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ST VINCENT AND THE GRENADINES
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO. 17 OF 1996
BETWEEN:
LOUISE CHANCE
Plaintiff
and
VERONICA JOHN
Defendant
Appearances:
Richard Williams for the Plaintiff
Parnel R Campbell and Cheryl McSheen for the Defendant
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2000: October 2, 12, 18
– – – – – – – – – – – – – – – – – – – – – – – – – – – –
JUDGMENT
[1] MITCHELL, J: This was a land dispute between a landlord and a tenant. The
tenant claimed title to the house lot in question by adverse possession.
[2] Giving evidence for the Plaintiff was the Plaintiff alone. Giving evidence for the
Defendant were the Defendant herself and her neighbour Albert Kydd. Albert
Kydd is 74 years old and has been the neighbour of the land in dispute since the
1940s. I accept his evidence where it conflicts with the evidence of the parties to
the case.
[3] The fact as I find them are as follows. The land in dispute is one of three house
lots on a parcel of land at Richmond Hill Rockies in St Vincent. The land was
originally Crown land. It appears to have been purchased from the Crown
sometime in the late 1930s by Arthur John acting on behalf of his sister Millicent
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John who lived in Trinidad. Millicent John never occupied the land herself, as she
remained all her life in Trinidad. Arthur John’s name was entered up on the tax
rolls as the owner of the land, apparently because he was the one who had paid
the Lands and Surveys Department the purchase price. Ivan Chance came into
possession of the land from at least the 1940s. He may have been put there by
Millicent John as alleged by the Defendant, the evidence is uncertain. In about
1984, Millicent John came to St Vincent from Trinidad. She discovered that since
1979 Ivan Chance had taken out a possessory title to her land. She commenced
steps to re-take possession of the lands. This included bringing an action in High
Court suit No 1/1986 against the Plaintiff and her mother Rosalind Chance, who
had taken title to the lands in 1985 after the death in 1981 of Ivan Chance. In that
action, she claimed a declaration that she was the owner of the parcel of land;
she also sought an order cancelling Ivan Chance’s registered declaration of
possessory title of 1979 and the Plaintiff’s deed of assent of 1985. The Plaintiff
and her mother filed their defence to that action on 18th February 1986. But, that
action was abandoned, and Millicent John appears not to have completed the
process she began with that case of establishing her claim to the parcel of land.
The land remained at all times, until the dispute in this case, in the possession of
Ivan Chance, and after his death in 1981, of his widow Rosalind Chance, and after
her death, of the Plaintiff.
[4] In 1975 Ivan Chance had put the Defendant in possession of the small house lot
presently in contention, and which is a part of the parcel that would subsequently
in suit No 1/1986 be claimed by Millicent John. The rent for the house lot paid to
Ivan Chance by the Defendant was $30.00 per year. The arrangement was an
oral tenancy from year to year. Pursuant to the agreement with Ivan Chance, the
Defendant built her chattel house on the lot of land and paid the agreed rent to him
annually from 1975. The Defendant testified that Ivan Chance represented to her
at the time she first made the arrangement with her that he was renting the lot to
her on behalf of the owner. That may or may not be so; Ivan Chance is not here
today to answer the charge, and I make no finding on it one way or the other.
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What is certain is that by a Declaration registered in the Registry of Deeds and
dated 12th November 1979, 4 years after first renting the house lot to the
Defendant, Ivan Chance claimed that he had been in uninterrupted possession of
the land since 1940 cultivating it for his sole use and benefit. From at least that
date in 1979, if not earlier, Ivan Chance was in adverse possession of all the land
including the lot of land in dispute. Any right that Millicent John had in the land
would have been extinguished under the provisions of section 17 of the Limitation
Act at the very latest by November 1991. Ivan Chance died on 22 April 1981. On
6 September 1985 Letters of Administration to his estate, including the land in
dispute, were granted to the Plaintiff. On 12th September 1985, the Plaintiff as
Administratrix conveyed the lands in dispute to her mother Rosalind Chance and
herself by a Deed of Assent. The Defendant continued to pay the rent to Rosalind
Chance.
[5] In about the year 1983, the Defendant saw the Plaintiff and her mother
constructing a concrete house on the land. From this, I conclude that their house
had previously been of wood. She testified that from that time she determined to
claim her adjacent lot for herself. Certainly, she ceased to pay rent to the
Plaintiff’s mother or to the Plaintiff. There is a dispute between the parties as to
the last year that rent was paid. The Defendant produced no receipts for rent paid.
