Tyrone Carlisle Simmons v Norris Simmons
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Byer, J. |
| Judgment Date | 11 May 2022 |
| Judgment citation (vLex) | [2022] ECSC J0511-3 |
| Docket Number | SVGHCV2021/0090 |
| Year | 2022 |
| Court | High Court (Saint Vincent and the Grenadines) |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SVGHCV2021/0090
(By his Lawful Attorney on Record Melissa Amanda G. Simmons)
Mr. Jomo Thomas for the Claimant
Mr. Cecil A. Blazer Williams for the Defendants
The claimant and the first defendant are family members, the first defendant being the uncle of the claimant, he is the brother of the father of the claimant.
In spite of this court sending this matter to mediation with a hope of salvaging the familial relationship stressed by the filing of this litigation, the parties did not settle and the matter proceeded to trial before this court with the claimant and the first defendant uncompromisingly adhering to their relative positions.
By Fixed Date Claim Form (the claim) filed 16 July 2021, the claimant sought the following reliefs:
1. A declaration that the claimant is entitled to the possession of parcel of land with house erected thereon situate on Lot 9 at Frenches and registered as Deed No. 839/1982.
2. An injunction prohibiting the defendants, their servants and or agents from occupying the said property registered under Deed No 839/1982.
3. An order that the defendants do within 7 days pull down and remove the wall.
4. The court to declare the Statutory Declaration No 1589/1988 recorded in the name of the 1 st Defendant is illegal, null and void.
5. Mesne profits from 2017 until possession is delivered up; (current letting value of property).
6. Alternatively damages to be assessed.
7. Damages for trespass
8. Interest
9. Cost
10. Any such further or other relief that the court deems fit.
The claim was supported by an affidavit by the Attorney on Record for the claimant his cousin's daughter Melissa Simmons. It is this affidavit that set out the parameters of the claim, which are stated as follows:
i) the grandfather of the claimant Floris Albert Simmons (the/their/his father) by his Last Will and testament dated 16 May 1964, left a portion of his parcel of land at Frenches, Kingstown to the claimant with a life interest in his daughter Daphne;
ii) Grant of Probate of the Last will and testament was made to the Executrix named in the will, Betty Simmons (the Executrix) the mother of the claimant on 27 September 1968;
iii) Pursuant to her powers under the will the Executrix executed a Deed of Assent in favour of her son, the claimant on 28 April 1982 registered as Deed Number 839 of 1982 (the Deed of Assent);
iv) Subsequent to the death of the father, Daphne purportedly gave the first defendant, who was not a beneficiary under the Last will and testament of their father, permission to live in the house in which she had a life interest. She thereafter migrated to the United Kingdom and never returned, dying there in 2017;
v) That the possession by the first defendant was effected solely by the permission of the said Daphne but that the first defendant at all times knew that the house belonged to the claimant and was only there on the licence of the family inclusive of the claimant; and
vi) The first defendant has refused to leave the said premises despite being asked to do so since the death of Daphne and instead have wrongfully made alterations to the said land and house restricting the claimant's access to the same.
The defendants by their Amended Defence and Counterclaim 1 sought to rely on the provisions of the Limitation Act 2 that the first defendant had occupied the land since 1968 and that as such the claim of the claimant would be extinguished by operation of the law. In the alternative, the defendants also claimed by counterclaim that by virtue of proprietary estoppel, the first defendant having expended monies on the property the claimant was estopped from claiming possession of the same.
The issues for the court therefore were two:
1) Is the claimant barred from claiming possession by virtue of the provisions of the Limitation Act and if not,
2) Are the defendants entitled to rely on the principle of proprietary estoppel.
Before this court embarks on a consideration of the identified issues, I wish to make it clear that reference in this judgment to defendant refers to the first defendant, the second defendant being his common law wife and then legal wife in 2020 gave no evidence as to her personal occupation of the land or contribution to the construction of the house. The second defendant was therefore clearly joined as a party being in occupation of the house with the first defendant and against whom an order would have to be made if the claimant is successful on his claim for possession.
It must be made clear that the defendant has not admitted in his pleading that the claimant is the paper owner of the lot of land the subject matter of this action. He however did plead that the basis upon which the claimant inherited the land the subject matter of this action, the Last will and testament of his father had been questioned by both his mother and his sister Daphne. However,
That being said, in order for this court, to determine whether the defendant is entitled to use the Limitation Act as a shield against the action for possession by the claimant, the court must make an assessment of the evidence upon which the defendant relies to support such a contention.
At this juncture the court wishes to make it clear, as it was made clear to counsel for the defendant, and which indication was apparently not heeded given the nature of the pleading in this regard 3, reliance on the Limitation Act does not entitle the proponent of the provisions of the Act to any relief. In the words of Mohammed J in Magdalene Lendore v Winsford Frank and anr 4, “…a person who is an adverse possessor cannot rely on these provisions of the Limitation Act to be used as a sword to mount an action for possession against an owner who has the paper title but they can only be relied on as a shield against a paper title owner who has been dispossessed by the adverse possessor and has brought an action to recover possession. Therefore, in law, the Claimant cannot rely on her adverse possession to bring an action to dispossess the owners of the paper title…”
This was also the position of the Court of Appeal in Arnold Celestine v Carlton Baptiste 5 in which George-Creque JA (as she then was) had this to say; “It appears to have been overlooked that these provisions are directed at the right of the paper owner to bring a claim for recovery of land and limit the time frame within which the paper owner may do so. This contemplates that the paper owner must have become dispossessed of the land — by the adverse possessor. What these provisions do not permit or contemplate is the situation where, as here, the adverse possessor brings a claim against the paper owner and then sets up the limitation bar as against the paper owner as a basis upon which the adverse possessor becomes entitled to ownership of the land.” (My emphasis added)
Thus, the only consideration that can be had by the court is whether the defendant has factually possessed the property the subject matter of this action and in fact did so with that intention to possess 6. Thus, the question is simply “…whether the defendant squatter has dispossessed the paper owner (in this case the registered proprietor) by going into ordinary possession of the land for the requisite period without the consent of the owner.” 7 (My emphasis added)
Thus the nub of the commencement of possession must be that it was undertaken without the permission of the person with title to land. Thus, “any party asserting possessory title on that basis
In the case at bar, that question of permission or lack of permission is the nub of the defendant's case.
In the pleadings of the defendant, this issue was pleaded thusly 9:
“The First Defendant will contend that he moved on to the property in 1968 when his sister, Daphne Simmons told him to do so after collecting the keys from Clyde Simmons' mother-in-law, for the chattel house on the land.”
In support of this contention, the only one of the witnesses that the defendant brought to court who could speak of any “personal” knowledge of the commencement of the occupation of the land at Frenches, was the defendant himself. It was therefore with some consternation that the manner in which the commencement of the defendant's occupation was captured by these words:
“In 1968, I occupied a board or chattel house on a piece or parcel of land situate at Frenches in which I lived as a child but which became vacant after I and other family members left.”
However at trial of the matter, this troubling issue took on a life of its own by the oral evidence of the defendant on cross examination and those of his witnesses.
On cross-examination 10, the defendant who seemed to have a very convenient memory for some things and not for others gave this court the distinct impression that he was not as feeble minded or as forgetful as he purported to portray and as such this court found him a less than credible witness. That being said, on cross-examination early in the start of the examination, the defendant clearly stated that his sister Daphne had given him permission to live in the house but that...
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