Effrey Adolphus Carty Claimant v Raphael Edwards Defendant [ECSC]

• Jurisdiction: Anguilla
• Judge: GEORGE-CREQUE, J.
• Judgment Date: 15 January 2007
• Judgment citation (vLex): [2007] ECSC J0115-1
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 15 January 2007
• Docket Number: CLAIM NO. AXAHCV/2003/0045

[2007] ECSC J0115-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

AD 2007

CLAIM NO. AXAHCV/2003/0045

Between:

Effrey Adolphus Carty

Claimant

and

Raphael Edwards

Defendant

APPEARANCES

Mr. Thomas Astaphan and Mr. Duane Jean Baptiste for the Claimant

Mr. Michael Bourne, Mr. John Benjamin and Ms. Tara Carter for the Defendant.

GEORGE-CREQUE, J.

1 This case highlights the pitfalls facing an absentee land owner in Anguilla. The Claim, commenced by fixed date claim form, is brought by way of an appeal pursuant to section 147 of the Registered Land Act1 ("the Act") from the decision of the Registrar of Lands dated 24^th May, 2006, whereby the Defendant was successful on his application, made pursuant to section 135 of the Act, to be registered by prescription of a portion of land situate at South Hill and then recorded on the Land Register as Parcel 81 Block 08412B, Road Registration Section. The Application was made to the Registrar on 17^th July, 2003. The Claimant objected to the Defendant's application and a full hearing took place before the Registrar of Lands. The portion of land in respect of which the Defendant is now registered is described as being "part of Parcel 330 formerly part of Parcel 81 and particularly delineated on Survey Plan Ref: CN 061/02 comprising 0.30 acre"2 ("the Land"). Parcel 81, based on the Land Certificate issued to the Claimant by the Registrar of Lands in 1981 and prior to the carving out of Parcel 330 therefrom, comprised in excess of 4 acres.

Appeals to the High Court

2 CPR 2000 , Part 60 governs appeals to the High Court. Specifically, Part 60.8 governs the hearing of such appeals and, in essence, provides that the appeal is by way of a rehearing with the power to receive further evidence on matters of fact and draw any inferences of fact which may have been drawn in the proceedings in which the decision was made. The parties availed themselves of this facility and filed witness statements which were treated as the witnesses' examination in chief. The issue before the Registrar of Lands was whether the Respondent had acquired title to the Land, then recorded on the Land Register in the name of the Claimant, by prescription.

The Law

3 Section 135 of the Act states as follows:

"The ownership of land may be acquired by peaceable, open and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of 12 years, but no person shall so acquire the ownership of crown land. (2) Any person who claims to have acquired the ownership of land by virtue of subsection (1) may apply to the Registrar for registration as proprietor thereof."

4 Section 136 says that"Possession shall be interrupted—

(a) by physical entry upon the land by any person claiming it in opposition to the person

in possession with the intention of causing interruption if the possessor thereby loses possession;

(b) by the institution of legal proceedings by the proprietor of the land to assert his right thereto; or

(c) by any acknowledgement made by the person in possession of the land to any person claiming to be the proprietor thereof that such claim is admitted."

5 The Defendant also relies on the Limitation Act3 section 5 (3) which in part says, in essence, that no action shall be brought by a person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him. The Limitation Act is commonly regarded as a Defendant's shield to a claim brought by the paper owner (registered proprietor) for recovery, whereas the prescriptive provisions contained in the Act are regarded as the Defendant's sword enabling him to take a positive act in establishing and perfecting his possessory title to land.

6 Suffice it to say, that this action relates solely to the Defendant's utilization of section 135 of the Act as his sword to defeat the Claimant's paper title. This action by the Claimant, as alluded to earlier, is not in the nature of an action brought for recovery of possession but rather by way of challenge to the Decision of the Registrar of Lands finding in favour of the Defendant on his application for registration by prescription pursuant to section 135 of the Act. Accordingly, although an application of the relevant principles by route of the Limitation Act may inevitably lead to the same result, I do not consider, for the purposes of the nature of the case at bar, that any discourse into the Limitation Act is necessary or desirable. I therefore propose to confine myself to the application of the provisions of the Act to the facts as I find them to be, having regard to the relevant principles, in arriving at a determination in this matter.

The issue

7 The simple question for determination then is whether the Defendant acquired the Land by his peaceable, open and uninterrupted possession thereof for a period of twelve (12)

years without the permission of the person lawfully entitled thereto. This is essentially a question of fact to be determined on the evidence. This question, though simply posed, has, in the past, given rise to considerable difficulty and confusion in the application of the relevant principles bearing on its answer.

8 InJA Pye (Oxford) Ltd. & Anr. -v- Graham & Anr [2002] UKHL 30.4, cited by counsel for the Defendant, the House of Lords in the United Kingdom took the opportunity to trace and examine the history and development of the law relating to the acquisition of title by prescription or the extinction of title by virtue of the provisions of the Limitation Act, and restated the applicable principles relating to 'possession'. These principles are very helpfully set out in the erudite judgment of Lord Browne-Wilkinson, with whose opinion all members of the Panel agreed. Their Lordships cited with approval, inter alia, the cases of Powell-v-McFarlane5, and Buckinghamshire County Council-v-Moran [1989] 2 All ER 2256 cited by counsel for the Claimant. I consider Pye's case to be of highly persuasive authority given that the relevant principles as to possession are integral to the determination of the case at bar.

9 Lord Browne-Wilkinson in paragraph 36 of his opinion inPye, stated the position 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". At paragraph 40 of his opinion, he succinctly stated the two elements necessary for establishing legal possession thus:

"(1) a sufficient degree of physical custody and control ("factual possession");

(2) an intention to exercise such custody on one's own behalf and for one's own benefit ("intention to possess"). ….Such an intention may be, and frequently is, deduced from the physical acts themselves.

He went on further to say that"it is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession"

10 Factual possession

Lord Browne-Wilkinson at Paragraph 41 cited with approval from the dicta of Slade J inPowell's case where Slade J said at pp 470–471 of his judgment thus: "Factual possession signifies an appropriate degree of physical control. It must be a single and exclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. ……what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."

11 Intention to possess

Pye's case may be said to have settled the law in terms of what is required to ground this element which had become clouded by the use, over time, of expressions relating to 'acts of ownership' or an 'an intention to own'. As was said by Hoffman J in Moran'scase, at pp 238 of his judgment "What is required for this purpose is not an intention to own or even an intention to acquire ownershipbut an intention to possess for the time being the land to the exclusion of all other persons including the owner with the paper title." This statement of the principle was expressed by their Lordships in Pye as being 'manifestly correct' .

12 Acts inconsistent with the intentions of the registered proprietor

Pye's case may also be taken to have settled the law on the question as to whether the acts of the possessor must be inconsistent with the intentions of the paper owner so as to establish possession. At paragraph 45 of his opinion, Lord Browne-Wilkinson, in describing such a requirement as a heresy of Bramwell B in the case of Leigh -v- Jack (1879) 5 Ex D 2647, had this to say: "The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. …. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner."

The Evidence

13 Bearing these principles in mind, I now turn to consider the evidence given in this case. Apart from the statements given before the Registrar, the Defendant gave evidence on his own behalf and called three other witnesses. The Claimant and one other witness gave evidence on his behalf. The Defendant must show that he was in peaceable, open and uninterrupted possession of the land without the Claimant's consent, at latest, as from 16^th July, 1991, which would be a period of twelve years from the date of...