Keith Rolle Dorothea Avril Rolle v Raymond Meadows
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 31 May 2021 |
| Neutral Citation | BS 2021 CA 82 |
| Docket Number | SCCivApp. No. 128 of 2020 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Evans, JA
The Honourable Madam Justice Bethell, JA
SCCivApp. No. 128 of 2020
Mr. Harvey Tynes, QC with Mrs. Tanisha Tynes-Cambridge, Counsel for the Appellants
Beacon Insurance Co Ltd v Maharaj Bookstore Ltd [2014] UKPC 21 applied
Dean v Arawak Homes Ltd [2014] UKPC 24 considered
Fairness Limited v Bain et. al SCCivApp. No. 30 of 2015 considered
Fullwood v Curchar [2015] JMCA Civ 37 applied
James Wallace and anor. v Addington Nairn Jr. SCCivApp. No 206 of 2015 applied Mount Carmel Investments Ltd v Thurlow [1988] 1 WLR 1078 applied Nedd v Hackshaw High Court Civil Claim No. 37 of 2004 mentioned
Ocean Estates Ltd. v Pinder [1969] 2 AC 19 applied
Sigma Marina & Resorts Limited v Redhead GDAHCVAP2011/0024 applied
Stubbs v Rahming [1986] BHS J. No. 70 applied
Civil appeal — Trespass to land — Adverse possession as a defence to a claim of trespass — Claim to recover land — Title of a trespasser — Proper interpretation of the provisions of the Limitation Act — Whether a meeting between the parties can stop time from running and bring an end to undisturbed possession — Challenge to a finding of fact by the trial judge — Whether Court bound to follow its own decisions — Sections 16(3) and 25(1) of the Limitation Act
By virtue of a conveyance dated December 2003 the appellants are the owners of a parcel of land in Freeport, Grand Bahama. Following the purchase of the land, the appellants constructed a commercial building on the land, erected a 6ft high wire fence along the southern boundary and paved a 10ft wide roadway which ran along the southern boundary. When the appellants received a Certificate of Occupancy in 2005 the parcel of land to the south was still vacant. In February 2017 the respondent acquired the property to the south of the appellants' property and had a survey conducted thereon. The survey revealed that the fence and roadway constructed by the appellants were in fact on the property the respondent had just acquired. This overlapping area is referred to as the disputed land. The parties met in March 2017 and at that time the respondent informed the appellants of the encroachment and offered to lease the disputed land to the appellants.
In July 2017 the respondent/plaintiff commenced this action against the appellants/defendants claiming, inter alia, vacant possession and damages. In their Defence the appellants submitted that they have been in continuous adverse possession of the disputed land for upwards of 13 years prior to the issuance of the respondent's Writ in July 2017.
The action proceeded to trial and by judgment dated 29 September 2020 the learned judge ordered the appellants to deliver possession of the disputed land to the respondent. This finding was on the basis that the appellants' defence of adverse possession to the respondent's claim of trespass was unsustainable. The judge also found as a fact that in any event the appellants were 15 days short of the 12 year statutory period as the meeting between the parties in March 2017 brought to an end the appellants' undisturbed possession and stopped time from running. The appellants now appeal that decision. The respondent filed a Respondent's Notice seeking to challenge the judge's finding that the appellants were in undisturbed possession of the disputed land and the learned judge failed to consider the effect of restrictive covenants and regulations applicable to the land.
Held: appeal allowed; Respondent's Notice dismissed. Costs to the appellants, to be taxed if not agreed.
In a claim to recover land, once a trespasser is in occupation of the land beyond the 12 year limitation period, by operation of law, title to the land vests in the trespasser and the documentary title holder's right to possession would be defeated; he would have no right to vacant possession or damages. In essence, sections 16(3) and 25(1) of the Limitation Act extinguishes a landowner's title if he has been dispossessed by the adverse possession of a trespasser.
The general rule is that the Court of Appeal is bound to follow its own decisions except in the following instances: 1. where there are two conflicting decisions; 2. where there is a decision which cannot stand with a decision of a higher court; 3. where the decision was given per incuriam.
Time does not stop running until a Writ is issued therefore the meeting between the parties in March 2017 could not stop the running of time. The appellants were in possession more than 12 years before the commencement of this action on 3 July 2017.
