Carla Anita Cecilia Braynen Turnquest v Water and Sewerage Corporation

• Jurisdiction: Bahamas
• Judge: Madam Justice Charles, JA
• Judgment Date: 05 December 2023
• Neutral Citation: BS 2023 CA 168
• Court: Court of Appeal (Bahamas)
• Year: 2023
• Docket Number: SCCivApp No. 5 of 2023

Between

Carla Anita Cecilia Braynen Turnquest

Appellant

and

Water and Sewerage Corporation

Respondent

Before:

THE HONOURABLE Sir Michael Barnett, P

The Honourable Madam Justice Charles, JA

The Honourable Mr. Justice Turner, JA

SCCivApp No. 5 of 2023

IN THE COURT OF APPEAL

Documentary Title to Land — Paper Owner — Possessory Title — Adverse Possession — Factual Possession — Intention to Possess — Animus Possidendi — Conveyancing and Law of Property Act — Section 3(4) of the Conveyancing and Law of Property Act

In 2009, Carla Anita Cecilia Braynen Turnquest (“the appellant”) inherited a piece of land (“the Property”), as devised in her deceased father's will. She was able to trace a documentary title to the property dating back to a 1963 Conveyance. In 2009, the appellant hired a land surveyor to survey the Property. The surveyor advised the appellant that Water and Sewerage Corporation (“the respondent”) had water supply equipment on a portion of the Property.

In 2012, the appellant wrote to the respondent, advising that she is the fee simple owner of the Property and demanded compensation for the respondent's trespass. The appellant also offered to lease or sell a portion of the Property to the respondent; the respondent replied that it would need time to investigate title and did not claim to be the owner of the Property. In 2013, the appellant again wrote, seeking a follow up on the 2012 letter.

In 2016, the appellant wrote the respondent again, inquiring whether it had investigated the title to the Property. The respondent replied and asked the appellant to provide proof of ownership and a proposal to purchase or lease the property; the respondent reiterated this request in a follow-up letter.

In 2017, the appellant again wrote the respondent and offered to lease the occupied portion of the Property and requested mesne profits for the past unauthorized occupancy. There was no reply.

In 2018, the respondent issued a cheque for $20,000.00 to the appellant which was expressed to be for “ the initial payment for use of private land”.

In 2019, the respondent indicated to the appellant that an investigation found that there is no documentary evidence that proves the appellant lawfully owned the Property. The respondent also requested that the $20,000.00 cheque be returned.

The appellant sued the respondent. The trial judge found that the appellant is not the owner of the Property by documentary title and that the respondent has a possessory title. The judge also ordered that the appellant return the $20,000.00 to the respondent. The appellant appealed those findings.

Held: Appeal allowed. The Respondent must pay to the appellant a) mesne profits, for each year of the respondent's unlawful occupation of the Property as well as interest on mesne profits, b) damages in lieu of an injunction to remove the water supply equipment, and c) interest on the sums awarded pursuant to Section 3 of the Civil Procedure (Award of Interest) Act 1992. The assessment of damages relative to mesne profits, interest on mesne profits, and damages in lieu of an injunction are remitted to the Registrar of the Supreme Court. Costs in the Supreme Court below and in this Appeal are certified fit for two Counsel, to be taxed if not agreed.

There is no such concept as an “absolute” title to land. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. Compared to a trespasser, a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred by the Limitation Act.

In order to succeed on her claim, the appellant needed to demonstrate that her title was superior to the respondent's title. As the respondent alleges that it has a possessory title, the documentary title put forth by the appellant (even with defects) was a better title than the respondent's title.

Although the Conveyancing and Law of Property Act requires that the appellant prove a good and marketable documentary title to the Property, the learned judge erred in law by holding the appellant to too high a standard. There is no such requirement on an appellant relative to a claim in trespass, since a documentary title is superior to an alleged possessory title.

The respondent acknowledged that the only documentary root of title which exists to the Property is the appellant's title. Since there was no other documentary title before the Court, the learned judge erred in finding that the 1963 Conveyance was not a good root of title because it did not identify the property conveyed or contain a recognizable description of the Property.

The 1963 Conveyance contained a recognizable description, including, the size, location and the description of the land. As the learned judge found “that the survey was properly and is proof of the property surveyed therein”, she erred by nonetheless concluding that it did not prove that the Plaintiff owned the Property.

