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ST VINCENT AND THE GRENADINES
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 376 OF 1995
BETWEEN:
ERIC DAIZE
Plaintiff
and
ELFORD STEPHENS
Defendant
Appearances:
Ms Nicole Sylvester for the Plaintiff
Mr Colin Williams for the Defendant
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2000: June 26, 29
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JUDGMENT
[1] MITCHELL, J: This was a case of two private citizens disputing over possession
of a piece of Crown land on the beach at Cumberland Bay in the island of St
Vincent.
[2] By his Statement of Claim endorsed on his writ issued on 27 September 1995, the
Plaintiff claimed to be in possession of a parcel of land at Cumberland Bay
measuring 150 ft by 100 ft. He claimed that the Defendant had begun to fence the
land and to build on it. The Plaintiff sought a declaration that the Defendant was
not entitled to enter the land and an injunction to restrain the Defendant from
further trespassing on it.
[3] By his Defence filed late by consent on 1 April 1997, after various interlocutory
applications over an injunction, the Defendant pleaded as follows. The
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government of St Vincent owned the land in dispute. The Dennie family had
occupied it in part up to 1984. From 1994 the Honourable Jerry Scott and the
Right Honourable Prime Minister, Sir James Mitchell, had put the Defendant in
possession of the land. The Ministry of Agriculture, Industry and Labour, which
Ministry is responsible for Crown lands, had surveyed the land in 1989. The land
then measured 39,035 sq ft. Subsequently, the Defendant filled in swamp areas
adjoining the land and the Ministry did a second survey in 1995. The total land
had increased due to the filling in of the swamp to 47,314 sq ft. The Ministry had
agreed to rent the land to the Defendant, who had since been paying rent to the
Ministry. The Defendant had applied to the Ministry to purchase the lands, and his
application is still pending. The Defendant has lived on the lands for some years
now. The Defendant rejected the claims made by the Plaintiff.
[4] By a Reply filed on 29 May 1997, the Plaintiff asserted that at all times he had
been in possession of a parcel of land measuring 150 ft by 100 ft. The Plaintiff
claimed that up to 3 years previously the Defendant had lived at New Village and
had only begun to squat on the land in 1988. That concludes the summary of the
pleadings in the case.
[5] Giving evidence for the Plaintiff, in addition to himself, were his brother David
Daize, his cousin Arthur Daize, and an ex employee of the Defendant, Wilbert
Charles. Wilbert Charles was much the worse for having had a few drinks before
he gave his evidence at 11.30am on the morning of the trial. The Daize brothers
and cousin were weak on dates and areas of land and the reading of plans. The
58-year-old Eric Daize may just be able to read, but from the way he
misinterpreted the plans put in evidence, his literacy is not at an advanced level.
His brother David cannot read plans at all. Only the Defendant came to give
evidence for his case. He claimed to be 51 years old, but appeared 20 years
older. He could hardly stand up, and was allowed to sit through his testimony,
cannot see to read, and was very hard of hearing. He was not a good witness,
and took every opportunity to argue with counsel, despite several warnings from
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the bench. He was truculent, ill mannered, abusive and unconvincing in giving his
evidence. He behaved very badly in the witness box, and did not do justice to his
case as pleaded. Put in evidence were three exhibits. These were the two
surveys mentioned in the Defence above, and a copy of a Summons brought by
the Attorney General against the Defendant in 1992 for unlawfully entering and
continuing to remain on the Crown land at Cumberland and erecting a building on
it. Each of the survey plans show 3 areas of Crown land situate between Dennie
land and the beach at Cumberland Bay and numbered parcels No 1, No 2 and No
3.
[6] Sifting through the confused testimony of the witnesses, and examining the
exhibits put in evidence, I come to the following findings of facts. The land in
dispute always was and still is a part of a parcel of Crown land. Many years ago,
the fathers of the current Daizes formed a company to do fishing and transporting
of passengers by sea. The current Daizes who gave evidence all remember the
company. Their fathers and uncles who formed the company called it Daize
Brothers. This business began some time before and continued until shortly after
the Second World War. The company bought a chattel house and put it on the
area of Crown land now claimed by the Plaintiff to be occupied by him. There was
no dispute with the Crown when they did this. The government used part of the
building for a Post Office, and the visiting government doctor used a room of it as
his surgery. There is no paper that the witnesses could remember that mentions
the company, or that would help us to know whether it was a company registered
under the Companies Act, or an unregistered company, or merely a firm. The
cousin, Arthur Daize, was pressed into admitting that, if it was a company, it had to
have been a registered company. This is a mistaken conclusion of law. The
conclusion of fact the court was left to draw was, presumably, that since there
were no papers produced, the company had to be a figment of the Plaintiff’s
imagination. But, I put no credence in any such suggestion. Given the rural
setting, this company was highly unlikely to have been a registered company. I
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am quite satisfied that some sort of company or firm existed, occupied a small
portion of the Crown Lands in question, and has now ceased to exist.
