Nick Gabriel Vidal v Pamela Vidal et al

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA DOM HCV 0121 of 2004 Between: Nick Gabriel Vidal Claimant and Pamela Vidal Christaline Vidal Defendants Before: The Hon. Justice M E Birnie Stephenson Appearances: Cara Shillingford for the Claimant Rose – Anne Charles for the Defendants ---------------------------- 2019: February 28 2020: May 15 ---------------------------------- JUDGMENT (RE ISSUE)

[1]Stephenson J.: This is a claim for possession of property registered in the name1 of the Claimant and located at Rollo Street, Zickack, Portsmouth containing 5039 Square feet. (‘the disputed property’) Background

[2]The defendants are in occupation of the said property.

[3]The claimant’s case is that the property was purchased from the estate of Maud Wayland by his father Michael Marcus Vidal. That after purchasing the land his father permitted the family of Gustave Vidal to continue living on the property as licencees. Gustave was Michael Marcus Vidal’s uncle and the father of the defendants. Evidence was presented to the court that Michael grew up with his uncle and that he was born on that land.2

[4]It is the claimant’s case that in 1996 and again in 2000 Notices to quit were issued to the defendants and their predecessor in title who failed and or refused to vacate the property. The claimant has exhibited the various notices and letters sent to the defendants and their response.

[5]The claimant in his Amended Fixed Date Claim and Amended Statement of Claim stated that he is entitled to possession of the disputed property, damages for mesne profits due until the defendants deliver up possession of the claimant’s property and an injunction restraining the defendants whether by themselves or through their agents from entering onto and remaining on his property.

[6]It is the claimant’s case that there is a portion of land located behind the disputed parcel which was sold to one Patrick Vidal the brother of the defendants and that the defendants have refused to and or failed to move onto that piece of land.

[7]It is also the claimant’s case that the defendants were supposed to move to a back portion of land given to them and others by his deceased father who was the titled owner of the land. The claimant produced a map showing the parcel of the land that was identified to be owned by the defendants and their siblings, that is the parcel given to them by his deceased father. That the defendants were permitted to remain on the front portion “the disputed piece” on the condition that they would move to the back portion eventually. The claimant maintains that the defendants by themselves and through their parents did not and have not acquired adverse possession of the disputed parcel.

[8]The defendants3 contest the claim, they contend that their parents lived on the disputed property since in or about 1964 and all of their children were raised on the said property. They say that their father Gustave Vidal died in 1985 and that their mother died in 2010 and they continued to live on the land as owners after the deaths of their parents. The defendants contend they have been in possession of the property in excess of 50 years as owners and that the claimant’s claim is barred by the Real Property Limitation Act.4 (“The RPL Act”) Issue:

[9]It is this court’s view that the sole issue to be determined in this case is whether or not the defendants and their predecessors in title defeated the ownership rights of the claimant who is the registered proprietor of the disputed property.

[10]It would be for the defendants to satisfy this court that they have dispossessed the claimant of the property that they have occupied and in doing so that the claimant’s title has been superseded by section 2 of the RPL Act.

[11]Have the defendants in this case been able to marshal the required evidence to satisfy this court that this is so?

[12]The court has reviewed the submissions filed by both counsel in this matter. Reference will be made to those submissions which were considered necessary to explain the court’s conclusions. It is to be noted that failure to make specific mention of any point of submission does not mean that it has been ignored or there has been a failure to take it into account. Similarly, a good many issues of and points have been raised by both counsel which in the court’s view is not necessary to discuss in order to resolve or to decide the main issue in the case at bar.

The Claimant’s Case

[13]The claimant relies on the documentary evidence that he is the registered owner of the land registered in Book of Titles K14 Folio 8 containing 5039 square feet and bounded as follows: On the North by the land of Hosea Nelson on the West by Rollo and Bedford Street on the East by the land of Augustus Vidal and Sylma Tavernier separated by a wall on the south by land of Rufus Dyer separated by a wire fence.

[14]It is well established law that this title is indefeasible save and except for two circumstances as provided for by statute, if the title was obtained by an act of fraud and if a third party has possessed the parcel of land for such time so as to supersede the owner’s title. This will be dealt with later in this judgment.

[15]The claimant tendered into evidence the following documents in support of his claim to ownership of the land and it would be helpful to review this in order to get a full understanding of the history of the ownership of the disputed property: a. The Certificate of Title of Michael Marcus Vidal registered in Book S4 Folio 75 for 14,650 Square feet bounded on the north by the Methodist Church, on the South by the Lands of Ryves Lockhart and Elsa Tavernier and others, on the East by Sugar Loaf Estate and the land of the Methodist Church and on the west by Rollo street; This title was issued in February 1981; b. A perusal of the Certificate of title shows that the following parcels were hatched of by and that Michael Marcus Vidal made the following transfers of land: (a) 4,033 Sq. Feet of land to Andrew Joseph in January 1984 and which transfer was presented and registered in March 1984 (b) 2,922 Sq. Feet of land contained in this title to Sylma Tavernier in July 1986 which transfer was presented and registered in July 1986; (c) 1,168 Sq. Feet of land contained in this title to Augustus Vidal in May 1986 which transfer was presented and registered in July 1986; c. It is also noted that there was a caveat registered against the title by Patrick Vidal in July 1998. d. The last will and testament of his father Michael Marcus Vidal made on the 15th June 1991 and probated on the 24th April 1995. At Clause 6 of the will it is noted that the testator bequeathed “land at Rollo Street, Zickack aforesaid containing approximately 6,000 sq. feet to my son Nick Gabriel Vidal (the claimant); e. Grant of Probate in the estate of Michael Marcus Vidal 24th April 1995; f. Notice to quit sent to Gustave and Martha Vidal on the 29th February 1996; g. Notice to quit sent Augustus Vidal on the 16th June 1997 to quit a deliver up the property in the case at bar; h. Notice to quit to Augustus Vidal and Martha Vidal dated the 8th February 2002; i. Letter from Attorney at Law Alick Lawrence on behalf of Martha Vidal asserting ownership of the disputed parcel of land by her deceased husband; j. Letter of the 8th April 2002 to Mr Alick Lawrence informing counsel and his clients of the fact that it is the claimant who was the registered owner of the land.

