Nurse et Al v St. Georges University Ltd

• Jurisdiction: Grenada
• Judge: Benjamin, J
• Judgment Date: 20 July 2007
• Neutral Citation: GD 2007 HC 17
• Docket Number: GDAHCV 0524 of 2006
• Court: High Court (Grenada)
• Date: 20 July 2007

High Court

Benjamin, J.

GDAHCV 0524 of 2006

Nurse et al

and

St. Georges University Limited

Appearances:

Mrs. A. Trotman-Joseph for the claimants

Mr. L. Noel for the defendant

Real Property - Title — Statutory declaration was ineffectual for purpose of conveying title — No evidence of continuous possession for the prescribed period.

Benjamin, J

1 The first-named claimant is the named executor under the will of his late father, George Nurse, who died in Grenada on October 23, 2005. In the said will, which is dated August 31, 1999 the deceased purported to devise to his children, the claimants in this action, a lot of land comprising 31,000 square feet situate at L'Anse Aux Epines in the parish of St. George in the State of Grenada in equal shares. The claimants have duly appointed Dennis Joseph as their attorney by virtue of a Power of Attorney dated February 14, 2006.

2 The defendant is a limited liability Company incorporated by Act of Parliament No. 18 of 1996 and operates a University at True Blue in the parish of St. George.

3 By a fixed date claim form filed on October 24, 2006, the claimants brought proceedings against the defendant for the following orders:

1

An Order restraining the defendant from trespassing and/or building or erecting any structure on the lot of land situate at L'Anse Aux Epines in the parish of St. George and containing by ad measurement 20,863 square feet (referred to as ‘the lot’). 2. A Declaration that George Nurse was the owner of the said lot of land at the time of his death and bequeathed same to the claimants as the beneficiaries under his will. 3. The removal of pillars erected on the lot of land and of all building materials from the said lot of land. 4. Such further or other relief as to the Court seems just.

4 In the Amended Statement of Claim, the claimants averred that the lot was acquired by the said George Nurse, deceased, by virtue of his being in possession of it, as evidenced by a Statutory Declaration dated December 19, 1994 and stamped by the Deeds Registry of Grenada on December 30, 1994. It was further asserted that the deceased secured the assistance of Mr. Dennis Joseph in the general management of the lot and that property taxes for the lot were paid to the Inland Revenue Department.

5 It was pleaded that in February 2006, the attorney visited the lot and observed an encroachment onto the lot by the defendant by the placing of sand and gravel by its servants and/or agents. It was further observed by the attorney, Mr. Dennis Joseph, in July 2006, that the defendant was erecting a fence on the lot. In October 2006, he also observed that the defendant had commenced building works on the lot.

6 The parties are ad idem as to the location of the lot of land. It is accepted that the lot is in boundary with property purchased by the defendant from Sealink Enterprises (Grenada) Ltd. by deed dated January 12, 2004. The said property is comprised of:

• (i) A lot of land situate at L'Anse Aux Epines measuring two acres one rood and twenty-nine poles; and

• (ii) A lot of land situate at L'Anse Aux Epines aforesaid containing 24,560 square feet.

The said lots of land are in boundary with each other and with the lot in issue in this action. The defendant's larger lot has the buildings now known as the ‘the University Club.’

7 In its Defence, the defendant disputed the claim to possession by the estate of the deceased. It was contended that it's predecessors-in-title had acquired possessory title to the lot and that it was continuing such enjoyment. It was admitted that the defendant had exercised rights of ownership on the lot by: utilizing the container placed on the lot by its predecessors in title; using the lot for parking vehicles (allegedly as was done by the former owners for over fifteen years); and by commencing the building of an addition to the University Club with a view to adding sixteen rooms.

8 The defendant challenged the efficacy of the statutory declaration as a conveyance or for transfer of ownership of the lot to the deceased. It was further said that the deceased was but an agent of one M. Ossendryver having been given the plan for the lot and therefore could not have acquired ownership or possessory title by virtue of section 4 of the Limitation of Actions Act, cap 173. The Defence referred to the said plan as having been for a lot of land containing 31,000 square feet which was surveyed for M. Ossendryver on September 26, 1968, which plan is annexed to an indenture made on January 26, 1970 and recorded in the Deeds and Land Registry.

