Leslie v Davis et Al; Davis v Leslie
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Joseph, Monica J. |
| Judgment Date | 19 July 2012 |
| Neutral Citation | VC 2012 HC 30 |
| Court | High Court (Saint Vincent) |
| Docket Number | 59 of 2008; 45 of 2010 |
| Date | 19 July 2012 |
High Court
Joseph, J. (Ag.)
59 of 2008; 45 of 2010
Mr. Ronald Marks and Ms. Elizabeth Ryan for applicant.
Mr. E. Robertson Snr. for first and second respondents.
Mr. Richard Williams and Mr. Sten Sargeant for third respondent.
Real Property - Title — Adverse possession.
Joseph, Monica J. (Ag.): Suit No. 59/2008 filed on 25th January 2008 by Roland Leslie (applicant) is a possessory claim for land under the Possessory Titles Act (Cap 328) (the Act) in respect of 29,453 sq ft at Hill View, Mt. Pleasant, Bequia (the disputed property). Survey plan GR 12/57 relates to that land. The 45/2010 fixed date claim is for recovery of possession of the disputed property filed by Bradley Davis, the first respondent on 5th February 2010.
In the possessory application suit… Section 5 of the Act requires the filing of affidavits. Following publication of the application for possessory title, entries of appearance were filed by Doreen Leslie (third respondent) on 22nd December 2008, on 9th January 2009 by the first respondent and Lex Clayton Davis (second respondent). They filed claims in opposition to his application. In the recovery of possession suit, under CPR 2000 witness statements are filed.
WITNESSES: The applicant's witnesses who are George William King (King), Cecil Ollivierre and Paul Kirby gave affidavits, witness statements and gave oral testimony. The first, second and third respondents gave evidence.
The unchallenged history of seven acres of land was given by the third respondent. By Deed No. 95 of 1939 of 20th May 1937, Jane Davis conveyed seven acres of land (including the disputed land) to her sons Edric Davis and Dontlin Hewitt Davis in equal shares as tenants in common, which land was never divided between them. Edric and Almena Davis are the father and mother of The first respondent. Edric Davis died around 1945 and Dontlin Davis died in 1989.
In 1992, the third respondent purchased Dontlin's share of the seven acres from his (Dotlin's) wife, Gladys Davis Three and a half acres of the land were conveyed by Gladys Davis to the third respondent, by Deed No. 1182 of 1993. Edris Davis erected a dwelling house on a small portion of the disputed land and, after his death in 1945; his widow Almena Davis occupied that house.
By statutory declaration Deed No. 3153/1988, Almena Davis declared she was in undisturbed possession of the seven acres. By Deed of Gift No.1199/1989 she conveyed those acres to her son, the first respondent. The first respondent conveyed one acre of the seven acres by Deed of Gift No. 161 of 1994 to his son, Lex Clayton Davis, (the second respondent).
By Suit No. 47 of 1998 the third respondent instituted proceedings against the first and second respondents. On 27th July 2005, Thom J ordered that the first and third respondents are tenants in common of the seven acres of land in Deed No. 95 of 1939 (from Jane Davis). The Court cancelled Possessory Title Deed No. 3153/1988 to Almena Davis and subsequent Deeds of Gift No. 1199/1989 to the first respondent and No. 161/1994 to the second respondent. The Court upheld that 27th July 2005 judgment by a ruling on 29th January 2007. The process of dividing the seven acres between the tenants in common, the first and third respondents is ongoing.
All that lot piece or parcel of land situate at Mt. Pleasant, bounded on or towards the north by lands belonging to the heirs of A. Davis on or towards the south by the main road from Port Elizabeth to Hope on or towards the east by lands of William King and on or towards the west by lands belonging to the heirs of Jane Davis as shown on Survey Plan No. GR12/57 lodged at the Surveys Department on 20th June 2008 containing twenty nine thousand four hundred and fifty three square feet.
The Court visited the area of the disputed land. It is bounded by the applicant's property and consists of a pasture covered with short grass. An unfinished shed, under which there are the remains of a hull of a small boat, stands on a portion of that pasture. There are some fowl pens erected near to that shed. There are several mature trees including coconut trees, golden apple tree, mango tree, breadfruit and a sapodilla tree.
