Charles Cordice v Kenroy George

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COLIRT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 54 OF 2008 BETWEEN: CHARLES CORDICE Claimant v KENROY GEORGE Defendant Appearances: Ms. S. Robertson for the Claimant Mr. Bayliss Frederick for the Respondent ------_._-------­ 2009: May 25 September 17 ----------­ JUDGMENT

[1]THOM, J: Edwin David (deceased) was the owner of a parcel of land at Fairbain Pasture measuring approximately three and one half acres. He was manied to Elcita David (deceased) who was the mother of the Defendant (2] The Claimant alleges that he is the lawful owner of a portion of land measuring , .. approximately one acre (the disputed land) of the said land that was owned by Edwin David. He based his claim on the ground that he purchased the disputed land from Enos David the son of Edwin David. The Claimant seeks inter alia a declaration that he is the owner of the disputed land.

[3]The Defendant in his defence and counterclaim alleges that since the death of Edwin David on the 13111 December 1978 he was put into possession of Edwin David's land by his mother and he continued in exclusive possession after her death in 1986. In his counterclaim he seeks inter alia an injunction to prevent the Claimant, his servants and or agents from trespassing on the disputed land.

EVIDENCE

[4]The Claimant testified and he called two witnesses being Shermilla Mars his common law wife and Enos David. The Defendant testified and called one witness David Kennedy. Evidence on Behalf of the Claimant [51 The evidence on behalf of the Claimant is that the disputed land was part of alarger parcel owned by Edwin David. In 1970 Edwin David by Deed of Gift conveyed the disputed land to Enos David by Deed No. 208 of 1972. In the later 1990's the Claimant commenced cultivating the disputed land. From 1997 the land was cultivated by his common law wife while he was engaged in block making. In 2004 Enos David offered to seD the disputed land to the Claimant and he purchased the disputed land. The disputed land was conveyed to him by Deed No. 769 of 2005. In October 2006 the Claimant surveyed the disputed land and the plan is registered as Plan Number G42/69. [61 Around 2007 the Defendant trespassed on the disputed land and reaped produce from the disputed land and on some occasions destroyed some of the produce on the disputed land.

[7]The plan G41115 shows the larger parcel of land owned by Edwin David but does not take into account that a portion of the land being the disputed land was conveyed by Edwin David to Enos David by Deed No. 208 of 1972. Evidence on Behalf of the Defendant The Defendant was the step~son of Edwin David. The disputed land was owned by Edwin David. Edwin David gave his lands to the Defendant's mother. After the death of Edwin David the Defendant went into possession of the land and he continued in possession of the land after his mother's death in 1986. After the Defendant came into possession of the land, the Defendant was sentenced to a term of imprisonment md one David Kennedy was left in charge of the land. While the Defendant was in prison the Claimant commenced building blocks on the disputed land.

[9]In 2004 the Claimant commenced raising pigs on B commercial scale on the disputed ICJKI. In December 2005 the Defendant caused the land that belonged to Edwin David to be surveyed. The land is delineated and shown on plan G41/15.

[10]The issue to be determined is whether the Claimant is the lawful owner of the disputed land or whether the Defendant acquired title to the disputed land by adverse possession.

SUBMISSIONS

[11]No submissions were received on behalf of the Claimant.

[12]The submissions on behalf of the Defendant can be summarized as follows: (a) Plan G 42169 is not compatible with the recital dause in Deed No. 769 of 2005. The Claimant failed to produce the evidence of asurveyor to explain the difference in the description. (b) The Court should find that Plan G 41115 is the correct plan alld ncould not be nullified by the later Plan 42169. Learned Counsel referred the Court to Sections 3, 13, 15, 18, 23, 25, 26 and 30 (2) of the Land Surveyors' Act Chapter 266. (c) The Claimant did not CUltivate the disputed land. The Valuer's Report which was prepared on behalf of the Defendant and dated 23mMarch 2006 shows that no CUltivation existed on the land except afew fruit trees.

