Clement Moore v Merton Jones
| Jurisdiction | Barbados |
| Judge | Madam Justice Pamela Beckles |
| Judgment Date | 14 July 2022 |
| Neutral Citation | BB 2022 HC 60 |
| Docket Number | Civil Suit No. CV25 of 2016 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Honourable Madam Justice Pamela Beckles, Judge of the High Court
Civil Suit No. CV25 of 2016
Mr. Marcel El Daher and Lemar Quimby, Attorneys-at-Law on behalf of the Claimant
Ms. Kathy A. Hamblin, Attorney-at-Law on behalf of the Defendant
By way of a Fixed Date Claim Form supported by an Affidavit filed on the 11 th January, 2016, the Claimant is seeking a Declaration that he is entitled to possession of the properties described therein and which are located at Lower Carlton in the parish of St. James. He is also seeking a determination of the boundary marks of the said property to settle the boundary dispute, as well as an injunction to restrain the Defendant from entering on the land occupied by the Claimant and an Order that the Defendant pull down and remove any structure(s) and/or fence(s) from the land.
The Claimant and the Defendant both reside at Carlton Link Road, Lower Carlton, St. James.
Lots 1 and 2 Carlton Link Road, St. James forms the subject matter of this claim as the property in dispute between the parties.
The property was owned by the Claimant's paternal grandmother Jestine Elizabeth Moore by virtue of two (2) Registrar's Conveyances both dated the 10 th April, 1969.
On the 8 th June, 1980 Jestine Elizabeth Moore died intestate leaving two children namely the Claimant's uncle Gilbert Moore and the Claimant's father Errol Percival Moore.
Following her death, no action was taken to apply for Letters of Administration in the Estate of Jestine Elizabeth Moore by the Claimant's father or uncle who both subsequently died in 1991 and 2008 respectively.
The Claimant however alleges that he was offered Lots 1 and 2 to construct his home by his father before his death in 1991. Since then the Claimant has been peacefully residing at the property with his family.
Around the years 2005, the Defendant who resided next door and his counterparts became a serious nuisance to the Claimant which led to a dispute causing the Defendant to erect a fence between the two properties.
The Claimant was informed by Mr. Lennox Boyce, Land Surveyor that there was an encroachment of about 7.5 feet to the front of the property abutting the main road and 4 feet to the rear of the property which abuts Carlton Plantation.
As a result, the Claimant instructed his Counsel to inform the Defendant of this encroachment but was informed by the Defendant's Counsel that there was another Plan which showed that the boundaries on which the Defendant now resides are correct.
Subsequent attempts at resolving the matter proved futile in spite of a further boundary report which was prepared by W.A.G. Scott, Land Surveyor and which supported the Claimant's contention that the boundaries were incorrect and that the Defendant was encroaching upon his property.
On the 11 th January, 2016, the Claimant filed a Fixed Date Claim Form supported by an Affidavit in which he sought the following relief:
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i. A Declaration that the Claimant is entitled to possession of the land situate at Lower Carlton in the parish of St. James referred to as Lot 1 and Lot 2 therein; and/or
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ii. An injunction to restrain the Defendant whether by themselves, their servants and/or agents or otherwise however from entering on the land occupied by the Claimant; and/or
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iii. An order that the Defendant pull down and remove any structures and/or fences from the land; and/or
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iv. An order granting leave of the Claimant to institute a Land Title Proceeding suit to have title of the land registered in his name; and/or
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v. Further or other relief;
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vi. Costs.
The issue for determination before this court is whether the Claimant has the authority to institute land title proceedings to have the property situate at Lots 1 and 2, Lower Carlton, St. James, registered in his name and to challenge the land boundary of the said property in circumstances where the Claimant is a beneficiary to the estate of Jestine Elizabeth Moore, deceased and without having obtained the consent of the other beneficiaries to do so.
Counsel for the Claimant submitted that pursuant to the position expressed by Lord MacNaghten in Perry v Clissold [1907] AC 73 it cannot now be disputed that the Claimant, who has been in possession of the property for more than thirty-six (36) years, has perfectly good title which can be exercised against all the world except the true owner.
