Farrington v Bush

• Jurisdiction: Jamaica
• Judge: (Edun, Graham-Perkins and Swaby, JJ.A.)
• Judgment Date: 27 June 1974
• Court: Court of Appeal (Jamaica)
• Date: 27 June 1974

Court of Appeal of Jamaica

(Edun, Graham-Perkins and Swaby, JJ.A.)

FARRINGTON

and

BUSH

H.G. Edwards, Q.C. for the appellant;

J. Stafford and A. Hunter for the respondent.

Cases cited:

(1) Tecbild Ltd. v. Chamberlain(1969), 20 P. & C.R. 633.

(2) William Bros. Direct Supply Stores Ltd. v. Raftery, [1958] 1 Q.B. 159; [1957] 3 All E.R. 593.

Land Law-title-adverse possession-claimant to show assumption of actual physical possession and intention to dispossess true owner-possession to amount to ouster of owner by unequivocal acts and mere entry and user not enough-intention to dispossess must be adverse to owner and not based on his own claim to ownership

The respondent brought an action in the Grand Court seeking, inter alia, damages for trespass by the appellant upon his land and a declaration that he was the true owner of the land.

The respondent had been in possession of the land with the consent of the owner since 1925. In 1958 he was appointed attorney by the owners heir-at-law (the owner having died) and for 10 years prior to the commencement of the present proceedings in 1970 had been living on some part of it or visiting it twice weekly. The appellant also claimed to be the owner of the land by virtue of a conveyance made in his favour by another member of the deceaseds family. The conveyance was dated and recorded in 1952 and 1956 respectively. In 1959 the appellant took steps to register it and maintained up to the filing of his defence to the present proceedings that it gave him a proper title to the land. He subsequently withdrew the defence, conceding that the conveyance was invalid and instead sought to establish that he had acquired title by adverse possession by user over a continuous period of 12 years up to the date on which the respondents statement of claim was filed.

The acts upon which the appellant relied were (a) monthly visits to the land; (b) having the land cleared; (c) registering the land in 1959 under the invalid conveyance; (d) putting up a notice on the land warning persons not to trespass on it; and (e) putting down markers on the boundary in 1968.

The Grand Court found in favour of the respondent on the ground that the appellant had not discharged the onus of proving that the respondent no longer had any right to the land because the acts on which he relied were incapable, in the particular circumstances of the case, of demonstrating his possession or the dispossession of the respondent.

On appeal, the appellant repeated his submission in the lower court.

Held, dismissing the appeal:

The appellant had failed to establish that he had acquired title to the land by adverse possession. To do so, he needed to show the co-

existence of two essential factors-his assumption of actual physical possession and his intention to dispossess the true owner of the land. The actual physical possession had to be possession of such a nature as to amount to an ouster of the owner by such acts as were unequivocal and demonstrably consistent with both an attempt and an intention to exclude his possession; mere entry upon and user of the land was not in itself sufficient. The acts relied upon by the appellant were not unequivocal, since although it was possible that he had intended to exclude the respondent from possession, his own claim to possession had been based on his right to enjoy the land by virtue of his alleged ownership of it and not simply on his wish to enjoy it adversely to the respondent. On the evidence, the Grand Court had properly given judgment in favour of...