[16]Mr Nick Vidal stated in his evidence, that the land in question was owned by his father Michael Marcus Vidal. That his father bought the land from the estate of Maude Wayland who was the original owner of the land. That in fact when his father purchased the land it was a larger piece comprising 14,650 Square feet. That his father sold off various parcels of land5 from the piece he purchased and retained the disputed parcel comprising 5,059 square feet. Michael Marcus Vidal bequeathed this parcel to the claimant in his will.

[17]The claimant further stated that Gustave Vidal was his father’s uncle. That it is his great uncle who raised his father from childhood. That the land where the house was located where they all lived was initially rented by Gustave from the Waylands and later by Michael prior to Michael purchasing the property in or around 1972. Michael was issued with a certificate of title to the land.

[18]The claimant contends that his father gave a portion of the land that he purchased to his cousins Patrick, Pamela, Alice, Christaline and Jerome Vidal. (Pamela and Christaline are the defendants in this matter). This portion of land has been identified in the map attached to the title of August Vidal which bounds with the parcel of land the subject of this matter. That his father also permitted the defendants to remain on his land in the chattel house with the agreement that they would move the chattel house to the portion of land at the back given to them.

[19]The claimant told this court that after he received the land from his father’s estate and registered it in his name he sent a notice to quit to the defendants and their mother in 1996, again in 1997 and in 2002. The notices to quit were all exhibited by the Claimant. He spoke to commencing proceeding initially in 2002 which case was struck out for failure to comply with a case management order and again in 2006.

[20]It is the claimant’s contention that the defendants and their predecessors starting with his great uncle Gustave Vidal who is the father of the defendants, occupied the parcel at all material times as firstly as a tenant and then as a licencee(s) and never as trespasser(s) and that their occupation of the land is not and never was adverse to his title.

[21]The claimant called several witnesses in support of his case to attest to the fact that the parcel of land was owned by his father Michael Marcus Vidal and regarding the sales of the various portions to other purchasers.

[22]The claimant called his brother to give evidence on his behalf. His brother Ault Vidal spoke to knowing that the larger piece of property was owned by his father. He spoke to seeing his father’s certificate of title and knew that his father gave a portion of the said land at the back to the family of the defendants. He says he knew that his father bought the larger piece from the Waylands and sold parts of it. He also spoke to knowing that this father willed the portion of land to his brother Nick and that Gustave was on that portion “the disputes parcel”, but with his father permission.

[23]Ault Vidal also told this court that there was a close relationship between his father and Gustave Vidal and that is always remained so. Under cross examination it is noted that Ault Vidal admitted the close relationship between Gustave and Michael. He said that his father always mentioned that he gave a portion of the land at the back of Augustus Vidal in the name of Patrick, Pamela, Alice, Christaline and Jerome and that his father permitted them to remain in the chattel house on the understanding that they would eventually remove the house to the portion of land that he gave them.

[24]The evidence adduced by the claimant in support of his paper title includes the application for the first certificate of title by Michael Marcus Vidal. Within this application there were the affidavits sworn in support of Michael’s application for first certificate of title including an affidavit from Ryves Lockhart who in 1974 averred that he was the agent of Maud Wayland and after her death pursuant to the instructions of the grand children of Maud Wayland he sold the property to Michael Marcus Vidal.

[25]Also included in the application exhibited and relied on by the claimant is the affidavit of Maurice Joseph who averred that he did not know who the original owner for the land was but he knew that Ryves Lockhart was in charge of the land and that he Ryves Lockhart used to rent out house sites on the land to various tenants and that he knew that Michael Vidal purchased the land and when he did that Gustave Vidal the uncle of Michael was living on the land as a tenant. This deponent averred that he was present at the sale of the lot and witnessed the payment and the delivery of the possession to Michael Vidal.

[26]Also included in the application for title by Michael Marcus Vidal is an affidavit of Mary Eugenia Charles the solicitor for Michael Marcus Vidal who averred that the original application for title was made in 1978 and that those documents were destroyed in the fire which burned down the registry in June 1979. Miss Charles also averred that the schedule stating the application was published in the Star News Paper on the 15th and the 19th September 1978 and to the fact that there was no caveat filed against the issue of the first certificate of Title.

[27]Then there is the affidavit sworn to by Michael Marcus Vidal in support of his application for first certificate of title. He averred that he was born on the land which he was seeking title to. That he was raised by his uncle Gustave Vidal who had a house on the said land and that he used to rent a house site on the lot from the Waylands who were the owners of the land. Michael spoke to dealing with Ryves Lockhart who was the Waylands’ agent who used to let the property on behalf of the Waylands and also to the fact that he purchased the lot from the Waylands and that the transaction was conducted by Ryves Lockhart.

[28]It is interesting to note that Michael Marcus Vidal in his affidavit in support of his application for first title sworn to on the 10th September 1974 stated that his Uncle Gustave continued as “his” tenant on the said lot.

[29]The claimant contends that the defendants occupy the land as licensees that they and their predecessors have refused to vacate same. The claimant contends that as a result of their actions he has been deprived of the use and enjoyment of his land and has suffered loss and damages. In the circumstances of the case the claimant is seeking possession and mesne profits for their wrongful occupation of his land.

[30]It is the evidence of the claimant that he caused the property in dispute to be valued and received a valuation report concerning the land which informed him as to the rental value on a monthly basis. The claimant exhibited the valuation done by G S Surveys Ltd in support of his prayer that the court orders the defendant to pay mesne profits for their continued occupation of the property after they received a notice to quit from him the claimant as owner of the property. The notice to quit a copy of which was exhibited demanded that the Gustave and Martha the predecessors of the defendants quit and deliver up the disputed property on or before the 30th day of May 1996. The claimant therefore seeks an order for mesne profits from that time to the date that the defendants would give up the property.

The Defendants’ case

[31]The defendants contend that they and their predecessors have been in occupation of same and have been also in continuous and undisturbed possession of the land for over fifty years and that the claimant’s claim to possession has been barred by the RPL Act.

[32]The defendants contend that their father occupied the property in dispute since 1963 as owner. That their father Gustave was joined by their mother in 1964 and together they lived on the land and raised their family.

[33]That after the death of first their father and then their mother that they have continued to live on the land as owners thereof.

