Lungrin (Iris) v Monelal & Valentine (Olive)

• Jurisdiction: Jamaica
• Judge: DOWNER, J.A: , PANTON, J.A. , COOKE, J.A. (Acta.): , DOWNER J .A:
• Judgment Date: 02 April 2004
• Neutral Citation: JM 2004 CA 16
• Judgment citation (vLex): [2004] 4 JJC 0206
• Date: 02 April 2004
• Court: Court of Appeal (Jamaica)

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE DOWNER, J.A THE HON. MR. JUSTICE PANTON, J.A THE HON. MR. JUSTICE COOKE, J.A.(Actg.)

BETWEEN:

IRIS LUNGRIN

DEFENDANT/APPELLANT

AND:

PAUL MONELAL & OLIVE VALENTINE

PLAINTIFFS/RESPONDENTS

Leon Green instructed by Leon Green and Company for the Appellant

Jacqueline Samuels-Brown instructed by Yvonne Ridguard for the Respondent

REAL PROPERTY - Recovery of possession - Whether respondents entitled to recover possession - Whether plaintiff a tenant at will - Whether plaintiff's action statute barred - Limitation of Actions Act, s. 3

DOWNER, J.A:

1 Introduction

2 The issue on appeal is whether the Resident Magistrate for Portland, His Honour Mr. Bertram Morrison, ruled correctly that Paul Monelal and Olive Valentine the plaintiffs/respondents on appeal were entitled to recover a parcel of land which they claimed as part of their property. The order of the court below, in so far as material, states:

• "1. Judgment for the Plaintiff, the Defendant to vacate premises part of Titchfield Trust Lands in the parish of Portland, being part of the Lot numbered 453 on the Plan of Titchfield Trust Lands, deposited in the Office of Titles on the 1 ^st day of March 1960 and being the lands registered at Volume 1062 Folio 938 of the Register Book of Titles, on or by the 13 ^th day of May 2002."

3 It is arguable that the order of the Court recognized that the appellant was in possession. So the crucial question ought to have been, how long had she been in possession and on what terms? Iris Lungrin, the defendant, (the appellant) was aggrieved by that order and has instituted proceedings in this Court to reverse it.

4 The History

5 In order to appreciate the two important issues of law which emerged on appeal it is necessary to recount what happened during the lifetime of Elma Ivey, the initial registered owner of the entire estate in fee simple. She purported to transfer a square of land, a part of her estate to the appellant by way of a deed of gift. This deed, at page 30 of the Record was never stamped or registered, although it was signed by her and the appellant, Iris Lungrin. The purported gift was made on 30 ^th January 1976 because the appellant cared for Elma Ivey who was getting on in years.

6 In this context the following statement of principle by Lord Westbury L.C. in Dillwyn v Llewellyn E.R. Vol. XLV 1285 at 1286 is important. It states:

"About the rules of the Court there can be no controversy. A voluntary agreement will not be completed or assisted by a Court of Equity, in cases of mere gift. If anything be wanting to complete the title of the donee, a Court of Equity will not assist him in obtaining it; for a mere donee can have no right to claim more than he has received. But the subsequent acts of the donor may give the donee that right or ground of claim which he did not acquire from the original gift. Thus, if A. gives a house to B., but makes no formal conveyance, and the house is afterwards, on the marriage of B., included, with the knowledge of A,, in the marriage settlement of B., A. would be bound to complete the title of the parties claiming under the settlement. So if A. puts B. in possesssion of a piece of land, and tells him, 'I give it to you that you may build a house on it., and B. on the strength of that promise, with the knowledge of A., expends a large sum of money in building a house accordingly, I cannot doubt that the donee acquires a right from the subsequent transaction to call on the donor to perform that contract and complete the imperfect donation which was made. The case is somewhat analogous to that of verbal agreement not binding originally for the want of the memorandum in writing signed by the party to be charged, but which becomes binding by virtue of the subsequent part performance. The early case of Foxcroft v. Lester ( 2 Vern. 456), decided by the House of Lords, is an example nearly approaching to the terms of the present case."

7 It is also important to cite two paragraphs from the case of Goomti Ramnarace v Harrypersad Lutchman Privy Council Appeal No, 8 of 2002 delivered 21 ^st May 2001. Lord Millett said;

• "18. In the present case the appellant was allowed into occupation of the land as part of a family arrangement and at least in part as an act of generosity. But not wholly so, for the appellant testified that the intention of the parties was that she would buy the land when she could afford to do so, and the judge accepted her evidence. Her uncle was generous in that he allowed her to remain indefinitely and rent-free pending her purchase, and in that he did not press her to negotiate. But a tenancy at will commonly arises where a person is allowed into possession while the parties negotiate the terms of a lease or purchase. He has no interest in the land to which his possession can be referred, and if in exclusive and rent-free possession is a tenant at will. In Hagee (London) Ltd. v. AB. Erikson and Larson [1976] QB 209 at 217 Scarman LJ described this as one of the "classic circumstances" in which a tenancy at will arose."

