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1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeals No. P170-2014 Civil Appeals No. P181-2014 Claim No. CV 2013-01344 BETWEEN PETA MARY BAIN And GEOFFREY IAN WHARTON-LAKE (suing in the capacity of the representatives of the Estate of Josephine Myra Attale Pursuant to the order of the Honourable Mr. Justice Rampersad made on 15 April, 2013) Appellants/Claimants AND BRIAN HAMILTON MARCELIN Respondent/Defendant APPEARANCES: Ms. Deborah Peake S.C., Mr. Ravi Heffes-Doon for the Appellants Ms. Ashti Maharaj for the Respondent PANEL: Nolan Bereaux JA Prakash Moosai JA Peter A. Rajkumar JA

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeals No. P170-2014

Civil Appeals No. P181-2014

Claim No. CV 2013-01344

BETWEEN

PETA MARY BAIN

And

GEOFFREY IAN WHARTON-LAKE

(suing in the capacity of the representatives of the Estate of Josephine Myra Attale

Pursuant to the order of the Honourable Mr. Justice Rampersad made on 15 April, 2013)

Appellants/Claimants

AND

BRIAN HAMILTON MARCELIN

Respondent/Defendant

APPEARANCES:

Ms. Deborah Peake S.C., Mr. Ravi Heffes-Doon for the Appellants

Ms. Ashti Maharaj for the Respondent

PANEL:

Nolan Bereaux JA

Prakash Moosai JA

Peter A. Rajkumar JA

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DATE OF DELIVERY:

19th February 2019

I have read the judgment of Rajkumar JA. I agree with it and have nothing to add.

………………………………………………………………

Nolan Bereaux

Justice of Appeal

I have read the judgment of Rajkumar JA .I also agree with it and have nothing to add.

………………………………………………………..

Prakash Moosai

Justice of Appeal

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Table of Contents Page No.

Background 4

Issues 5

Conclusion 6

Order 8

Analysis 9

The Alleged Concession 9

Adverse Possession - Acknowledgement 10

Adverse Possession 10

Whether filing of the 1977 Action stopped time running 11

Period of Adverse Possession on the pleadings – Pre 1977 Action 15

Status of Respondent’s father -Judgement of Sealy J in 1977 Action 15

Payment of Rent – Issue of Fact 17

Whether the respondent’s defence and counterclaim should be struck out 18

Adverse possession by the respondent 18

Acknowledgement of title after August 19th 1997 19

Whether it is the filing or service of proceedings which stops

time running for adverse possession 20

Whether evidence of 16 years adverse occupation after August 19th 1997 22

Adverse possession must be exclusive 22

Adverse possession by the respondent 22

Conclusion 24

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Delivered by Rajkumar JA

Background

1. The appellants’ claim against the respondent was for possession of land at #13 and

15 Lord Street, San Fernando (the premises). The following facts are common to both parties:

i. In 1977 the appellants’ predecessor in title Josephine Attale (JA) had instituted

proceedings (the 1977 action) against the respondent’s father Hamilton Marcellin

(HM) for possession of those very premises. The appellants represent her estate.

ii. On the pleadings in the 1977 action the title of the appellants’ predecessor in title

was accepted by the respondent’s father, as he admitted that Josephine Attale was

the owner in fee simple of the premises1. The respondent’s father’s contention

however was that he was entitled, as the successor to his mother, to a tenancy of the

premises under the Rent Restriction Act. He counterclaimed for a declaration that he

was such a tenant, or, alternatively, (by amended statement of claim dated June 15

1992), that he was a statutory tenant of the premises under the Land Tenants Security

of Tenure Act 1981.

iii. On August 19, 1997 Sealy J refused an order for possession in the 1997 action on the

basis that the respondent’s father had established a tenancy under the Rent

Restriction Act.

iv. In so doing she found that his mother, (the respondent’s grandmother) who died on

December 19, 1976, had at the date of her death been a tenant of the property. In

fact it was admitted by the respondent’s father at paragraph 1 of the amended

defence and counterclaim2 that she was a tenant of the lot of building land at a

monthly rent of $20.00.

v. The respondent’s father, having lived with the respondent’s grandmother for a period

of 6 months prior to her death, was held to be entitled to the benefit of that tenancy.

1 (paragraph 1 of amended defence and counterclaim page 205 Record of Appeal) 2 Page 215 Record of Appeal

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Accordingly the declaration he sought was granted by Sealy J that he was a tenant of

the premises.

vi. The respondent’s father passed away in June 2010.

2. This is an appeal against the decision of the trial judge wherein she found that the

appellants’ case disclosed no ground for bringing the claim and should be struck out pursuant to

Part 26.2 (1) (c) of the Civil Proceedings Rules. The circumstances giving rise to that finding and

the reasons for her decision included the following:

ii) that the appellants’ attorney at law had allegedly made a concession with respect to the

deficiency of the appellants’ title.

iii) that the respondent had on the pleadings established that the title of the appellants’

predecessor in title had been extinguished by 1995 at the latest, and at earliest 16 years after the

death of his mother (in 1976).

The appellants seek an order setting aside the order of the trial judge and a further order that

the defence and counterclaim of the respondent be struck out.