[34]The defendants and their sister Alice Vidal all gave evidence in defence to the claim brought by Nick Gabriel Vidal. They all say that the land occupied by the defendants was their father’s land and that it has at all material times been occupied by them and their parents before them as owners. That their occupation has been “nec vi nec clam nec precario” without force, without secret and without permission.

[35]The sisters spoke of what they know and what they were told by their father. They say that as far as they know Michael Marcus Vidal bought land from the Waylands excluding the land occupied by their parents. They say that they knew that the land was sold to Michael and their father. It is noted that they have been unable to adduce any evidence proving this.

[36]They stated that in the 1980’s Michael Marcus Vidal offered to exchange a portion of land at the back of their home which offer was refused by their father. They say that the piece of land which has been surveyed in their names and that of their siblings. They say that their father refused to move to this parcel of land and in fact that piece of land was sold to one Andrew Joseph.

[37]The sister’s say that when their brother Augustus purchased land from Michael Vidal it was done in secret and much to the annoyance and anger of their father who as owner of the land gave Augustus permission to go onto the land.

[38]The sisters spoke of the many notices to quit that they and their parents received but which were all ignored. They also told this court that their father paid taxes for the land since the 1940s and that they continue to pay the said taxes.

[39]The sisters state that they nor their parents ever paid rent to be on the property and that they were never given permission to be on the property and that in fact it is Michael Marcus Vidal who came onto the property as a child and met their father Gustave already living on the property.

[40]It is the evidence of the defendants that they knew that Maude Wayland sold property excluding the parcel occupied by their father and his to Silma Tavernier, Andrew Joseph, Augustus Vidal and Patrick Vidal. It is noted that this is definitely not accurate as the claimant has exhibited the memoranda of transfers to these person from Michael.

[41]The sisters’ claim that they became of the Michael Vidal’s claim in the 1980’s when Michael asked their father to pay rent and that the father refused to pay. This court finds that it is more probable than not that this is not accurate as Christaline who in her witness statement says she only knew of Michael’s claim in the 1980s was born according to her own evidence in 1970 and she would more than likely been too young to have the knowledge of this as she claims.

[42]The defendants also called Mr Wilfred Dyer and Avon Brudy to give evidence on their behalf their evidence does not add anything to the defendants’ case before the court. Essentially he is saying he knew that the defendants and their parents lived on the disputed parcel. This is in fact not in dispute at all in this matter. The occupation of the defendants and their parents is not in dispute what is in dispute is the capacity in which they occupied the property.

Discussion

[43]From the evidence adduced in the matter which this court accepts, it is clear that the property in dispute was owned by the father of the claimant who held a certificate of title and who bequeathed the land to the claimant who in turn obtained his certificate of title.

[44]It is also clear to the court that the defendants have been living on the parcel of land with their parents for a period in excess of 40 years. The question which has to be answered is what is the legal effect of their occupation if any? Has their occupation superseded the claimant’s title? Have they adduced evidence to show this on a balance of probabilities?

[45]Without proper evidential foundation the defendants’ claim that their occupation supersedes the title held by the claimant will fail. Does the occupation of the defendants operate to extinguish the right of the claimant to bring this action for possession?

[46]It is noted that the defendants have failed to take action on their part to apply for a certificate of title under section 33 of the Title By Registration Act (“The TBRA”) relying on their long adverse possession of the property. This being so, learned Counsel Miss Cara Shillingford on behalf of the claimant submitted they have acquired no title under the RPL Act and therefore the registered proprietor is entitled to enjoy the fullest rights afforded him under the TBRA. Learned Counsel relied on the ruling of the Court of Appeal in the David George –v- Albert Guye6 in this regard.

[47]Adverse possession is a matter of fact. In order to amount to adverse possession there must be clear evidence that the squatter is not merely a persistent trespasser but is seeking to dispossess the owner.

[48]“No right of action to recover land accrues unless the land is in the possession of some person in whose favour the period of limitation can run (adverse possession) … What constitutes adverse possession is a question of fact and degree and depends on all the circumstances of each case, in particular the nature of the land and the manner in which land of that nature is continually used …”7. The possession of the person claiming adverse possession should be sufficiently exclusive and there should have been an intention to take possession.

[49]Where a person seeks to rely on adverse possession to obtain title or establish a right to title, what is required is not an intention to own or even an intention to acquire ownership but an intention to possess the land for the time being to the exclusion of all others, including the owner with the paper title.

[50]In the instant case, no such intention could be gleaned on the defendants’ part. In defending this claim the defendants are asking this court to find that they and their predecessors in title have 7 Halsbury’s Laws of England 4th Edition Vol 28At paragraph 997 adversely occupied the property the subject of the case at bar to the extent that they have superseded the claimants title to the land.

[51]A person laying claim to land by adverse possession has to show that for the requisite period he had factual possession as well as intention to possess and that such entry was not referable to an agreement or permission of the true owner. In the case at bar, this court accepts the evidence adduced on behalf of the claimant that Michael Vidal permitted his uncle Gustave Vidal to occupy the property and further that Michael Vidal purchased the entire parcel of land from the estate of Maude Wayland. That after having purchased the land he subdivided the property and sold one parcel to the brother of the defendants and that Michael Vidal legally transferred title to that parcel as the registered owner and vendor. This court also accepts the evidence adduced on behalf of the claimant that Michael Vidal made provision of another parcel of land to the defendants which they have failed and or refused to occupy.

[52]Prescriptive possession could not be pursuant to the landowner's permission. This court accepts the evidence adduced on behalf of the claimant that Gustave the father of the defendants occupied the land with the permission of his nephew Michael Vidal who was the registered owner of the parcel.

[53]The claimant has established that he is the registered owner of the property in question. That his title is derived from the registered title held by his father he having inherited the said parcel of land from him.

[54]I have no doubt that the defendants and their parents before them have lived on the property since the 1960s. The claimant knows this but says that they did not do so as squatters but first as tenants and then as licencees with the permission of his father who was the original registered owner.

[55]The defendants are saying to this court that their father never paid rent and refused to pay rent. Now paying rent would have made him a tenant but it must be noted that the claimant is saying that Gustave was not only a tenant but when he failed to pay rent he was allowed to live on the land as a licencee based on the familial relationship between Gustave and Michael. The defendants sought to bring the evidence of Wilfred Dyer to say that his father collected rents on behalf of Ryves Lockhart, however it is noted that he was a child and this court doubts very much that he would have been able to accurately say who rent was collected from and in the circumstances of this case this court is unable to accept that this is proof even on the balance of probabilities that Gustave did not pay rent.

