Supreme Court
Action No. 26 of 1978
17th November, 1982
Moe, J.

Mr. J. Avilez for the Plaintiff
Mr. E. L. Flowers for the Defendants (Holding for Mr. J.C. Gray)

Trespass on land - Whether Defendants had been in adverse undisturbed possession for thirty years or more - Effect of First Certificate of Title - Indefeasibility of title - Law of Property Ordinance.

J U D G M E N T

In these proceedings the Plaintiff seeks (1) an order establishing his title to a parcel of land which forms the eastern portion of a lot numbered 353 on the official plan of the Town of Dangriga; (2) damages against the Defendants for wrongfully entering and occupying the said land and erecting a fence thereon; and (3) an injunction to restrain the Defendants or their agents from trespassing on the land. The Defendants in their defence denied the Plaintiff's ownership of the land and averred that they entered and remain on the land lawfully. They pleaded that the Plaintiff is barred from bringing this action by the Limitation Ordinance CAP. 198 and finally that they have been in undisturbed possession and occupation of the land for over thirty years.

I found as a fact on the basis of clear undisputed evidence that the parcel of land concerned was devised by Michael McKoy to one Thomas Alexander Brown. That Thomas Brown conveyed it to Rybert McNab in 1930. That in 1945 Rybert McNab conveyed it to Wood Van Buren. That in 1951 Mr. Van Buren mortgaged it to the Plaintiff. That the Plaintiff has been paying taxes for the land for some period obtaining receipts in the name of Van Buren and later in his name definitely from 1972. That the Plaintiff has a first certificate of title to the land which certificate he obtained in 1957. That the Defendants had never lived on the land. That in 1972 the Plaintiff informed the Defendants that they were trespassing on his land. That in 1976 the Plaintiff tried to remove a fence which the Defendants had erected on the land and was prevented by the first Defendant.

The evidence of the Defendants is that they lived only on the western portion of Lot 353 never on the eastern portion, the subject matter of this dispute. That the first Defendant filled up and cleared the eastern portion and that he eventually fenced it.

There was no evidence given to support the averment that the Defendants entered upon the eastern portion lawfully. No evidence was given as to the authority by which the Defendants came to enter the eastern portion. On the contrary, in evidence was a conveyance dated October 1965 from the second Defendant to first Defendant of the western portion with specific statement that the conveyance did not include the eastern portion which was conveyed by Thomas Alexander Brown to Rybert McNab in March 1930. Thus a specific recognition that the eastern portion did not concern either Defendant.

The question then arose when did the Defendants start to go on the eastern portion, to fill it and clean it. The Plaintiff accepted that it must have been the Defendants who filled the eastern portion but maintained that it was only in 1972 he noticed a man cleaning that portion and posts which divided that portion from the western portion were removed. The first Defendant asserted that he had been filling and cleaning the portion concerned for 40 years which is the period for which he has been married to the second Defendant. His allegation then is he has been filling and cleaning since 1942. I did not accept this. The evidence of the dealings with the land between 1945 and 1951 did not support this. Further the Defendant qualified his evidence on this during cross examination when he said he started to fill from the time he went to "the States" and when he came back he started again.

On the state of the evidence it has left with me the probabilities which appear to be as follows:- After the hurricane of 1961 the first Defendant rebuilt a house on the western portion of Lot 353 in 1966. The second Defendant had conveyed the lot to him in 1965, probably because of the plans to rebuild the house. Around the time the first Defendant went to the States he started to fill the eastern portion of Lot 353 or the parcel of land in dispute. This would be 1968 or 1969. I held that it was around 1968 that the first Defendant entered on the eastern portion for the purpose of filling it. He was treating it as his own and contrary to the interests of the true owner. However, even if there was possession adverse to the rights of the true owner from that year, at the date of this Action there would not have been adverse possession for such period as it would bring into operation section 12 of the Limitation Ordinance CAP 198.

I turn now to determine whether the Plaintiff is owner of the parcel of land concerned. He is the registered proprietor of the land under a First Certificate of Title issued by the Registrar on 24th January, 1957. It is contended for the Defendants however that that Certificate of Title was not properly issued and therefore of no validity. By section 40 of the Law of Property Ordinance CAP 193 registration had to be in accordance with the provisions of the General Registry Ordinance CAP 218. Reference is therefore made to section 22 of that Ordinance which provides "The Registrar shall issue a First Certificate of Title - (c) to any person who makes out by deed and other documents a good title to the land at common law for thirty years prior to any application for the issue of a First Certificate;". According to the evidence outlined above, at January 1957 the Plaintiff would have made out by deeds and other documents good title for 30 years prior to the application and the Registrar properly issued the First Certificate of Title.

The Plaintiff had vested in him an estate in fee simple absolute in possession in the land as from 24th January, 1957 firstly by virtue of section 20 of the said Ordinance CAP. 218 and secondly by section 41(b) of the Law of Property Ordinance CAP 193 which provides "a registered title to land under Part II of the General Registry Ordinance subject to all estates, interests, charges and incumbrances noted on the certificate of title to the land, shall be an absolute and an indefeasible title." Finally subsection (4) (ibid) provides that "Absolute and indefeasible" implies that the certificate of title ---- cannot be challenged in any court of law on the ground that some person other than the person named therein as the registered proprietor is the true legal owner ---- except where it is proved to the Court that (a) fraud was committed in respect of the issue of the certificate of title ---; or (b) the title of the registered proprietor had been superseded by a later title acquired under section 42 of this Ordinance or barred by the Limitation Ordinance in favour of the person making the challenge.

There is no evidence of fraud and I have held that the Plaintiff is not barred by the Limitation Ordinance in favour of the Defendants and that they have not been in possession of the parcel of land for thirty years. The Plaintiff is owner of the parcel of land concerned. I however decline to make the first order prayed for. I take the view that this Court does not establish his title. He already has title.

I find that the Defendants have unlawfully entered upon his land and continue to trespass on it. He is entitled to damages for this trespass. There does not appear to be any loss but rather some benefit. He has the parcel somewhat filled. In all the circumstances I award him $25.00 damages and grant an injunction restraining the Defendants or their agents or servants from entering or occupying the Plaintiff's land. He is to have his costs.

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