Issues

3. i. Whether the alleged concession had been made.

ii. Whether the appellants’ claim could have been struck out as disclosing no cause

of action on the pleadings, their title being allegedly extinguished as a result of

adverse possession by the respondent’s predecessors.

iii. Whether conversely, if no sufficient period of adverse possession by the respondent or

the respondent’s predecessors could be demonstrated on the pleadings, the respondent’s

counterclaim could be struck out as disclosing no grounds for defending the claim and or

bringing the counterclaim.

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Conclusion

4. The trial judge’s conclusion that the appellants’ counsel had made the alleged concession

was erroneous. Her conclusion based thereon that “in the absence of a proper paper title their

claim against Brian as a trespasser would also be unsustainable” was consequently flawed. A

“proper paper title,” or a good conveyancing root of title, was not required to ground the claim

for possession against an alleged trespasser. See Ocean Estates v Pinder (infra). The appellants’

predecessor held a paper title by, inter alia, a 1969 Deed of Conveyance, and had in any event

previously mortgaged the premises thereafter in 1979.

5. The trial judge’s finding that the title of the appellants’ predecessors had been

extinguished, by the respondent’s father’s occupation after 1976 without paying rent, is flawed

for the following reasons:

i) It is inconsistent and entirely contradictory to the decision of Sealy J on August 19th 1997

that the respondent’s father was a tenant of the premises.

ii) The respondent’s case is that from 1968 the respondent’s father had not paid rent. The

trial judge3 considered that, because the respondent’s father remained in occupation after

the death of his own mother in 1976, while paying no rent since 1968, by 1992 the title of

the appellants or their predecessors had been extinguished. However the 1977 action filed

by JA stopped the running of time for the purposes of adverse possession, pending the

determination of the 1977 proceedings, up until the date of judgment therein on August

19th 1997. Sixteen years had not elapsed either between 1968 and 1977, or between 1976

and 1977. The trial judge could not therefore have concluded that a case had been

established on the pleadings that the title of the appellants, or their predecessor in title,

had been extinguished as at the time of the judgment of Sealy J in 1997, or at any time

before judgment had been delivered in those proceedings. The undisputed facts do not

disclose any relevant 16 year period so as to ground her conclusion that the title of the

appellants had been so extinguished.

3 at paragraphs 11 and 13 of the judgment at page 21 ROA

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iii) Furthermore, even after the judgment of Sealy J, which declared the status of the

respondent’s father to be a tenant, no sufficient 16 year period of adverse occupation could

be demonstrated on the pleadings.

iv) From August 19th 1997 to the filing of the instant action on July 31st 2013 sixteen years had

not elapsed. Therefore the respondent could not have acquired title by adverse possession

as insufficient time had elapsed for the extinguishment of the title of the appellant’s

predecessor in title or her estate. However, if the period from August 19th 1997 to the date

of service of the 2013 instant proceedings in September 2013 is considered only then can

a possible 16 year period of possession be discerned. However, the acknowledgement by

the respondent’s father of ownership of the premises by the appellants’ predecessors in

title is incompatible with any finding that i. his occupation was adverse to the owners, or ii.

that his status was other than as a tenant. That acknowledgement occurred a) in his

defence in the 1977 action, b) in his amended defence in 1992, and c) in his letter dated

December 28th 2005. The necessary intention by the respondent’s father to dispossess the

owner could not therefore exist until at least after that letter, if at all.

v) The respondent’s father was alive until 2010. The respondent’s occupation of the premises

could not have been independent of his father’s. Furthermore, the respondent, being born

in January 1980, did not attain the age of majority until January 1998. Up to 2010 therefore

the respondent’s occupation, even as an adult, from January 1998, could only be as a

licensee of his father.

vi) Sixteen years had not elapsed from 2010 to the date of filing or serving the instant action

in 2013. Neither would sixteen years have elapsed from January 1998 to the filing or serving

of the instant action in September 2013.

6. Examination of the undisputed facts derived from the pleadings of the respondent

himself, the respondent’s father in the 1977 action, and the judgment of Sealy J, would therefore

have revealed an arguable case that the appellants’ title had not in fact been extinguished. The

conclusion of the trial judge that the appellants’ claim should be struck out as disclosing no cause

of action is therefore unsupportable. Those materials demonstrated specifically that it was

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arguable that neither a. the respondent nor b. his father nor c. any other occupant of the subject

premises claiming through his father’s occupation, could have acquired an unbroken sixteen year

period of occupation adverse to that of the appellants’ predecessors in title either i. before the

1977 proceedings were filed or ii. after the 1977 proceedings were concluded.

7. However,

i. the nature of the respondent’s father’s claim asserting his status as a tenant,

ii. the amendment of his claim in 1992, (claiming to be a land tenant), again acknowledging the

ownership of the appellant’s predecessor and her status as his landlord, and,

iii. the finding by Sealy J that this was in fact his status,

were all incompatible with the requisite intention by the respondent’s father to possess.

