Elroy Arthur v T Michael Findlay
| Jurisdiction | St Vincent and the Grenadines |
| Judge | JOSEPH MONICA J:,JOSEPH MONICA J |
| Judgment Date | 04 October 2010 |
| Judgment citation (vLex) | [2010] ECSC J1004-1 |
| Docket Number | CLAIM NO. 36 OF 2009 |
| Court | High Court (Saint Vincent) |
| Date | 04 October 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL
CLAIM NO. 36 OF 2009
In The Matter of An Application For A Declaration of Possessory Title
Mr. Carlyle Dougan, Q.C., for the Applicant
Mr, Andrew Cummings, Q.C. for the Respondent
JOSEPH MONICA J: On 25th May 2009 applicant Elroy Arthur, under section 3 of the Possessory Titles Act 2004 (No.38 of 2004) (the Act), filed an application for a declaration of possessory title. That application was in respect of a parcel of land at Belvedere Estate at Belvedere in the parish of Saint George, admeasuring one acre 18 poles (48,460 sq. ft) (the property) and was supported by his affidavit.
Notice of the application for possessory title was published in newspapers, posted in the Registry of the High Court and on the court building in the relevant district, as required by
section 7 of the Act.
On 2nd July 2009, entry of appearance opposing the application was filed by T. Michael Findlay, the agent of Muriel E. Small nee Findlay, (Findlay-Small), who holds Power of Attorney No. 143/2009 dated 4th May 2009. A claim outlining the opposition was filed on 20th July 2009.
Applicant Elroy Arthur gave oral evidence. Donald Martin and Louis Jones, who swore supporting affidavits, gave oral evidence. For the respondent, Michael Findlay and Findlay-Small swore affidavits and gave oral evidence. Bastien Zincte Alexander, a character witness for T. Michael Findlay, gave oral evidence.
Mr. Alexander was called as a character witness in response to the line of cross examination of Michael Findlay, As Counsel for the applicant indicated that he did not intend to attack Mr. Findlay's character, I do not think it necessary to make any comment.
Mr. Dougan for the applicant submitted that the issues are:
-
(1) Was the applicant in actual/factual possession of the disputed land for the period of at least twelve years immediately preceding 2005 —viz from 1993 to 2005 exclusively and undisturbed accompanied by the requisite intention to possess the land as owner?
-
(2) If the answer to the aforementioned is that the applicant was in actual possession of the said land, did that possession amount to adverse possession?
Prior to the applicant's possession, his father Alban Spencer of Brighton worked and occupied the property plus three acres adjoining as implied agent for "Bobo" Findlay (Clarence Findlay).
For over sixteen years —from about 1993 to the present time, the applicant has been in factual exclusive and undisturbed possession of the property for a continuous period of 12 years or more with the requisite intention to possess the property as owner.
During his occupancy, without any interruption or objection, he constructed on the property three buildings including: (a) an incomplete two storey concrete building with a gross floor area of 297 square feet; (b) a second concrete building with a gross floor area of 475 square feet and; (c) a third building with floor area of 1173 square feet, and has operated a bar, restaurant, and night club.
The applicant had electricity and water installed on the property in his name, The respondent has not taken any steps to remove the applicant from the property. The applicant's rights under the Act crystallized in 2005.
Clarence Frederick Findlay (deceased) by way of indentures bearing registration nos. 443/ 1949 and 1825/1979 became the owner of lots of land on the Belvedere Estate containing altogether four acres one rood and twenty eight poles.
From about 1986, Clarence Fraser, then legal representative of the owners of the estate, put Alban Spencer of Belvedere, the applicant's father, in charge of cultivating the four acres of land and rearing and breeding animals. In 1988 that arrangement was formalized by a Land Overseer Agreement.
In 1991, the four plus acres were subdivided into four lots and Clarence Findlay made gifts to his four children. Deed No. 3362/1991 dated 21st October 1991, Lot 1 comprising 1 acre and 18 poles i.e., 48,460 square feet to Findlay—Small (who resides in the United States of America), is the subject matter of this case; Lot 2 to Margaret Findlay; Lot 3 to Noreen Findlay and Lot 4 to Vernon Findlay. In 2009 Lots 2, 3 and 4 were sold by the owners to CD. Viera Investments Ltd, Deed No. 2071/2009, without any ownership challenge by the applicant.
