Dean v Cooper

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Mohammed, J.
• Judgment Date: 03 July 2003
• Docket Number: No. 400 of 2001
• Date: 03 July 2003

Supreme Court

Mohammed, J.

No. 400 of 2001

Dean

and

Cooper

Appearances:

Mr. Charles Barnwell for the plaintiff.

Ms. Yvette McCartney-Pedroche for the defendant.

Real Property - Trespass to land — Counterclaim by defendant — Claim denied and damages on similar grounds sought — Whether plaintiff or defendant in possession of land — Trespass actionable only at suit of person in possession of land — Plaintiff had documentary title to property — Trespass committed by defendant — Counterclaim failed — Plaintiff cannot trespass on own property.

Mohammed, J.

1 By Writ of Summons issued March 28, 2001 the plaintiff claims from the defendant damages for trespassing on the plaintiff's property situate on the eastern side of Finlayson Street, Bain Town in the Southern District of the Island of New Providence designated as Number 21 on a plan of the said Bain Town area (the property). The plaintiff also claims an injunction to restrain the defendant, her servants or agents from further trespassing on the property. By a Defence filed on January 22, 2002 the defendant denies the plaintiff's claim and instead counterclaims for damages on similar grounds in respect of the same property.

2 A trespass is actionable only at the suit of him who is in possession of the land, i.e. the person entitled to immediate and exclusive possession: Thompson v. Ward [1953] 2 Q.B. 153. Where it is uncertain which of several claimants has possession, it will be adjudged to be in him who can prove title, i.e. the right to possession: Hegan v. Carolan (1916) 2 IR 27.

3 The first question to decide then is, who is in possession of the property? The plaintiff says I have possession because I hold a conveyance to the property executed on the 6th day of March, 1998 between the previous owner Doreen Taylor and myself. No consideration by way of cash was paid for the property but the plaintiffs evidence was that the arrangement for the property was based on a promise to Ms. Taylor that she would take care of her and pay the funeral expenses on her death. And the plaintiff claims that she kept that promise even producing a letter from the morticians stating that she had paid the funeral expenses. The defendant says I have possession because for many years I have been cleaning and taking care of the property which has always been family property and which was occupied by my niece Doreen Taylor until her death on April 15, 1999. And the defendant is convinced that the conveyance that the plaintiff holds came into her hands by dubious means.

4 It is indeed interesting as to how the conveyance was obtained by Marina Dean, the plaintiff. Ms. Dean went to an Attorney Mariam Curling. She gave the Attorney certain information concerning two properties one of which was the property in question, such information on her instigation being gathered and supplied to her by Mr. Fernley Palmer a justice of the peace. With that information the Attorney drew up two Affidavits to evidence possessory ownership in Ms. Taylor, one in the name of James Carey and the other in the...