practicing civil engineer since 2004 and
a registered member of Association of Professional Engineers of Trinidad and Tobago
(APETT). His evidence is captured largely in his report which was tendered into evidence
and served as a useful guide to the topography of the land, the effects of the actions of the
Defendants on Mr. Mahdo’s land and the likely options to resolve those problems. On the
utility of experts in matters such as these Justice Jamadar reminds us in the Court of Appeal
decision of Kelsick and Kuruvilla CA P277 of 2012 that Part 33 of the CPR provides for
the calling of expert evidence and use of expert reports with the permission of the court
would be granted where it is reasonably required to resolve proceedings justly. “Part 33(1)
CPR provides that the duty of an expert is to impartially help the Court on matters relevant to
his expertise and his duty in part 33.2 overrides any obligation to any other party including
those from whom the expert received instruction and payment. The report must be an
independent product uninfluenced as to form or context by the exigencies of litigation and
the duty of the expert is to provide independent assistance to the Court by way of an
objective unbiased opinion.”
18. Save for the fact that the expert in this case, Mr. Gayle, obtained his knowledge of the state
of the drain prior to 2005 from instructions received by Mr. Madho, and that he admitted in
cross examination that the drain did in fact run on the lands belonging to Mr. Ramdhanie,
save for those two aspects of his report this Court derived considerable assistance from his
report most of which remained unchallenged. I drew particular reference in Mr. Gayle’s
report to his methodology where his investigation report was based on a review of all
cadastrals, meeting the residents, a visual review of the topography of the existing site and
immediate environs, a review of video records of site conditions and status site drainage
before the main ditch was blocked, digital photographs for records, a list of problem areas
which was generated after the tasks were completed and recommendations to restore the
drainage capabilities of the property.
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19. Relying on the Koylass plan which was referred to by Mr. Gayle as the “Gokool plan” (and if
one examines the Koylass plan one would see reference to the survey done by C. Gokool in
November 2000) Mr. Gayle confirmed the topography of Mr. Madho’s land and the
boundary drain. He observed that the drain based on its size would not have had sufficient
size or slope to function adequately during times of excessive rainfall however, it was the
only drainage conduit seen on the cadastral responsible for draining the entire Madho’s
property and also that of the neighbouring property to the West. Reviews of the video records
shows that the Madho property was able to drain and the aforementioned drain had managed
to keep the property dry which is unlike the state that it is now.
20. Mr. Gayle observed that presently there are remaining parts of the boundary drain to “the
North of the property and another small portion to the South” (as was explained in cross
examination this meant to the East and West as his report was not based on cardinal points
but by referring to the Cacandee Road where he stood as South and the back of Mr. Madoo’s
property as the North). However the rest of the drain in-between and the chain link fence
have been destroyed and replaced by a reinforced concrete block wall the height of which
varies from 88inches in some instances to approximately 56inches. This new wall and all the
backfill material behind it has virtually blocked the path of the original boundary drain
leaving storm water and domestic greywater from Mr. Madho’s residence with no route with
which to get to the municipal drains. The property has always drained itself along this line as
evident by the majority of the surface area outside of the house which is paved with concrete
that slopes towards the old drain alignment. Without the drain what has resulted is an
unpleasant sight in several areas within the Madho’s property of black stagnant foul smelling
water which has backed up against the newly built wall and has remained for days with no
way of freely draining off the property.
21. His recommendations to deal with the impacts of the drainage problem which are identified
as “unpleasant sight of black stagnant water, foul odor throughout the property, the
proliferation of mosquitoes on the property as a result of the stagnant water and flooding of
the soak away pit during times of excessive rainfall and property flooding” were two-fold.
The first option was “to reinstall the boundary drain back to its original alignment” and the
second “without a way to get the property to drain freely by open drains then the option
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would be to install a sump pump to de-water the property as soon as there is any kind of
water being discharged”, that option he opined was much more expensive than the first
option. I explored in my examination of the expert, a third option of draining the property to
the South of the Madho property and Mr. Gayle opined that, that would have been a more
difficult enterprise having regard to the slope of the Madho property naturally from the South
to the North.
