Squatter to sue State over damaged property caused by Sando By-Pass

Derek Achong

Se­nior Re­porter

[email protected]

A man from San Fer­nan­do, whose fam­i­ly has been squat­ting on State land for over 75 years, has scored a le­gal vic­to­ry in his bid to pur­sue a law­suit over dam­age to the prop­er­ty caused by wa­ter from a ma­jor road. 

In a pre­lim­i­nary de­ci­sion last week, High Court Judge Robin Mo­hammed dis­missed an ap­pli­ca­tion from the Of­fice of the At­tor­ney Gen­er­al to strike out the tres­pass and nui­sance case brought by Pat­ter­son Nel­son. 

The law­suit re­lates to a prop­er­ty at Co­coyea Vil­lage, San Fer­nan­do, that Nel­son claimed he and his fa­ther had been in undis­turbed and ex­clu­sive oc­cu­pa­tion of for al­most eight decades. 

Nel­son claimed that since 2015, the prop­er­ty had been af­fect­ed by sur­face and sub­sur­face run-off from the San Fer­nan­do By-Pass, which is lo­cat­ed up­hill from it. 

He claimed that the wa­ter caused dam­age, in­clud­ing tilt­ing of the perime­ter fence, wa­ter leaks through the re­tain­ing wall, and cracks in the house on the prop­er­ty. 

In de­fence of the law­suit, the AG’s Of­fice claimed that the case was an abuse of process.

It al­leged that he did not have le­gal stand­ing to pur­sue the lit­i­ga­tion as he did not have ti­tle to the land and did not seek plan­ning per­mis­sion be­fore con­struct­ing the house. 

It al­so al­leged the case was filed out­side the statu­to­ry lim­it, as it should have been ini­ti­at­ed with­in four years of the wa­ter dam­age be­ing dis­cov­ered. 

In re­ject­ing the ap­pli­ca­tion, Jus­tice Mo­hammed found that Nel­son had raised a valid le­gal chal­lenge that had to be de­cid­ed af­ter a tri­al. 

“In the in­stant case, the Claimant has ad­vanced a co­her­ent fac­tu­al nar­ra­tive, sup­port­ed by con­tem­po­ra­ne­ous doc­u­ments, which he con­tends gives rise to recog­nised caus­es of ac­tion,” Jus­tice Mo­hammed said, as he not­ed that there was no ev­i­dence that Nel­son was act­ing out of spite or for an im­prop­er mo­tive. 

Jus­tice Mo­hammed point­ed out that Nel­son’s claim to the land could be de­ter­mined af­ter all the ev­i­dence from both sides is analysed. 

“Whether his pos­ses­sion is proven and whether the State’s claim to the land ex­tin­guish­es any pos­ses­so­ry right are not ques­tions that can be de­cid­ed at a strike-out hear­ing,” he said. 

Deal­ing with the de­lay, Jus­tice Mo­hammed not­ed that Nel­son’s case was based on con­tin­u­ing tres­pass/nui­sance, which he al­leges still per­sists. 

In terms of the lack of plan­ning per­mis­sion, Jus­tice Mo­hammed said that it would be un­fair to de­lay his claim based on a reg­u­la­to­ry breach. 

“The con­se­quence sought by the De­fen­dant, that is, ex­tin­guish­ing a claim for dam­age to a home al­leged­ly caused by pub­lic in­fra­struc­ture, would be dis­pro­por­tion­ate,” Jus­tice Mo­hammed said. 

As part of his de­ci­sion, Jus­tice Mo­hammed ex­tend­ed the time for the State to file its sub­stan­tive de­fence to the law­suit. 

Nel­son was rep­re­sent­ed by Mustapha Khan and Hans Man­war­ing, while Tri­cia Ram­lo­gan and Mur­vani Ojah-Ma­haraj rep­re­sent­ed the AG’s Of­fice.