Jisco Alpart Jamaica v Monica White
| Jurisdiction | Jamaica |
| Judge | Anderson, K.J |
| Judgment Date | 22 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2010 HCV 01615 |
(By Executor and Representative Horace Gayle)
[2022] JMSC Civ. 118
CLAIM NO. 2010 HCV 01615
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Unregistered land — Dispute as to ownership of land — Burden and standard of proof — Affirmative defence — Claim for recovery of possession — Claim for trespass — Adverse possession as a defence — Whether adverse possession applies to unregistered land — Credibility between witnesses — Limitation rights and unregistered land — Possession of vacant land — When does time start to run against the claimant — Factual Possession — Intention to exclude others — Fencing and cultivating vacant land — Payment of taxes by the claimant — Payment of taxes by the defendant's mother — Series of possession — Whether possession was disturbed — Future use of the land — Acknowledgment of title
Walter Scott QC and Anna Gracie instructed by Michalene Lattore for the claimant
Annishka Biggs and Karen Scott instructed by Raphael Codlin and Co, for the defendant
The claimant filed a further amended claim form on September 10, 2014, for trespass and/or recovery of possession of all those parcels of land, being section 1 part of Waltham also known as the grove in the parish of Manchester containing by survey 16,187.425 square meters and section 2 part of Waltham also known as the grove in the parish of Manchester containing by survey 2,868.251 square meters (hereinafter referred to as: ‘ the disputed land’/ ‘the disputed property’).
The claimant contends that it acquired the disputed land in 1956 for residential development and from that time to the date of the filing of this claim in 2010, it has enjoyed, continued and undisputed possession of the disputed land and paid property taxes. The claimant avers that it is common knowledge to all persons in the community that the disputed land is owned by the claimant.
The claimant contends that the disputed land has been unlawfully entered upon and occupied by the defendant, her servants and/or agents without any legal or equitable title or interest in same, and the defendant has failed to deliver up possession thereof, despite notice from the claimant.
The defendant filed an amended defence on October 22, 2014. The defendant contends that the disputed land was devised to her father, whereafter, she became the successor in title and the claimant could not have purchased the disputed land from someone who did not possess the title to sell it.
The disputed land was always in the undisturbed possession of her family and she is the successor in title. The claimant has no authority to enter into any sale as the defendant has not authorized it.
It is agreed between the parties that in order for the court to arrive at the decision as to who is the owner of the disputed land, a careful analysis needs to be undertaken as it relates to the historical background of this claim. From that information, the court will be equipped to engage into a discussion as to the relevant issues arising and ultimately, who is the owner of the disputed land.
On January 4, 1924, a deed of indenture was entered into by Joseph Anderson, wherein he conveyed to Mr. Alexander Grant DaCosta 10 acres of lands situated in Waltham in the parish of Manchester, known as Anderson Run.
On November 8, 1947 A. Grant DaCosta sold 2 acres 3 roods and 30.8 perches of land of Anderson Run in the parish of Manchester to Mr. George Elliot for the sum of £117, of which £110 was already paid and the balance payable on completion.
On August 11, 1947, Mr. Alexander Grant DaCosta made his last will and testament. By this document, he appointed Charles Mullings and Allan Archibald White as his executors. He devised to Archibald White and his wife for their lifetime and upon their death to their daughters: Hortense, Violet and Monica to share and share alike all that parcel of land know as Pitter Town along with the balance of land known as “Anderson Run” save and except the ‘ route and therefrom a. that portion marked off and sown to the said Archibald White to be said to George Elliot and b. that portion to be sold to Mr. Adam.’
In March 1948 Mr. Grant DaCosta sold 1 8/10 acres part of Anderson Run to George Elliot. The sale price was £60.00 of which a deposit of £30 was received.
On July 5 1956 Mrs. Mabel Elliot, the widow of George Elliot, entered into an Option agreement with Mrs. S. Latrielle granting her the option to purchase approximately 3 acres of land together with the right which the grantor shall have to purchase an additional acreage of approximately 2 acres, 3 roods and 30.8 perches part of Anderson Run from A Grant DaCosta by memorandum of sale dated November 8, 1947 and 1 8/10 acres of Anderson Run from A Grant DaCosta by memorandum of sale dated March 1948. The option was exercisable by notice in writing to Mrs. Elliot or to Dunn Cox and Orrett, for purchase price of £8000.