8. This is so notwithstanding the argument that although the instant proceedings were filed

within sixteen years of the date of the Sealy J judgment, they were in fact served more than

sixteen years thereafter, because the letter dated 28th December 2005 by the respondent’s father

constituted a continuing acknowledgement of title. Accordingly, no sufficient period of adverse

possession by the respondent or the respondent’s predecessors could be demonstrated on the

pleadings or on the material before the trial judge. Consequently, the respondent’s counterclaim,

based on his assertion that the title of the appellants had been extinguished, can be struck out

as disclosing no grounds for defending the claim and/or bringing the counterclaim.

Orders

9.

i. The orders of the trial judge are set aside.

ii. It is declared that the appellants are entitled to possession of the premises described

in paragraph 16 of the amended statement of case.

iii. It is ordered that the appellants do recover possession of the premises from the

respondent, his servants and/or agents.

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iv. It is ordered that the defence and counterclaim of the respondent be struck out as

disclosing no grounds for defending the claim or bringing the counterclaim.

Analysis

The Alleged Concession

10. Examination of the appellants’ written submissions, on which the trial judge based her

finding of a concession as to the inadequacy of the paper title of the appellants, reveals no such

concession by counsel. The reference to title sufficient for the purpose of a conveyancing root of

title, was, at highest, an aside. It could not, on its face, amount to a concession that the

appellants, who were relying upon their title, and seeking a declaration of ownership based

thereon, had somehow decided to abandon that position. The reference to a good root of title in

the law of conveyancing was clearly a reference to the decision in Ocean Estates v Pinder [1969]

2 A.C. 19. In that case the Privy Council clarified that it was unnecessary for a claimant in an action

for possession to plead and prove as good a root of title as if he were conveying the land.

Counsel’s submissions were clearly addressing that distinction and asserting that the appellants

did in fact have sufficient paper title to found their claim against the respondent.

11. At the time of those submissions filed May 2nd 2014 this was assumed to be the position

based on the case of Olga Charles v Singh Civ App 50 of 1960. However, that case and the several

which followed thereafter, were expressly disapproved by Mendonça JA in the case of Goodridge

v Baby Nagassar Civ App 243 of 2011 which was subsequently delivered on January 23rd 2015.

In that case Mendonça JA recognized that the true position was in fact that established in Ocean

Estates v Pinder [1969] 2 A.C. 19. The consequence of that misapprehension that such a

concession had been made as to the inadequacy of the appellant’s paper title permeated the

reasoning of the trial judge thereafter.

12. The submissions of Counsel for the appellant in this regard are logical and are accepted,

particularly since counsel made it clear before the trial judge that no concession had been

intended. In the context of the other documents on undisputed matters before her, including i.

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expressed acknowledgements by the respondent’s father of the title of the appellants’

predecessors, and ii. his father’s status as a tenant, coupled with iii. the finding of Sealy J made

at a trial that the respondent’s father was in fact a tenant of the appellants’ predecessor, such a

concession would have been irrational.

Adverse Possession - Acknowledgement

13. Section 15 Real Property Limitation Act Chapter 56:03 provides as follows:

15. When any acknowledgment of the title of the person entitled to any land or

rent shall have been given to him or his agent in writing, signed by the person

in possession or in receipt of the profits of such land, or in receipt of such rent,

then such possession or receipt of or by the person by whom such

acknowledgment shall have been given, shall be deemed, according to the

meaning of this Act, to have been the possession or receipt of or by the person

to whom or to whose agent such acknowledgment shall have been given at the

time of giving the same, and the right of such last mentioned person, or any

person claiming through him, to make an entry or distress or bring an action to

recover such land or rent shall be deemed to have first accrued at and not before

the time at which such acknowledgment, or the last of such acknowledgments,

if more than one, was given.

Adverse Possession

14. A summary of the law on adverse possession was recently set out in the case of Roach v

Jack Civ App 132 of 2009 delivered July 29th 2013 per Bereaux JA, in particular at paragraphs 15,

16 and 24 (all emphasis added).

[15] The effect of sections 3 and 22 is that the squatter or trespasser in possession

extinguishes the right and title of the paper title owner to the land at the end of the sixteen

year statutory period. In that sense therefore the squatter’s possession during that period

is adverse to the true owner’s title. Adverse possession thus means possession inconsistent

with the title of the true owner. …

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[16] To establish adverse possession, the squatter must demonstrate that he has taken

exclusive control of the property in question. He must also have “an intention for the time

being to possess the land to the exclusion of all other persons including the owner with the

paper title” (per Slade L.J. in Buckinghamshire County Council v. Moran [1990] Ch 623 at

643). Megarry and Wade (supra) from which that latter authority and passage were drawn,

adds at page 1310 paragraph 21-019 that:

“An intention to own or acquire the ownership of the land is not required, nor is it

necessary that the squatter should intend to exclude the true owner in all

circumstances. The animus can be sufficiently established even if both the true owner

and the squatter mistakenly believe that the land belongs to the latter …The intention

to possess must be manifested clearly so that it is apparent that the squatter was not

merely a persistent trespasser but was seeking to dispossess the true owner.

Whether filing of the 1977 Action stopped time running

[24] I draw from those statements of law, the following conclusions:

(a) An action, once filed within the limitation period, is sufficient to stop time running for

the purposes of that action, provided it is pursued and concluded in the owner’s favour.

Any judgment successfully obtained in respect of that action would be valid, effectual and

enforceable even if obtained after the limitation period had run its course.

(b) Once proceedings are brought in time the occupier cannot then seek to rely on the

subsequent passage of time to establish within those proceedings a defence of adverse

possession.

(c) Where the owner fails in his initial action he cannot seek to rely on the mere fact of

having brought it to make good a second action. For the purposes of any particular action,

the issue of a writ in earlier proceedings is no more relevant than a demand for possession.

Such a demand does not start time running afresh nor would the service of such earlier

writ….

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15. The court of appeal supported its conclusion on the effect of the filing of an action on the

running of the limitation period by reference to Markfield Investments Ltd v Evans [2001] 1 WLR

1321 per Lord Justice Simon Brown at paragraphs 12, 15 and 16

12. Essentially, therefore, the true owners’ cause of action accrues once his land is in

adverse possession, and continues to be treated as accrued unless and until the land ceases

to be in adverse possession. Adverse possession may cease (a) by the occupier vacating

the premises, (b) by the occupier giving a written acknowledgment of the true owner’s

title (see ss.29 and 30 of the Act), (c) by the true owner’s grant of a tenancy or licence to

the occupier (even a unilateral licence - see BP Properties Limited v Buckler (1987) 55 P&CR

337), or (d) by the true owner physically re-entering upon the land...

15.

A. ASSERTION OF OWNER’S RIGHT

Assertion of right occurs when the owner takes legal proceedings or makes an

effective entry on to the land."

16. No authority is cited for that proposition but I have no doubt that it is intended to

reflect the views of this court expressed by Dillon LJ in BP Properties v Buckler (1987) 55

P&CR 337, 334:

"If proceedings to recover land are begun before there has been twelve years

adverse possession - e.g. if they are begun in the eleventh year - then the right

of action is, on the wording of ... s.15 of the 1980 Act, unaffected by the

subsequent expiration of the twelve years period while the proceedings are

pending. If that is so, it could not, in my judgment, be a correct reading of

[s.17 of the 1980 Act] to hold that the title of the plaintiff to the land is

extinguished while an action for the recovery of the land, launched in due

time, is still pending. On Lord Radcliffe’s approach [in Fairweather v St

Marylebone Property Co Ltd [1963] AC 510, 535] the title can only then be

extinguished if and insofar as it cannot be established and vindicated by the

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action which has been brought in due time. So again, if an action to recover

land is brought within the twelve years and judgment for possession is given

in that action, albeit after the expiration of the twelve years, it would be idle

to suppose that the judgment for possession could, because of the expiration

of the twelve years, never been (sic) enforced. The judgment must be

enforceable if the action was started in due time." (emphasis added)

17. In short, both Cheshire and Burn, and Dillon LJ, are making the point that,

once proceedings are brought in time, the occupier cannot then seek to rely

on the subsequent passage of time to establish within those proceedings a

defence by way of adverse possession.

16. In fact at paragraph 11 of submissions of the respondent in the court below it was

accepted that “…the prior defendant (respondent’s father) could not assert such a claim (adverse

possession) during those proceedings as time had stopped running for the purposes of that

action”.

17. The weight of authority binding on the trial judge was that filing of the 1977 action

stopped time from running for the purpose of the Real Property Limitation Act. See also Hindaye

Pooran v Kenneth Roop Civil Appeal 223 of 2010 per Mendonça JA at paragraph 32 of his

judgment:

“32. Where therefore, the earlier action leads to a judgment that establishes and

vindicates or confirms, either expressly or impliedly, the landowner’s title, even though

he may not have succeeded in recovering possession of the lands, that action would stop

time from running”.

18. The judgment of Sealy J in the 1977 action impliedly confirmed the landlord’s title when

it granted the respondent’s father the declaration that he sought that he was a tenant of the

appellant’s predecessor, based as it was on his acknowledgement of her title.

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19. See also Ofulue v Bossert [2009] 1 A.C. 990 at paragraph 70 cited with approval in Pooran

ibid as set out hereunder.

The effect of abortive proceedings for possession on the running of time under

section 15 was considered by the Court of Appeal in Markfield Investments Ltd v

Evans [2001] 1 WLR 1321. In that case, the paper title owners had brought a claim for

possession against the occupier of the land, and those proceedings were dismissed

for want of prosecution. They then brought a fresh claim, and the occupier contended

that the claim was barred under section 15. The plaintiff paper title owners argued

that time did not run under section 15 while the first set of proceedings was on foot.

That argument was rejected, in my view rightly. As Simon Brown LJ said [2001] 1 WLR

1321, para 21, "there is no question of the issue of a writ 'stopping time from

running'" against the plaintiffs, although, of course, it would have had that effect if it

had led to a judgment which expressly or impliedly confirmed their title. In that case,

unlike this case, there was no basis for arguing that the defendant had acknowledged

the title of the paper title owners in the first set of proceedings.

20. Similarly in the instant case the respondent’s father expressly acknowledged the title of

the appellants’ predecessors in his defence in 1977 and his amended defence in 1992. In those

circumstances he could not possibly have demonstrated the requisite animus possidendi adverse

to their title so as to extinguish their title by 1992.