22. The evidence of the Claimant (in addition to the expert evidence of Mr. Gayle) is to be found
in testimony of Mr. Madho himself, Ms. Shirley Madho his sister in law and a neighbour Ms.
Rita Persad. Their evidence can be summarized (and they were largely unshaken) that the
drain was in existence for over fifty years, that the wall was constructed where the drain ran,
and the wall has blocked the access of the water from the Claimant’s property and caused
damage.
23. With the evidence of the Defendant there were two main incriminating aspects of the
Defendants’ evidence. First his evidence in chief at paragraph 8 of his witness statement
where he admitted that there was a drain taking water from East to West into the Cacandee
Road and into the concrete drains which are below the pavements and that drain which is
about 2 feet wide running from the Cacandee Road on the West to a point of 100 feet East.
And secondly his cross examination which virtually conceded the entire case of the Claimant
on its cause of action for nuisance in the following manner:
“Q: you feel you can do whatever you want on your property?
A: it is mine.
Q: the Claimant complained that your actions caused him flooding on their
property?
A: yes
Q: you did nothing to fix that situation?
A: I fixed my situation
Q: you did not do anything to help fix the situation to fix the flooding on Mr.
Madho’s property?
A: I cannot help them to fix their flooding.
Q: Mr. Madho took you to court and obtained an injunction?
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A: yes
Q: even after that injunction you did not unblock the drain?
A: we did not do anything
Q: even after 2005 as recently as 2012 you continued to block the waterway by
building up the drain?
A: yes I built up the wall
Q: I put it to you that you being selfish and without consideration blocked up the
drain which was in existence for over 60 years to make your place a more
convenient place to live
A: yes why I should not live better.”
24. I turn now to the applicable law which is relevant to the claim for nuisance which I find to be
the only relevant cause of action for the Claimant. An easement has been described in the
Halsbury Laws of England1 as “a right annexed to land to utilize other land of different
ownership to do something on that land or to prevent the owner of that other land from
utilizing his land in one of a limited number of ways.” Simply put it is a right over the land of
another with certain limitations to the extent that is necessary for the reasonable enjoyment of
the property. Translated in this case it is a right by Mr. Madho of the Ramdhanies’ land with
certain limitations to the extent that is necessary for the reasonable enjoyment of Mr.
Madho’s property.
25. In the text of Easements by the author Gale2 he states that:
“If an owner of land for his own convenience diverts or interferes with the course of a
stream he must take care that the new course provided for is sufficient to prevent
mischief from an overflow to his neighbours land and he will be liable if such an
overflow takes place.”
The case relied on is Sedleigh-Denfield v O'Callaghan [1940] AC 880. In this case there is
no complaint of an overflow however the applicable law with the diversion or interference
with the course of easement is directly relevant.
1 Vol. 87 (2012) 5th Edition para 802
2 Charles Gale on Easements 18
th ed. at page
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26. In order to determine whether an easement has been established it is necessary to satisfy the
key requirements as to what constitutes an easement as set out in the Megarry and Wade3 and
those elements can be broken down in four tiers:
i. there must be a dominant and servient tenement;
ii. it must accommodate other lands that being the dominant tenement;
iii. and also being the dominant and servient tenement must be owned by
different persons;
iv. the easement must be a right capable of forming the subject matter of a grant.
27. The wrongful interference with an easement constitutes a private nuisance that is to say an
injury done to a person in this case Mr. Madho in possession of property in land by which his
enjoyment of his property has been adversely affected. Again referring to the case Denfield v
O’Callghan an occupier of land constitutes a nuisance if with knowledge or presumed
knowledge of its existence that occupier, in this case Mr. Ramdhanie, fails to take reasonable
means to bring it to an end when he had ample time to do so and adopts it if he makes any
use of the erection of artificial structures which constitutes to nuisance.