[7] The Plaintiff testified that when he came back to St Vincent in 1977 after an
undisclosed number of years abroad, his father had “given” him the land
previously occupied by the company Daize Brothers. It is not clear what right the
father had to “give” the Crown land to the Plaintiff. It is not clear what area the
land was, nor what the Plaintiff used the land for, other than picking the ubiquitous
fruit from the trees he found on the land. The Plaintiff, as we have seen, claims to
be entitled to occupy an area of 100 by 150 feet, or 15,000 sq ft, almost a third of
an acre. The exact boundaries of this alleged occupation by the Plaintiff has not
been given in evidence, and appears never to have been surveyed. The Plaintiff
identified on the 1989 plan in evidence a square marking as the area of parcel No
1 he claimed to have been occupying. I do not accept that interpretation put
forward by the Plaintiff. The marking on the plan he identified as the area of land
he occupied is in reality a surveyor’s representation of the outline of a small
structure. It is marked “D,” according to the legend, to signify that it is a Daize
structure. The area of the foundations shown on the plan and marked “D” is a tiny
fraction of the 39,035 sq ft area of parcel No 1. If the foundations shown on the
plan and marked “D” were really the area of 100 ft by 150 ft of land, then it would
have been some 15,000 sq ft, or almost one half of the entire parcel No 1. The
Plaintiff was clearly unable to read the plan and to identify on it the area where he
claimed to have occupied, though he pored over the plan quite professionally for
an extended period of time.
[8] The evidence for continuous possession of any specific area of land claimed by
the Plaintiff over any particular period was poor. But, there was no denying the
sincerity of the witnesses, including the alcoholic Mr Chambers, that the witnesses
had understood the Plaintiff to have gone onto the Crown land in question in the
year 1977 when he had been “given” it by his father under some right, real or
imagined to have been inherited from the Daize Company, and in 1988 to have
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built up the foundations of his “boathouse” on the site where the old house of the
Daize Brothers had been before the War. The Defendant denied it, but the
evidence is that the Plaintiff built the foundations, or “basement” as he called it, of
his “boathouse” on a part of parcel No 1 in about the year 1988. The structure
appears on the plan done in 1989 by the Ministry of Agriculture and put in
evidence. The Plaintiff does not claim, as the Defendant does, that he possessed
all of parcel No 1 on the plans. By the date of the 1995 plan, parcel No 1 had
grown in size to some 47,314 sq ft, or almost one acre. The Defendant claims that
his filling in a pond or swampy area between his holding and the sea caused this
increase. That may be so. It appears equally likely, from looking at the plan, that
the acquiescent government surveyors felt compelled to move the boundary line of
parcel No 1 onto the government beach to be able to enclose within the parcel the
new buildings that the Defendant had by then constructed on the beach and
outside of the original boundary line of parcel No 1.
[9] Shortly after the Plaintiff commenced building his “boathouse” on the Crown land
he was stopped by a government agency. The Plaintiff claimed he was stopped
because he did not have planning permission. There is no corroboration of his
story that the government stopped the building of the “boathouse” because he
lacked planning permission. It may have been so. It is possible to speculate that
there were other equally likely reasons why the government should stop the
Plaintiff from building without permission on prime Crown beach land. This is
especially so when one considers the action taken by the Crown against the
Defendant up to the year 1992. All that is clear is that in about the year 1988 the
Plaintiff started building his “boathouse” and was immediately stopped by some
government department. If the problem was planning permission, the Plaintiff
does not appear to have taken any steps to discover what he had to do to get
planning permission to continue with his occupation of the land or to complete the
construction of his “boathouse.” He was stopped from doing the building on the
land, and never attempted to continue his project or to continue in possession of
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the land, other than the inevitable evidence always in these cases given by rote of
picking of the fruit from the trees on the land in question.