FINDING OF FACTS:

[13]Both parties agree that the disputed land was formerly owned by Edwin Davit Both parties also agree that the disputed land is the land shown on the Plan G42169. It was not disputed by the Defendant that Edwin David conveyed the land described in Deed No. 208 of 1972 to Enos David. It was also not disputed that Enos David sold the same parcel of land to the Claimant in 2005 and conveyed it to him by Deed No. 769 of 2005.

[14]I find that the Claimant commenced culUvation of the disputed land in the late 1990's when the Defendant was incarcerated. In 2004 the Defendant commenced raising pigs on a commercial basis on part of the land formerly owned by Edwin David. The evidence on behalf of the Claimant that the Defendant trespassed on the disputed land and reaped and destroyed produce thereon was not contradicted. I accept this evidence on behalf of the Claimant.

LAW AND ANALYSIS

[15]I will deal with the submissions made on behalf of the Defendant.

Description of the Disputed Land

[16]Learned Counsel for the Defendant submitted that the description of the land in Deed No. 769 of 2005 is inconsistent with the description on Plan G42169. The land claimed was not defined with sufficient particularity therefore the Court should reject the Claimanfs claim of title to the disputed land.

[17]An examination of Deed No. 769 of 2005, the Deed of Conveyance from Enos David to the Claimant shows that the description of the disputed land is in the same words as contained in Deed No. 208 of 1972 the Deed of Conveyance from Edwin David to Enos David. The disputed land is described in Deed No. 769 of 2005 as follows: "One acre more or less and butted and bounded on one side by aRoad and another side by lands now or formerly in the possession of Ezekiel McCoy on the Third side by a river or ravine and on the Fourth side by lands now or formerly in the possession of Edwin David or howsoever otherwise the same may be butted bounded known or distinguished or described..." The Plan G42/69 shows the boundary to be a river, agully, lands owned by one Shirley Joseph and lands owned by Elcita King.

[18]I note that the Defendant agreed under cross-examination that the land that the Oaimant is in occupation of is the same land that is shown on the Plan G42169. It is not disputed by the Defendant that the disputed land is part of alarger parcel that was owned by Edwin David {deceased}. The description on the Deed 769 is the same desaiption that was made since 1972 when the land was conveyed to Enos David. The Defendant's Plan G 41/15 shows similar boundaries as the Plan G42/69. They both show land belonging to Elcita King as a boundary. The only difference being that in the Plan G42169 part of what was formerly land of Edwin David is shown as land belonging to Shirley Joseph. Ifind that the land shown on the Plan G42169 is the same land described in Deed No. 769 of 2005.

Plan G41/15

[19]Learned Counsel referred the Court to several sections of the Land Surveyor's Act to show that the Defendant's Plan G 41115 was not cancelled by the later plant of the Claimant Plan G42169 therefore Plan G42169 is anUllity.

[20].1., have reviewed the sections referred to by Leamed Counsel for the Defendant, and I ·~u· found the relevant sections to be Sections 25 and 26. Section 25 provides in effect that all plans authenticated by the Chief Surveyor shall be conclusive evidence in any court of law of the infomlation contained therein unless such plan is cancelled by the Chief Surveyor by virtue of Section 26, while Section 26 outlines the circumstances in which the Chief Surveyor may cancel an authenticated plan.

[21]It is not disputed that the land described in G 42169 is part of the land described in G 41/15. The fact that the Chief Surveyor in authenticating the plan G42169 which is the later plan simply stated that it supersedes a portion of the Plan G41/15 does not make Plan G42169 a nullity. It does not in any way· affect any interest that the aaimant obtained in the disputed land by purchase from Enos David.

Cultivation of the Disputed Land

[22]Learned Counsel urged the Court to find that the Claimant did not cultivate the disputed land. I believe the evidence of the Claimant that he did cultivate the disputed land. The Defendant himself agreed that the Claimant's common law wife cultivated the land.

Adverse Possession by the Defendant

[23]The question that arises is whether the Defendant had acquired tiHe to the disputed land by adverse possession prior to the sale of the land by Enos David to the Defendant.

[24]The relevant provisions dealing with limitation of action to recover land are Sections 17 and Schedule 1of the Limitation Act Chapter 90. The effect of these provisions is that the right of action to recover the land is barred whenever twelve years have elapsed from the time when aright of action accrued. The right of action is accrued only when the land is in adverse possession of a person other than the true owner. lime begins to run when adverse possession is taken of the land.