28. And finally, in Clerk and Lindsell4:
“A nuisance to be actionable must be such as to be a real interference with the
comfort or convenience of living according to the standards of the average man an
interference which alone causes harm to something of abnormal sensitivities does
not of itself constitute a nuisance. In practice the general concepts of the
foreseeability and reasonable user may have rendered the notion of abnormal
sensitivity less significant. The discomfort must be substantial not merely with the
reference to the Claimant it must be of such a degree that it would be substantial
to any person occupying the Claimant’s premises irrespective of his position in
life, age or state of health. It must be an inconvenience materially interfering with
the ordinary comfort physically of human existence.”
29. Having regard to the evidence in this case of Mr. Gayle which to a large extent was
unchallenged with regard to the interference caused by Mr. Ramdhanie’s action to Mr.
3 The Law of Real Property by The Hon. Sir Robert Megarry and H.W.R. Wade 4
th Ed para. 805
4 Clerk and Linsdell on Tort 19th edition paragraph 20-11
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Madho’s enjoyment, the interference with Mr. Madho’s comfort and convenience of living
on his property is in fact in keeping with the standards of the average man and the
inconvenience that he has suffered is that ordinarily associated with the discomfort of
physical human existence and is not merely according to the elegant or dainty modes and
habits of living. This is a basic requirement of the enjoyment of his property: the free flow of
water, the prevention of flooding, the prevention of stagnation of water on one’s property, the
elimination of a proliferation of mosquitoes which causes a health hazard or a foul odor
which also causes a health hazard due to the stagnation of water. These are plain and sober
and simple notions of physical comfort which have been denied to Mr. Madho by the actions
of Mr. Ramdhanie.
30. With reference to the applicable remedies where there is a nuisance it is quite clear that the
Court is empowered to grant either an injunction or damages or both. In this case where what
is being sought is a mandatory injunction I agree with the Claimant that the Court must
exercise great care. Referring to the judgment in Redland Bricks v Morris [1970] AC 652
the grant of a mandatory injunction is discretionary and unlike a negative injunction cannot
be as a matter of course. The general principles for an application in granting such a
mandatory injunction includes that there must be a strong probability that grave damage
would accrue in the future which I find on the facts to have been proven by Mr. Gayle’s
report, that damages would not be a sufficient or adequate remedy if such damage does
happen and thirdly and importantly (unlike the case where a negative injunction is granted) to
prevent the continuance or recurrence of a wrongful act the question of the Defendant to do
works to prevent or lessen the likelihood of a future apprehended wrong must be an element
to take into account.
"Where the defendant has acted without regard to his neighbour's rights, or has
tried to steal a march on him or has tried to evade the jurisdiction of the Court or,
to sum it up, has acted wantonly and quite unreasonably in relation to his
neighbour he may be ordered to repair his wanton and unreasonable acts by doing
positive work to restore the status quo even if the expense to him is out of all
proportion to the advantage there by accruing to the plaintiff." (Lord Upjohn at
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page 656). I also place reliance on Bean on Injunctions5 which reinforces the
point that “if a Claimant can be fully compensated by an award of damages no
injunction will be granted, in particular where the wrongdoing has ceased and
there is no likelihood of its recurring an injunction would be refused. However
where the Defendant has wrongfully interfered with the Claimant’s rights as an
owner of property and intends to continue with that interference the Claimant is
entitled prima facie to an injunction and special circumstances may occur in
which the remedy of damages would adequately compensate the Claimant for the
loss he has suffered and may in the future suffer but it is for the wrongdoer to
satisfy the court that such special circumstances exists.”
31. Finally in Bean “the court may make an award of damages in addition to granting an
injunction in a proper case where the Claimant in an action for nuisance by noise or by
vibration successfully claims an injunction that being the real remedy in the action and also
ask for general damages without being able to prove any special damage his damage may be
limited to a nominal amount.” That is a classic case of what is transpiring in this trial.