9 In its Reply, the claimants sought to explain the discrepancy between the area of 20,863 square feet as claimed and the area of 31,000 sq. ft. referred to in the deceased's statutory declaration and in his will. It was stated that the difference of some 10,000 square feet may have been inadvertently sold twice by the original owner of the lot, Gordon Brathwaite, to Morice Ossandryver Ltd. in 1968 and then to Sealink Enterprises Grenada Limited in 1994. With regard to this matter, since the claimants are claiming the smaller area, no issue arises as the difference was thereby accepted to have been absorbed as part of the property now owned by the defendant.

10 The claimants pleaded additional facts in their Reply to support their position that the defendant does not enjoy superior title so as to exclude them from the lot. It was contended that the deceased took possession of the lot of land in June 1982 and that thereafter he and his agents traversed the land frequently, paid rates and taxes and made plans to build on the property. The claimants further asserted that the defendant was always aware of the deceased's ownership of the lot as its agents responded to requests by the claimant's Attorney to remove debris and building materials and parked vehicles from the lot.

11 The claimants disputed that the defendant's entitlement to rely on any possessory title by the predecessor in title of Sealink since Sealink had acquired title of the larger lot by virtue of a foreclosure by the National Commercial Bank.

12 Both sides are agreed that neither has any conveyance or other paper title to support ownership of the land in fee simple. Each side has asserted title by possession. There exists a conveyance of the lot by Gordon Brathwaite to Morice Ossendryver (Grenada) Limited. It is dated January 26, 1970 and has been duly registered in the Deeds and Land Registry of Grenada on February 4, 1970. A plan identical to that attached to the statutory declaration of the deceased is annexed to the said conveyance. No evidence was led as to the said Company ever having been in physical possession of the lot although the record shows that the Company remains in existence.

13 It is fundamental to the law of property in Grenada that title to land is ascertained by reference to the better right to possession. This basic doctrine was explained by Lord Diplock in Ocean Estates Ltd. v. Pinder[1969] 2 A.C. 19, in the following dictum at pp 24–25: –

“At common law… there is no such concept as ‘absolute’ title. Where questions of title to land arise in litigation the Court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land.”

This was the purport of the decision in Asher v. Whitlock[1865] L.R 1 Q.B 1. It was held that a person in possession of land can devise his interest and the devisee's heir can successfully maintain an action for ejectment against anyone who having entered upon the land is unable to show title or possession predating the testator's possession. Also, in Perry v. Clissold [1907] A.0 72, the Privy Council held that a person in exclusive possession of land was not a mere trespasser but enjoyed a possessory title maintainable against all except the rightful owner. The concept of possession of land was considered by Slade, J (as he then was) in Powell v. McFarlene (1977) 38 P & Cr 452. His Lordship had this to say (at p. 469): –

Possession of land, however, is a concept which has long been familiar and of importance to English lawyers, because (inter alia) it entitles the person in possession, whether rightfully or wrongfully, to maintain an action of trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession.”

14 The foregoing dicta have consistently restated the basic rule that if a person possesses land to the exclusion of other claimants in the absence of any other explanation, such possession is evidence of ownership in fee simple. Since there are competing claims being asserted on the one hand by the claimants through their deceased father and on the other hand by the defendants through its predecessors-in-title, the Court must assess the relative strengths of the titles as proved on the evidence and make a determination as to which party enjoys the better title.

15 The claimants have relied upon the statutory declaration dated December 19, 1994 made by the deceased. In addition to being self-serving, the document has time and again been stated by the Court to be ineffectual for the purpose of conveying title. One such pronouncement is to be found in the judgment of Alleyne, J (as he then was) in the case of Phibiana George v. Dorothea Corion et al Claim No. GDAHCV1994/0170. The learned judge said (at p. 3): –

“I make the point immediately that I do not consider this Statutory Declaration to be of any value as a document of title, nor does it have value as a evidence in this case, since Jones can be no more than a witness of fact. He has not given viva voce...