Supreme Court
Action No. 292 of 1981
17th March, 1982
Moe, J.

Mr. Wilfred P. Elrington for the Petitioner.
Mr. Glen Godfrey for the Opposer.

Property - Adverse Possession - Law of Property Ordinance - Petition to the Court for title to the land - Petitioner in undisturbed and continuous possession for thirty year period.

J U D G M E N T

The Petitioner seeks a declaration of title in respect of five acres of land situate at Spanish Creek, Belize River shown by Plan No.45 of 1916 recorded in the General Registry in Plans Book No.18 of Volume 1914 - 1917. He claims that he has been in continuous and undisturbed possession of the land since the year 1929. The petition was opposed by the Petitioner's brother, Charles Young and I heard evidence from the Petitioner himself, his brother Charles, their nephews Ira and Randolph and one Crescencio Perez. The Petitioner relies on the provisions of section 42 of the Law of Property Ordinance (CAP. 193) which states:

"(1) Title to the fee simple in any land, or to an easement, right or privilege in or over any land, including land belonging to the Crown, may be acquired by continuous and undisturbed possession of that land for thirty years if such possession is established to the satisfaction of the Supreme Court which may issue a declaration of title in respect of the said land, easement, right or privilege in favour of the person who has had such possession."

There was divergence in the evidence of the witnesses as to the occupation, use and enjoyment of the land concerned. Having seen and heard the witnesses I accepted the Petitioner's evidence. I found him to be an honest and straightforward witness. I was struck particularly by his frankness as to what was in his mind during the period he says he used and enjoyed the land as appears below. I did not feel I could put much stone on the evidence of Charles Young who, as it emerged from the evidence without any basis for it, attempted to get title to the said land from the Minister for Natural Resources. I paid little attention to his evidence. He and his witnesses were at variance as to whether the Petitioner ever worked the land, as to whether the Petitioner's son Ralph ever worked the land, and as to whether Charles Young himself ever did.

The Plaintiff's evidence was that the land belonged to one Margaret Smith. His father used to pay the taxes for the land until 1929 when the Petitioner himself started to pay the taxes at the request of his father who informed him that the land belonged to Samuel Young. In 1932 his brother Wilfred, whose house had been damaged in the hurricane of 1931, asked his permission to put a house on the land and he allowed him to do so. Wilfred remained on the land from 1932 until 1936. The Petitioner started working the land from 1945; that is, he cleared it, cultivated it and reaped the crops which were seasonal. He did this up to last year 1981. He is the only person who has occupied and worked the land since 1945. He stated quite frankly as follows: "I regarded myself as paying taxes on behalf of my brother Samuel Young. Margaret Smith didn't give me permission to use the land. I worked it on behalf of my brother. I was taking care of it for my brother. Throughout I regarded my brother as owner and I worked it for him. I only put in for title because Charles went behind my back to get it. My brother couldn't come because he is dead. If his children came for it and it was lawful to give them I would give them. The land must belong to Samuel's children. It doesn't belong to me. It belong to Margaret Smith." The Petitioner's witness his nephew Ira gave evidence that he remembered seeing the Petitioner work the land from 1945 and never saw his uncle Charles Young working the land.

I found that firstly as from 1945 the Petitioner-

(a) cultivated the land;
(b) reaped the crops he planted on the land;
(c) used and enjoyed the land as at (a) and (b) without the express consent or agreement of whoever was the true owner.

Secondly, the Petitioner used and enjoyed the land as at (a), (b) and (c) from 1945 to 1981.

The question left for determination was whether the possession, use and enjoyment of the Petitioner was sole and undisturbed; i.e. was the possession to the exclusion of anyone else including the true owner? It was submitted on behalf of the opposer that the evidence of the Petitioner himself (set out above) is evidence that his possession was not inconsistent with the enjoyment by the owner, i.e. not with the intention of ousting the owner. That the possession on which the Petitioner relies was not inconsistent with the true ownership of the land. It was then contended that on the evidence the Plaintiff held the land as a constructive trustee.

In the case of Archer Et Ux v Georgiana Holdings Ltd. 21 WIR 431 Swaby J.A. in dealing with the onus placed on the party alleging dispossession of or discontinuance of possession by the true owner had this to say, "He (the Person alleging) must prove occupation and use of the land of a kind altogether inconsistent with the form of enjoyment which is available to or intended by the true owner." In that case there was a review of the line of cases which show that the intention accompanying the acts of interference are of crucial importance in determining the question but it was held that each ease depended upon the nature of the land in question and the circumstances under which it was held.

To my mind the Plaintiff's evidence quoted above indicates his recognition that the land belonged to someone else. He did not have permission from that person to use and enjoy the land. But he used and enjoyed the land as he would any land of his. Indeed as early as 1932 he took it upon himself to let Wilfred use the land. He commenced cultivation of the land in 1945 and in 1950 decided to stop paying the taxes as had been requested, which was inconsistent with the interests of his brother or Margaret Smith. I am prepared to find that, as from 1950, the Petitioner clearly used the land as if it were his own and had been so using it until 1981.

In the result, the Petitioner has established to my satisfaction that he has been in sole and undisturbed possession of the land concerned for a period of thirty years. I accordingly declare title in the Petitioner to the land.

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