Fergus v Leslie et Al

• Jurisdiction: St Vincent and the Grenadines
• Judge: Berridge, J.A.
• Judgment Date: 19 July 1982
• Neutral Citation: VC 1982 CA 1
• Docket Number: Civil Appeal No. 12 of 1980
• Court: Court of Appeal (Saint Vincent)
• Date: 19 July 1982

Court of Appeal

Peterkin, C.J.; Berridge, J.A.; Robotham, J.A.

Civil Appeal No. 12 of 1980

Fergus

and

Leslie et al

Appearances:

S.A. Cato for the appellant

A. Saunders for the respondent

Real property - Title

This was an appeal from a decision in which it was adjudged and declared that the defendant give to the plaintiffs/respondents possession of the land in dispute. The question was whether the appellant was in possession “nec vi nec clamnes precario” for the prescribed period of time of the lands in dispute of which the respondents claimed ownership. The appellant claimed that he lived in the house on the disputed lands from birth up to the time of the trial of the action, unmolested and without payment of rent to anyone

The trial judge's finding could not be upheld the respondents' father was not at the time of his death seised in the fee simple of the disputed lands. The appellant was in possession of he disputed lands for a period of twelve years and upwards and accordingly was entitled to acquire a possessory title thereto. Judgment entered for the defendant. Appeal allowed.

Berridge, J.A.

1 This is an appeal from the decision of Renwick, J. dated 29 ^th October, 1980 in which it was adjudged and declared:

• “(1) That the defendant do give to the plaintiffs possession of ALL that lot piece or parcel of land situate at Lowmans Windward comprising TWO AND THREE QUARTER (2 ³/₄) lots together with all buildings and erections thereon and being butted and bounded on the North by a gutter on the South by a road on the East by lands in the possession of Minelva Cockburn and by lands in the possession of Robert Leslie and on the West by lands in the possession of David Johnson or howsoever otherwise the same may be butted bounded known distinguished or described. Together with all ways, waters, watercourses, rights, lights, liberties, privileges and easements thereto belonging or usually held used occupied or enjoyed therewith or reputed to belong or be appurtenant thereto set out under and by virtue of a Deed of Conveyance made between Robert Leslie Administrator of the Estate of Alexander Leslie a.k.a. Alick Leslie deceased and George Arlington Leslie (Beneficiary) of the one part and the plaintiffs of the other part dated the 14th day of January, 1977, and recorded in the hand registry of Saint Vincent as Deed Number 166 of 1977.

• (2) The registrar do assess the value of the house on the disputed lands and the amount so found be paid to the defendant. Plaintiffs are entitled to b of costs to be taxed.”

2 The grounds of appeal which appear at page 2 of the record are as follows:–

• “(1) That the learned trial judge was wrong in law in not considering the application of the Real Property Limitation Ordinance, Chapter 86 of the Revised Laws of Saint Vincent to the problem as submitted.

• (2) That there was no evidence to show that the disputed land was the subject matter of the Grant of Letters of Administration so recorded in the Registry of Saint Vincent and the Grenadines as 79 of 1973.

• (3) That the judgment is against the weight of the evidence.”

3 This is a comparatively simple matter involving a question of fact as indicated by the third ground of appeal, the question for determination being whether the appellant was in possession nec vi nec clam nec precario for the prescribed period of time of the aforementioned lands (hereafter sometimes referred to as “the disputed lands”) of which the respondents claim ownership.

4 Section 3 of the Real Property Limitation Act, Chap. 86 of the Revised Laws of Saint Vincent reads as follows:–

• “3. No person shall make an entry or distress, or bring an action or suit, to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same.”

5 At page 5 of the record the trial judge made the following finding:–

“Alexander Leslie died on the 4th day of March, 1970 and was at the date of his death sized in fee simple in possession of, inter alia, the disputed lands. Letters of Administration to the estate of Alexander numbered 79 of 1973 were granted to the first-named plaintiff.”

6 Briefly the undisputed facts are that James Leslie and his wife Victoria had two sons, Alexander being the only one about whom anything is known. Alexander had six children including Robert (the first respondent) and George who was the putative father of the appellant.

7 James Leslie predeceased his wife Victoria who died in 1958, and she in turn predeceased her son...