George Rowe v Robin Rowe

• Jurisdiction: Jamaica
• Judge: Phillips JA,Brooks JA,McDonald-Bishop JA
• Judgment Date: 05 December 2014
• Neutral Citation: JM 2014 CA 119
• Docket Number: RESIDENT MAGISTRATES' CIVIL APPEAL NO 5/2014
• Court: Court of Appeal (Jamaica)
• Date: 05 December 2014

[2014] JMCA Civ 46

JAMAICA

IN THE COURT OF APPEAL

Before:

The Hon Miss Justice Phillips JA

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA (Ag)

RESIDENT MAGISTRATES' CIVIL APPEAL NO 5/2014

Between

George Rowe

Appellant

and

Robin Rowe

Respondent

Jeremy Palmer and Mrs Kelly Pascoe-Muir instructed by Jeremy A Palmer & Company for the appellant

Leroy Equiano for the respondent

TRESPASS - Damages - Claim for damages for trespass to land and injunction to prevent further trespass - Whether there was an interference with possession

Phillips JA

1 I have read, in draft, the judgment of Brooks JA. I agree with his reasoning and conclusion and have nothing to add.

Brooks JA

2 On 21 January 2014, a Resident Magistrate for the parish of Saint Elizabeth gave judgment in favour of Mr Robin Rowe in a claim that his half-brother, Mr George Rowe, had instituted against him. George has appealed from the learned Resident Magistrate's decision. He seeks to have this court set it aside and give judgment in his favour instead.

3 The claim was for damages for trespass to land and for an injunction to prevent further trespass. Their late father, Uriah Rowe, had previously owned the land. Uriah had devised it in his will to Nora Rowe, who is George and Robin's sister. Nora died after Uriah. George and Robin separately claim that they have acquired possession of the land.

4 The issue that the learned Resident Magistrate had to resolve, and with which this court has also had to wrestle, is whether Robin's actions in 2009, in respect of the land, which had, some years before, been fenced by George, amounted to trespass. The learned Resident Magistrate found that George did not prove a degree of possession sufficient to mount an action for trespass. Before assessing that issue and her decision, some of the background facts will be outlined. Each of the Rowes will be referred to, in this judgment, by their respective first names. This is for convenience only. No disrespect is intended.

The background facts

5 Uriah died in 1963. In his will, he left various parcels of land to each of his children. Probate of the will was granted in 1978 to Mr Samuel Blair and Ms Alice Daniels, the named executors. Unlike Mr Blair, Ms Daniels does not feature in these proceedings.

6 The land in dispute, which consists of approximately 1 acre, was part of a larger parcel of unregistered land. The family residence stood on that larger holding but was not on the disputed land. It seems that the entire parcel, by Uriah's estimate, was 9 ³/₄ acres. The relevant part of Uriah's will stated:

‘I give to my daughter Nora 1 acre adjoining to Adina Whitely and parochial road as her personal claim. I give my dwelling house to May Griffiths, my housekeeper and my daughter Nora for their life and after their death the balance of 8 ³/₄ acres must be shared and share [sic] alike between my two sons Donald and Rabin [sic].’

Uriah devised a separate parcel, at a different location, to George. It does not appear, however, that the executors vested any of these lands in their respective beneficiaries.

7 May Griffiths was also the mother of some of Uriah's children. She died after Uriah. Nora survived her, but suffered from a disability and needed assistance. Although there was a dispute between George and Robin as to the nature of the disability, it was Mr Blair's opinion that she required special care. In September 1997, subsequent to Ms Daniels' death, Mr Blair executed an indenture transferring Nora's parcel to George. He did so in consideration of George promising to take certain steps in relation to Nora. The relevant portion of the indenture (which was not stamped), stated:

‘…I…hereby state…that as Nora Rowe is unable to protect herself and is mentally unable to make decisions in her own best interest, that as Executor of the Estate [of Uriah Rowe] the ONE [sic] acre of land as shown on the said Will as bequeathed to Nora (Rowe) be conveyed to George Rowe – brother, of Round Hill, Southfield Po. who will be held responsible for all medical expenses and the burial of Nora at her decease and that from this day forward the said George Rowe will enter into full and undisturbed possession and to own it in fee Simple from this day forward.’

George testified that that document only confirmed a previous agreement that he had had with Mr Blair from as far back as 1978. He testified that, pursuant to that agreement, he had erected a perimeter fence on the disputed land in 1978. It seems that Nora died in late 1997, shortly after the indenture was executed.