She did not know the exact days or months when she paid the rents. The Plaintiff
produced a rent book which shows a series of payments of rent by the Defendant
going back several years. There is a receipt dated 26th February 1983. There is
also a last receipt for a payment of $30.00 rent paid by the Defendant on 26th
February 1984. The Defendant says that that receipt is a forgery, and the
previous receipt in the book dated 26th February 1983 should be the last valid
receipt. What is clear is that by a Magistrates Court writ dated 17 September 1985
the Plaintiff and her mother sued the Defendant for rent for the 2 years 1984 and
1985. They did not then claim rent for the year 1993. That is a declaration against
interest that is binding on the Plaintiff. The Plaintiff thus admits to having last
received the rent for the year 1983, but not for 1984. I accept that the receipt for
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1984 is a forgery, and that the last amount of rent paid by the Defendant to the
Plaintiff or her mother was for the year 1983. That Magistrate’s Court case does
not appear to have been tried. Indeed, there is an exhibit of the pleadings in the
High Court in which the Plaintiff applied for an order of Mandamus against the
Magistrate who had declined to hear the case, presumably because he had taken
the view that he did not have jurisdiction in a case where title to land was in
dispute. Leave was granted by Singh J, as he then was, on 20th January 1986 for
an order for Mandamus to be applied for, but the Mandamus proceedings were,
according to a notation on the back of the exhibit, discontinued with leave on or
about 7 March 1986. A new Magistrate’s Court writ appears to have been issued
by the Plaintiff against the Defendant for the arrears of rent, for there appears a
minute of a judgment in the Magistrate’s Court on 28th June 1988 in suit 90/98 for
$120.00, which would have been 4 years’ rent. That judgment appears from the
minute to have been obtained by the Plaintiff ex parte. The minute indicates that
the Defendant appealed the judgment of 28 June on 11 July 1988. That appeal
was for reasons unknown never heard. The Court understands from both counsel
that there are in St Vincent hundreds of unheard Magisterial appeals, unheard
because the notes of evidence have not been typed up in the Magistrates’ Courts
and sent to the Deputy Registrar for onward transmission to the Court of Appeal.
Whatever the cause, the appeal by the Defendant against the order of the
Magistrate to pay the Plaintiff the arrears of rent appears not to have been heard
by the Court of Appeal and is presumably still pending. Meanwhile, on 3 January
1986 Millicent John had issued her writ No 1/1986 described above in the High
Court against the Plaintiff and her mother. It may well be that the appeal was
abandoned in favour of proceeding to establish the better title of Millicent John to
the land in dispute and to the balance of the land occupied by the church and by
the Plaintiff. In any event, this suit too of Millicent John was not proceeded with,
and it appears also to have been abandoned.
[6] That leaves us with the Plaintiff’s claim that the Defendant was a tenant from year
to year with the tenancy expiring and liable to renewal every year. The Defendant
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last paid rent on 26 February 1983 for the year expiring on 25 February 1984. The
argument of the Defendant is that the 12-year period for the purposes of the
Limitation Act commenced on the date of payment and expired 12 years later, on
25 February 1995. The Plaintiff’s writ was issued on 16th January 1996, so that,
according to the Defendant, the Plaintiff is out of time. The argument of the
Plaintiff, on the other hand, is that the 12-year period commenced on the expiry of
the year commencing with the payment of rent on 26 January 1983, ie, on 25
February 1984, so that the issue of the writ was just within the 12-year period.
This difference of opinion calls for an interpretation of the law. No legal authority
was produced for the assistance of the court. Let us look at the words of the Act.
The Limitation Act is Cap 90 of the Revised Edition 1990 of the Laws of St
Vincent and the Grenadines. Section 17 provides as follows:
(1) No action shall be brought by any person to recover any land after the
expiration of twelve years from the date on which the right of action
accrued to him or, if it first accrued to some person through whom he
claims, to that person.
(2) . . .
(3) . . .
(4) . . .
(5) Part 1 of the Schedule contains provisions for determining the date of
accrual of rights of action to recover land in the cases therein mentioned.
Paragraph 5 of Part 1 of the Schedule is the relevant paragraph. Paragraph 5
provides as follows:
(1) Subject to subparagraph (2), a tenancy from year to year or other period,
without a lease in writing, shall for the purposes of this Act be treated as
being determined at the expiration of the first year or other period; and
accordingly the right of action of the person entitled to the land subject to
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the tenancy shall be treated as having accrued at the date on which in
accordance with this subparagraph the tenancy is determined.
(2) Where any rent has subsequently been received in respect of the tenancy,
the right of action shall be treated as having accrued on the date of the
last receipt of rent.
[7] The argument of counsel for the Defendant on the interpretation of paragraph 5 of
the Schedule above is that the Defendant occupied the land on a tenancy from
year to year without a lease in writing; the Legislature in its wisdom has
prescribed with precision the method of calculating the accrual of the right of
action in the case of a tenancy from year to year without a lease in writing; the
legislative formula admits of no equivocation; it has the attractiveness of being
clear and simple; it provides in essence that time runs from the date of the last
receipt of rent; in this case the last receipt of rent was 26th February 1983; the
legal consequence was that the right of action accrued on 26th February 1983; in
consequence, the Plaintiff was out of time when the writ in this suit was issued.