21. The trial judge at paragraph 11 of her ruling stated:

11. In the light of the undisputed fact that Hamilton remained and continued in

occupation since the death of his mother in 1976 paying no rent since 1968, it seems to

me that on the authority of Moses v Lovegrove, the declaration of Sealey J that he was a

tenant under the Act, was (to use the words of Evershed MR in that case) “entirely beside

the point”. The effect of the judgment was to clothe him with the status of tenant

retrospectively from the date of death of his mother in 1976. In my opinion the claimants’

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title, if there were ever such, extinguished at earliest 16 years after the death of his

mother and well before the case before Justice Sealey was decided.

Period of Adverse Possession on the Pleadings – Pre 1977 Action

22. Even accepting the respondent’s own case that no rent was paid beyond 1968, High Court

Action was filed in 1977 against the respondent’s father which would have stopped time from

running for the purposes of the Real Property Limitation Act until August 19th 1997 (the date of

judgment therein). The conclusion of the trial judge to the opposite effect is not supportable by

authority.

23. Because the filing of the 1977 Action stopped time from running for the purpose of the

Real Property Limitation Act, there was therefore insufficient time from the period 1968 to 1977

for the respondent’s predecessors in title to have acquired any title by occupation adverse to the

appellants’ predecessors in title.

Status of Respondent’s father - Judgment of Sealy J in the 1977 Action

24. The trial judge’s further findings on the effect Sealy J’s judgment are set out hereunder.

12. Justice Sealey did not declare Hamilton to be a contractual tenant, neither did she

declare him to be a trespasser. The effect of the judgment was to confer the status of

irremovability since 1976, by virtue of his having lived with his mother Margaret. But

that did not affect his obligation to pay land rent and to observe all other covenants.

It was clear from the proceedings even on pleadings that rent had not been paid or

accepted.

13. The issue of the statute of limitations was not raised in the matter before Justice

Sealey and therefore she did not address it. But following from her finding that since

1976 upon the death of his mother that Hamilton became a tenant by virtue of his

having resided with his mother the contractual tenant, and his having paid no rent

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since then, the claimant’s title would have extinguished by 1995 at latest in the

absence of any other acknowledgement of the claimants’ title.

25. This could not be correct. The order of Sealy J was directly based on the specific issues

that had been raised on the defence and amended defence of the respondent’s father in the

1977 action namely:

i) that the respondent’s father acknowledged that the appellants’ predecessor in title was

the owner of the premises,

ii) that the respondent’s father asserted that he was the tenant of the premises, having

succeeded to the tenancy after the death of his own mother (the respondent’s

grandmother).

26. The respondent’s father had therefore actually sought the relief that he be declared a

tenant of the premises based on his acknowledgement that the respondent’s predecessor in title

was the owner. Further in 1992 he amended his counterclaim to plead in the alternative that he

was a statutory tenant under the Land Tenants Security of Tenure Act – a claim also inconsistent

with a denial of his landlord’s title.

27. It is not surprising therefore that the trial judge Sealy J did not make any finding in relation

to the extinguishment of the title of the appellants’ predecessor in title. Such a finding would

have been entirely inconsistent with i. the position of the respondent’s father as to his own status

as well as ii. the basis upon which she granted relief, that is, the existence of the tenancy of the

subject property that he sought based on the ownership by the appellants’ predecessor in title

as his landlord. This state of affairs on the pleadings in the 1977 action was the basis upon which

Sealy J made the order that she did that the respondent’s father was a tenant.

28. She did not make any order that the respondent’s father had extinguished the title of the

appellants’ predecessor in title. She did not make any finding that the occupation of the

respondent’s grandmother was adverse to that of the appellant’s predecessor in title. In fact no

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such order could have been made by her based on the pleaded case of the respondent’s father.

Consistent with the pleadings in the case before her she made an express finding that, as of the

date of her death in 1976, the respondent’s grandmother was a tenant of the subject premises.

It was that finding which grounded her further finding that the respondent’s father was a tenant

under the Rent Restriction Act because he had lived on the subject premises for six months prior

to the death of the tenant.

29. The decision of Sealy J was therefore directly relevant to the issue of whether the

appellants’ title had been extinguished. In particular it was relevant to:

i. the status of the respondent’s predecessors as tenants of the property;

ii. the existence of the requisite animus possidendi given his father’s acknowledgement of the

title of the appellants’ predecessors;

iii. the existence or otherwise of the requisite sixteen year period for extinguishing their title

either,

a. before the filing of the 1977 action, or

b. before the conclusion of the 1977 action in August 1997.

30. The trial judge focussed on the period before the conclusion of the 1997 action and found

incorrectly that time for the purposes of adverse possession could have continued running

despite the filing of the 1977 action. As explained above this was plainly wrong. Therefore the

basis for the dismissal of the claimant’s claim at an interlocutory stage was flawed.