The learned judge also erred by requiring the appellant to deduce title prior to the 1963 Conveyance. Having found that there was no other documentary root of title other than that of the appellant and finding that the respondent's water supply equipment was on the Property, which was properly surveyed, the judge ought to have accepted the 1963 Conveyance as the documentary root of title to the Property and proceed to investigate whether the respondent had adversely possessed the Property.

Title to land only needs to be deduced for a period of thirty years. As such, the learned judge was not entitled to require the appellant to deduce a title beyond her 1963 Conveyance.

A person's title to land including the person who has the documentary title is only good in so far as there is no other person who can show a better title. The effect of adverse possession is that a person who is in possession as a trespasser/squatter without the permission of the paper owner can obtain a good title if the paper owner fails to assert his superior title within the requisite limitation period. After the limitation period has expired, the paper owner's rights will be extinguished.

In order for a party without documentary title, to establish legal possession to land, there must be custody or physical control of the land (factual possession) and an intention to exercise such custody and control on one's own behalf and for one's own benefit (the intention to possess).

Although there was a 1983 Memorandum evidencing the water supply equipment on the Property, this only demonstrates physical possession but not an intention by the respondent to possess the Property to the exclusion of all others. The respondent's posture of wanting to purchase or lease the Property and the payment of the $20,000.00 demonstrates that the respondent lacked the intention to possess the Property in its own name. The respondent's request for confirmation of title or ownership was an acknowledgment that it was not the owner and had no interest.

A right of action to recover land can only accrue where some other person is wrongfully in possession of it. If the person in possession of the land acknowledges the title of the person entitled to recover it, then the right of action for recovery of the land is treated as having accrued on the date of the acknowledgement and not at any earlier time. The acknowledgment by the respondent in 2018 was in writing. Since the 2018 written acknowledgement of the respondent took place after the expiration of the period for adverse possession, it resets the clock on the adverse possession claim. The respondent will need to start the statutory period over again from the date of the acknowledgement.

The most recent date for the accrual of the appellant's cause of action is around 2018 and therefore, the respondent cannot claim adverse possession of the Property until 2030.

Bannerman Town, Millars and John Millars Eleuthera Association and others v. Eleuthera Properties Limited SCCivApp No. 175 of 2014; applied

Bahamasair Holdings Ltd. v Messier Dowty Inc. [2018] UKPC 25; considered

Bodie and Others v Bahamas Land and Finance Co Ltd [1979–80] 1 LRB 251; mentioned

Bolton v London School Board [1878] 7 Ch 766; mentioned

Browne v Perry [1991] 1 WLR 1297; mentioned

Collie v. The Prime Minister [2012] 1 BHS J. No. 18; applied

In the matter of the Petition of Desmond Dean and Sharmaine Dean 2020/CLE/gen/FP/000131

In the matter of the Petition of Rushel Rowena Mcklewhite 2011/CLE/qui/00661; mentioned

IN THE MATTER OF the Quieting Titles Act, 1959 AND IN THE MATTER OF the Petition of Eleuthera Land Company Limited, a company incorporated and existing under the laws of the Commonwealth of The Bahamas AND IN THE MATTER OF a tract of land situate at Great Oyster Pond in the Island of Eleuthera comprising Thirty-three and Nine Hundred and Ninety-four thousandths (33.994) acres situated between Little Oyster Pond and Big Oyster Pond about three miles southeasterly of the Settlement of Governor's Harbour in the Island of Eleuthera 2012/CLE/qui/00579; mentioned

James Wallace and another v Addington Nairn Jr. [2017] 2 BHS J. No. 27; applied

J A Pye (Oxford) Ltd and another v Graham and another [2002] UKHL 30; applied

Keith Rolle & Anor. V Raymond Meadows SCCivApp. No. 128 of 2020; mentioned

Ocean Estates Ltd v Norman Pinder [1969] 2 A.C. 19; applied

Powell v McFarlane (1977) 38 P & CR 452; mentioned

APPEARANCES:

Mrs. Krystal D. Rolle KC with Ms. Kendrea Demeritte, Counsel for the Appellant

Mr. Dywan A. G. R. Rodgers, Counsel for the Respondent

Madam Justice Charles, JA

Judgment delivered by the Honourable

1 . This appeal, arising from the decision of Stewart J (“the learned judge”) in the Supreme Court, concerns a claim in trespass. In a written judgment issued on 2 December 2022, the learned judge dismissed Mrs. Braynen-Turnquest (“the...