Billingy v Woodley and the Other Heirs Rebecca Adina Woodley and Jacob Woodley
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Henry, J. |
| Judgment Date | 23 March 2016 |
| Neutral Citation | VC 2016 HC 20 |
| Date | 23 March 2016 |
| Court | High Court (Saint Vincent) |
| Docket Number | SVGHPT2010/0007 |
High Court
Henry, J.
SVGHPT2010/0007
Mr. Joseph Delves for the applicant.
Mr. Carlyle Dougan Q.C. for the respondent.
Real Property - Adverse Possession — Whether the applicant was entitled to a declaration of possessory title where — Consideration of section 2 of Possessory Titles Act, Cap 328 and Powell v. McFarlane et al (1977) 38 P & CR 452 Ch D — Whether the applicant was capable of possessing the property when he was a minor and as such would have been able to prove the full statutory period — Interruption of time — Whether the period of possession was interrupted when the applicant was absent from the country and as such on return the period constituted a commencement of a new period — Whether the failure to serve on the other adjoining landowners was fatal having considered section 8 of the Possessory Titles Act — Finding that the application for declaration of possessory title dismissed — Finding that the period of possession was interrupted — Finding that the failure was fatal and attracted the sanctions prescribed by section 8(2).
This is an application filed on 3rd February, 2010 by Gideon Billingy for a declaration of possessory title to a parcel of land situated at Yambou in the State of Saint Vincent and the Grenadines. Mr. Billingy claims the declaration based on 12 year's adverse possession. He alleges that he and his father Benjamin Billingy have been in exclusive and undisturbed possession of the subject land for 12 years. He also claims in the alternative that he has done so on his own. He alleges that since 1985 he has treated the property as his own. He asserts that he continued cultivating it after his father died in 2005. Joel Woodley opposes the application. He claims that Gideon Billingy never occupied the disputed land. Instead, he alleges that his grandparents Jacob and Rebecca Woodley, their heirs and successors are the true owners.
On the trial date, after Gideon Billingy and his only witness Marva Findlay testified, learned Queens Counsel Mr. Dougan made a no case submission arguing that Mr. Billingy has failed to comply with certain mandatory requirements of the Possessory Titles Act, Cap. 328 (‘the Act’). He contends further that Mr. Billingy's evidence fell short of establishing adverse possession. Mr. Billingy elected to stand by his submission and tender no evidence.
The issue is whether Gideon Billingy has made out a prima facie case that he has enjoyed adverse possession of the disputed land?
When considering a no case submission, the court is concerned with determining whether the applicant has “established his claim on the balance of probabilities.” The court must remain cognizant that the claimant may achieve this by establishing only “a weak prima facie case” which may be “strengthened to the necessary standard of proof by adverse inferences” from the defendant's silence. If the defendant remains inexplicably silent in circumstances which normally would elicit a response, the court may quite reasonably draw adverse inferences from his silence. However, if he gives an acceptable reason for his silence the court may draw no such inference.
In evaluating evidence, the court is required to apply “common sense” principles and attach such weight to it accordingly. It must also bear in mind that “the weight of the aggregate of many such pieces of evidence taken together is very much greater than the sum of the weight of each such piece of evidence taken separately.” This no case submission will be assessed against these established legal principles.
To establish a prima facie case, Mr. Billingy must present evidence which goes to establish on a balance of probabilities that he has been in adverse possession of the subject land for 12 years. Adverse possession is defined in the Act as:
‘factual possession of an exclusive and undisturbed nature of a piece or parcel of land in Saint Vincent and the Grenadines for a continuous period of twelve years or more accompanied by the requisite intention to possess the said land as owner thereof.’
This definition corresponds with dicta from decided cases in which the concept of adverse possession was examined and pronounced on. It is now accepted that an applicant for a possessory title declaration must prove that he has enjoyed exclusive and undisturbed factual possession of the subject land, accompanied by the requisite intention to possess it as owner.
Factual possession ‘signifies an appropriate degree of physical control.’ It is characterized by a single, continuous and exclusive act of possession which must coincide in time with the intention to possess. As articulated by Slade, J.:
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…'.
I now consider whether Gideon Billingy has established a prima facie case of adverse possession. Mr. Billingy and Ms. Findlay testified and were cross-examined. Their affidavits were admitted as their evidence in chief. Mr. Billingy deposed that his father Benjamin Billingy aka Samuel “Birdie” Billingy occupied the subject land for over 30 years up to his death in 2005. He added that his father planted plantains and other crops on it with his assistance from 1980. Mr. Billingy testified that after his father's death, he continued to work the land cultivating the same crops.
Ms. Findlay corroborated the material parts of his testimony. She acknowledged that in 2010 she had known Mr. Gideon Billingy for about 19 years. She recalled seeing him as a young boy, accompanying his father to the subject land, where they grew potatoes, peanuts, yams, plantains, tomatoes, cabbage and other crops. She describes the subject land as comprising approximately 27,000 sq. ft. Ms. Findlay did not indicate during which part of the 19 year period she considered Mr. Billingy to be a young boy. Nevertheless, she testified that Mr. Billingy has continued to cultivate the land up to 3rd February, 2010 when she swore her affidavit.
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