Payment of Rent – Issue of Fact

31. Finally it was disputed, contrary to the trial judge’s conclusion otherwise, whether the

respondent’s father had in fact paid no rent since 1968. In fact,

i. At paragraph 10 of the amended defence and counterclaim in the 1977 action the respondent’s

father pleaded that he tendered rent to the appellants’ predecessor.

ii. In the instant action at paragraphs 6A of the amended statement of case the appellants

pleaded that the respondent’s father continued to pay rent even after the 1977 judgment.

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32. These matters weighed against the trial judge’s conclusion that it was undisputed that

the respondent’s father had paid no rent since 1968 .The issue of the payment of rent was a

disputed fact. Therefore the trial judge’s statement that it was an undisputed fact that the

respondent’s father occupied the land paying no rent since 1968 was erroneous. Even if he had

done so it ignored the significance of the fact that his occupation was with acknowledgement of

title of the appellants’ predecessors .For this reason also any conclusion based thereon, and

consequent decision to strike out the appellants' claim, was accordingly flawed.

Whether the respondent’s defence and counterclaim should be struck out

33. This would depend on whether any basis exists on the pleadings for the respondent’s

defence that the appellants’ title had been extinguished. As discussed above the appellant

contends a. the respondent’s father acknowledged title, and b. no sufficient period of adverse

possession, either by the respondent or his predecessors could be identified.

Adverse possession by the respondent

34. The 1977 litigation extended from the 1977 date of filing to the August 1997 date of

judgment by Sealy J. In it the respondent’s father was acknowledging that he was a tenant and

seeking and obtaining a declaration to this effect. It was therefore not consistent with the claim

by the respondent’s father to a tenancy in that litigation for the respondent, (who would also

have been a minor up to January 1998), to claim to have been independently acquiring title by

adverse possession while that litigation was pending.

35. Further, possession by an adverse possessor must be exclusive. The respondent, even as

an alleged adverse possessor, and even after judgment in August 1997, could only have occupied

the premises as a licensee of his father, a tenant. Therefore only upon the death of his father in

2010 could the respondent commence his own independent possession, and be capable of

having the requisite intention to separately possess in a manner adverse to the rights of the legal

owners.

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36. In those circumstances the issue of whether the respondent could maintain a claim i.

inconsistent with his father’s claim to a tenancy in the 1977 action, contradictory to the

admission of his father that the respondent’s predecessors in title were the owners of that

property or his landlords, and that he was a tenant, and ii. Inconsistent with his own nonexclusive

occupation until 2010, were matters that needed to be considered by the trial judge.

37. The necessary period of sixteen years could not have elapsed either a) from 1968 (the

alleged date that rent ceased to be paid) to 1977 (the date of filing of the 1977 action) or b) from

August 19th 1997 to July 31st 2013. Even if the date of service of the 2013 claim in September

2013 is considered, as i find that it must be, the status of the respondent as a licensee of the

occupier, his father, up to the death of the latter in 2010, would have precluded him from having

the necessary exclusivity of possession, and intention to dispossess the true owner until that

date.

Acknowledgement of title after August 19th 1997

38. The issue of acknowledgement of title and lack of animus possidendi of the appellants’

predecessor after August 19th 1997 had to be confronted. This is because of the assertion by the

appellants that the respondent’s father did in fact acknowledge their title in writing after the

1997 action had been determined. That acknowledgement dated December 28th 2005 was as

follows: “However I informed them I was not the owner of the land and ask (sic) them to contact

you as you are the legal adviser (sic) for the owner”. It could not possibly be clearer therefore

that the respondent’s father had not changed his position as set out in his pleadings in the 1977

action that he acknowledged the ownership of the appellants’ predecessor. The trial judge

considered that this letter, even if an acknowledgement of the appellants’ title, had been made

well after the expiration of the paper (title) which came about in 1995 or thereabouts. The trial

judge considered that a subsequent acknowledgement could not revive an extinguished title.

However this reasoning was based upon the erroneous finding that time had not been suspended

by the filing of the 1977 proceedings. Given that acknowledgement, any possession up to that

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point could not have been adverse and any calculation of time would have had to have started

afresh.

39. The appellants’ contention that not only should their claim not have been struck out, but

that the respondent’s defence and counterclaim based on adverse possession should be struck

out on appeal, is based on their argument that no period of 16 years could be identified after

August 19th 1997 until the filing of the instant proceedings on July 31st 2013. Time for adverse

possession against the appellants for the purposes of the Real Property Limitation Act (RPLA) did

not run once the 1977 proceedings were filed.

40. However the instant proceedings, though filed on July 31st 2013, were served on

September 23rd 2013. This was more than 16 years after the date of judgment of Sealy J. The

respondents contend that it is the date of service that is relevant, not the date of filing.

This submission is accepted for the following reasons.

Section 3 RPLA provides as follows (all emphasis added):

3. No person shall make an entry or distress, or bring an action to recover any land or rent, but within sixteen years next after the time at which the right to make such entry or distress, or to bring such action, 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 sixteen years next after the time at which the right to make such entry or distress, or to bring such action, shall have first accrued to the person making or bringing the same.

That provision uses the term “bring an action” which would encompass both filing and service.

