Wallace et Al v Nairn

JurisdictionBahamas
CourtCourt of Appeal (Bahamas)
JudgeIsaacs, JA,Roy Jones,The Honourable Mr. Justice Isaacs, JA,The Honourable Ms. Justice Crane-Scott, JA,The Honourable Mr. Justice Jones, JA
Judgment Date14 August 2017
Neutral CitationBS 2017 CA 80
Date14 August 2017
Docket NumberSCCivApp. No. 206 of 2015

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Ms. Justice Crane-Scott, JA

The Honourable Mr. Justice Jones, JA

SCCivApp. No. 206 of 2015

Between
James Wallace & Martha Wallace
Appellants
and
Addington Nairn Jr.
Respondent
Appearances:

Mr. Thomas Evans, QC withMr. Gladstone BrownandMs. Dianne Saunders, Counsel for the Appellants

Mr. Carlton Martin with Mr. Kelsie Munroe, Counsel for the Respondent

Anthony Armbrister et al v Marion Lightbourn et al [2012] UKPC 40 mentioned

Buckinghamshire County Council v Moran [1990] Ch. 623 applied

J A Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 applied

Keelan v Garvey (1) [1925] 1 IR 1 considered

Ocean Estates Ltd. v Pinder [1969] 2 AC 19 applied

Powell v Macfarlane (1977) 38 P & CR 452 applied

Ramnarace v Lutchman [2001] 59 WIR 511 applied

Legislation:

Quieting Titles Act, Ch. 393

Limitation Act, Ch. 83 s. 16(3)

Civil appeal - Title to land — Documentary title — Possession of land — Order of possession — Declaration of possession of land

Real Property - Title — Possession — Whether respondent could adversely possess the disputed property against the documentary title of his father — Whether title of appellants and their predecessor was ousted by possession of respondent — Appeal dismissed.

The appellants purchased a plot of land, upon which a home was constructed, in the Englerston subdivision from Addington Nixon Sr., the father of the respondent. The Wallace's allege that subsequent to their acquisition of the land the respondent wrongly entered the house situated on the land and as a result they sought an order for possession. For his part, the respondent asserted, inter alia, that at all material times he was the legal and beneficial owner of the land by virtue of his exclusive, continuous and undisturbed possession for more than 20 years. He, therefore, counterclaimed for a declaration that he was entitled to possession. The trial judge found that the title of the appellants and their predecessor was ousted by the possession of the respondent. As a result, the appellants, having obtained an extension of time, appealed the trial judge's decision.

Held (Jones, JA concurring): appeal dismissed; costs to the respondents to be taxed if not agreed.

per Isaacs, JA: The respondent lived on the land and openly conducted his business of auto repair upon it since around 1978, two years later he enclosed the land with a chain link fence and double chain-link gates which he kept locked; three years before the action started in the court below the respondent erected a “Private Property” sign on the property; in 2007 the respondent engaged the services of a surveyor to survey the land. These are instances of ownership inconsistent with his father's documentary title. By his actions the respondent has shown his intention to possess the land to the exclusion of all others.

The procedure set out in the Quieting of Titles Act is appropriate if a court is investigating a petitioner's title to land and / or that of any adverse claimant's claim to the land. This was not an action brought for that purpose. Under the quieting of titles procedure, a court would determine which claimant to the land is entitled to have a Certificate of Title issued to him. That Certificate would be good against the world; and could only be set aside for fraud. If the appellants were able to show that they had the necessary title to the property, they were entitled to recover it. However, this was subject to the respondent being able to demonstrate that he had continuous and exclusive possession for the requisite period under the Limitation Act, i.e., twelve years. The forbearance of the appellants' successor-in-title in not taking steps to oust the respondent has rebounded to the detriment of the appellants.

It is important to understand the nature of a Declaration to appreciate why the trial judge did not err in granting the Declaration claimed by the respondent in this case. In law, a declaration ordinarily refers to a judgment of the court and is a binding adjudication of the rights or other legal relations of the parties which does not provide for or order enforcement. Thus, the decision of the trial judge declares that as between the appellants and the respondent, the respondent is entitled to possession of the land. However, this determination is not dispositive of any and all claims as others may appear on the horizon who may yet lay claim to the land themselves and who may challenge the respondent's possession of the land.

