Recreational Holdings I (Jamaica) Ltd v Carl Lazarus and Another

• Jurisdiction: Jamaica
• Judge: Anderson, K., J.,Honourable Kirk Anderson, J.
• Judgment Date: 19 September 2012
• Neutral Citation: [2012] JMSC Civ 165
• Docket Number: CLAIM NO. 2011 HCV05503 CONSOLIDATED WITH: CLAIM NO. 2011 HCV 05582
• Court: Supreme Court (Jamaica)
• Date: 19 September 2012

[2012] JMSC Civ 165

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011 HCV05503

CONSOLIDATED WITH: CLAIM NO. 2011 HCV 05582

Between

Recreational Holdings I (Jamaica) Limited

Claimant

and

Carl Lazarus

1st Defendant

and

The Registrar of Titles

2nd Defendant

Between

Carl Lazarus

Claimant

and

Recreational Holdings I (Jamaica) Limited

1st Defendant

Michael Hylton Q.C. , Duwayne Lawrence and Shanique Scott for Recreational Holdings I Jamaica Limited, instructed by Tracey Long of Long and Co.

Allan Wood Q.C. Miguel Palmer and Miguel Williams instructed by Livingston Alexander and Levy for Carl Lazarus .

Summary Judgment Applications — General principles to be applied by Court in respect of Summary Judgment Applications — Adverse possession — What constitutes adverse possession — Trespass to property — Common mistake of parties as to title to property — Both parties holding title — Adverse possession and lawful title — Acquiescence — Relationship between acquiescence and knowledge — Affidavit evidence — Need to state source of information and belief — Opinion evidence deposed to in Affidavit

Anderson, K., J.

1 In April of 1978, the Registrar of Titles issued to Clinton McGann (hereinafter referred to as ‘Mr. McGann’), a Certificate of Title registered at Volume 1154, Folio 550 of the Register Book of Titles, in respect of more than three hundred (300) acres of land, known as ‘Windsor Lodge’ (and hereinafter referred to as such) located in the parishes of Saint Andrew and Saint Thomas. That title was cancelled in 1986 pursuant to Section 79 of the Registration of Titles Act and replaced by Certificate of Title registered at Volume 1294 Folio 10 of the Register Book of Titles. Recreational Holdings I (Jamaica) Limited (hereinafter referred to as ‘RHIJL’), purchased Windsor Lodge in March of 2011 and is now the registered proprietor thereof. Certificate of Title registered at Volume 1294 Folio 10, was cancelled in April of 2011, because the duplicate Certificate of Title was lost and thus, that certificate was replaced by one registered at Volume 1449 Folio 349 of the Register Book of Titles. There is dispute between RHIJL and Carl Lazarus (hereinafter described as, ‘Mr. Lazarus’) as regards this property. More details as to the nature of that dispute are provided below.

2 In March of 1987, The Registrar of Titles issued to Mr. Lazarus, a Certificate of Title registered at Volume 1204 Folio 807 of the Register Book of Titles, thereby making him the fee simple owner of approximately 27 acres of land, part of Riversdale, in the parish of Saint Thomas (“the Lazarus property”). Mr. Lazarus is also the fee simple owner of land comprised in certificate of title registered at Volume 1204 Folio 806 of the Register Book of Titles (hereinafter described as, “the second Lazarus property”). There initially existed dispute between Mr. Lazarus and RHIJL as to whether or not RHIJL was trespassing on the second Lazarus property, insofar as it was initially being contended by Mr. Lazarus that RHIJL had erected a fence on the second Lazarus property. There is, however, now no longer existing as between the parties any factual dispute in this regard, as the respective parties” surveyors had prepared a joint expert report in Claim No. 2011HCV05582, in accordance with the Order of Mrs. Justice Thompson James, in that joint expert report, it was confirmed that there was in fact encroachment by RHIJL upon the second Lazarus' property. Since then, RHIJL has taken all necessary steps to remove that encroachment and as a consequence, as to whether or not the Defendant in Claim No. 2011HCV05582 did or did not have a fence built at his direction, on the Claimant's property, no longer requires determination by this Court. There are also other issues concerning that Claim which require the determination of the Honourable Court and these other issues are more particularly detailed, further below.

3 Windsor Lodge and the Lazarus property adjoin each other and there is an area of approximately 8.92 acres of land (‘the disputed property’), which is included in the Certificate of Title for both properties. It is this disputed property which the respective parties hereto, now seek by means of their respective Claims, to have the ownership of, resolved by this Court.

4 The first in time of the respective Claims filed by the parties was filed by RHIJL — Fixed Date Claim Form in Claim No. 2011HCV05503, seeking the following primary reliefs:

• (a) A declaration that the Claimant is the fee simple owner and registered proprietor of the parcel of land being 8.92 acres and being part of the land registered at both Volume 1440 Folio 349 of at Volume 1204 Folio 807 of the Register Book of Titles (‘the disputed property’).