[25]The principles to be applied by the Court in determining whether a person was in adverse • l possession were outlined in the case of Powell v Mcfarlane (1977) 389 p. 452. These prinCiples were approved by the House of Lords in JA Pre (Oxford} Ltd and Another v Graham and Another [2002] AER p. 865 as follows: "The legal possession required is a sufficient degree of physical custody and control (factual possession) and an intention to exercise such custody and control on one's own behalf and for one's own benefit (intention to possess). As regards factual possession everything depended on the circumstances, but broadly, such possession was constituted where the alleged possessor had been dealing with the land as an occupying owner might have been expected to deal with it, and nobody else had done so. The necessary intent was one to possess, not to own and an intention to exclude the proper owner only so far as was reasonably possible.ft

[26]Applying the above principles to this case the question is: Did 1M Claimant dispossess the true owner of the disputed land? The onus of proving that the owner has been dispossessed is on the party who alleges it. In this case it is the Defendant.

[27]The evidence led by the Defendant is to be found in paragraphs 5and 6of the Defendanfs witness statement, and the evidence of his witness David Kennedy. Paragraphs 5 and 6 of the Defendant's witness statement read as follows:­ "5. Mr. David gave the lands to my mother 8cita David before his death; I then came in possession of the lands prior to the death of my mother in 1986, since that time I held sole non (sic) disttJbed ownership of the said lands. 6. In the year 2004 I began a commercial pggery on the said lands, in that same year I instructed my solicitor to effect application for possessory title as shown on Plan registered and numbered G41/15:

[28]Under cross-examination the Defendant testified that the only persons who worked the land were Edwin David, his mother and himself. After he carre out of prison in 2000 he saw the Claimant's common law wife working the land and he spoke to the Claimant about it.

[29]The evidence-in-chief of David Kennedy is very short. I will outline the entire four paragraphs that make up his witness statement: "1. I know Kenroy Haynes through his mother since he was a youth man growing up in Fairbain Pasture. 2. After coming into possession of tbe lands in question Kenroy Haynes went to Prison. 3. While Kenroy Haynes was in prison he instructed me to oversee the land on his behalf, during that time a man started building blocks on the land. 4. Kemoy Haynes mother was married to Mr. Edwin David who was the owner of the lands."

[30]Under cross-examination he testified that he did not see anyone work the disputed land. However, under re-examination he stated that he saw Edwin David farm the disputed lands. He never saw the Defendant farm the disputed land. I [311 Having reviewed the evidence and having regard to the principles as outlined in JA Pye I find that the evidence led on behalf of the Defendant was not sufficient to establish adverse possession by the Defendant. There is the bald statement of the Defatdant that he came into possession of the lands prior to the death of his mother in 1986. No evidence was led on which the Court could find that there was factual possessm by the Defendant as outlined in JA Pye. While the Defendant testified under cross-examination that only himself, Edwin David and his mother worked the lands, there is no evidence on behalf of the Defendant showing the period during which he worked the land. His witness David Kennedy did not assist his case since the witness testified that the only person he saw working the land was Edwin David. The witness specifically stated that he did not see I the Defendant farm the land. I find that the Defendant has failed to prove on abalance of probabilities that he had acquired title to the disputed land by adverse possessKm. [321 In conclusion, I find that the Claimant is the owner of the disputed land, the Claimant having purchased the land from Enos David. I find that there wac; no sufficient evidence that the Defendant had acquired title to the land by adverse possession.

[33]It is ordered: (1) It is hereby declared that the Claimant is the owner of the parcel of land described in Deed No. 769 of 2002 and delineated and shown on Plan G42169. (2) The Defendant's counterclaim is dismissed. (3) Damages to be assessed on application of the Claimant such application to be made on or before December 31, 2009. (4) The Defendant shall pay the Claimant costs in the sum of $14,000.00. f ....... q~-:... :::. ........... .. G~:··~.. ~ Ii HIGH COURT JUDGE ~ ! t

THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COLIRT OF JUSTICE SAINT VINCENT AND THE GRENADINES HIGH COURT CIVIL CLAIM NO. 54 OF 2008 BETWEEN: CHARLES CORDICE Claimant v KENROY GEORGE Defendant Appearances: Ms. S. Robertson for the Claimant Mr. Bayliss Frederick for the Respondent —— . ——-­ 2009: May 25 September 17 ———-­ JUDGMENT

[1]THOM, J: Edwin David (deceased) was the owner of a parcel of land at Fairbain Pasture measuring approximately three and one half acres. He was manied to Elcita David (deceased) who was the mother of the Defendant (2] The Claimant alleges that he is the lawful owner of a portion of land measuring , .. approximately one acre (the disputed land) of the said land that was owned by Edwin David. He based his claim on the ground that he purchased the disputed land from Enos David the son of Edwin David. The Claimant seeks inter alia a declaration that he is the owner of the disputed land.

[3]The Defendant in his defence and counterclaim alleges that since the death of Edwin David on the 13111 December 1978 he was put into possession of Edwin David’s land by his mother and he continued in exclusive possession after her death in 1986. In his counterclaim he seeks inter alia an injunction to prevent the Claimant, his servants and or agents from trespassing on the disputed land. EVIDENCE

[4]The Claimant testified and he called two witnesses being Shermilla Mars his common law wife and Enos David. The Defendant testified and called one witness David Kennedy. EVIDENCE on Behalf of the Claimant [51 The evidence on behalf of the Claimant is that the disputed land was part of alarger parcel owned by Edwin David. In 1970 Edwin David by Deed of Gift conveyed the disputed land to Enos David by Deed No. 208 of 1972. In the later 1990’s the Claimant commenced cultivating the disputed land. From 1997 the land was cultivated by his common law wife while he was engaged in block making. In 2004 Enos David offered to seD the disputed land to the Claimant and he purchased the disputed land. The disputed land was conveyed to him by Deed No. 769 of 2005. In October 2006 the Claimant surveyed the disputed land and the plan is registered as Plan Number G42/69. [61 Around 2007 the Defendant trespassed on the disputed land and reaped produce from the disputed land and on some occasions destroyed some of the produce on the disputed land.

[7]The plan G41115 shows the larger parcel of land owned by Edwin David but does not take into account that a portion of the land being the disputed land was conveyed by Edwin David to Enos David by Deed No. 208 of 1972. Evidence on Behalf of the Defendant (81 The Defendant was the step~son of Edwin David. The disputed land was owned by Edwin David. Edwin David gave his lands to the Defendant’s mother. After the death of Edwin David the Defendant went into possession of the land and he continued in possession of the land after his mother’s death in 1986. After the Defendant came into possession of the land, the Defendant was sentenced to a term of imprisonment md one David Kennedy was left in charge of the land. While the Defendant was in prison the Claimant commenced building blocks on the disputed land.

[9]In 2004 the Claimant commenced raising pigs on B commercial scale on the disputed ICJKI. In December 2005 the Defendant caused the land that belonged to Edwin David to be surveyed. The land is delineated and shown on plan G41/15.

[10]The issue to be determined is whether the Claimant is the lawful owner of the disputed land or whether the Defendant acquired title to the disputed land by adverse possession. SUBMISSIONS

[12]The SUBMISSIONS on behalf of the Defendant can be summarized as follows: (a) Plan G 42169 is not compatible with the recital dause in Deed No. 769 of 2005. The Claimant failed to produce the evidence of asurveyor to explain the difference in the description. (b) The Court should find that Plan G 41115 is the correct plan alld ncould not be nullified by the later Plan 42169. Learned Counsel referred the Court to Sections 3, 13, 15, 18, 23, 25, 26 and 30 (2) of the Land Surveyors’ Act Chapter 266. (c) The Claimant did not CUltivate the disputed land. The Valuer’s Report which was prepared on behalf of the Defendant and dated 23mMarch 2006 shows that no CUltivation existed on the land except afew fruit trees. 3 FINDING OF FACTS:

[11]No submissions were received on behalf of the Claimant.

[15]I will deal with the submissions made on behalf OF the Defendant. Description of the Disputed Land

[13]Both parties agree that the disputed land was formerly owned by Edwin Davit Both parties also agree that the disputed land is the land shown on the Plan G42169. It was not disputed by the Defendant that Edwin David conveyed the land described in Deed No. 208 of 1972 to Enos David. It was also not disputed that Enos David sold the same parcel of land to the Claimant in 2005 and conveyed it to him by Deed No. 769 of 2005.

[14]I find that the Claimant commenced culUvation of the disputed land in the late 1990’s when the Defendant was incarcerated. In 2004 the Defendant commenced raising pigs on a commercial basis on part of the land formerly owned by Edwin David. The evidence on behalf of the Claimant that the Defendant trespassed on the disputed land and reaped and destroyed produce thereon was not contradicted. I accept this evidence on behalf of the Claimant. LAW AND ANALYSIS

[18]I note that the Defendant agreed under cross-examination that the land that the Oaimant is in occupation of is the same land that is shown on the Plan G42169. It is not disputed by the Defendant that the disputed land is part of alarger parcel that was owned by Edwin David {deceased}. The description on the Deed 769 is the same desaiption that was made since 1972 when the land was conveyed to Enos David. The Defendant’s Plan G 41/15 shows similar boundaries as the Plan G42/69. They both show land belonging to Elcita King as a boundary. The only difference being that in the Plan G42169 part of what was formerly land of Edwin David is shown as land belonging to Shirley Joseph. Ifind that the land shown on the Plan G42169 is the same land described in Deed No. 769 of 2005. Plan G41/15

[20].1., have reviewed the sections referred to by Leamed Counsel for the Defendant, and I ·~u· found the relevant sections to be Sections 25 and 26. Section 25 provides in effect that all plans authenticated by the Chief Surveyor shall be conclusive evidence in any court of law of the infomlation contained therein unless such plan is cancelled by the Chief Surveyor by virtue of Section 26, while Section 26 outlines the circumstances in which the Chief Surveyor may cancel an authenticated plan.

[16]Learned Counsel for the Defendant submitted that the description of the land in Deed No. 769 of 2005 is inconsistent with the description on Plan G42169. The land claimed was not defined with sufficient particularity therefore the Court should reject the Claimanfs claim of title to the disputed land.

[17]An examination of Deed No. 769 of 2005, the Deed of Conveyance from Enos David to the Claimant shows that the description of the disputed land is in the same words as contained in Deed No. 208 of 1972 the Deed of Conveyance from Edwin David to Enos David. The disputed land is described in Deed No. 769 of 2005 as follows: "One acre more or less and butted and bounded on one side by aRoad and another side by lands now or formerly in the possession of Ezekiel McCoy on the Third side by a river or ravine and on the Fourth side by lands now or formerly in the possession of Edwin David or howsoever otherwise the same may be butted bounded known or distinguished or described..." The Plan G42/69 shows the boundary to be a river, agully, lands owned by one Shirley Joseph and lands owned by Elcita King.

[24]The relevant provisions dealing with limitation of action to recover land are Sections 17 and Schedule 1of the Limitation Act Chapter 90. The effect of these provisions is that the right of action to recover the land is barred whenever twelve years have elapsed from the time when aright of action accrued. The right of action is accrued only when the land is in adverse possession of a person other than the true owner. lime begins to run when adverse possession is taken of the land.

[19]Learned Counsel referred the Court to several sections of the Land Surveyor’s Act to show that the Defendant’s Plan G 41115 was not cancelled by the later plant of the Claimant Plan G42169 therefore Plan G42169 is anUllity.

[21]It is not disputed that the land described in G 42169 is part of the land described in G 41/15. The fact that the Chief Surveyor in authenticating the plan G42169 which is the later plan simply stated that it supersedes a portion of the Plan G41/15 does not make Plan G42169 a nullity. It does not in any way· affect any interest that the aaimant obtained in the disputed land by purchase from Enos David. Cultivation of the Disputed Land

6.In the year 2004 I began a commercial pggery on the said lands, in that same year I instructed my solicitor to effect application for possessory title as shown on Plan registered and numbered G41/15:

[22]Learned Counsel urged the Court to find that the Claimant did not cultivate the disputed land. I believe the evidence of the Claimant that he did cultivate the disputed land. The Defendant himself agreed that the Claimant’s common law wife cultivated the land. Adverse Possession by the Defendant

[29]the evidence-in-chief of David Kennedy is very short. I will outline the entire four paragraphs that make up his witness statement: “1. I know Kenroy Haynes through his mother since he was a youth man growing up in Fairbain Pasture.