Buckinghamshire County Council v Moran (1988) 86 LGR 472 applied

Errington v Errington and Another [1952] 1 All ER 149 considered

J A Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 applied

Ocean Estates Ltd. v Pinder [1969] 2 AC 19 applied

Powell v Macfarlane (1977) 38 P & CR 452 applied

Re Roman Catholic Apostolic of the Bahamas [1984] BHS J. No. 34 considered

Trotman v. MaIloy (2000) 431 Mass. 143 considered

Wald v Longacre 34 F.2d 25 considered

Watt v Thomas [1947] 1 All ER 582 applied

per Jones, JA: The Quieting Title Act provides for a non-adversarial process where an application is made by a Petitioner and the court investigates and determines who is the owner in fee simple or any other estate in the land. The procedure is not adversarial, but investigative and allows for a relaxation of the rules of procedure and evidence. Claims for title under the Act are in many cases founded on adverse possession. Counsel for the appellant submits that the documentary title of the appellant cannot be ousted solely by a declaration for adverse possession as it is really an action in rem. There cannot be any doubt that this is not an action in rem. Accordingly, the trial judge was entitled to find as he did for one of the parties on the evidence before him. The Quieting Titles Act, which deals only with actions in rem is therefore irrelevant to the issues in this case, which is an action in personam.

Section 16(3) of the Limitation Act 1995 (Chap 83) provides, in essence, that where the statutory limitation period of twelve years has expired, an owner of land who has ignored his rights cannot assert them against a person in adverse possession. There is a factual presumption that possession of land is retained by the paper owner or by persons claiming through him. Accordingly, any person claiming title to land by adverse possession must show either: discontinuance of possession by the paper owner followed by possession by the trespasser; or dispossession by the trespasser, which effectively ousts the paper title of the owner.

When the respondent became an adult, his father had no legal duty to provide for him. Accordingly, his presence and demeanour on the property as an adult clearly exceeded any licence or consent from his father to live on and enjoy the property while he was a child. Moreover, the respondent counterclaimed that prior to the commencement of the action in the court below, he was in exclusive, continuous and undisturbed possession of the land for a period far in excess of twenty years. The appellants failed to put in a defence to the respondent's counterclaim, and so can be taken to have admitted it. They cannot now refute that claim.

The respondent, unquestionably, was in adverse possession of the land at least when he became an adult in 1972. Therefore, the appellants claim to the lands as successors in title to the respondent's father is statute barred by the Limitation Act.

Isaacs, JA

Judgment delivered by the Honourable Mr. Justice

1

. The appellants appeal from the judgment Chief Justice Sir Michael Barnett (the CJ) given on 23 October 2013, whereby the CJ determined that the title to a plot of land located off East Street and Balfour Avenue of the appellants and their predecessor in title was ousted by the possession of the respondent. The appellants applied for, and were granted an extension of time within which to appeal on 20 April 2016.

2

. On 8 June 2017 we heard the submissions of Counsel; and reserved our decision. We render it now. I am satisfied that the appeal must be dismissed for the reasons articulated in my judgment.

3

. The appellants seek an Order that the CJ's judgment be set aside and in its stead, that judgment be entered for the appellants with costs.

4

. The grounds of appeal are as follows:

  • “1. The Learned Judge erred and misdirected himself in finding that:

    ‘2. The property was owned by the Defendant's father. He had the undisputed documentary title. The Defendant's father and his mother were married and they lived on the property with their children of whom the Defendant was one. When the Defendant was ten (10) years old the father left the home. The mother and the children stayed on the property. The mother as she got older left the home to live with some of her children. The mother died about 20 years ago. The Defendant remained on the property and operated a car business from the same. Although the Plaintiffs dispute this, for reasons which I will set out later I accept the Defendants evidence and that of the witnesses called on his behalf that he remained on the property and has been on the property for many years well exceeding the 12 year period provided for in section 16 (3) of the Limitation Act 1995.”

    Having regard to the evidence that the property comprised of the matrimonial home of the Defendant's parents, that the marriage of the parents of the Defendant continue until the death of the Defendants mother, and that no evidence to support a claim that the father had withdrawn his consent to either his wife and or children living on the property prior to the sale of the property in April 2007, the finding that he had been on the property many years well exceeding the 12 year period...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT