Kennie Tannis v Patrick Bunyan

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE SAINT VINCENT AND THE GRENADINES SVGHCV2005/0354 BETWEEN: KENNIE TANNIS CLAIMANT (Appointed Legal Personal Representative of the Estate of Maurice Tannis, deceased and substituted pursuant to an Order of Court made the 6th day of July, 2012) -AND- PATRICK BUNYAN DEFENDANT Appearances: Mr Samuel E. Commissiong, Counsel for the Claimant, Mr Emery Robertson Snr., Counsel for the Defendant.. 2015: Apr. 14 Jun. 10 JUDGMENT BACKGROUND

[1]Henry, J.: The dispute in this case surrounds competing claims by Mr Maurice Tannis deceased and Mr Patrick Bunyan over ownership of land (“subject land”) located in picturesque Port Elizabeth, Bequia. Mr Maurice Tannis passed away after initiating this claim. His son Kennie Tannis was substituted as claimant in his place. Kennie Tannis and Patrick Bunyan are both residents of Bequia. Mr Bunyan also has a residence in the United States of America. Mr Tannis and Mr Bunyan agree that the subject land had previously belonged to Walter Tannis deceased who migrated to the USA many years ago. Mr Kennie Tannis contends that his father is the owner of the said land or alternatively that he acquired title to it by adverse possession based on occupation for a cumulative period of 33 years. Kennie Tannis seeks a declaration that he is the owner of the land, damages for trespass and for destruction of property.

[2]Mr Patrick Bunyan maintains that he bought the land from one Marie Mack to whom Walter Tannis left it by will. He contends that his registered Deed of Conveyance establishes his ownership of the land. Mr Bunyan has counterclaimed for a declaration that he is the owner of the subject land, damages from the Tannises for trespass and an order setting aside Maurice Tannis’ Statutory Declaration. He also seeks damages for loss occasioned by this suit which he submits resulted in the delayed completion of his commercial development of the subject land.

ISSUES

[3]The issues which arise for consideration are: (1) Whether Maurice Tannis is the fee simple owner of the said land? (2) Whether Patrick Bunyan is the owner of the subject property? And; (3) Whether Maurice Tannis’ estate or Patrick Bunyan is entitled to damages?

ANALYSIS

Issue 1 – Is Maurice Tannis the fee simple owner of the said land?

[4]The Tannises claim that Maurice Tannis is “the owner of a parcel of land situate at Port Elizabeth, Bequia described in deed No. 481 of 1995.” Mr Kennie Tannis deposed that the land is the “subject matter of a Declaration of Possessory Title dated 16th February 1993” which was given a “registered number 481 of 1995.” He testified that the land has been in his father’s possession for more than 34 years, and that he “made a possessory title to it.” The Tannises maintain that they rely on Mr Maurice Tannis’ adverse possession of the land for a period of over 12 years, to defeat any claim Mr Bunyan and his predecessors in title might have to the land.

[5]Essentially, Maurice Tannis contends on the one hand that he is the legal owner of the said land and on the other hand, he maintains that the paper owner’s right and interest in the land has been extinguished by adverse possession. His respective claims are mutually exclusive and not maintainable in law, since he cannot be simultaneously in adverse possession of the very title he is asserting. Kennie Tannis submits that the claim to ownership by adverse possession is made pursuant to sections 17(5) and (6) of the Limitation Act. Those provisions are reproduced below. Sub-section (1) is included for context: “17. Time limit for actions to recover land (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. (5) Part I of the Schedule contains provisions for determining the date of accrual of rights of action to recover land in the cases therein mentioned. (6) Part II of the Schedule contains provisions modifying the provision of this section of their application to actions brought by, or by a person claiming through, the Crown.”

[6]These provisions preclude an owner of land from successfully maintaining a claim to recover it 12 or more years after another person has entered into adverse possession of it. They also outline how the 12 year period is to be ascertained and calculated. Contrary to Mr Tannis’ submissions, these statutory provisions cannot effect a transfer of title of property from a paper owner to a squatter who has established adverse possession for twelve years. Rather, the Act confers on such squatter, protection from interference by the dispossessed person. Therefore, Maurice Tannis cannot initiate a claim seeking title to the land by adverse possession. In other words, he cannot in law rely on adverse possession of the land to ground his claim for a declaration that he is the fee simple owner of the subject land. Likewise, his assertion that he is the fee simple owner, based as it is on the self-serving Statutory Declaration is ineffective to convey title to him as it does no more than record his account of how long he has occupied the land. It is not a legitimate or legally effective avenue for effecting a conveyance of interests or rights in land. Mr Tannis’ claim must fail. I therefore dismiss Maurice Tannis’ claim for a declaration that he is the fee simple owner of the hereditaments described in Statutory Declaration No. 481 of 1995 and set out in registered survey plan number GR6/135. I make no such order in favour of his estate.

Issue 2 – Is Patrick Bunyan the owner of the said land?

[7]Patrick Bunyan claims that he bought the subject property from Marie Mack who inherited it from the previous owner Walter Tannis. He asserts that Marie Mack extracted Letters of Administration to Walter Tannis’ estate, conveyed the property to herself by Deed of Assent and subsequently to him by Deed of Conveyance. Mr Bunyan maintains that he immediately went onto the said land and exercised acts of ownership over it including employing and dispatching a gardener to trim and clear the land. He deposed that he conducted a survey and investigations on the land preparatory to commencing construction of a commercial building and that he had received financial approval from a financial institution for the development when Maurice Tannis initiated these proceedings. As a result, he gave an undertaking to the court not to carry out any further physical works until authorized by the court to do so.