On July 14, 1956 a letter was written from Dunn Cox and Orrett to Kaiser Bauxite Company wherein receipt of the option money of £1 was acknowledged. On July 27, 1956, Mrs. Elliot through Dunn Cox and Orrett, notice was given to Ryle Davis that the property was now sold to Kaiser Bauxite Company.
On February 6, 1957, Dunn Cox and Orrett, wrote to Kaiser Bauxite Company advising of the transfer of land registered at Volume 381 and Folio 51. Kaiser responded to said letter on February 12, 1957 promising to pay the balance purchase price.
On March 19, 1957 a follow up letter was addressed to Dunn Cox and Orrett as it relates to the assignment of rights under the memoranda of sale.
Grant of Probate was granted to Charles Mullings in the estate of Alexander Grant DaCosta on April 21, 1959. Allan Archibald White died on August 6, 1955.
In May 1961, Kaiser Bauxite Company wrote to the attorneys for the estate of Alexander Grant, McGregor and Williams concerning the status of the sale. On June 6, 1961, Kaiser wrote to McGregor and Williams that Naomi White was at the point of building on land belonging to Kaiser. On September 27, 1961 Mr Williams wrote that Naomi White and her daughters had acknowledged that they had no right to the land in the second parcel sold by Mr. DaCosta to Mr. Elliot, a letter was purportedly signed to that effect.
The claimant wrote to McGregor and Williams on October 2, 1961 advising that it is making arrangement for proper boundaries and fences to be in place.
There were correspondences between McGregor and Williams and the claimant between November 1961 and March 1968 concerning the disputed property and the pending title.
In 1970s, the Whites applied to bring lands under the operation of the Registration of Titles law.
On January 23, 2003, Mr Glendon Newsome a Commissioned Land Surveyor prepared a survey plan wherein he visited the area on June 12 and 26, 2002. The plan discloses that section 1 contains by survey 16, 187.425 square meters (3.9 acres) and section 2, 2,868.251 square meters (0.71 acres)
The claimant led evidence through three witnesses, namely: Frank Ross, Carlton Maxwell and Glendon Newsome.
Frank Ross led evidence that he is the Lands Manager at the claimant and has been employed there, since 1993. In or around the 1950, Alpart was a partnership between Reynolds Metals Company, Kaiser Bauxite and Anaconda which traded as Alumina Partners Jamaica. He avers that the claimant paid £8000 for the property. There was no receipt.
Carlton Maxwell led evidence in chief that he was the former land Superintendent at the claimant. He started working there in 1994. As part of his duties, he was to be aware of all properties held by the claimant and to visit the lands in the claimant's possession, which included the disputed land. He noted that during his tenure, he visited the disputed land on many occasions and during said visits, he had no cause to believe there was any dispute as regards the claimant's possession.
He had never seen anyone on the land. The land was pastured but there was no sign of animals or crops. He avers that though he was never in charge of leasing, he believed the land was leased by a neighbour Mr. Shirley Buchannan.
During his tenure, he commissioned the survey which was done by Glendon Newsome. The lands were held for residential needs, and there was no need to survey same until 2002, when a purchaser was identified.
He gave evidence that to ascertain ownership of properties, he would look at the documents kept by the claimant. The company kept a detail mapping which was prepared by the claimant, he would look at said maps to ascertain the location of properties owned by the claimant.
He stated that he visited the disputed land approximately two (2) or three (3) times and on those visits, he looked, and had spoken with other adjoining owners. He was unable to say whether Shirley Buchanan's land was beside the disputed land.
He later gave evidence that he was unable to say whether Mr. Buchannan was beside the disputed land because there were two (2) separate entry points and though Mr. Buchannan was known to him and he visited his adjoining property, it is not the same entry point for both properties.
Glendon Newsome is a Commissioned Land Surveyor as was requested to survey the disputed land on May 29, 2002. He then prepared notices of survey in the prescribed manner, under the Land Surveyors Act and delivered them to adjoining owners including the defendant, Monica White on June 12, 2002.
On both occasions when he attended the disputed land, there was no objection raised by adjoining land owners or any other party. While he was conducting...
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