The argument of the Plaintiff in response to the above argument of the Defendant
is that paragraph 5(2) of the Schedule above only applies to payments in respect
of a subsisting tenancy; the Defendant was a tenant from year to year with the
tenancy expiring and liable to renewal each year; accepting for argument’s sake
the Defendant’s last lease as commencing on 26th February 1983, the Plaintiff’s
right of action would accrue on the date of last receipt of rent for that period only if
rent was owing for and paid on account of that period at some stage after 26th
February 1983; sub-paragraph (2) has no application where the rent is paid in full
in advance for the period of the lease, it only applies where rent is owing and is
subsequently received in respect of the tenancy; to find otherwise would mean
that if a tenant from year to year agreed with the landlord to pay 12 or more years
rent in advance, the tenant would only have to sit out the full period of the term for
which he had paid and the limitation period would have passed, so that unless the
landlord had issued a writ against him to stop time running, which would be
impossible as no rent was owing, the provisions of section 17 would apply to stop
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the landlord from being able to reclaim possession. Having considered both
arguments, I am persuaded by that of the Plaintiff. To find otherwise would have
an extraordinary effect. It would mean that the Legislature had enacted something
that was contrary to reason in providing that a right of action accrues on the day of
payment of rent in advance when by all logic there should be no right of action
accruing against the tenant who has just paid rent. Sub-paragraph (2) can only
have meaning and application where rent is owing for a particular period and
payment is subsequently received; it cannot apply where no rent is presently
owning for the period of the tenancy in question.
[8] Having found as above, that should settle the matter before the court for
determination in this case between the Plaintiff and the Defendant. The limitation
period would not have passed before the issuing of the writ in this case, and the
Plaintiff would be entitled to succeed in her claim. Counsel for the Defendant went
on, however, to argue the point as to when exactly the animus possidendi of the
Defendant arose. Animus possidendi means no more than occupation of the land
in dispute with the intention of excluding the owner as well as other persons from
entering onto or possessing it. A tenant occupies the rented premises fully, with
the right to exclude the owner as well as anyone else. An owner entering rented
premises without the permission of the tenant does so as a trespasser. A tenant’s
verbal acknowledgment of his continuing obligation to pay rent does not detract
from his exclusive occupation or diminish his right to exclude the landlord from
occupation. Counsel for the Defendant revealed that the need to establish animus
possidendi in holding over cases between landlord and tenant arose from the
recent unreported decision of the Court of Appeal in Errol Davis v Timothy
Nelson (St Vincent CA 4/2000). In that decision, the Court of Appeal held that a
tenant holding over must show animus possidendi in order to sustain a claim of
adverse possession. Redhead JA in delivering the decision of the court held:
For there to be acquisition of property by adverse possession the person
claiming must dispossess the real owner, ie, acquire adverse possession
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against him and he must have the animus possidendi, that is, exclusive
occupation with the intention of excluding the owner as well as other
people. See Pollard v Dick 2 OECS LR 239. This is so when the person
who is claiming title through adverse possession enters the land initially as
a squatter or occupies initially as a tenant from year to year and claims
under the Limitation Act section 17(5).
It does not appear from a reading of the judgment in Davis v Nelson that counsel
for the respondent assisted the Court of Appeal with any law on limitation relating
specifically to cases of landlord and tenant. The cases referred to the Court of
Appeal by counsel for the appellant do not appear to deal with the situation of a
landlord and a tenant. The leading case in our reports concerning a tenant
claiming adverse possession against the landlord is the Trinidadian case of
Richardson v Lawrence [1966] 10 WIR 234. In that case, the tenant’s father
went into possession in about 1915. The landlord died in 1936. The son of the
landlord died in 1937 leaving the widow who was the appellant. The tenant’s child
was the respondent. The respondent did not pay any rent to anyone after the
death in 1937 of the son of the landlord. The appellant widow, having obtained
Letters of Administration to the estates of her father-in-law and husband, claimed
rent, and the respondent refused to pay. The reason for refusal to pay was simply
that the respondent was not sure that the appellant widow was entitled; he
believed that the appellant widow had been divorced from the landlord’s son. The
appellant made no further move until 1955 when she brought an action in the petty
civil court for recovery of the land. It was in reply to this claim that the respondent
put up for the first time that the land was his. He had paid no rent since 1937, and
the action was brought 18 years after the last payment of rent. It was argued in
that case that there had been no adverse possession, principally because the
appellant had been continuously claiming to be the owner of the land, and also
that it had merely been unclear to whom the rent became payable, not that the
respondent had ever claimed that no rent was due. The Court of Appeal of
Trinidad upheld the finding of the trial judge that the title of the appellant was
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finally extinguished. It is not clear whether our Court of Appeal would have found
differently in the case of Davis v Nelson if it had had such landlord and tenant
cases as Richardson v Lawrence brought to its attention. However, the decision
on this matter of our Court of Appeal is binding on this court.