[10] It is also quite clear, though the Defendant denied it, that, in or about the year
1988 or 1989, the Defendant had gone onto only an adjoining corner of the same
piece of Crown Land, parcel No 1 on the plans in evidence. He commenced
squatting on and doing business from a corner of parcel No 1 that the Plaintiff was
not occupying. The Defendant began to operate a business, a bar, from his corner
of parcel No 1. The business was and is known as Stephens’ Hideaway. From
the Defendant’s evidence, I understand the business has grown from the original
bar to now include accommodation facilities. His original little shed, which was all
that existed of his project at that time, appears on the 1989 Ministry of Agriculture
plan of parcel No 1 put in evidence. Problems arose when the Defendant, who
claims to have been a big supporter of the government of the day, was given the
wink to increase his occupation to the entire parcel of land sometime around 1994
or 1995. At that point, he commenced to construct a bar and a house on the
portion or parcel No 1 previously used by the Plaintiff. At the time that he gave
evidence, the Defendant claimed to have increased the structures on the land from
the original 1995 house, bar and one cottage, by another 3 cottages or bungalows.
These additional 3 bungalows are not shown on any of the plans, having
apparently been constructed after the last of the plans in 1995.
[11] By 1995, with this increased construction under way, the Defendant had begun to
encroach onto the land surrounding the “boathouse” constructed years before by
the Plaintiff. The Plaintiff was at the time an employee on the neighbouring land of
the Dennies. He claims he was a “manager.” The Defendant emphasises he was
only the “watchman.” Whatever the Plaintiff’s position with the Dennies, the
Plaintiff would, from the proximity of his work, have seen the Defendant
encroaching onto his “boathouse” and the land he claimed to have been given by
his father around the foundations of the “boathouse.” Indeed, the Defendant’s
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evidence is that he used the foundations of the Plaintiff’s “boathouse” as a pigsty.
The Plaintiff was incensed, and began these legal proceedings.
[12] Meanwhile, the Defendant was not having an easy time of his occupation of the
lands in question with government either. For all of his claims of being a big
government-party supporter, the government appears to have at first taken steps
to stop him from building. He attempted to suggest in his evidence that the
government obstacles put in his way were caused by his having stopped
supporting the government-party. There is put in evidence a summons against
him dating from as late as 1992. He was by this summons charged in the
Magistrate’s Court with the summary offence of persistently trespassing on the
lands in question without a probable claim of title and of erecting a building on it.
There is a note in hand writing visible on the copy of the form of summons put in
evidence to the effect that the complaint was dismissed for want of prosecution
before the Magistrate on 31 March 1994. Subsequently, the Defendant appears to
have strengthened his hand vis-à-vis the Plaintiff in acquiring the friendship of the
relevant government departments. He has been continuously building on the land
since the year 1995, without any further official let or hindrance, other than the
obstacle placed in his way by the Plaintiff by this suit, and he is well on his way to
owning the land in question. There is no evidence that the Crown is continuing to
prosecute the Defendant. They have apparently become resigned to the
inevitability of the Defendant continuing under some sort of protection to squat on
the land and to increase his “tourist” establishment on it. So, they have, according
to the Defendant’s testimony, agreed to sell him the land in question. The
Defendant does not claim any squatter’s rights against the Crown, he
acknowledges the title of the Crown.
[13] It was the building extension on parcel No 1 that commenced around the year
1995 by the Defendant that was the cause of this litigation. The Plaintiff sought to
freeze the conflicting rights and claims of the two parties by obtaining an injunction
against the Defendant. On 24 November 1995, after an inter partes hearing, an
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injunction was granted out of the High Court to the Plaintiff prohibiting the
Defendant until the trial of the action “from building or constructing any building on
any portion of the land at Cumberland Bay in the State of Saint Vincent and the
Grenadines.” The Defendant in clear and admitted breach of this injunction
continued to build on the land in dispute after the injunction until he has increased
his structures on the land to those described above.
[14] At the close of the case, counsel for the Defendant addressed the court and stated
that he had no law for the assistance of the court. He left the decision on the facts
to the court. Counsel for the Plaintiff had her submissions and authorities
prepared. The court is always grateful for written submissions so as to reduce
both the amount of dictation that the court has to take and the consequent waste
of time, and to allow the court to concentrate on the submissions made by
counsel.
[15] In her submissions, counsel for the Plaintiff asks the court to find that the title of
the Crown to the lands in dispute has been extinguished in favour of the Plaintiff.