[8]In defence to this claim, Maurice Tannis relies on the assertion that he is the fee simple owner of the land by adverse possession and that Patrick Bunyan had actual or constructive notice of this adverse possession. In essence, he is contending that his title as squatter is superior to that of the paper owner. He has stopped short in his pleadings and evidence of raising the shield that Mr Bunyan’s claim against him is statute-barred. He has made the cardinal error of not specifically pleading limitation as a bar to Mr Bunyan’s claim. He therefore cannot rely on it to defeat Mr Bunyan’s claim. The effect of Mr Bunyan’s registration of the Deed of Conveyance transferring the property from Marie Mack to him is to establish him as the registered owner of all legal and equitable interests, rights and title to the land described in it.

[9]The subject land is described in the Schedule to Deed of Conveyance No. 1043 of 2002 as follows: “ALL THAT LOT PIECE OR PARCEL OF LAND situate at Port Elizabeth Bequia in the State of Saint Vincent and the Grenadines being One (1) Lot more or less and being abutted and bounded on the North by the land of Joseph Tannis on the South by the land of Hilton Lewis on the East by the land of Mary Leach and on the West by the land of Maurice Tannis or HOWSOEVER OTHERWISE the same may be butted bounded known distinguished or described TOGETHER with all ways waters watercourses rights lights liberties privileges and appurtenances thereto belonging or usually held used occupied or enjoyed therewith or reputed to belong or be appurtenant thereto.” In the absence of a viable defence by Maurice Tannis and having regard to the fact of registration of the said Deed, it is indisputable that Mr Bunyan is the true owner of the subject land. It is accordingly declared that Patrick Bunyan is the registered owner of the property described in the said Deed with all rights, interests and title to it.

Issue No. 3 – Is Maurice Tannis’ estate or Patrick Bunyan entitled to damages?

[10]Based on the foregoing, it is immediately apparent that there is no basis on which Maurice Tannis’ estate may recover damages from Patrick Bunyan. His claim for damages for trespass and for destruction of property is therefore dismissed. On the other hand, Patrick Bunyan having being declared the owner of the subject land and having being forced to defend himself against an unmeritorious action by Maurice Tannis, is entitled to recover damages from Maurice Tannis’ estate in respect of such loss he might have sustained arising out of the delayed start of his commercial enterprise. But for Maurice Tannis’ insistence that he owned the subject land coupled with the initiation of this suit, Mr Bunyan would quite likely have proceeded with the timely construction of his building on the subject land in or about 2005 without needing to make financial adjustments.

[11]During the course of these proceedings, Mr Tannis applied to the court for an interim injunction to restrain Mr Bunyan from trespassing on the subject land. Mr Bunyan gave an undertaking to the court not to do anything on the land unless the court gives him permission to do so. Usually the applicant for an interlocutory injunction provides an undertaking in damages to indemnify the respondent for any losses he may incur if the applicant is unsuccessful in the substantive claim. Mr Tannis would in the normal course of events have had to provide such an undertaking if the interim injunction was granted. He was not required to give such an undertaking because the application was not heard. However, his lawsuit had the effect of interfering with Mr Bunyan’s enjoyment and use of his property. Therefore, the absence of such undertaking does not absolve him from liability for Mr Bunyan’s losses which reasonably and foreseeably arose from the Tannises’ interference with his enjoyment and use of the subject land. Mr Bunyan is entitled to recover damages for that loss.

[12]Mr Maurice Tannis initiated this suit and his estate persisted with the claim in the face of Mr Bunyan’s strident assertions by that he had acquired title to the subject property by Deed. By giving an undertaking not to deal with the property, Mr Bunyan was effectively injuncted in similar circumstances as if an interim injunction had been granted by the court. Mr Bunyan filed an application to have that undertaking discharged. For reasons which are not apparent on the face of the record, that application was not dealt with. Mr Tannis has failed in his bid to establish right of ownership to the land. In seeking to prove such interest, his actions and insistence on such right prevented Mr Bunyan from enjoying and using his property. In the premises, Mr Bunyan would have suffered consequential financial losses arising from the delayed start of his project. As owner of the subject land, he is entitled as far as achievable monetarily, to be restored to the position he would have been in if this suit had not been initiated. He is entitled to recover an amount representing general damages for those losses reasonably incurred by the delay occasioned by this claim and which hindered the commencement of his project. The measure of his loss is directly related and limited to the architectural plans and approved financials which existed at that time and referenced in his claim. I so find.

ORDERS

[13]It is accordingly ordered: Kennie Tannis’ claim as legal personal representative of the estate of Maurice Tannis, for a declaration that Maurice Tannis’ estate is the fee simple of the subject land located at Port Elizabeth Bequia and described in Statutory Declaration 481 of 1995 is dismissed. Kennie Tannis’ claim as legal personal representative of the estate of Maurice Tannis, for damages for trespass and destruction of property is dismissed. Statutory Declaration No. 481 of 1995 is hereby cancelled and the Registrar is directed to make the necessary notation in the Register of Deeds. Judgment is entered for the Defendant Mr Patrick Bunyan on his counterclaim. It is declared that Patrick Bunyan is the registered owner of the subject property situated at Port Elizabeth, Bequia as described in the Deed No. 1043 of 2002 with all rights, interests and title to it. Kennie Tannis as legal personal representative of the estate of Maurice Tannis shall pay damages to Patrick Bunyan as assessed on application to be made by Mr Patrick Bunyan, such application to be made within 3 months of today’s date, that is on or before September 10, 2015. Kennie Tannis as legal personal representative of the estate of Maurice Tannis shall pay to Patrick Bunyan prescribed costs of $7,500.00 pursuant to Rule 65.5 (2) (b) of the Civil Procedure Rules 2000. ….………………………………… Esco L. Henry HIGH COURT JUDGE