[56]Learned Counsel Rose-Anne Charles cited the case of JA Pye (Oxford) Ltd –v- Graham 8in support of her submissions that the mere fact that Gustave, Martha his wife and the defendants refusal to leave the land when demanded to do so is a clear indication that they were no on the premises with the permission of Michael Vidal and that they did not recognise the ownership of Michael Vidal. Counsel urged the court to find that the defendants and their predecessors in title can be considered to satisfy the requirements as laid down in JA Pye (Oxford) Ltd –v- Graham in that they have showed factual possession and intention to dispossess the claimants and his predecessors in title for several years.

[57]The defendants also rely on the evidence that they and their parents before them have been paying the House Tax on the property since the 1940s and they exhibited a number of receipts in support of this.

[58]That this was done is of no moment in the case at bar, neither does it assist the defendants in their attempt to show acts of ownership.

[59]I refer to and apply the case of Bazill et anor –v- Wharton9 In this case the Court of Appeal of Guyana applied the case of Richardson –v- Lawrence10 where it was held that acceptance of a receipt from the local authority in the name of another person as owner for the payment of rates in respect of a parcel of land does not in itself bar time from running in favour of the payer in possession of land in claims based on adverse possession. In that case the Court of Appeal of Guyana examined the regime of the issuing of receipts for the payments of rates and taxes made in the name of the “owner” and the court concluded that the acceptance of a receipt from a local 9 (1992) 47 WIR 238 authority in the name of another does not bar time from running in favour of the person making the payment against the person named in the receipt.

[60]Applying that to the case at bar, that the defendant made payments to of house tax and received receipts in his name cannot (emphasis mine) be construed and I certainly will not construe it as an assertion that the person named in the receipt is the owner of the property and this will not aid the defendants in the claim for adverse possession.

[61]I shall assume that the regime of issuing receipts for the payment of rates and taxes are similar if not the same as that which exists in Guyana and Trinidad. I find the words of Wooding CJ as quoted by George C to be helpful on this point. Wooding CJ said : ‘…They are not payable necessarily by an owner or even by an occupier; anybody who chooses to pay officiously or otherwise may do so and on its acceptance by the authority entitled to the rates, whether the Government or a local authority, a receipt is given for the payment in the name of the person who is recorded in the rate-book as owner of the land. But the fact that somebody’s name appears as owner in the rate-book does not in any sense mean that that person is the owner. The person whose name so appears may have died several years before or may have been dispossessed, or may have alienated the land without the person who became its alienee having made the prescribed statutory return so as to have his name substituted as owner in the rate-book.’ 11 Conclusion

[62]Having seen and heard the witnesses, I believe the evidence on behalf of the claimant. This Court finds that according to law he is the owner of the disputed property and that his title is indefeasible unless the defendants can establish they and their predecessors have been in possession of the disputed property for over 30 years so as to usurp his title.

[63]Applying the law to the facts found and the evidence which has been accepted above this court finds as follows: (i) That the claimant Nick Gabriel Vidal has a valid title to the disputed property. (ii) The burden of proving adverse possession rests on the defendants. (iii) That it is significant that Gustave failed to challenge Michael’s purchase of the land including the disputed property and to Michael’s sale of pieces of the land which suggests to this court that he Gustave accepted the Michael was the owner of the land. (iv) That the defendants lived on the property with their father who was at all material time a tenant and a licencee. (v) That the uncontradicted evidence is that Michael Marcus Vidal grew up with Gustave Vidal who was his uncle. That Michael Marcus Vidal purchased the property and that parcels were hatched off and sold to other persons. Michael Marcus Vidal clearly dealt with the property as his own solely. (vi) That Michael Marcus Vidal permitted Gustave to remain on the disputed property on the understanding that he would move to the parcel of land identified for him. (vii) It is also the finding of this court that the arrangement with Gustave to remain in occupation was based on the familial relationship between Michael Marcus and Gustave making Gustave a licencee. Family arrangements for the occupation of property are made on the basis of mutual trust and confidence. Such occupation will be treated differently from occupation by a stranger. This court will not presume that such occupation was adverse to the Michael who was paper owner. There must be some credible evidence to support such a claim. (viii) That there is no evidence that Gustave occupied the property with intention to possess. The defendants have failed to adduce any creditable evidence in this regard and they have failed to prove that their occupation of the disputed property was adverse to Michael Marcus Gustave’s ownership or to the ownership of Nick Gabriel Vidal.

[64]What is critical is whether the person claiming adverse possession is in factual possession with the intent to possess as owner. The defendants have in this court’s view failed to adduce any creditable evidence in this regard.

[65]The Defendants have not satisfied this court that their occupation and that of their predecessors was adverse to Michael’s ownership. Nor have they satisfied this court on the balance of probabilities that they or their held any intention adverse to the paper owner until 2002 when her solicitor responded to the notice to quit served on her by claimant herein, this being the second notice to quit being served on the mother of the defendants.

[66]There will be judgment for the claimant as follows: (a) That the defendants shall give up possession of the 5039 square feet of land registered in the name of Nick Gabriel Vidal and registered in Book K14 Folio 8 located at Zicak in Portsmouth on or before the 31st August 2020; (b) Damages for mesne profits in the sum of $540.00 from the date claimed to the date that possession is delivered up to the claimant as herein ordered; (c) The defendants are prohibited from entering or remaining on the said parcel of land once they have given up possession of the said land. (d) Costs to be assessed if not agreed.

[67]I wish to thank counsel on both sides for their patience in the length of time it has taken for this decision to be done as the situation at the registry is by now well known and this particular file had to be reconstructed twice. The first time after the file was destroyed in Hurricane Maria and the second time after the reconstructed file became tainted with the Mold infestation which has plagued the civil court. M E Birnie Stephenson High Court Judge BY THE COURT [SEAL] REGISTRAR

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE COMMONWEALTH OF DOMINICA DOM HCV 0121 of 2004 Between: Nick Gabriel Vidal Claimant and Pamela Vidal Christaline Vidal Defendants Before: The Hon. Justice M E Birnie Stephenson Appearances: Cara Shillingford for the Claimant Rose – Anne Charles for the Defendants —————————- 2019: February 28 2020: May 15 ———————————- JUDGMENT (RE ISSUE)

[1]Stephenson J.: .: This is a claim for possession of property registered in the name

[2]The defendants are in occupation of the said property.

[3]The claimant’s case is that the property was purchased from the estate of Maud Wayland by his father Michael Marcus Vidal. That after purchasing the land his father permitted the family of Gustave Vidal to continue living on the property as licencees. Gustave was Michael Marcus Vidal’s uncle and the father of the defendants. Evidence was presented to the court that Michael grew up with his uncle and that he was born on that land.

[4]the RPL Act”) Issue:

[5]The claimant in his Amended Fixed Date Claim and Amended Statement of Claim stated that he is entitled to possession of the disputed property, damages for mesne profits due until the defendants deliver up possession of the claimant’s property and an injunction restraining the defendants whether by themselves or through their agents from entering onto and remaining on his property.

[6]It is the claimant’s case that there is a portion of land located behind the disputed parcel which was sold to one Patrick Vidal the brother of the defendants and that the defendants have refused to and or failed to move onto that piece of land.

[7]It is also the claimant’s case that the defendants were supposed to move to a back portion of land given to them and others by his deceased father who was the titled owner of the land. The claimant produced a map showing the parcel of the land that was identified to be owned by the defendants and their siblings, that is the parcel given to them by his deceased father. That the defendants were permitted to remain on the front portion “the disputed piece” on the condition that they would move to the back portion eventually. The claimant maintains that the defendants by themselves and through their parents did not and have not acquired adverse possession of the disputed parcel.

[8]The defendants

[9]It is this court’s view that the sole issue to be determined in this case is whether or not the defendants and their predecessors in title defeated the ownership rights of the claimant who is the registered proprietor of the disputed property.

[10]It would be for the defendants to satisfy this court that they have dispossessed the claimant of the property that they have occupied and in doing so that the claimant’s title has been superseded by section 2 of the RPL Act.

[11]Have the defendants in this case been able to marshal the required evidence to satisfy this court that this is so?

[12]The court has reviewed the submissions filed by both counsel in this matter. Reference will be made to those submissions which were considered necessary to explain the court’s conclusions. It is to be noted that failure to make specific mention of any point of submission does not mean that it has been ignored or there has been a failure to take it into account. Similarly, a good many issues of and points have been raised by both counsel which in the court’s view is not necessary to discuss in order to resolve or to decide the main issue in the case at bar. The Claimant’s Case

[13]The claimant relies on the documentary evidence that he is the registered owner of the land registered in Book of Titles K14 Folio 8 containing 5039 square feet and bounded as follows: On the North by the land of Hosea Nelson on the West by Rollo and Bedford Street on the East by the land of Augustus Vidal and Sylma Tavernier separated by a wall on the south by land of Rufus Dyer separated by a wire fence.

[14]It is well established law that this title is indefeasible save and except for two circumstances as provided for by statute, if the title was obtained by an act of fraud and if a third party has possessed the parcel of land for such time so as to supersede the owner’s title. This will be dealt with later in this judgment.

[15]The claimant tendered into evidence the following documents in support of his claim to ownership of the land and it would be helpful to review this in order to get a full understanding of the history of the ownership of the disputed property: a. The Certificate of Title of Michael Marcus Vidal registered in Book S4 Folio 75 for 14,650 Square feet bounded on the north by the Methodist Church, on the South by the Lands of Ryves Lockhart and Elsa Tavernier and others, on the East by Sugar Loaf Estate and the land of the Methodist Church and on the west by Rollo street; This title was issued in February 1981; b. A perusal of the Certificate of title shows that the following parcels were hatched of by and that Michael Marcus Vidal made the following transfers of land: (a) 4,033 Sq. Feet of land to Andrew Joseph in January 1984 and which transfer was presented and registered in March 1984 (b) 2,922 Sq. Feet of land contained in this title to Sylma Tavernier in July 1986 which transfer was presented and registered in July 1986; (c) 1,168 Sq. Feet of land contained in this title to Augustus Vidal in May 1986 which transfer was presented and registered in July 1986; c. It is also noted that there was a caveat registered against the title by Patrick Vidal in July 1998. d. The last will and testament of his father Michael Marcus Vidal made on the 15 th June 1991 and probated on the 24 th April 1995. At Clause 6 of the will it is noted that the testator bequeathed “land at Rollo Street, Zickack aforesaid containing approximately 6,000 sq. feet to my son Nick Gabriel Vidal (the claimant); e. Grant of Probate in the estate of Michael Marcus Vidal 24 th April 1995; f. Notice to quit sent to Gustave and Martha Vidal on the 29 th February 1996; g. Notice to quit sent Augustus Vidal on the 16 th June 1997 to quit a deliver up the property in the case at bar; h. Notice to quit to Augustus Vidal and Martha Vidal dated the 8 th February 2002; i. Letter from Attorney at Law Alick Lawrence on behalf of Martha Vidal asserting ownership of the disputed parcel of land by her deceased husband; j. Letter of the 8 th April 2002 to Mr Alick Lawrence informing counsel and his clients of the fact that it is the claimant who was the registered owner of the land.

[16]Mr Nick Vidal stated in his evidence, that the land in question was owned by his father Michael Marcus Vidal. That his father bought the land from the estate of Maude Wayland who was the original owner of the land. That in fact when his father purchased the land it was a larger piece comprising 14,650 Square feet. That his father sold off various parcels of land

[17]The claimant further stated that Gustave Vidal was his father’s uncle. That it is his great uncle who raised his father from childhood. That the land where the house was located where they all lived was initially rented by Gustave from the Waylands and later by Michael prior to Michael purchasing the property in or around 1972. Michael was issued with a certificate of title to the land.

[18]The claimant contends that his father gave a portion of the land that he purchased to his cousins Patrick, Pamela, Alice, Christaline and Jerome Vidal. (Pamela and Christaline are the defendants in this matter). This portion of land has been identified in the map attached to the title of August Vidal which bounds with the parcel of land the subject of this matter. That his father also permitted the defendants to remain on his land in the chattel house with the agreement that they would move the chattel house to the portion of land at the back given to them.

[19]The claimant told this court that after he received the land from his father’s estate and registered it in his name he sent a notice to quit to the defendants and their mother in 1996, again in 1997 and in 2002. The notices to quit were all exhibited by the Claimant. He spoke to commencing proceeding initially in 2002 which case was struck out for failure to comply with a case management order and again in 2006.

