Fort Jeudy Association Inc. v Augustine Telesford
| Jurisdiction | Grenada |
| Judge | Actie, J. |
| Judgment Date | 12 December 2023 |
| Neutral Citation | GD 2023 HC 30 |
| Court | High Court (Grenada) |
| Year | 2023 |
| Docket Number | CLAIM NO. GDAHCV2020/0487 |
The Hon. Mde. Justice Agnes Actie High Court Judge
CLAIM NO. GDAHCV2020/0487
IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
HIGH COURT OF JUSTICE
(CIVIL)
Mrs. Linda Dolland and Ms. Sephorah Khan for the Claimant
Mr. Kadeem Strachan, Ms. Skeeta Chitan, Mrs. Crystal Braveboy-Chetram and Mr. Ricardo Sylvester for the Defendant
The main issue arising in this claim is whether the claimant's claim filed on 25 th November 2020 for the possession of premises situate at Fort Jeudy, St. George is statute barred.
The claimant is a non-profit company incorporated on 18 th October 2000 under the Companies Act 1. The claimant was established for the purpose of enabling members to share mutual responsibilities in connection with the communal
facilities in the Westerhall Fort Jeudy Development Scheme (hereafter referred to as “the Development Scheme”), among other thingsThe claimant became the registered owner of the Development Scheme through a deed of conveyance dated 25 th February 2002 between Westerhall Fort Jeudy Ltd. (hereafter referred to as “the Developer”) and the claimant (hereafter referred to as “the 2002 conveyance”). Subsequently, the claimant discovered that other lots, including Lot 225A in the Development Scheme (hereafter referred to as “the premises”) were not included in the 2002 conveyance. The Developer went into voluntary liquidation on 4 th July 2004. By conveyance dated 21 st March 2014 (hereafter referred to as “the 2014 conveyance”), Brian Robinson, as liquidator, transferred the premises to the claimant.
The claimant seeks an injunction against the defendant for the removal of all chattel and other effects from the premises together with damages for trespass, among other things. The claimant asserts that the defendant was a paid handyman for the Developer and that the premises were utilized by the Developer as a guard hut, and for the storage of pipe materials, to which the defendant had access and also utilized.
The claimant further asserts that the defendant's use of the premises has always been with the consent of the claimant and/or its predecessors in title for the purpose of conducting plumbing and maintenance services. The claimant also avers that the defendant's occupation of the premises was as a licensee with the permission to plant crops and to use and occupy the premises.
The claimant states that on numerous occasions before 2016 and during the period of 2016–2019, its representatives, Andrew Minors and Christopher DeAllie met with and gave directions to the defendant's occupation and use of the premises, to which the defendant temporarily complied. In particular, the claimant communicated its objection to the defendant selling alcohol on the premises without the requisite liquor licence.
The claimant contends that in or about the year 2016, a licence was prepared for the execution by the defendant in order to formalize the defendant's occupation of the premises, however the defendant failed, neglected and/or refused to sign the licence. A formal notice was issued to the defendant on 27 th March 2019 requiring him to execute the licence and to desist from conducting commercial activities and selling alcohol, failing which a notice to vacate the premises would be issued without further warning.
The defendant in correspondence dated 24 th April 2019 in response asserted an interest in the premises.
The claimant contends that the defendant has failed, neglected and or refused to vacate the premises or to execute a licence in respect of same and that he is therefore a trespasser on the claimant's property.
The defendant died on 6 th May 2023, and pursuant to Section 36 E of the Evidence Act a notice was filed to tender the witness statement of the deceased. The deceased's sons, Augustine Telesford Jr and Dr. Devon Angus Francis, were substituted in place of the deceased defendant.
The defendant in his pleaded defence denies that he is a trespasser or a licensee of the claimant, or the Developer, the claimant's predecessor in title. The defendant admits however that he was a contractor who supplied plumbing and maintenance services to the Developer.