[23]The question that arises is whether the Defendant had acquired tiHe to the disputed land by adverse possession prior to the sale of the land by Enos David to the Defendant.

[25]The principles to be applied by the Court in determining whether a person was in adverse • l possession were outlined in the case of Powell v Mcfarlane (1977) 389 p. 452. These prinCiples were approved by the House of Lords in JA Pre (Oxford} Ltd and Another v Graham and Another [2002] AER p. 865 as follows: "The legal possession required is a sufficient degree of physical custody and control (factual possession) and an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess). As regards factual possession everything depended on the circumstances, but broadly, such possession was constituted where the alleged possessor had been dealing with the land as an occupying owner might have been expected to deal with it, and nobody else had done so. The necessary intent was one to possess, not to own and an intention to exclude the proper owner only so far as was reasonably possible.ft

[26]Applying the above principles to this case the question is: Did 1M Claimant dispossess the true owner of the disputed land? The onus of proving that the owner has been dispossessed is on the party who alleges it. In this case it is the Defendant.

[27]The evidence led by the Defendant is to be found in paragraphs 5and 6of the Defendanfs witness statement, and the evidence of his witness David Kennedy. Paragraphs 5 and 6 of the Defendant’s witness statement read as follows:­ "5. Mr. David gave the lands to my mother 8cita David before his death; I then came in possession of the lands prior to the death of my mother in 1986, since that time I held sole non (sic) disttJbed ownership of the said lands.

[28]Under cross-examination the Defendant testified that the only persons who worked the land were Edwin David, his mother and himself. After he carre out of prison in 2000 he saw the Claimant’s common law wife working the land and he spoke to the Claimant about it.

[30]Under cross-examination he testified that he did not see anyone work the disputed land. However, under re-examination he stated that he saw Edwin David farm the disputed lands. He never saw the Defendant farm the disputed land. f I I f [311 Having reviewed the evidence and having regard to the principles as outlined in JA Pye I find that the evidence led on behalf of the Defendant was not sufficient to establish adverse possession by the Defendant. There is the bald statement of the Defatdant that he came into possession of the lands prior to the death of his mother in 1986. No evidence was led on which the Court could find that there was factual possessm by the Defendant as outlined in JA Pye. While the Defendant testified under cross-examination that only himself, Edwin David and his mother worked the lands, there is no evidence on behalf of the Defendant showing the period during which he worked the land. His witness David Kennedy did not assist his case since the witness testified that the only person he saw working the land was Edwin David. The witness specifically stated that he did not see I the Defendant farm the land. I find that the Defendant has failed to prove on abalance of probabilities that he had acquired title to the disputed land by adverse possessKm. I [321 In conclusion, I find that the Claimant is the owner of the disputed land, the Claimant having purchased the land from Enos David. I find that there wac; no sufficient evidence that the Defendant had acquired title to the land by adverse possession.

[33]It is ordered: (1) It is hereby declared that the Claimant is the owner of the parcel of land described in Deed No. 769 of 2002 and delineated and shown on Plan G42169. (2) The Defendant’s counterclaim is dismissed. (3) Damages to be assessed on application of the Claimant such application to be made on or before December 31, 2009. (4) The Defendant shall pay the Claimant costs in the sum of $14,000.00. I f ……. q~-:... :::…………. .. G~:··~.. ~ I i HIGH COURT JUDGE ~ ! t f I !

2.After coming into possession of tbe lands in question Kenroy Haynes went to Prison.

3.While Kenroy Haynes was in prison he instructed me to oversee the land on his behalf, during that time a man started building blocks on the land.

4.Kemoy Haynes mother was married to Mr. Edwin David who was the owner of the lands.”