the republic of trinidad and tobago in the court of...
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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