8 It will be essential to ascertain if the appellant. Iris Lungrin, was a tenant at will. What is not in dispute is that the appellant was given permission to live on the land and it seems she put up a structure from 1978 for her accommodation.

9 The transfers from Elma Ivey, recorded in the Register Book of Titles Volume 1062 Folio 938 were firstly to the executors, then to the beneficiaries then to the respondents, Paul Monelal and Olive Valentine as purchasers. Here is how the transfers were recorded at page 19A of the Record:

"Transfer No. 16527 entered the 27 ^th day of July, 1987, all estate and Interest, of ELMA IVY to WESLEY DRYDEN, of 12 Boundbrook Road, Port Antonio, Portland, Stevedore and LAWRENCE FERGUSON, of 20 Boundbrook Avenue, Port Antonio, Portland, Banana Selector, on the 26 ^th day of March, 1980.

for Registrar of Titles

Transfer No. 461743 registered the 27 ^th day of July. 1987, to BEATRICE GRANT and CARROL GALLIMORE, of 6 Norman Road, Port Antonio, Portland, cook and Nurses Aid respectively as Tenants-in-common. Consideration in pursuance of the devise contained in the will of ELMA IVY deceased.

for Registrar of Titles

Transfer No. 895079 registered on the 12 ^th day of March, 1996 to PAUL FELIX MONELAL and OLIVE VALENTINE both of 3 Richmond Hill Road, Port Antonio, Portland, Seaman and ....Assistant respectively as Joint Tenants. Consideration money Two Hundred Thousand Dollars.

For Registrar of Titles."

10 The Certificate of Title reads as follows at page 19 of the Record:

"Certificate of Title under the Registration of Titles Law, Chapter 340

ELMA IVY

of 1 Boundbrook Crescent, Port Antonio in the Parish of Portland, Housewife

is now the proprietor of an estate in fee simple subject to the incumbrances notified hereunder in ALL THAT parcel of land part of TITCHFIELD TRUST LANDS in the parish of PORTLAND being the Lot numbered FOUR HUNDRED AND FIFTY-THREE on the Plan of Titchfield Trust Lands aforesaid deposited in the Offices of Titles on the 1 ^st day of March 1960 of the shape and dimensions and butting as appears by the Plan and being part of the land comprised in Certificate of Title registered at Volume 968 Folio 492 which said parcel of land was transferred by Transfer numbered 60009 produced for registration on the 14 ^th day of February 1970 and this Nineteenth day of February One Thousand Nine Hundred and Seventy."

11 This brief history is enough to state the first issue of law debated by counsel. The issue was whether the respondents, as registered owners, were entitled to recover possession from the appellant on the basis that they could successfully resist the claim by the appellant that she had acquired a title to the disputed parcel of land by adverse possession. That part of the land claimed by the appellant was described thus in the "deed" at page 26 of the Record:

12 "SCHEDULE

Description of land) ALL THAT parcel of land part only Of Lot NO. 453 of TITCHFIELD TRUST LANDS situate at 6 Norman Road, Port Antonio in the Parish of Portland comprising approximately One Square AND BEING part of the lands comprised in Certificate of Title registered at Volume 1062 Folio 938."

13 This is how the Resident Magistrate stated the law on the issue of adverse possession at pages 33–34 of the Record:

" Moses v. Lovegrove [1952] 1 ALL E.R. 1979 is cited as authority for the principle that where one occupies land with the permission or agreement or grant of another then that possession is not adverse to that other. In that case Romer LJ was of the opinion that if one looks to the position of the occupier of land and finds that his right to occupation is derived from the owner in the form of permission or agreement, or grant, it is not adverse.

This opinion as espoused was obiter dicta but certified into principle in the case of Hughes v. Griffin and another (1968) 1 All E.R. 460 in which the leading judgment was delivered by Harman L.J. after making reference to the obiter dicta of Romer L.J. as quoted above he said, 'those observations were no doubt obiter but they are of persuasive authority... I think they were right"

14 The learned Resident Magistrate continued his reasons by stating:

". . . the deed of gift being a grant of land to the Defendant that her possession of the land cannot be regarded as adverse and thus time could not have begun to run against Elma Ivey. It follows that time did not begin to run against the Plaintiffs until March 1991 that is the conclusion of the purchase of the land."

15 It was common ground in this Court that the deed dated 30 ^th January, 1976, failed. As for the contract of sale it was entered into on 9 ^th November, 1989, and the transfer was registered 12 ^th ...