[20]It is the claimant’s contention that the defendants and their predecessors starting with his great uncle Gustave Vidal who is the father of the defendants, occupied the parcel at all material times as firstly as a tenant and then as a licencee(s) and never as trespasser(s) and that their occupation of the land is not and never was adverse to his title.

[21]The claimant called several witnesses in support of his case to attest to the fact that the parcel of land was owned by his father Michael Marcus Vidal and regarding the sales of the various portions to other purchasers.

[22]The claimant called his brother to give evidence on his behalf. His brother Ault Vidal spoke to knowing that the larger piece of property was owned by his father. He spoke to seeing his father’s certificate of title and knew that his father gave a portion of the said land at the back to the family of the defendants. He says he knew that his father bought the larger piece from the Waylands and sold parts of it. He also spoke to knowing that this father willed the portion of land to his brother Nick and that Gustave was on that portion “the disputes parcel”, but with his father permission.

[23]Ault Vidal also told this court that there was a close relationship between his father and Gustave Vidal and that is always remained so. Under cross examination it is noted that Ault Vidal admitted the close relationship between Gustave and Michael. He said that his father always mentioned that he gave a portion of the land at the back of Augustus Vidal in the name of Patrick, Pamela, Alice, Christaline and Jerome and that his father permitted them to remain in the chattel house on the understanding that they would eventually remove the house to the portion of land that he gave them.

[24]The evidence adduced by the claimant in support of his paper title includes the application for the first certificate of title by Michael Marcus Vidal. Within this application there were the affidavits sworn in support of Michael’s application for first certificate of title including an affidavit from Ryves Lockhart who in 1974 averred that he was the agent of Maud Wayland and after her death pursuant to the instructions of the grand children of Maud Wayland he sold the property to Michael Marcus Vidal.

[25]Also included in the application exhibited and relied on by the claimant is the affidavit of Maurice Joseph who averred that he did not know who the original owner for the land was but he knew that Ryves Lockhart was in charge of the land and that he Ryves Lockhart used to rent out house sites on the land to various tenants and that he knew that Michael Vidal purchased the land and when he did that Gustave Vidal the uncle of Michael was living on the land as a tenant. This deponent averred that he was present at the sale of the lot and witnessed the payment and the delivery of the possession to Michael Vidal.

[26]Also included in the application for title by Michael Marcus Vidal is an affidavit of Mary Eugenia Charles the solicitor for Michael Marcus Vidal who averred that the original application for title was made in 1978 and that those documents were destroyed in the fire which burned down the registry in June 1979. Miss Charles also averred that the schedule stating the application was published in the Star News Paper on the 15 th and the 19 th September 1978 and to the fact that there was no caveat filed against the issue of the first certificate of Title.

[27]Then there is the affidavit sworn to by Michael Marcus Vidal in support of his application for first certificate of title. He averred that he was born on the land which he was seeking title to. That he was raised by his uncle Gustave Vidal who had a house on the said land and that he used to rent a house site on the lot from the Waylands who were the owners of the land. Michael spoke to dealing with Ryves Lockhart who was the Waylands’ agent who used to let the property on behalf of the Waylands and also to the fact that he purchased the lot from the Waylands and that the transaction was conducted by Ryves Lockhart.

[28]It is interesting to note that Michael Marcus Vidal in his affidavit in support of his application for first title sworn to on the 10 th September 1974 stated that his Uncle Gustave continued as ” “his” ” tenant on the said lot.

[29]The claimant contends that the defendants occupy the land as licensees that they and their predecessors have refused to vacate same. The claimant contends that as a result of their actions he has been deprived of the use and enjoyment of his land and has suffered loss and damages. In the circumstances of the case the claimant is seeking possession and mesne profits for their wrongful occupation of his land.

[30]It is the evidence of the claimant that he caused the property in dispute to be valued and received a valuation report concerning the land which informed him as to the rental value on a monthly basis. The claimant exhibited the valuation done by G S Surveys Ltd in support of his prayer that the court orders the defendant to pay mesne profits for their continued occupation of the property after they received a notice to quit from him the claimant as owner of the property. The notice to quit a copy of which was exhibited demanded that the Gustave and Martha the predecessors of the defendants quit and deliver up the disputed property on or before the 30 th day of May 1996. The claimant therefore seeks an order for mesne profits from that time to the date that the defendants would give up the property. The Defendants’ case

[31]The defendants contend that they and their predecessors have been in occupation of same and have been also in continuous and undisturbed possession of the land for over fifty years and that the claimant’s claim to possession has been barred by the RPL Act.

[32]The defendants contend that their father occupied the property in dispute since 1963 as owner. That their father Gustave was joined by their mother in 1964 and together they lived on the land and raised their family.

[33]That after the death of first their father and then their mother that they have continued to live on the land as owners thereof.

[34]The defendants and their sister Alice Vidal all gave evidence in defence to the claim brought by Nick Gabriel Vidal. They all say that the land occupied by the defendants was their father’s land and that it has at all material times been occupied by them and their parents before them as owners. That their occupation has been ” “nec vi nec clam nec precario” without force, without secret and without permission.

[35]The sisters spoke of what they know and what they were told by their father. They say that as far as they know Michael Marcus Vidal bought land from the Waylands excluding the land occupied by their parents. They say that they knew that the land was sold to Michael and their father. It is noted that they have been unable to adduce any evidence proving this.

[36]They stated that in the 1980’s Michael Marcus Vidal offered to exchange a portion of land at the back of their home which offer was refused by their father. They say that the piece of land which has been surveyed in their names and that of their siblings. They say that their father refused to move to this parcel of land and in fact that piece of land was sold to one Andrew Joseph.

[37]The sister’s say that when their brother Augustus purchased land from Michael Vidal it was done in secret and much to the annoyance and anger of their father who as owner of the land gave Augustus permission to go onto the land.

[38]The sisters spoke of the many notices to quit that they and their parents received but which were all ignored. They also told this court that their father paid taxes for the land since the 1940s and that they continue to pay the said taxes.

[39]The sisters state that they nor their parents ever paid rent to be on the property and that they were never given permission to be on the property and that in fact it is Michael Marcus Vidal who came onto the property as a child and met their father Gustave already living on the property.

[40]It is the evidence of the defendants that they knew that Maude Wayland sold property excluding the parcel occupied by their father and his to Silma Tavernier, Andrew Joseph, Augustus Vidal and Patrick Vidal. It is noted that this is definitely not accurate as the claimant has exhibited the memoranda of transfers to these person from Michael.

[41]The sisters’ claim that they became of the Michael Vidal’s claim in the 1980’s when Michael asked their father to pay rent and that the father refused to pay. This court finds that it is more probable than not that this is not accurate as Christaline who in her witness statement says she only knew of Michael’s claim in the 1980s was born according to her own evidence in 1970 and she would more than likely been too young to have the knowledge of this as she claims.

[42]The defendants also called Mr Wilfred Dyer and Avon Brudy to give evidence on their behalf their evidence does not add anything to the defendants’ case before the court. Essentially he is saying he knew that the defendants and their parents lived on the disputed parcel. This is in fact not in dispute at all in this matter. The occupation of the defendants and their parents is not in dispute what is in dispute is the capacity in which they occupied the property. Discussion

[43]From the evidence adduced in the matter which this court accepts, it is clear that the property in dispute was owned by the father of the claimant who held a certificate of title and who bequeathed the land to the claimant who in turn obtained his certificate of title.

[44]It is also clear to the court that the defendants have been living on the parcel of land with their parents for a period in excess of 40 years. The question which has to be answered is what is the legal effect of their occupation if any? Has their occupation superseded the claimant’s title? Have they adduced evidence to show this on a balance of probabilities?

[45]Without proper evidential foundation the defendants’ claim that their occupation supersedes the title held by the claimant will fail. Does the occupation of the defendants operate to extinguish the right of the claimant to bring this action for possession?

[46]It is noted that the defendants have failed to take action on their part to apply for a certificate of title under section 33 of the Title By Registration Act (“The TBRA”) relying on their long adverse possession of the property. This being so, learned Counsel Miss Cara Shillingford on behalf of the claimant submitted they have acquired no title under the RPL Act and therefore the registered proprietor is entitled to enjoy the fullest rights afforded him under the TBRA. Learned Counsel relied on the ruling of the Court of Appeal in the David George –v- Albert Guye

[47]Adverse possession is a matter of fact. In order to amount to adverse possession there must be clear evidence that the squatter is not merely a persistent trespasser but is seeking to dispossess the owner.

[48]“No right of action to recover land accrues unless the land is in the possession of some person in whose favour the period of limitation can run (adverse possession) … What constitutes adverse possession is a question of fact and degree and depends on all the circumstances of each case, in particular the nature of the land and the manner in which land of that nature is continually used …”

[49]Where a person seeks to rely on adverse possession to obtain title or establish a right to title, what is required is not an intention to own or even an intention to acquire ownership but an intention to possess the land for the time being to the exclusion of all others, including the owner with the paper title.

[50]In the instant case, no such intention could be gleaned on the defendants’ part. In defending this claim the defendants are asking this court to find that they and their predecessors in title have adversely occupied the property the subject of the case at bar to the extent that they have superseded the claimants title to the land.

[51]A person laying claim to land by adverse possession has to show that for the requisite period he had factual possession as well as intention to possess and that such entry was not referable to an agreement or permission of the true owner. In the case at bar, this court accepts the evidence adduced on behalf of the claimant that Michael Vidal permitted his uncle Gustave Vidal to occupy the property and further that Michael Vidal purchased the entire parcel of land from the estate of Maude Wayland. That after having purchased the land he subdivided the property and sold one parcel to the brother of the defendants and that Michael Vidal legally transferred title to that parcel as the registered owner and vendor. This court also accepts the evidence adduced on behalf of the claimant that Michael Vidal made provision of another parcel of land to the defendants which they have failed and or refused to occupy.

[52]Prescriptive possession could not be pursuant to the landowner’s permission. This court accepts the evidence adduced on behalf of the claimant that Gustave the father of the defendants occupied the land with the permission of his nephew Michael Vidal who was the registered owner of the parcel.

[53]The claimant has established that he is the registered owner of the property in question. That his title is derived from the registered title held by his father he having inherited the said parcel of land from him.

[54]I have no doubt that the defendants and their parents before them have lived on the property since the 1960s. The claimant knows this but says that they did not do so as squatters but first as tenants and then as licencees with the permission of his father who was the original registered owner.

[55]The defendants are saying to this court that their father never paid rent and refused to pay rent. Now paying rent would have made him a tenant but it must be noted that the claimant is saying that Gustave was not only a tenant but when he failed to pay rent he was allowed to live on the land as a licencee based on the familial relationship between Gustave and Michael. The defendants sought to bring the evidence of Wilfred Dyer to say that his father collected rents on behalf of Ryves Lockhart, however it is noted that he was a child and this court doubts very much that he would have been able to accurately say who rent was collected from and in the circumstances of this case this court is unable to accept that this is proof even on the balance of probabilities that Gustave did not pay rent.

[56]Learned Counsel Rose-Anne Charles cited the case of JA Pye (Oxford) Ltd –v- Graham

[57]The defendants also rely on the evidence that they and their parents before them have been paying the House Tax on the property since the 1940s and they exhibited a number of receipts in support of this.

[58]That this was done is of no moment in the case at bar, neither does it assist the defendants in their attempt to show acts of ownership.

[59]I refer to and apply the case of Bazill et anor –v- Wharton

[60]Applying that to the case at bar, that the defendant made payments to of house tax and received receipts in his name canno t (emphasis mine) be construed and I certainly will not construe it as an assertion that the person named in the receipt is the owner of the property and this will not aid the defendants in the claim for adverse possession.

[61]I shall assume that the regime of issuing receipts for the payment of rates and taxes are similar if not the same as that which exists in Guyana and Trinidad. I find the words of Wooding CJ as quoted by George C to be helpful on this point. Wooding CJ said : ‘…They are not payable necessarily by an owner or even by an occupier; anybody who chooses to pay officiously or otherwise may do so and on its acceptance by the authority entitled to the rates, whether the Government or a local authority, a receipt is given for the payment in the name of the person who is recorded in the rate-book as owner of the land. But the fact that somebody’s name appears as owner in the rate-book does not in any sense mean that that person is the owner. The person whose name so appears may have died several years before or may have been dispossessed, or may have alienated the land without the person who became its alienee having made the prescribed statutory return so as to have his name substituted as owner in the rate-book.’