• (b) An order against the 1 ^st Defendant for recovery of possession of the disputed property

• (c) An order that the 2 ^nd Defendant cancel certificate of title registered at Volume 1204 Folio 897 of the Register Book of Titles and issue a new Certificate of Title to the 1 ^st Defendant, excluding the disputed property.

• (d) Damages for trespass against the 1 ^st Defendant.

5 In terms of the Lazarus property, this being the one registered at Volume 1204 Folio 807, there is dispute between the parties at present, as regards whether Mr. Lazarus is trespassing on that property. This dispute has arisen because there is also dispute as to who owns the disputed property.

6 On September 7, 2011, Mr. Lazarus filed a Claim Form seeking reliefs related to the disputed property. The Claim number assigned to Mr. Lazarus' Claim which had named therein as the sole Defendant — RHIJL, is: Claim No. 2011HCV05582. Mr. Lazarus thereafter proceeded to file an amended Claim Form. The same was filed on September 16, 2011 and was accompanied by amended Particulars of Claim which were also filed on that same date. By virtue thereof, Mr. Lazarus sought the following primary reliefs:

• (i) An injunction restraining the Defendant, whether by itself, or by its servants, agents or otherwise howsoever, from entering, remaining on, or otherwise trespassing on the land being part of land comprised in the Certificate of Title registered at Volume 1204 Folio 807 and 1204 Folio 806 of the Register Book of Titles.

• (ii) A declaration that the Claimant has been in open and undisturbed possession of all the land registered at Volume 1204 Folio 807 of the Register Book of Titles in excess of twelve years and that the Defendant's title to such land has been extinguished pursuant to Section 30 of the Limitation of Actions Act.

• (iii)A declaration that the Claimant has been in open and undisturbed possession of all the land registered at Volume 1204 Folio 807 of Register Book of Titles in excess of twelve years and that the Defendant's title to such land has been extinguished pursuant to Section 30 of the Limitation of Actions Act.

• (iv) A Declaration that the Claimant is the owner of the estate in fee simple to all the lands called Riversdale in the parish of Saint Thomas and being the lands presently comprised in the Certificates of Title registered at Volume 1204 Folio 807 and Volume 1204 Folio 806.

• (v) Further or alternatively, a Declaration that pursuant to section 45 of the Limitation of Actions Act the boundaries to the land comprised in Certificates of Title registered at Volume 1204 Folio 807 and Volume 1204 Folio 806 of the Register Book of Titles have been acquiesced in and submitted to by the Defendant's predecessor in title for a period in excess of seven years and accordingly, this boundary is deemed to be the true boundary between the Claimant's land registered at Volume 1204 Folio 807 of the Register Book of Titles and the Defendant's land registered in Volume 1449 Folio 349.

• (vi) An Order that the Defendant deliver up possession of all the land comprised in Certificate of Title registered at Volume 1204 Folio 807 and Volume 1204 Folio 806 of the Register Book of Titles to the Court forthwith.

• (vii) An Order that the Defendant remove any fence which it has erected on the lands comprised in the Certificate of Title registered at Volume 1204 Folio 807 and Volume 1204 Folio 806 of the Register Book of Titles.

• (viii) An Order that the Defendant deliver up the duplicate Certificate of Title registered at Volume 1449 Folio 349 of the Register Book of Titles and that the Registrar of Titles is directed to rectify the aforesaid Certificate of Title removing from that Certificate of Title any reference or description to any part of the lands now comprised in the Certificates of Title registered at Volume 1204Folio 807 and Volume 1204 Folio 806 of the Register Book of Titles.

• (ix) Damages for trespass, inclusive of aggravated damages.

7 During the hearing of the respective Claims before this Court in Chambers, pursuant to respective applications filed by Mr. Lazarus and RHIJL for Summary Judgment, which the parties' counsel agreed would, once decided upon by this Court, be determinative of the Claims, the counsel for the Defendant (RHIJL) applied on his client's behalf, to amend his client's Defence in respect of Claim No. 2011HCV05582, in order to allow for a plea of misrepresentation to be made as follows:

‘The Defendant will further say that in support of his application to bring the Claimant's land under the Registration of Titles Act, the Claimant relied on a surveyor's plan which falsely represented the lands to the west as being owned by the Commissioner of Lands as being unregistered and the lands to the north as being owned by Charlie Manhertz and being unregistered.’

Mr. Hylton has informed the Court that affidavit evidence has been deposed to by Ms. Tracey Long in support of this assertion and also Mr. Lazarus has specifically responded to this assertion in one of his Affidavits. Counsel for Mr. Lazarus has,...