Whether it is the filing or service of proceedings which stops time running for adverse

possession

41. The issue is whether or not sixteen years elapsed from the date of the judgment of Sealy

J on August 19th 1997 to the service of the instant proceedings on September 23rd 2013. The

authorities are as follows:

In the case of Ramroop v Ishmael and Another Civ App 116 of 2004 delivered 22nd July 2008 the

Honourable Hamel Smith JA was of the view that the mere filing of proceedings did not stop time

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running. In fact there had to be service of the proceedings in order to do so. This case was

determined on appeal to the Privy Council. At paragraph 37 of the judgment of Hamel Smith JA

he clearly stated (all emphasis added) that “I would think that had the Judge not been misled on

the law, he would have directed his mind to both the cutoff date (the service of the counterclaim

in 1996) and the issue of exclusive possession”.

42. Judgment was delivered by Lord Walker on 21st of July 2010 in Privy Council Appeal #0114

of 2009 reported at [2010] UKPC 14. Lord Walker at paragraph 13 of his judgment indicated that

on 10th September 1992 Ishmael served formal notices to quit on the appellant and another. In

1994 Ishmael issued ejectment summonses against both the appellant and that other person,

but he failed to proceed with them. “At trial in these proceedings Counsel joined in telling the

Judge that 2nd of March 1994, the date of the ejectment summonses, must have been the end of

any period of adverse possession. It is now agreed that that was erroneous, and that the right

date is 24th of July, 1996, the date of Ishmael’s counterclaim in these proceedings”.

43. It is not indicated whether or not that was also the date of service of Ishmael’s

counterclaim in those proceedings. However, the Privy Council did not indicate that there was

any disagreement with the express statement of Hamel Smith JA that it was service of the

proceedings that was the relevant time at which periods of occupation under the Real Property

Limitation Act ceased to accrue. The agreement of counsel that the right date was 24th of July

1996, the date of the Ishmael counterclaim in those proceedings was not inconsistent with that

statement. This is also consistent with the dicta in, inter alia, Markfield Investments Limited v

Evans supra in particular paragraphs 20 and 214.

4 (20) That seems to me impossible on the plain wording of the statute. With regard to any particular action the relevant time, and the only relevant time, for consideration of adverse possession is that which has expired before such action is brought. That is the language of s 15 and, as Dillon LJ explained, that is the effect of the legislation. The fallacy in Mr Treneer's argument is in supposing that because one ignores in the first action any adverse possession which follows the writ, so too that same adverse possession falls to be ignored in the second action. That is just not so and there is nothing in the statute or authorities to suggest that it is. For the purposes of any particular action, the issue of a writ in earlier proceedings is no more relevant than a demand for possession. In Mount Carmel Limited v Peter Thurlow Ltd such a demand was held not to start time running afresh; no more would the service (still less the mere issue) of some earlier writ. Were it otherwise, as the respondent points out, all the true owner would have to do to avoid adverse possession claims is issue (and perhaps serve) a writ every twelve years without more.

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Whether evidence of 16 years adverse occupation after August 19th 1997

44. Even if it is sought to be contended that time began to run from the date of delivery of

the judgment of Sealy J on August 19th 1997, and that sixteen years had elapsed from the date of

that judgment until service of the writ and statement of case on September 23rd 2013, as set out

above, there was an acknowledgement of title by the respondent’s father as late as December

28th 2005.

Possession must be exclusive

45. The respondent had no independent rights of occupation, other than through his father,

until 2010. Only in 2010 would he have been able to exercise any independent occupation other

than through his father. Before 2010 the respondent was the beneficiary of the permission

granted to him by his father. This can be illustrated by, for example, Myra Wills v Elma Wills

Privy Council Appeal No. 50 of 2002. Although that case was concerned with section 14 of the

Jamaican Limitation of Actions Act (identical in material terms to s.14 of the Trinidad and Tobago

Real Property Limitation Act, Chapter 56:03)5 , it was necessary to consider whether, and in what

circumstances Myra, initially the cohabitee of George (the deceased) and then later his wife,

could be entitled to assert dispossession of George’s former wife, who was a co-owner of the

subject property.

46. In that case (at paragraph 27(1)) it was clarified that Myra was a licensee and not a tenant

at will, confirming that Myra, who had lived with George for 19 years, even after the relevant

period of 17 years, could not herself, in her own right, assert dispossession of the first wife, on

(21) In summary, there is no question of the issue of a writ "stopping time from running" (itself a non-statutory concept and perhaps a misleading rather than helpful expression). The issue of a writ, for the purposes of the action which it begins, prevents the true owner from being time barred under s 15 providing twelve years adverse possession have not already accrued. It serves no other purpose.

5 14. When any one or more of several persons entitled to any land or rent as coparceners, joint tenants or tenants in common, shall have been in possession or receipt of the entirety, or more than his or their un- divided share or shares, of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same and or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last mentioned person or persons or any of them.(all emphasis added)

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the basis of being a tenant at will. Myra was found to have lived at (the subject premises) “first

as a licensee and then as George’s wife”.

47. At paragraph 28 the Judicial Committee held that “from 1976 at latest, Myra was living

with George at (the subject premises), and joining with him in managing the rented property, to

all appearances as if they were co-owners as man and wife”.