[9] The Plaintiff in our case did not dispute the intention of the Defendant to refuse to
acknowledge the Plaintiff as owner of the property, the only question was whether
it began in the year 1983 or in the year 1984. There is no evidence, other than
paragraph 26 of her defence in this action, of the Defendant acknowledging the
competing claim of Millicent John to the land in dispute. I have no difficulty in
finding that at some stage during the term of the year commencing on 26 February
1983, the Defendant determined not to pay any more rent to the Plaintiff. In the
sense used by the Court of Appeal in Davis v Nelson, that was animus
possidendi. She began to build her concrete house on the land in about January
1996, by which time she had clearly come to the view that she had acquired by
adverse possession a squatter’s title to the land in dispute. The Defendant had,
thus, repudiated the title of the landlord from the year 1983. However, at that time,
she was occupying the premises under a tenancy from year to year expiring on 25
February 1984. As has been set out above, the court accepts that time began to
run against the Plaintiff at the expiry of the tenancy on 25th February 1984. It
could not have begun to run during the year 1993, as the Defendant, regardless of
her subjective intention, had paid rent up to 25 February 1984. The issue of the
writ on 16th January 1996 sufficed to stop the full period of 12 years from elapsing,
so that the Defendant has not established adverse title against the Plaintiff.
[10] A question arose whether or not the judgment in the Magistrate’s court obtained in
1988 by the Plaintiff against the Defendant for 4 years’ rent would have stopped
time running in a dispute between landlord and tenant over title to the land. The
argument of the Plaintiff is that the Small Debts Act, Cap 95, section 36, under
the heading Finality of Judgments, is final and conclusive between the parties as
to the fact of a tenancy existing in the year 1988. The Plaintiff also relies on the
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provisions of the Magistrates (Civil Decisions Appeals) Act, Cap 25, under the
heading Effect of Appeal, for the proposition that it is only the execution of the
judgment of the Magistrate that is suspended until the hearing of the appeal, but
that the judgment is still good and valid until overturned by the appeal. The
Plaintiff protests that the Defendant must not be permitted to benefit from her
default in prosecuting her appeal. The contrary argument of the Defendant is that
the Plaintiff took no action to execute the judgment of the Magistrate’s court. The
Defendant relies on section 39 of the Small Debts Act which provides that every
judgment is discharged at the end of 4 years after the date of the judgment. The
Defendant also protests that the judgment was a judgment for arrears of rent, and
not for the possession of the house spot, and was thus a judgment in personam
and not in rem. The Defendant also protests that the judgment was an ex parte
judgment, and it would be repugnant to the fundamental principles of natural
justice embodied in the maxim audi alterem partem for the serious question of title
to land to be so vitally affected by an ex parte proceeding not itself directly
affecting the question of title to the land. Counsel for the Defendant relied on the
case of Derham v Doyle (1914) 2 IR 135 for the proposition that an unexecuted
judgment does not operate as a declaration of title or as an acknowledgment of
the Plaintiff’s title. I do not propose to deal with this question of the effect of the
Magistrate’s Court decision, as I consider that the limitation point has been
decided above on the calculation of time running from the termination of the one
year tenancy commencing on the date accepted by the Defendant as the date she
last paid rent, ie, 26th February 1983.
[11] Given the above findings of fact, and applying the law as set out above, the court
gives judgment for the Plaintiff. The Defendant’s counterclaim is dismissed. The
Plaintiff is entitled to a declaration that she is the fee simple owner of the lot of
land in dispute. She is entitled to an injunction restraining the Defendant whether
by herself, her servants or agents or otherwise from building, constructing or
erecting any permanent structure on the Plaintiff’s said land. She is also entitled
to an order that the Defendant do forthwith pull down and remove the concrete
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structure and/or building which is being built by the Defendant on the Plaintiff’s
said land. The Plaintiff is entitled to general damages which I set at $5,000.00
and mesne profits which I calculate at $30.00 per year for 17 years from 1984 to
2000, or $510.00. The Plaintiff is also entitled to her costs to be taxed if not
agreed.
[12] Before I conclude, I must express my appreciation to both counsel for their
carefully researched and prepared legal briefs which they submitted for the
assistance of the court and which made their closing arguments so much easier to
follow than would otherwise have been the case, and which saved much time.
I D MITCHELL, QC
High Court Judge