The position as I find it is that the parties agree that parcel No 1 on the plan has
always belonged to the Crown. The Plaintiff has not joined the Crown as a party
to these proceedings. The court will apply in this case the rule audi alteram
partem, or, hear the other party before giving a decision that would affect the legal
rights of that person. The Crown is a necessary party to any question as to who
presently owns the property in dispute. The Crown has not been made a party to
these proceedings. The Crown has not had an opportunity to refute the
allegations of adverse possession made by the Plaintiff. In the circumstances, no
declaration can properly be made in favour of the Plaintiff to deprive the Crown of
its legal interest in the land in question.
[16] This action is in reality one between two trespassers on Crown land. They both
originally trespassed on adjoining parts of parcel No 1 of the Crown land. The
Defendant has now taken over possession of the entire parcel of Crown land. He
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has, in effect, forcefully evicted his neighbouring trespasser, the Plaintiff, from the
portion of parcel No 1 of Crown land occupied by him. The rule is that trespass is
a tort against possession, not ownership. Only the Crown had the legal right to
take action against the Plaintiff’s occupation of the land he claimed, if that
occupation was wrongful. The evidence clearly points to the Defendant having
offended against the possession of the Plaintiff of part of parcel No 1. The Plaintiff
is entitled to judgment on the facts. The question is what remedy is he entitled to?
If the Plaintiff is entitled to damages, what would be a proper award?
[17] The Defendant presently has the support of the Crown, from whom I accept he is
about to take title. There is no point in attempting to put the Plaintiff back into
possession of the land on which the Defendant has now, apparently with the quiet
compliance of the various government departments, built up his project even after
the granting of an injunction prohibiting him from doing so. The result of such an
order would only be to increase litigation between the parties and the Crown.
Section 20 of the Eastern Caribbean Supreme Court (Saint Vincent and the
Grenadines) Act, Cap 18 of the 1991 Revised Edition of the Laws of St Vincent
and the Grenadines enjoins the court in every cause or matter pending before the
court to grant all such remedies as any of the parties appear to be entitled to so
that, as far as possible, all matters in controversy between the parties may be
completely and finally determined, and all multiplicity of legal proceedings avoided.
The only proper decision is to make an award that brings the litigation to an end,
and does two further things. First, it must affirm the principle that no one, no
matter how well connected, is entitled to use force to eject his neighbour from the
land his neighbour occupies, particularly if the ejector does not have any legal title
to the land in question. The second is that once a Court of justice makes an order,
that order must be religiously obeyed until it is altered or set aside. The evidence
of the Defendant was that he did his additional construction after the 1995 plan
was prepared, and extending into the 15,000 sq ft area claimed by the Plaintiff to
have been occupied by him. The Defendant proclaimed in his testimony his
imagined right to continue construction on the property despite the injunction
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prohibiting him from doing so. These are not contempt proceedings. But, the
court must take into account the evidence adduced before it at the trial. No law
has been presented to the court on the amount of an award that should be fair to
be made to the Plaintiff for the trespass to the Plaintiff’s possession committed by
the Defendant both before and after the grant of the injunction. An approximate
third of an acre on the beach must have some significant value, but what exactly is
not known.
[18] I take into account that this was a contumacious trespass committed after the
grant of an injunction. I take into account that the trespass on the land occupied
by the Plaintiff was committed by the Defendant to develop his tourist resort
business and to make money from the trespass. Perhaps he thought that the
amount of money he could make from extending his holdings would more than
make up for any damages that any court would award against him. He sought to
take advantage of his political connections to override any rights that his neighbour
might have in the lands his neighbour occupied and that he, the Defendant,
coveted. He was a squatter to the same extent, if not more so, as the Plaintiff.
The Crown did not prosecute the Plaintiff, it attempted to prosecute the Defendant.
The Defendant was proud to demonstrate how he had worn down the Crown, until
the Crown is now forced to treat with him and to let him have the Crown’s prime
beach site for his project. I do not have any evidence as to the value of lands in
that part of St Vincent for touristic purposes. However, an award of
EC$25,000.00, though it would be no more than a token sum in some other
islands of the Eastern Caribbean, would, given the purchasing power of money in
St Vincent, be a fair award to the Plaintiff for the trespass of the Defendant in this
case.
[19] There will be judgment accordingly for the Plaintiff and for his costs to be taxed if
not agreed
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I D MITCHELL, QC
High Court Judge