[62]Having seen and heard the witnesses, I believe the evidence on behalf of the claimant. This Court finds that according to law he is the owner of the disputed property and that his title is indefeasible unless the defendants can establish they and their predecessors have been in possession of the disputed property for over 30 years so as to usurp his title.

[63]Applying the law to the facts found and the evidence which has been accepted above this court finds as follows: (i) That the claimant Nick Gabriel Vidal has a valid title to the disputed property. (ii) The burden of proving adverse possession rests on the defendants. (iii) That it is significant that Gustave failed to challenge Michael’s purchase of the land including the disputed property and to Michael’s sale of pieces of the land which suggests to this court that he Gustave accepted the Michael was the owner of the land. (iv) That the defendants lived on the property with their father who was at all material time a tenant and a licencee. (v) That the uncontradicted evidence is that Michael Marcus Vidal grew up with Gustave Vidal who was his uncle. That Michael Marcus Vidal purchased the property and that parcels were hatched off and sold to other persons. Michael Marcus Vidal clearly dealt with the property as his own solely. (vi) That Michael Marcus Vidal permitted Gustave to remain on the disputed property on the understanding that he would move to the parcel of land identified for him. (vii) It is also the finding of this court that the arrangement with Gustave to remain in occupation was based on the familial relationship between Michael Marcus and Gustave making Gustave a licencee. Family arrangements for the occupation of property are made on the basis of mutual trust and confidence. Such occupation will be treated differently from occupation by a stranger. This court will not presume that such occupation was adverse to the Michael who was paper owner. There must be some credible evidence to support such a claim. (viii) That there is no evidence that Gustave occupied the property with intention to possess. The defendants have failed to adduce any creditable evidence in this regard and they have failed to prove that their occupation of the disputed property was adverse to Michael Marcus Gustave’s ownership or to the ownership of Nick Gabriel Vidal.

[64]What is critical is whether the person claiming adverse possession is in factual possession with the intent to possess as owner. The defendants have in this court’s view failed to adduce any creditable evidence in this regard.

[65]The Defendants have not satisfied this court that their occupation and that of their predecessors was adverse to Michael’s ownership. Nor have they satisfied this court on the balance of probabilities that they or their held any intention adverse to the paper owner until 2002 when her solicitor responded to the notice to quit served on her by claimant herein, this being the second notice to quit being served on the mother of the defendants.

[66]There will be judgment for the claimant as follows: (a) That the defendants shall give up possession of the 5039 square feet of land registered in the name of Nick Gabriel Vidal and registered in Book K14 Folio 8 located at Zicak in Portsmouth on or before the 31 st August 2020; (b) Damages for mesne profits in the sum of $540.00 from the date claimed to the date that possession is delivered up to the claimant as herein ordered; (c) The defendants are prohibited from entering or remaining on the said parcel of land once they have given up possession of the said land. (d) Costs to be assessed if not agreed.

[67]I wish to thank counsel on both sides for their patience in the length of time it has taken for this decision to be done as the situation at the registry is by now well known and this particular file had to be reconstructed twice. The first time after the file was destroyed in Hurricane Maria and the second time after the reconstructed file became tainted with the Mold infestation which has plagued the civil court. M E Birnie Stephenson High Court Judge BY THE COURT [SEAL] REGISTRAR

[1]of the Claimant and located at Rollo Street, Zickack, Portsmouth containing 5039 Square feet. (‘the disputed property’) Background

[2][4] It is the claimant’s case that in 1996 and again in 2000 Notices to quit were issued to the defendants and their predecessor in title who failed and or refused to vacate the property. The claimant has exhibited the various notices and letters sent to the defendants and their response.

[3]contest the claim, they contend that their parents lived on the disputed property since in or about 1964 and all of their children were raised on the said property. They say that their father Gustave Vidal died in 1985 and that their mother died in 2010 and they continued to live on the land as owners after the deaths of their parents. The defendants contend they have been in possession of the property in excess of 50 years as owners and that the claimant’s claim is barred by the Real Property Limitation Act.

[5]from the piece he purchased and retained the disputed parcel comprising 5,059 square feet. Michael Marcus Vidal bequeathed this parcel to the claimant in his will.

[6]in this regard.

[7]. The possession of the person claiming adverse possession should be sufficiently exclusive and there should have been an intention to take possession.

[8]in support of her submissions that the mere fact that Gustave, Martha his wife and the defendants refusal to leave the land when demanded to do so is a clear indication that they were no on the premises with the permission of Michael Vidal and that they did not recognise the ownership of Michael Vidal. Counsel urged the court to find that the defendants and their predecessors in title can be considered to satisfy the requirements as laid down in JA Pye (Oxford) Ltd -v- Graham in that they have showed factual possession and intention to dispossess the claimants and his predecessors in title for several years.

[9]In this case the Court of Appeal of Guyana applied the case of Richardson -v- Lawrence

[10]where it was held that acceptance of a receipt from the local authority in the name of another person as owner for the payment of rates in respect of a parcel of land does not in itself bar time from running in favour of the payer in possession of land in claims based on adverse possession. In that case the Court of Appeal of Guyana examined the regime of the issuing of receipts for the payments of rates and taxes made in the name of the “owner” and the court concluded that the acceptance of a receipt from a local authority in the name of another does not bar time from running in favour of the person making the payment against the person named in the receipt.

[11]Conclusion

[1]The claimant obtained his Certificate of Title in 2001 and recorded in Land Titles Register Book K14 Folio 8

[2]See reference to the documentary evidence in support of the Claimants title

[3]This claim was initially brought against Martha Vidal the mother of the defendants who were substituted as defendants after their mother’s death by order of court

[4]Chapter 54:07 of the Laws of The Commonwealth of Dominica

[5]A parcel of land was sold and transferred to Andrew Joseph, to Sylma Tavernier and to Augustus Vidal

[6]DOMHAP2012/0013

[7]Halsbury’s Laws of England 4th Edition Vol 28At paragraph 997

[8][2002] UKHL 30

[9](1992) 47 WIR 238

[10](1966) 10 WIR 234 (Trinidad Court of Appeal

[11]Ibid at pages 237 to 238