International Hotels (Jamaica) Ltd v Proprietors Strata Plan No 461

• Jurisdiction: Jamaica
• Judge: Panton P,Morrison JA,Hibbert JA (AG)
• Judgment Date: 04 December 2013
• Neutral Citation: JM 2013 CA 124
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 135/2008
• Date: 04 December 2013

Between

International Hotels (Jamaica) Limited

Appellant

and

Proprietors Strata Plan No 461

Respondent

[2013] JMCA Civ 45

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Mr Justice Hibbert JA (Ag)

SUPREME COURT CIVIL APPEAL NO 135/2008

IN THE COURT OF APPEAL

REAL PROPERTY - Boundaries - Boundary dispute - Rights to register land in Negril - Recovery of possession - Whether claim for recovery of possession statute-barred - Limitation of Actions Act, S. 3

Dr Lloyd Barnett , Walter Scott and Weiden Daley instructed by Hart Muirhead Fatta for the appellant

Paul Beswick and Christopher Dunkley instructed by Ballantyne, Beswick & Co for the respondent

Panton P

1 I have read in draft the judgment that has been written by my learned brother Morrison JA. I fully agree with his analysis and conclusion, and do not think there is anything else to say in respect of the matter. However, I wish to apologize for the delay in disposing of this appeal. The reasons for delays of this nature are well known and we trust they will soon be corrected.

Morrison JA

Introduction

2 This is a case about rights to registered land in Negril, in the parish of Hanover. As the learned trial judge observed at the outset of his judgment in the court below, ‘[it] primarily concerns a boundary dispute’.

3 The appellant (“IHJL”) is a company registered under the provisions of the Companies Act and the respondent (“PSP”) is a strata corporation registered under the Registration (Strata Titles) Act. IHJL is the owner of some 18 acres of land registered at Volume 1113 Folio 630 of the Register Book of Titles. It is also the owner of a narrow strip immediately to the west containing some 12,573 square feet of land (“the intermediate strip”), registered at Volume 1210 Folio 154. Endorsements on both certificates of title direct that the land comprised in each is to be attached to the land comprised in the other, and ‘held therewith as one holding’. IHJL operates a hotel now known as “Hedonism II” on the land, which I shall refer to as “the hotel land”, comprised in both certificates of title.

4 PSP is the owner of land to the west of the hotel land, which is now registered at Volume 1238 Folio 4–263 of the Register Book of Titles (“Point Village”).

5 All three properties described above were once owned by the Urban Development Corporation (“the UDC”) and/or its subsidiaries. The UDC is a statutory corporation established by section 3 of the Urban Development Corporation Act and is empowered by section 4(3)(a) of that Act to, among other things, ‘acquire, manage and dispose of land…’

6 In 1999, PSP filed action in the Supreme Court to recover possession from the IHJL of two small parcels of land (“section one” and “section two”), containing approximately 336 and 193 square metres respectively, damages, further and/or other relief. Both these parcels of land, which run respectively along the northern and western boundaries between the hotel land and Point Village, are currently in use by IHJL and enclosed by a fence as part of the hotel land. It is common ground that both parcels, to which I shall refer together as “the disputed land”, are comprised in PSP's title registered at Volume 1238 Folio 4–263.

7 IHJL resisted PSP's claim, on the grounds that (i) IHJL and its predecessors in title have been in continuous, peaceful and undisturbed possession of the disputed land from and since 1976 and that, by reason of section 3 of the Limitation of Actions Act (“the LAA”), PSP's claim for recovery of possession and damages is statute barred; (ii) pursuant to section 45 of the LAA, the fences between Point Village and the hotel land are the true and/or the legal boundary between the said properties; and (iii) PSP is estopped from asserting any legal rights it may have in respect of the disputed land. Accordingly, by way of ancillary claim, IHJL sought a declaration that it is entitled to possession of the disputed land and consequential orders for the transfer to it by PSP of title to the said land.

8 In a characteristically lucid judgment given on 4 December 2008, Brooks J (as he then was) rejected IHJL's defence based on section 3 of the LAA, primarily on the basis that, for a considerable part of the relevant period, ‘the lands on both sides of the fence were ultimately owned by the same entity and thus there could be no application of the concept of adverse possession’ (page 20). The learned judge also rejected IHJL's defence based on the doctrine of estoppel, on the ground that ‘IHJL has not proved that it would be unconscionable for PSP 461 to rely on its legal rights in respect of the disputed land’ (pages 19–20). However, as regards section 45 of the LAA, the court considered that IHJL had made good its defence in relation to section one, but not in relation to section two of the disputed land. It was accordingly held that PSP was entitled to possession of section two, but not of section one, and orders for possession were made accordingly. With regard to the costs of the action, the learned judge considered (at page 20) that, ‘[i]n [the] light of the fact that both parties have had some measure of success, it is perhaps just, that each should bear its own costs’.

