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    Home » Judgments » High Court Judgments » ERIC DAIZE v ELFORD STEPHENS

    1
    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
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    2000: June 26, 29
    – – – – – – – – – – – – – – – – – – – – – – – – – – – –
    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
    2
    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
    3
    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
    4
    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
    5
    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
    6
    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
    7
    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
    8
    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
    9
    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
    10
    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
    11
    I D MITCHELL, QC
    High Court Judge

    https://www.eccourts.org/eric-daize-v-elford-stephens/
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