Freckleton (Valerie Patricia) v Winston Earl Freckleton

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 25 July 2006
• Judgment citation (vLex): [2006] 7 JJC 2501
• Date: 25 July 2006
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. HCV 01694 OF 2005

IN THE MATTER OF all that parcel of land part of

Maverly Mountain in the parish of St. Andrew

being the land comprised in Certificate of Title registered at Volume 1108 Folio 922 of the Register Book of Titles

AND

IN THE MATTER of all that parcel of land part of

Beverly Hills in the parish of Saint Andrew

being the land comprised in Certificate of Title registered at Volume 1106 Folio 63 of the Register Book of Title

AND

IN THE MATTER of the Limitations of Actions Act of Jamaica, 1881

BETWEEN

VALERIE PATRICIA FRECKLETON

CLAIMANT

AND

WINSTON EARLE FRECKLETON

DEFENDANT

IN CHAMBERS

Mr. Jermaine Spence instructed by DunnCox for the claimant

Defendant absent and unrepresented

REAL PROPERTY - Possession

SYKES J

1 1. This application involves two plots of land. One is located at Maverly Mountain and the other at Beverly Hills. They were bought and registered in the names of Mrs. Valerie Freckleton, and Mr. Winston Freckleton as joint tenants. All this occurred during happier times. They have since separate and divorced. Mr. Freckleton has remarried and now lives in the United States of America. Mrs. Freckleton resides in Jamaica. Mrs. Freckleton now wishes to be registered as the sole proprietor in respect of both parcels of land.

2 2. She has applied by fixed date claim form for the following:

• a. a declaration that the respondent by virtue of his non-occupation and non-possession of the properties comprised in certificates of titles registered at volume 1108 folio 922 and volume 1106 folio 63 of the Register Book of Titles since March of 1981 having discontinued possession of same and the claimant have since that time been in sole, undisputed and uninterrupted possession of the entirety of the said properties, the claimant, by virtue of sections 3, 4 and 14 of the Limitation of Actions Act of Jamaica 1881 has acquired an absolute title against the defendant in respect of the said properties.

• b. further and/or in the alternative, a declaration that the claimant, having dispossessed the defendant of the said properties, has required an absolute title against the defendant in respect of the said properties.

• c. an order that the Registrar of Titles endorse the certificates of titles registered at volume 1108 folio 992 and volume 1106 folio 63 of the Register Book of Titles so as to indicate that the claimant is the sole registered proprietor for the properties comprised in the said certificates of titles, having acquired an absolute title against the defendant in respect of the said properties.

3 3. In light of the far reaching nature of the declarations I need to examine the evidence of service before dealing with the substantive claim. Now that Mr. Freckleton lives in the United States of America, Master Lindo on October 6, 2005, granted permission to the applicant to serve her former husband him out jurisdiction. There are affidavits sworn by Mr. Ildelfonso of Broward County in the State of Florida, USA indicating that Mr. Freckleton has been served with the originating document and supporting affidavits. He has not filed an acknowledgement of service and neither has he filed a defence.

4 4. The fact that the matter is uncontested does not relieve the court of the obligation to see that the conditions are satisfied before the declarations can be granted.

Extinction of title

5 5. Between 1968 and 2003, the Judicial Committee of the Privy Council, the House of Lords and the Court of Appeal of England and Wales have authoritatively laid down the applicable law in a number of cases. These are Paradise Beach Transportation Company v Cyril Price Robinson [1968] A.C. 1072 PC ("Paradise"), Wills v Wills 64 W.I.R. 176 PC ("Wills"), J.A. Pye (Oxford) Ltd. v Graham [2003] 1 A.C. 419 HL ("Pye") and Buckinghamshire County Council v Moran [1990] Ch 623 CA ("Moran"). In the midst of these cases is the excellent judgment of Slade J. in Powell v McFarlane (1979) 38 P & CR 452 ("Powell") in which he stated with precision the intention necessary that must exist in the party who is claiming to have dispossessed the registered owner.

6 6. The critical cases for the determination of this case are Paradise and Wills because they focus on dispossession of one co-owner by another co-owner. In Paradise, an appeal from the Supreme Court of the Commonwealth of the Bahamas, by a will dated November 22, 1912, a testator devised land to his children and grandchildren as tenants in common. Before he died two of his daughters farmed the land on his behalf. This meant that the daughters did not possess in their own right and so could not have begun to have possession for the purposes of extinguishing their father's title. On October 23, 1913, the father died and his daughters continued farming until the early 1920's when they erected a house on the land. The daughters farmed the land until they died in 1962 and after their deaths, the land was occupied by one Mr. Cyril Price-Robinson and others, successors in title to the daughters. It is these successors who were the respondents in the appeal to the Board. The appellants claimed to be successors in title to those persons who along with the daughters would have been entitled to the land under the will of November 22, 1912. Consequently, the appellants argued, they were entitled to that portion of the land as would have devolved to their predecessors in title. For the appellants to succeed they had to establish that their predecessors in title at some point entered into possession of the land which had that occurred would have prevented the daughters from dispossessing the other tenants in common. The appellants commenced an action in 1963 against the daughters' successors in title, claiming their undivided share. The basis of the claim was that the father's will devised to their predecessors in title and the daughters' predecessors in title as tenants in common. Now comes the crux of the appellants' arguments. They said that the daughters did not acquire title to the appellants' share because all the daughters had done was to continue farming, an activity in which they were engaged before the testator died. This activity, the appellants, submitted was insufficient to dispossess the other tenants in common. In other words, to use the language that should not now fall from our lips, the daughters had not done anything "adverse" to the possession of the appellants' predecessors in title and therefore time had not begun to run against the appellants' predecessors which meant that the daughters had not extinguished the title of the other title holders. Since the daughters died in 1962 and the action was commenced in 1963, it followed that the respondents (the daughters' successors) could not acquire a better title than the daughters had.

7 7. The appellants' submissions were founded on the idea that the daughters had to do some "hostile" act to show that they intended to bar and exclude the appellant's predecessors in title and since that had not been done the appellants' title was not extinguished. The appellants argued that despite the abolishing of the doctrine of non-adverse possession the daughters were not wrongfully in possession and title could not be extinguished unless and until there was a wrongful possession which would then have precipitated a right of entry and it was only when this right of entry arose that time began to run in favour of the daughters. That wrongful act never occurred and therefore time did not begin to run in their favour.

8 8. The finding of the trial judge, which was upheld, was that the daughters had been in possession for their own use and benefit and that they and their successors in title had been in exclusive possession since the father died. This was for more than the twenty years required by the relevant Bahamian legislation and so the paper title of the other co-owners, albeit tenants in common, had been extinguished.

9 9. Lord Upjohn, speaking for the Board, made a number of important conclusions. First, the relevant Bahamian statutes were the Real Property Limitation Act (No. 1), 1833 and the Real Property Limitation (1874) Act were identical to the Real Property Limitation Acts, 1833 and 1874 (UK). Second, Denman C.J. had definitively interpreted the United Kingdom statutes in two...