The defendant further states that even if it is found that he was initially a licensee of the Developer, that such license was terminated on or about 9 th July 2004 when Developer was placed in voluntary liquidation, or alternatively when the defendant ceased providing any plumbing services to the Developer, years prior to the Developer going into liquidation. The defendant contends that he has been in exclusive possession of the premises since in or about July 2004 without the permission or consent of the Developer or the claimant.
The defendant states that when he first took possession of the premises, it was densely forested with large trees and high woods, and that he cleared the premises and cultivated agricultural crops thereon. The defendant avers that he built a one-bedroom house on the premises, and that over the years he has been in possession, has burnt coals and operates a bar. It is the case of the defendant that he has been in open, free and undisturbed possession of the premises for in excess of 40 years.
The defendant avers that the claimant's right to bring an action, if any, is barred by virtue of Section 4 of the Limitation of Actions Act, and that pursuant to Section 27 of the Act, the claimant's title has been extinguished.
The defendant argues that the claimant's claim against his occupation of the premises is statute barred by operation of the Limitation of Actions Act.
The law concerning limitation of actions in a claim for possession of land is contained in Section 4 of the Limitation of Actions Act 2 which states the following:
“No person shall make an entry or distress, or bring an action to recover any land, but within twelve years next after the time at which the right to make the entry or distress, or to bring the action, has first accrued to some person through whom he or she claims, or if the right has not accrued to any person through whom he or she claims, then within twelve years next after the time at which the right to make the entry or distress, or to bring the action, has first accrued to the person making or bringing it.”
Further, Section 27 of the Limitation of Actions Act states:
“At the determination of the period limited by this Act to any person for making an entry of distress or bringing an action, the right and title of that person to the land for the recovery whereof the entry, distress, or action, might have been made or brought within that period shall be extinguished.”
The claimant's main contention is that the defendant's use and occupation of the premises had always been with the consent of the claimant and or predecessors in title as a licensee. The claimant further contends that the defendant has never been in adverse possession of the claimant's property as the claimant became entitled in its own right to claim possession of the premises when it obtained title in March 2014.
The issue is what is the nature of the defendant's occupation. The claimant asserts that the defendant's occupation had always been that of a licensee. The case of Duffy's Valley Corporation Ltd v Kunta Brookes 3 defines the characteristics of a licence, wherein it was stated that:
“A bare licence is one granted otherwise than for valuable consideration. It amounts to a mere permission to enter and occupy. A critical feature of the bare license is that it gives that licensee no proprietary interest in the land and can be withdrawn at any time by the licensor without notice but the licensee must be given a reasonable time to depart. It follows that where, as in this case, there is no reason to impute a contractual arrangement between the Parties, the permitted occupancy remains that of a revocable licence.
It is also clear that a licensee's presence on the land is only justified to the extent granted in the licence. If the licensee acts in anyway which is inconsistent with the permission granted, then his act will be considered a trespass. In the same way, a licensee who remains on land after his licence expires or is properly revoked is also a trespasser.”
The defendant on the other hand asserts that the licence to occupy the land was terminated when he remained in possession in his own right from 2004 when the developer went into liquidation.
In Halsbury's Laws of England 4, the authors state the following:
“Since a licence does not create an interest in land, it is not binding upon a successor in title of the original grantor unless the circumstances are such as to give rise to a constructive trust… A gratuitous license is revocable by notice at any time, and is revoked by the death of either party or by assignment of the land over which the license is granted.”
It is clear from the documents before the court that the defendant's occupation of the premises commenced through that of a license by the Developers, the claimant's predecessors. The defendant states that he was placed on the premises by the Developer for the purposes of maintenance.
Thus, between the years 2004 and 2014 (when the premises were transferred to the claimant) there was no recorded owner of the premises to have had the technical capacity to grant a license to the defendant, nor was there an occupier of the premises other than the defendant.
Possession with permission cannot be deemed adverse. Megarry and Wade in The Law of Real Property 5 states this very principle in the following quotation:
“If a person is in possession of land with the...
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