Martin Clement v Joseph Hoyte Ollivierre

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EASTERN CARIBBEAN SUPREME COURT
GRENADA
IN THE HIGH COURT OF JUSTICE
(CIVIL)
CLAIM NO. GDAHCV 2022/0079
BETWEEN:
MARTIN CLEMENT
Claimant
and
JOSEPH HOYTE OLLIVIERRE
Defendant
Before:
The Hon. Mde. Justice Agnes Actie High Court Judge
Appearances:
Mr. Deloni Edwards for the Claimant
Mr. Ruggles Ferguson K.C. for the Defendant
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2026: September 22nd.
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Ruling
[1]
ACTIE J: The claimant became the fee simple owner in possession of premises measuring 6,375 square feet, situated at Good Hope on the island of Petite Martinique (“the property”) through a deed of conveyance dated 6th February 2019 and recorded in the Deeds and Land Registry of Grenada.
[2]
By claim form filed on 12th February 2020, the claimant avers that, in or about May 2018, while he was in possession but before the deed was recorded, the defendant and his agents wrongfully entered the property and demolished the fence erected along the boundary. The claimant claimed against the defendant damages for trespass and for the claimant’s damaged fence, special damages in the sum of $10,026.70, an injunction, interest, costs and other reliefs.
[3]
In his defence, the defendant contends that, in or about May 2018, he learned that a surveyor had entered the property on one Sylvester Sandy’s instructions.
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He admits causing the fence to be demolished and removed, asserting that he
acted in exercise of his rights of ownership and control. He further avers that any
damage to the fence resulted from the claimant’s insistence on unlawfully entering
the property.
[4] Having reviewed the pleadings, the court concluded that no triable issue arose
because the defendant’s defence admitted liability: he had resorted to self-help
by entering the property and damaging or demolishing the claimant’s fence. As
the claimant was in possession at the material time, he was entitled to recover
any loss caused by the defendant’s trespass. Accordingly, there being no viable
defence, judgment was entered for the claimant, leaving only the assessment of
the pleaded special damages, damages for trespass, and costs.
Defendant’s counterclaim case
[5] The matter now turns on the defendant’s counterclaim in which he seeks:
(1) A declaration that the Indenture of Conveyance dated 16th January 2001
made between Agnes Sandy of the one part and Kenwyn Sandy of the
other part is null and void and of no effect having no or no valid root of title;
(2) A declaration that the Indenture of Conveyance dated 6th February 2019
between Sylvester Sandy of the first part Stephanie Sandy of the second
part and Martin Clement of the third part is null and void and of no effect
having no or no valid root of title.
Or in the alternative
(3) A declaration that any title vested to the predecessors in title to the Sandys
(the Vendors in the 2001 Deed) was extinguished by the open continuous
and exclusive possession of the late Theresa Ollivierre and John Caesar in
excess of 100 years by virtue of the combined effects of Sections 4 and 27
of the Limitation of Actions Act CAP 173 of the 2010 Revised Laws of
Grenada.
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(4) An order setting aside the Indentures of Conveyance dated 16th January
2001 and 6th February 2019, and directing the Registrar to strike them from
the records of the Deeds and Land Registry of Grenada.
(5) A permanent injunction restraining the claimant, his servants and/or agents
from entering upon the property and conducting any activity thereon.
(6) Damages arising from the demolition of the two (2) buildings on the
property on 5th July 2020.
(7) Damages for trespass, such further or other relief as the court deems just;
and Costs.
[6] The defendant avers that his maternal grandfather, John Caesar, was the original
owner in possession1, and that thereafter his grandfather’s daughter, Theresa
“Flavia” Ollivierre, who is the defendant’s mother, remained in possession of the
property for well over sixty years before her death in 2010.
[7] The defendant is the administrator of the estate of Theresa “Flavia” Ollivierre, and
alleges that he has been in exclusive possession of the property in his capacity
as administrator. The defendant further contends that he and his immediate
families have been in actual, open, exclusive and continuous possession of the
property for well over 100 years. The defendant avers that neither of the Sandys,
from whom the claimant purports to have purchased, have ever been in
possession of the property.
[8] The claimant denies that the defendant and his predecessors have been in
exclusive undisturbed possession and avers that it was his predecessors in title
who have been in exclusive undisturbed possession.