Alban Spencer's health failed which prevented him from carrying out his functions on the property, and his son Elroy Arthur took over those functions. Elroy Arthur constructed a part wooden/part concrete building on the property. He has been operating an entertainment business (bar, restaurant and night club) in the building.
In 2003 Findlay-Small and Margaret Findlay as owners toured the four acre land in company with the applicant and agent Clarence Fraser, The applicant made no claim to the property during discussions that were held.
On 10th December 2007, Findlay-Small informed the applicant that she proposed to sell the property and gave him first preference to purchase at a price of EC$8,00 per square foot, which price was lower than the then EC$15.00 per square foot value of the land.
There are two memoranda of agreement made on 11th December 2007 between the parties. In one agreement, the applicant agreed to be caretaker of the property under the supervision of Michael Findlay, thus acknowledging Findlay-Small's title to the property. That agreement is signed by Michael Findlay for Owners and ratified by them. There is another memorandum of agreement made on 11th December 2007, which is signed by Findlay-Small and witnessed by Michael Findlay. This latter agreement was an agreement for sale of the property to the applicant for $387,680.00, with a down payment of $30,000.00 payable on the signing of the agreement, the balance to be paid on or before 28th February 2008.
By letter dated 4th May 2009 Attorney at Law Randolph Howard on behalf of Findlay-Small wrote the applicant requesting him to comply with the terms of the memorandum of agreement for sale. He did not,
The respondent claims that the applicant has not met the requirements of the Act and the Court ought not to grant him a declaration of possessory title.
Learned Senior Counsel for the applicant submitted that what Findlay-Small did or said did not legally affect the quality of adverse possession by the applicant. He cited from the judgment ofSir Vincent Floissac in Civil Appeal No. 13/1944 Florence Louise Belfon vLester Mcintosh at p. 7;
" The respondents' extra-judicial protests, objections and demands do not in law constitute acts of ownership (i.e., acts which evince an intention to assert ownership) or acts of possession (i.e. acts which evince an intention to assume, retain or regain possession) or acts which legally interrupt, disturb or otherwise affect the quality of adverse possession."
Learned Senior Counsel for the respondent submitted that there was a signed agreement of 11th December 2007 between the parties that clearly acknowledges the respondent's title in writing. He cited Pottinqer v Raffone (2007) 70 WIR 238 (2007) 70 WIR 238 at 240 paragraph f:
"Where, however, the person in possession acknowledges the proprietor's title in a signed document, then the period of 12 years runs from the date of that acknowledgment".
Learned Senior Counsel differentiated thePottinger case from Pye (Oxford) Ltd v Graham (2003) 1 AC 419 where there was no signed document.
Clarence Findlay owned four acres of land at Belvedere Estate and entered into what is referred to as a Land Overseer Agreement appointing Fraser as his agent over the landand permitting Alban Spencer to cultivate the land. That agreement dated 23rt July 1988 reads;
"Land Overseer Agreement between Clarence Findlay, his daughter Muriel Findlay Small and Mr. Alban Spencer.
Mr. Alban Spencer will continue to work on the Belvedere Estate under ownership of Mr. Clarence Findlay as he has in the past, cultivating, rearing and breeding of animals.
Mr. Spencer will be directly accountable to Mr. Clarence Fraser who has approved of this agreement.
Proceeds from same will be rightfully handed over in due time and amounts to Mr. C. Fraser, same being 1/3 of funds collected for land and1/2 of the sale profit of animals."
Section 2 of the Act defines "adverse possession" to mean 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 12 years or more accompanied by the requisite
The applicant has acknowledged that Findlay-Small is the paper owner of the property. His claim in his affidavit filed on 25th May 2009 is that he is entitled to a declaration of possessory title in that since about 1993 he has been in factual exclusive and undisturbed possession of the parcel of land for a continuous period of 12 years or more.
The applicant also acknowledged that by the Land Overseer Agreement, his father was permitted to occupy the four acre land, Paragraph 9 of the applicant's affidavit reads:
"That prior to his (Elroy) possession his father Alban Sears (correct name Spencer) worked and occupied the said land plus three adjoining acres as implied agent for "Bobo" Findlay deceased (4)…
My father was in charge of four acres. In 1988 my father was working for Mr. Findlay. My father had agreement with owners of the land in 1988 to take care of the land. I lived with my father."
In cross examination, the applicant stated that...
To continue reading
Request your trial