9 There is no appeal by PSP from this judgment. This is therefore IHJL's appeal from the order for possession made against it in respect of section two. All three issues canvassed in the court below, viz , the applicability on the facts of the case of sections 3 and 45 of the LAA, as well as the doctrine of estoppel, again arise on this appeal.

10 The evidence at trial was given by way of witness statements, with supporting documentation, and supplemented by further examination-in-chief and cross-examination of the witnesses on both sides. For the purposes of this judgment, it is necessary to rehearse in some detail the evidence regarding, firstly, the history of the adjoining properties that came in due course to be occupied by Hedonism II and Point Village; secondly, the circumstances in which the boundaries on earth between these properties came into existence; thirdly, the expert evidence; and fourthly, some important items of correspondence which passed between the parties at various times over the relevant period.

The properties

11 I start with the history of the hotel land. On 14 April 1975, the certificate of title registered at Volume 1113 Folio 630 was first issued to Rutland Point Hotels Limited (“RPHL”). RPHL is a wholly owned subsidiary of National Hotels and Properties Limited (“NHPL”), which is itself a wholly owned subsidiary of the UDC.

12 Between 1976 and 1978, a hotel known as “Negril Beach Village” was operated on the hotel land by Issa Hotels, a division of the House of Issa Limited. In 1978 NHPL took over the management of the hotel and continued to do so until October 1981. By a lease dated 6 October 1981 and registered on 21 April 1982, RPHL leased the land comprised in Volume 1113 Folio 630 to Village Resorts Limited (“VRL”) (which, in common with IHJL, is a member of the SuperClubs Group of Companies), for an initial period of five years, with two options to renew. (In fact, under a separate agreement, VRL remained the manager of the hotel, by then known as Hedonism II, up to the time of trial.)

13 In 1978, certificate of title registered at Volume 1148 Folio 38, relating to the land comprised in Volume 1113 Folio 630, was issued to UDC. In 1987, this land was subdivided and on 11 April 1988 title to a part of it (registered at Volume 1210 Folio 154) was issued in the name of RPHL, with the indorsement already referred to, that the land comprised in this certificate ‘shall be attached to the land comprised in Certificate of Title registered at Volume 1113 Folio 630 [the hotel land] and held therewith as one holding’. This was the intermediate strip. Title to the remainder of the land formerly comprised in Volume 1148 Folio 38 (together with other lands) was issued on 7 February 1989 to UDC and registered at Volume 1217 Folio 223.

14 On 4 December 1989, VRL surrendered its lease to the hotel land and, by transfer registered on that same date, RPHL transferred the hotel land to Linval Limited (“Linval”). On 22 December 1989, Linval changed its name to International Hotels Limited (“IHL”) and in due course, pursuant to a reconstruction agreement effective 31 March 2000, IHL transferred all its assets and liabilities to IHJL. The hotel land was specifically included in the property transferred to IHJL by this agreement.

15 At some point in the mid-1990s, a grill, a bar, a nude pool, a spa, a misting pool and a stone wall were constructed, and the pool pump house expanded, along the hotel's western boundary.

16 On the other side of the fence, so to speak, the land which is now the Point Village was originally comprised in certificate of title registered at Volume 1217 Folio 233 in the name of UDC. By transfer registered on 7 April 1989, this land was transferred to Rutland Point Beach Resort Limited (“RPBRL”), a company in which UDC is a 50% shareholder. The annual returns for RPBRL for 1989 and 2004 showed that the directors of the company in both years were members of the board/staff of UDC. A miscellaneous entry dated 24 July 1991 on the title registered at Volume 1217 Folio 233 noted that the land comprised in it had been registered at Strata Plan No 461 of the Registration (Strata Titles) Act. As a consequence, the certificate of title registered at Volume 1217 Folio 233 was cancelled and a new certificate of title for the land was registered at Volume 1238 Folios 4–263.

The boundaries

17 A number of witnesses spoke to this question. The first was Mr John Issa, the Executive Chairman of IHJL, who had had a particularly long association with the Hedonism II hotel and the hotel land. During the period...