8 Although Robin denied that George had had anything to do with that land, it is not disputed that a perimeter fence existed on the disputed land until about January 2009. It was in place in November 2008 when Robin had secured Mr Desmond Rowe, a commissioned land surveyor, to carry out a survey of the 9 ³/₄ acres. On those instructions, the surveyor issued a notice to George, as a person who would have been affected by that survey.

9 The surveyor prepared a subdivision plan in January 2009, and in that month, Robin removed the fence enclosing the disputed land. That removal prompted George's complaint in the Resident Magistrate's Court. The relevant portion of the particulars of claim, dated 6 July 2009, stated:

‘THAT on or about January, 2009, the Defendant entered upon the said property located at ROUND HILL in the parish of Saint Elizabeth, clipped down the Plaintiff's wire fence and weed [sic] up a section of the Plaintiff's property and has started farming the said property.’

10 Among the disputes as to fact between George and Robin, is whether either had used the land prior to 2009. George testified that he took possession of the land in 1978, fenced it, and ‘had guinea grass on the land at the time’ of Robin's entry on the land. George also said that he ‘used that grass to mulch other land that we do farming [on]’ (page 10 of the record).

11 Robin's case was that he had been ‘in control of the whole of the land since Nora died’ (page 20 of the record). He said that he had paid taxes for the land but had never seen George pay any taxes for that land. He testified that George had had nothing to do with the disputed land. According to Robin, he had ‘never seen George come on or occupy land [at that location]’ (page 21 of the record).

The findings in the court below

12 The learned Resident Magistrate, after assessing the law and distilling the facts, found that the conveyance executed by Mr Blair was ‘void and of no effect’ and therefore failed to vest ownership in George. Although she found that George had entered on the land in 1978 and had fenced it at some point before 1997, the learned Resident Magistrate held that George:

‘…did nothing about the land until 1997 when Samuel Blair was bedridden… [George then] confirmed ownership of the subject land and did nothing else until he brought this action in 2009.’ (Paragraph 36 of her reasons for judgment)

13 George's connection to the land, she held, did ‘not amount to possession sufficient to bring an action in trespass’ (paragraph 40 of her reasons for judgment). On the contrary, she found that Robin had demonstrated that he had a claim to the land, in that he paid land taxes in respect of it, entered it and started to clear and cultivate it. Consequently, she found that George had failed to prove on a balance of probabilities that Robin was liable in trespass. Accordingly, she gave judgment for Robin, with costs.

The grounds of appeal

14 Mr Palmer argued three grounds of appeal on George's behalf. They are:

• ‘a. … [T]he Learned Magistrate erred when she found that [the conveyance by Mr Blair] was of no effect and therefore failed to vest any ownership in [George].

• b. The Learned Magistrate erred in finding that [George] was not seized [sic] of possession of the property when [Robin] by his own conduct acknowledge [sic] that [George] was in possession by serving him with a notice as an adjoining owner to attend the survey commissioned by him.

• c. The Learned Magistrate erred in finding for [Robin] as [Robin] relied on two irreconcilable defences that of adverse possession as well as a purported paper Title.’

The relevant law

15 The law regarding trespass to land does not require a person complaining of a trespass to be the owner of that land. Trespass to land consists of interference with possession. The person claiming possession may be mistaken as to his ownership of the property but would still be entitled to maintain an action for trespass against another. In Toolsie Persaud Ltd v Andrew James Investments Ltd and Others [2008] CCJ 5 (AJ), the Caribbean Court of Justice opined that a defect in the paper title does not nullify the intention to possess. The court stated at paragraph [29]:

‘…Intention to possess thus extends to a person intending to make full use of the land in the way in which an owner would, whether he knows he is not the owner or mistakenly believes himself to be the owner eg due to a misleading plan or a forged document…’

Although the court made its observations in a case dealing with adverse possession, the principle is applicable to the issue of possession as an element for founding a claim in trespass.

16 The learned Resident Magistrate correctly identified that it is the party who has the greater right to possession that is entitled to maintain a claim for trespass. At paragraph 23 of her judgment she quoted from the decision in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419. Lord Browne-Wilkinson, at paragraph 32 of his judgment in Pye, himself quoted with approval from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452. The quoted passage focuses on the issue of possession in a claim for trespass:

‘Possession of land…entitles the person in...