[9] Both parties referred to Claim No. 2003/0118, Kenwyn Sandy v Michael Caesar,
concerning trespass on the disputed parcel. The claimant pleaded that the said
Micheal Ceasar entered the land in 2022 and began fencing and constructing a
concrete foundation. The court directed the parties to ascertain the final outcome
of that claim and listed this matter for a further status hearing. Although the file
1 In a Witness Statement filed 1st March 2021 however, the defendant concedes and agrees with the
claimant that Francis Clement was the original owner of the property
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contains various notations, this court found no record of a final determination of
the claim or the interlocutory application to strike out the defence, and one of the
attorneys on record was unable to assist. The 2013 claim therefore appears to
have been abandoned.
Legal Analysis
Whether the Claimant’s Predecessors in Title were Paper Title Owners of the Property
[10] According to the claimant, the history of the land is as follows:
(1) The land was first in possession of the late Francis Clement and his
wife Angelina Clement until the death of Francis.
(2) By the will of Francis Clement dated 10th September 1908, he devised
the property to his said wife Angelina Clement and his son Elias
Clement.
(3) Angelina Clement and Elias Clement remained in possession and in
1996 Agnes Sandy, the daughter of Elias Clement, caused a Statutory
Declaration dated 30th January 1996 to be prepared and executed
whereby the declarant, Ambrose Mitchell, declared that he knew the
said Francis and Angelina Clement to be in possession of the property
since in or about 1922.
(4) During his lifetime, Elias Clement put Agnes Sandy in possession of the
property.
(5) Elias Clement then died leaving several children and his estate was
divided among all of his beneficiaries, one of whom as Agnes Sandy.
The estate lands were surveyed and a lot received by Agnes Sandy by
conveyance dated 13th July 1996.
(6) Agnes Sandy gifted the property to her son, Kenwyn Sandy by
Indenture dated 16th January 2001. Kenwyn Sandy then died in 2010
leaving Sylvester Sandy and Stephanie Sandy the persons entitled to
his estate.
(7) The claimant then bought the property from the beneficiaries under the
estate of Kenwyn Sandy by virtue of conveyance dated 6th February
2018.
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[11] Michel JA in Marlon Mills v Stacey McKie2 at paragraph 24 of his judgment
stated thus:
“[24] Title, in the context of property, refers to the right which a person has
to the ownership of the property. In terms of title to land, the right may be
established by long possession of the land, with the intention to possess it
as owner to the exclusion of everyone else. Title may also be established
by a document which specifies the property to which it refers, the person
who is asserting the right to it, and the manner in which that right was
acquired – whether by grant, by assignment, by purchase or otherwise…”
[12] The claimant relies on the existence of a Statutory Declaration deposed by
Ambrose Mitchell. It is a well-established law that a Statutory Declaration is
nothing more than a written document containing allegations of fact solemnly
declared in the form of law, which may have certain limited evidential value3. The
court notes the production of tax receipts in support of the claimant’s
pronouncement of the aforesaid history, although the payment of taxes for land is
not conclusive of ownership of land4 and does not prevent time from running for
the purpose of adverse possession5.
[13] The valid evidence of the claimant’s title stems from the specific devise in the
1908 Will of Francis Clement. According to J T Farrand in Contract &
Conveyance6:
“Between 1897 and 1926 such a devise would still be a good root although
the assent of the deceased’s personal representative was also necessary
to make the devise operative as to the legal estate.”
[14] Both the claimant and the defendant agree that Francis Clement was the original
owner of the property. In his said Will, Francis Clement devised and bequeathed
the following:
2 SVGHCVAP2016/0001
3 Claim No. 519 of 2014 Stephanie Baptiste v Salisha Jones
4 George Donald Barclay and Ors v Hilda Clement nee la Pierre Unreported decision of Price-Findlay J
in GDAHCV2009/0177 adopted in Magdelene Lendor v Winsford Frank and Viola Frank Unreported
decision of Mohammed J in GDAHCV2003/0620
5 Claim No. 71 of 2009 – Alfred St. Clair Neverson v Brenda Neverson
6 4th Edn, Oyez Longman.
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“…to my wife Angelina Clement and Elias… Clement my lawful son, the
Estate, Good Hope for their sole use…”
[15] It is the evidence that Elias Clement died leaving several children including Agnes
Sandy and the estate was divided among all beneficiaries. Agnes Sandy by deed
of conveyance dated 13th July 1996 became the registered proprietor of part of
the said estate and then gifted the disputed property to her son Kenwyn Sandy on
16th January 2001. Kenwyn died in 2010 leaving Sylvester Sandy and Stephanie
Sandy as named beneficiaries, who then sold to the claimant on 6th January 2018.