32. I have read the Defendants’ submissions. I make two comments on those submissions.
Firstly, that it misses the point that the Claimant’s action with regard to trespass having
regard to the agreed fact that the drain ran on the Defendants’ property is a non-starter, and
that the real case for the Claimant is that for damages or an injunction as a result of a
nuisance caused by the interference with an easement in the boundary drain that existed some
sixty years ago. Secondly, there is no credible evidence that the Claimant, Mr. Madho has
himself obstructed or blocked the boundary drain I say so for the following reasons:
i. By the admission of the second Defendant that he erected a wall on the
boundary drain;
ii. The expert’s report and findings;
iii. The Koylass plan which shows where the boundary drain ran and where the
structures of the Claimant existed in 2005 and;
5 David Bean on Injunctions 11
th Ed 2012
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iv. The corroborating evidence of the Claimant’s witnesses who testified and
were unshaken in their testimony of the existence of the boundary drain which
has now been over taken by the wall constructed by the Defendants.
33. I therefore hold based on the assessment of this evidence, the oral testimony, the
documentary evidence, the photographs and survey plans that:
i. The Defendant purposely blocked the drain when he built his wall foundation
and a concrete platform which was on his land to improve his own premises
and to provide a roadway and parking for trucks and other vehicles owned by
the family6.
ii. There was no flooding or pooling of stagnant water prior to the construction in
2005 and 2012 and that that flooding and pooling of stagnant water was
exacerbated after that construction.
iii. The drain if restored would allow for the alleviation of the problem of the
drainage of the Madho land which has been described by the expert as the
only source of drainage or only possible source of drainage of the Madho
property. The restoration of the drain would also solve the environmental
impacts of the stagnant water.
iv. I find that an injunction would be an adequate remedy in this case where the
Defendant the Ramdhanies’ acted without regard to his neighbours rights. He
tried to steal a march on him. He tried to evade the jurisdiction of the Court
wantonly and quite unreasonably in relation to his neighbour went about
seeing about his own convenience much to the detriment of Mr. Madho and
the occupants of that property.
34. Having regard to the expert’s report and my questioning of Mr. Gayle the best solution would
be to restore the boundary drain. I therefore make the following orders:
i. A declaration that Claimant enjoys an easement in a boundary drain which ran
between the Defendants’ and Claimant’s land that is 163 and 165 Cacandee
6 See witness statement of Rajindra Ramdhanie dated 23
rd July 2013 at paragraph 19. See also his cross
examination for the private business operated on his premises.
Page 17 of 18
Road, Felicity, Chaguanas as shown on the Koylass plan which was tendered
into evidence in these proceedings.
ii. An injunction is hereby granted compelling the Defendants’ whether by
themselves, their servants, agents or otherwise howsoever to destroy or
remove or dismantle the boundary wall which was constructed by the
Defendants’ their servants and or agents so as to clear and or restore the
boundary drain as shown on the Koylass plan.
iii. An injunction restraining the Defendants’ whether by themselves their
servants and or agents or otherwise howsoever from further interfering with
blocking or impeding the said boundary drain which is shown on the Koylass
plan.
35. Having regard to my findings and having regard to the actions of the Defendant as well to the
lack of evidence as to the extent of damage caused by the blocking of the drain over the years
since 2005 I hold that this is a fitting case for an award of nominal damages and so my final
order would be that the Defendants’ do pay to the Claimant the sum of $15,000.00 as an
award of nominal damages.
36. Quite appropriately the Claimant has submitted that costs should be quantified on the
prescribed scale. We do have the situation where the Claimant is entitled to the costs of the
counterclaim and we have the Claimant not being successful on his claim for damages for
trespass. Therefore the Claimant being successful in what I would call one half of its claim I
would order that the Defendants do pay to the Claimant the costs of $7,000.00 on its claim.
37. I also find that the Defendants having withdrawn its counterclaim the Claimant is entitled to
its costs of that withdrawal however I give credit to the fact that it was done at an early stage
and it saved us a considerable amount of time and the Court has a discretion under Part
67.5(4) CPR to award a percentage of the prescribed costs and so I will order that the
Defendants do pay 50% of the prescribed costs of his counterclaim which would be
$7,000.00.
38. So in total prescribed costs to be paid by the Defendants to the Claimant is $14,000.00. A
stay of execution of seven days is granted.
Page 18 of 18
Vasheist Kokaram
Judge