He contends that the defence of jus tertii has been abolished and as such the Defendant cannot justify its attempt to usurp the rights of the Applicant by relying on the allegations that title rests in a third party to whom they would be liable.
Counsel then applied the case of Manchester Airport Plc v Dutton [1999] 2 WLR 524 and surmised that the Claimant as licensee may commence an action against the Defendant as trespasser to protect his right to occupy by excluding all others.
As such, it was asserted that actual possession is good against all including the Defendant unless it can be shown that the Defendant has a better right than the Claimant. Counsel also perceived that the law does not require the Claimant's possession to be lawful and it is not a necessity for the Claimant to obtain Letters of Administration before having the boundary marks of the property determined.
Counsel recited the position of Lord Westbury in Clowes v Hillard 4 Ch D 413 to the effect that the Claimant's beneficial interest, even though contingent forms a sufficient cause of action which entitles the Claimant to have the boundaries of the property on which he resides determined.
He put forward the point that the Claimant has incurred financial resources in the construction of his home and it is inequitable and unconscionable for the Defendant to deny the Claimant the benefit of having the boundaries of the property determined.
It is Counsel's submission that to prevent the Claimant from continuing with his action at this stage is merely to halt the Claimant obtaining relief and disregard the element of factual possession which he has enjoyed in excess of 36 years. In addition, it would further allow the Defendant to continue with his unlawful occupation of land to which he is not beneficially entitled.
He concludes that having the boundaries of the property determined benefits the estate of Jestine Elizabeth Moore.
Counsel for the Defendant submitted that before the court makes any ruling in a claim for establishment or determination of boundaries, the court must first be satisfied that the Claimant and the Defendant are proper parties to the action and that all persons having any interest in the property are necessary parties: Ravley v Best 1830, 1 R. & M. 659.
She posits that the owners and/or occupiers of the other houses which are situated on the adjoining parcel of land, as well as the remaining beneficiaries of the estate of the deceased, must be named as Ancillary Claimants or Defendants in this action, since they would be affected by any order of the court.
Counsel referred to section 6 of the Land Boundaries Act, Cap. 228B of the Laws of Barbados and averred that the right to pursue an action for determination of land boundaries is the exclusive preserve of the “owner” of the land, or a person having lawful authority to bring the claim on behalf of the owner.
Counsel contends that the Claimant is not the owner or the personal representative of the owner of a legal estate in fee simple absolute in possession, or a lessee for a term of years, or a legal mortgagee of the disputed strip of land and is therefore neither an owner nor a proprietor within the meaning of the Act. She asserts that the Claimant is but a squatter in whom the legislature vests no legal right to pursue a claim under section 6.(1) or at all.
Counsel argues that the Defendant is neither the owner nor the proprietor of the adjoining parcel of land for the purposes of section 6.(1) and therefore is not a proper party to the action.
Counsel submits that the court may not make a binding order against the Defendant with respect to the establishment of the boundaries of the land.
She further submits that in order for a claim for title by adverse possession to succeed, the Claimant must persuade the court that he has been in factual possession of the property and that he had the requisite intention to possess the land (animus possidendi).
It is Counsel's position that the Claimant has not met the second requirement but Counsel is satisfied that the Claimant has met the first of these two requirements, as there is no dispute that he has had physical control of Lots 1 and 2 for upwards of 35 years, that his possession of the property has been single and exclusive and that having erected his house on the land, he has dealt with the same as one might expect an owner to do.
Accordingly, counsel pointed out that under section 35 of the Limitation of Actions Act time will not run against a statutory trustee in favour of the beneficiary in possession, except where the beneficiary in possession is solely and absolutely entitled, and it will not run against a co-beneficiary. It is Counsel's position that Lots 1 and 2 and the remaining lands of the estate of the deceased are vested in the Public Trustee. Consequently, the limitation period is tolled and the Claimant may not bring an action to establish title by adverse possession.
Counsel contends that the Claimant has not adduced independent evidence to substantiate his claim for possession. He has not filed a recent plan of the land, nor has he filed an abstract of title deducing title for...
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