Ms Ryan's submission: The applicant is entitled to the disputed land as he has been in exclusive and undisturbed possession of the disputed land for a period of over twelve years. The evidence on his behalf is that the disputed land was in the possession of the applicant's father, George William King (King). King gave evidence that the disputed land was first in the possession of his father, Lester George Gooding, (Gooding) and that he (King) took possession in 1963. He occupied the disputed land, grazing his horses, cows, goats and sheep and remained in continuous and uninterrupted possession. In 1994, he (King) relinquished possession to the applicant, who has been in continuous and uninterrupted possession since then.
Ms Ryan further submitted: The first respondent claims that, first, his father, Edris Davis, was in possession of the entire seven acre plot, then his mother, Almena Davis, who in turn passed title to him by way of deed of gift. In his affidavit dated 4th May 2009, the first respondent claims title to the disputed land, by virtue of Deed No. 1199 of 1989. That deed was cancelled by Court Order dated 9th August 2005 in a suit instituted by the third respondent against the first respondent.
Mr. Robertson's submissions: the first respondent is the owner in possession of seven acres of land having lived thereon continuously from 1951 to 2012. He was given a Deed of Gift No. 1199 of 1989 for the seven acres by his mother Almena Davis.
Counsel argues that as, between the first and third respondents, the court is not called upon to decide who has the better title, or who has the better right to possession. The application before the court is a claim by the applicant, that he has the right to obtain a possessory title, having been in adverse possession of the disputed land. The applicant claims to have acquired adversely from the first respondent or from the third respondent.
The first respondent's evidence is that he gave oral permission to the applicant to occupy the disputed land, by building fowl pens and doing some cultivation. He withdrew that permission orally and by letter dated 8th October 2002, thus terminating the tenancy.
Counsel submits that the arrangement between the parties created a tenancy at will or alternatively, a license to occupy the disputed land until it was determined. The applicant, having entered with the permission of the first respondent, ought not to be permitted to question the first respondent's title. He cited E.H. Lewis and Sons Ltd v. Morelli and Another 1948 2 All ER 1021 at page 3.
The second respondent's claim follows that of the first respondent.
Mr. Sargeant's submission: The third respondent states that she is a tenant in common along with the first respondent. They both gave the applicant permission to occupy a portion of the disputed land to keep chicken pens, and his application for possessory title should fail.
Ms. Ryan's argument for the Claimant is that King has been in possession of the disputed land, and is on the land on a daily basis, where he planted crops and reared animals. Those acts, she submits, are clear indications that King had assumed the character of the owner, and was exercising peaceably the ordinary rights of the owner since 1963. Counsel cited Petty v. Clissold (1907) A.C. 73 at p. 79 (P.C.) followed in Elroy Arthur v. T. Michael Findlay Claim No. 36 of 2009.
Mr. Robertson's submission is that possession is a question of fact and it is not difficult for the court to find that the first respondent has been and still is in possession of all the seven acres of land. The applicant has not established any ouster of possession of the first respondent, neither has he established that the requisite statutory period has run in his favour and uninterrupted. Counsel cited J.A. Pye; (Oxford) Ltd. v. Graham [2003] 1 AC. 419, Cobham v. Frett (2000) (59) WIR 161.
Mr. Sargeant submits: the tested oral evidence of the witnesses for the third respondent should persuade the court that the applicant was on the land with the consent of both owners, or in the alternative, the applicant acknowledged the third respondent's title.
Counsel's argument is that neither the applicant nor his predecessors ever exercised a degree of control over the disputed land so as to exclude the paper title owners. There is no dispute that the parcel of land is part of a seven acre plot of open pasture. There is no demarcation between the parcel the applicant and his father King who lives on land adjoining the disputed parcel. The court inspected the disputed lands and photographs were admitted into evidence.
Mr. Sargeant's further submission is that neither the applicant nor King had the requisite intention to possess the disputed land. No tax receipts were exhibited to support the notion that George Lester Gooding or George William King or the applicant believed the land belonged to their family. King's evidence is that around 1994, he gave the applicant a parcel of land below his house to build...
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