[16] The land’s history shows that the “Clements” consistently asserted ownership
through acts such as commissioning surveys and obtaining a statutory declaration
confirming their occupation under the title devised by Will of Francis Clement, the
original owner.
[17] The defendant’s evidence is that his grandfather, a son of Francis Clement who
was ineligible to inherit under the law at the time, gave the disputed land to
Theresa “Flavia” Ollivierre. However, there is no evidence that the grandfather of
the defendant held title when the purported transfer occurred, how he acquired
title, or how title passed to his daughter. The defendant further states that his
mother cultivated the land and permitted others to use it.
[18] The only evidence of actual occupation concerns Michael Caesar, who is brother
to Theresa Ollivierre. Caesar in his defence in Claim No. 2003/0118 contends that
he entered the property after returning from the United States in 1988. The
claimant, Kenwyn Sandy in the 2003 claim filed an application to strike out the
defence. Micheal Caesar in written submissions in opposition to the striking out
application, stated that Theresa Ollivierre occupation of the disputed land
culminated in 1988 when he took possession. He states that his occupation was
curtailed by an injunction granted to the claimant, Kenwyn Sandy in or about 2002
restraining him from entering the on the land.
[19] It is the defendant’s evidence that his mother left the property and relocated to
Grenada and he likewise moved to Grenada at the age of five. Michael Caesar in
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his defence to Claim No. 2003/0118, stated that he placed two metal containers
on the land and had entered the land in his own right.
[20] Although the defendant maintains that Michael Caesar occupied the property with
the permission of his mother, he cannot rely on the possession of Michael Caesar,
who is now deceased. The evidence does not support the defendant’s assertion
that his mother through Doris Alexander remained in continuous and
uninterrupted occupation of the disputed property.
[21] The court taking into consideration the totality of the evidence, namely 1908 last
will and testament, letters of administration of the estate of Elias Clement dated
26th November 1986, survey of the disputed property in 1995, Statutory
Declaration made on 13th January 1996 asserting the occupation; indenture of
conveyance made on 13th July 1996, the payment of taxes over the years, the
filing of an action against Michael Caesar together with the injunction all support
the superior tittle of the claimant and his predecessors in title. The defendant has
not provided any evidence of superior title by his mother or predecessors to nullify
the claimant’s title. The devise establishes that the claimant’s predecessors held
title to the property and, in the court’s view, constitutes a good root of title.
Whether the Claimant’s Predecessors in Title were dispossessed by the
Defendant’s Predecessors
[22] For the defendant and his predecessors to have dispossessed the claimant and
his predecessors in title, the requirements of sections 4 and 27 of the Limitation
of Actions Act must be met. In Mt. Hartman Bay Estate Limited v Ashok
Bhawnani7, Henry J summarised the applicable law as follows:
“In the absence of evidence to the contrary, the owner of land with the
paper title is deemed to be in possession of the land, so that if the
defendant is to dispossess the claimant or its predecessor in title, [the]
defendant and his predecessor must be shown to have both factual
possession and the requisite intention to possess… Such possession
with the requisite intention must be for the continuous period under the
Limitation Act, that is, twelve years.”
7 GDAHCV2006/0423
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[23] Further In Powell v McFarland and Another8, it was held by Slade J that the
question what acts constitute a sufficient degree of exclusive physical control must
depend on the circumstances, in particular the nature of the land and the manner
in which land of that nature is commonly used or enjoyed.
[24] It is well established that a limitation defence is a shield, not a sword. Having failed
to establish superior title, the defendant cannot rely on Sections 4 and 27 of the
Limitation of Actions Act to advance an independent cause of action against the
claimant. Any claim to title by adverse possession should have been brought
under the Possessory Titles Act, which prescribes the statutory requirements for
obtaining a declaration of title on that basis. The defendant has therefore failed to
establish his cause of action, and the counterclaim is dismissed.
Conclusion
[25] For the foregoing reasons, it is ordered and directed as follows:
(1) The claimant succeeds in his claim for trespass and the defendant’s
counterclaim for trespass and adverse possession is dismissed.
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(2) Damages and costs to be assessed, if not agreed within thirty (30) days of
today’s date, upon application by the claimant.
Agnes Actie
High Court Judge
By the Court
Registrar
8 (1977) 38 P & CR 452