48. Despite this, the Judicial Committee summarily dismissed the notion that Myra in her own

right had acquired any rights over the disputed property. The basis of its reasoning was that:

i. She could not do so as a tenant at will as she was not one.

ii. She could not do so in her capacity as a licensee.

iii. She could not do so as the apparent co-owner.

Any rights she had were all derived from George, both before and after her subsequent marriage

to him.

49. Her rights to the whole of the property derived entirely from George’s dispossession of

his ex-wife. Myra obtained letters of administration as the legal personal representative of

George. If she had been a tenant at will, or if she could have acquired any rights as a licensee, or

as apparent co-owner, or any independent rights in addition to being the wife of George, she

could have asserted her claim against the first wife in her own right, without having to rely on

asserting, as legal personal representative of George’s estate, whatever rights George had

himself acquired. This is reflected in the decision at page 11 – “after 1976 at the latest George

occupied and used the former matrimonial home and enjoyed the rents from the rented properties

as if he were the sole owner, except so far as he chose to share his occupation and enjoyment

with Myra”.

Adverse Possession by the respondent

50. There is therefore no legal theory which supports the respondent’s contention as pleaded

that he has, by adverse possession, extinguished the title of the true owner, because:

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i. for the purpose of the RPLA time ceased running upon the filing of the 1977 action, and the

appellants’ title, (acknowledged by the respondent’s father in those proceedings), could not be

extinguished while those proceedings were continuing.

ii. further, his father was a tenant up to at least August 19th 1997. See Megarry & Wade Law of

Real Property 2nd Ed p957 “Naturally possession by a tenant or agent is no foundation for a title

against the landlord or the principal for the possession is not adverse.”

iii. his father continued to acknowledge title of the appellant’s predecessors up to at least

December 28th 2005.

iv. as a matter of law it appears that his own independent exclusive possession, (assuming

it to be adverse), could only begin in 2010 when he was able to occupy exclusively ,rather

than as a licensee of his father.

For these reasons the appellants’ claim for possession of the premises is not statute barred under

the RPLA.

51. The respondent submitted at paragraph 6 of submissions filed May 11th 2013 that the

appellants were dispossessed by the respondent’s father well before the respondent acquired

the age of majority. This is inconsistent with the authorities discussed supra on the effect of the

filing of the 1977 proceedings on the running of time. This is incompatible i. with the decision of

Sealy J, that the respondent’s father was a tenant, and ii. with the respondent’s father’s own case

that he was such a tenant, (incompatible with him being an adverse occupier). This being the

respondent’s position, and this position being unsustainable on the undisputed facts, the

respondent would have no basis for resisting the appellants’ claim. The respondent’s defence

and counterclaim can therefore be struck out as disclosing no grounds for defending the claim or

bringing the counterclaim.

Conclusion

52. The trial judge was plainly wrong to strike out the appellants’ case because:

i. before the filing of the 1977 action 16 years had not elapsed between the 1968 alleged

date of last payment of rent (on the respondent’s own case) and 1977.

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ii. As a matter of law time did not run for the purpose of the Real Property Limitation Act

during the pendency of the 1977 proceedings between 1977 and August 19th 1997. Therefore,

contrary to the finding of the trial judge at paragraphs 11 and 13 no title could be extinguished

by 1992 (or 1995) during the pendency of the 1977 proceedings.

iii. there was undisputed evidence in the 1977 action of acknowledgement of title of the

appellants’ predecessors incompatible with an animus possidendi by the respondent’s father to

adversely possess the subject lands.

iv. After the decision of Sealy J on August 19th 1997 16 years had not elapsed before the

instant proceedings were filed on July 31st 2013. Because those proceedings were served on

September 23rd 2013, 16 years from the date of Sealy J’s judgment had elapsed by the date of

service. However, by letter dated December 28th 2005 the respondent’s father had then

acknowledged the title of the appellants’ predecessor.

vi. The respondent’s father only passed away in 2010.

vii. The respondent, born in January 1980, only attained the age of majority in January 1998.

viii. From January 1998 to the date of service of the claim in the instant proceedings on

September 23rd 2013, 16 years would not have elapsed. While a minor, the respondent’s

occupation could only have been as a licencee with the permission of his father. Even thereafter

as an adult, while his father was alive such occupation would also necessarily have been as a

licencee of his father. As a matter of law the respondent could only claim independent exclusive

possession and assert that he had the necessary animus possidendi from 2010. Insufficient time

would have elapsed on that basis for him to ground a claim based on adverse possession for 16

years.

53. Given that on the undisputed facts and law the respondent would be unable to establish

his claim that the title of the appellants had been extinguished by periods of possession adverse

to theirs over a period of 16 years, his defence can be struck out and the orders for possession

by the appellants can be granted.

54. i. The orders of the trial judge are set aside.

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ii. It is declared that the appellants are entitled to possession of the premises described

in paragraph 16 of the amended statement of case.

iii. It is ordered that the appellants do recover possession of the premises from the

respondent, his servants and/or agents.

iv. It is ordered that the defence and counterclaim of the respondent be struck out as

disclosing no grounds for defending the claim or bringing the counterclaim.

Peter A. Rajkumar

Justice of Appeal