With respect to the Respondent's Notice, but for the judge's erroneous view that the March 2017 meeting stopped time from running, the appellants were in adverse possession for the 12 years immediately preceding the issuance of the respondent's Writ. Further, restrictive covenants cannot waive rights which accrued pursuant to the law of adverse possession, neither can regulations operate to affect the provisions of the Limitation Act.
Judgment delivered by the Honourable
. This is an appeal by Keith and Dorothea Rolle (“the Rolles” or “the appellants”) against a judgment by Hanna-Adderley, J. in an action by their neighbour, Raymond Meadows (“Meadows” or “the respondent”) against them for possession of a strip of land upon which Meadows claimed that the appellants were trespassers. The trial judge ruled that Meadows had a better documentary title and that the claim by the Rolles of adverse possession was not a defence to the respondent's claim for possession of that land as a result of their trespass. The appellants were ordered by the judge to deliver up possession of the disputed strip of land to the respondents and pay assessed damages for trespass.
. The appellant and the respondent are adjacent landowners.
. By a conveyance dated 3 December 2003, the appellants received a parcel of land identified in the conveyance from East End Land Company Limited. After the purchase in 2003, the appellants constructed a six-unit commercial building on the land. They erected a 6ft high wire fence along what they thought was the southern boundary of the property conveyed to them. The appellants also paved a 10ft wide roadway which ran along the said southern boundary.
. On 18 March 2005 the appellants received a Certificate of Occupancy from the Grand Bahama Port Authority which signified the completion of the building.
. At this time the parcel of land to the south of the fence was still vacant.
. On 1 February 2017, the respondent Meadows acquired a parcel of land from First Caribbean International Bank. The Bank was selling under its power of sale as a result of a mortgage between Tharecita Jones and the Bank. Jones was the beneficial owner of the shares of East End Land Company Limited and an officer and director of that company.
. After acquiring the property from the Bank, the respondent caused a survey to be conducted. As a result of that survey Meadows determined that the roadway and the fence constructed by the appellants was in fact on the property which he just acquired from the Bank. That area has been described in these proceedings as “the disputed land”.
. On 3 March 2017, in a meeting between Mr. Meadows and Mr. Rolle, Meadows advised Rolle that the survey he had conducted showed that Rolle was encroaching on his property. Later Meadows offered to lease to Rolle the disputed land “at a fair price”.
. On 3 July 2017 the respondent issued a Writ against the Rolles as the first defendants and the Bank as the second defendant. The amended Statement of Claim was in the following terms:
“1. The Second Defendant is and was at all relevant times a company incorporated in the Commonwealth of The Bahamas.
2. By virtue of an Indenture of Mortgage dated 31 August 2006 and made between Tharecita Jones, of the one part, and the Second Defendant, of the other part, (“the Original Mortgage”) the property described as a tract of land containing 1.305 acres comprising part of Tract ‘19A” situate on Lunar Boulevard in the area known as ‘Britannia’ in the City of Freeport on the Island of Grand Bahama, one of the Islands of the Commonwealth of The Bahamas (“the Subject Property”) was granted and conveyed onto the Second Defendant in fee simple by way of Mortgage subject to covenants and provisions, including, inter alia, a provision for redemption therein contained.
3. By virtue of the Original Mortgage and events transpiring between Ms. Tharecita Jones and the Second Defendant, the Second Defendant became empowered to sell and convey the Subject Property
4. By Indenture of Conveyance made on 1st February 2017 the Second Defendant sold and conveyed the Subject Property to the Plaintiff (“the Conveyance”). The Plaintiff also entered into a Mortgage Agreement with the Subject Defendant (“the Second Mortgage”).
5. At all relevant times, the First Defendant was the owner of a lot of land adjacent to the Subject Property.
6. In or about February 2017, the Plaintiff had the Subject Property surveyed and had the boundaries of the Properties staked by a qualified surveyor.
7. The surveyor informed him that the First Defendant had erected a fence and paved a roadway, both of which encroached onto a 10ft by 200ft portion of the ‘Subject Property, representing approximately 3.06% of the total acreage of the Subject Property.
8. On or about 3 rd March 2017, the Plaintiff attended at the office of the First Defendant and alerted him to the encroachment. At this time, the First Defendant acknowledged that his fence and roadway were indeed encroaching on the Plaintiff's property, and that that the portion of property rightly belonged to the Plaintiff.
9. The...
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