Recreational Holdings (Jamaica) Ltd v Carl Lazarus & Registrar of Titles

• Jurisdiction: Jamaica
• Judge: Panton P,Morrison JA,Phillips JA
• Judgment Date: 30 September 2014
• Neutral Citation: JM 2014 CA 95
• Docket Number: CIVIL APPEAL NO 127/2012
• Court: Court of Appeal (Jamaica)
• Date: 30 September 2014

Between

Recreational Holdings (Jamaica) Limited

Appellant

and

Carl Lazarus

1st Respondent

The Registrar of Titles

2nd Respondent

[2014] JMCA Civ 34

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Morrison JA

The Hon Miss Justice Phillips JA

CIVIL APPEAL NO 127/2012

JAMAICA

IN THE COURT OF APPEAL SUPREME COURT

LIMITATION OF ACTION - Adverse possession - Limitation of Actions Act, s. 30 - Whether the respondent had been in open and undisturbed possession in excess of 12 years

Michael Hylton QC and Miss Shanique Scott instructed by Michael Hylton & Associates for the appellant

Allan Wood QC and Miguel Palmer instructed by Livingston, Alexander & Levy for the 1 ^st respondent

Miss Alicia McIntosh instructed by the Director of State Proceedings for the 2 ^nd respondent

Panton P

1 I have read the reasons for judgment that have been written by my learned brother, Morrison JA, in support of our decision that the appeal should be disposed of in the manner set out at paragraph [2] below. I agree with these reasons and have nothing to add.

Morrison JA

2 On 31 July 2014, the court announced its decision in this appeal as follows:

1

The appeal is allowed in part. The declaration granted by the learned trial judge that the respondent has been in open and undisturbed possession of the lands registered at Volume 1204 Folio 806 of the Register Book of Titles in excess of 12 years and that the appellant's title to such lands has been extinguished pursuant to section 30 of the Limitation of Actions Act (see para. 1(ii) of the Formal Order filed on 20 September 2012) is set aside. 2. Save as above, the appeal is dismissed and the judgment of Anderson J and the orders made by him on 19 September 2012 are affirmed. 3. Written reasons for this decision will be given in due course, at which time the parties will be invited to address the court by way of written submissions on the costs of the appeal.

3 These are my reasons for concurring in this decision.

The shape of the case

4 This appeal is concerned with three properties registered under the provisions of the Registration of Titles Act (“the ROTA”). The first, known as Windsor Lodge, is a property owned by the appellant (“RHJL”), comprising some 338 acres, part of which lies in the parish of St Andrew and part in the parish of St Thomas. The second is a smaller parcel of land, owned by the respondent (“Mr Lazarus”), comprising approximately 27 acres in the parish of St Thomas (“the Lazarus property”). The third is an even smaller parcel of land, also owned by Mr Lazarus, comprising approximately five acres in the parish of St Thomas (“the second Lazarus property”).

5 The second Lazarus property is registered at Volume 1204 Folio 806 of the Register Book of Titles. While orders were originally sought from the court in the proceedings below in relation to this property, its status was resolved by the parties by agreement after the commencement of the litigation. So nothing turned on it at the end of the day. The parties are therefore agreed that the learned trial judge's order in respect of this property was erroneously made and must be set aside, whatever the outcome of the appeal. Save at the end of this judgment, therefore, nothing further needs be said about the second Lazarus property.

6 RHJL's immediate predecessor in title to Windsor Lodge was Mr Clinton McGann. A certificate of title registered at Volume 1154 Folio 550 of the Register Book of Titles was issued by the 2 ^nd respondent (“the registrar”) on 11 April 1978. This certificate of title was cancelled by the registrar in 1986 and a new certificate of title registered at Volume 1294 Folio 10 was issued in its stead. In early 2011, RHJL purchased Windsor Lodge from Mr McGann and, on 19 April 2011, due to the loss of the certificate of title registered at Volume 1294 Folio 10, a new certificate registered at Volume 1449 Folio 349 was issued in the name of RHJL.

7 A certificate of title registered at Volume 1204 Folio 807 was issued to the Lazarus property in the name of Mr Lazarus on 20 March 1987. However, the evidence was that Mr Lazarus had actually been in possession of the property from 1985.

8 Windsor Lodge and the Lazarus property adjoin each other. There is an area of approximately 8.92 acres of land (“the disputed property”), which is included in the certificates of title of both properties. This is therefore a case of dual registration. This situation gave rise to litigation between RHJL and Mr Lazarus and, by his judgment given on 19 September 2012, K Anderson J found that Mr Lazarus had been in open and undisturbed possession of the disputed property for over 12 years. On that basis, the learned judge accordingly granted the declarations sought by Mr Lazarus that he had acquired title to the disputed property by way of adverse possession.

9 This is RHJL's appeal from K Anderson J's judgment. While there is no challenge to the judge's finding that, on the evidence, Mr Lazarus had been in actual possession of the disputed property for more than the requisite period, RHJL strongly disputes the judge's conclusion that RHJL's right to recover possession of the property was extinguished by the operation of sections 3 and 30 of the Limitation of Actions Act (“the LAA”).

10 The questions that arise on this appeal are therefore (a) whether Mr Lazarus, as the registered proprietor, had a lawful title to the disputed property and was therefore precluded from succeeding on a claim for adverse possession (“the lawful title issue”); and (b) whether RHJL's right to recover the disputed property from Mr Lazarus will only be barred 12 years after the date of its acquisition of the disputed property in 2011 (“the reckoning of time issue”).

The statutory framework

11 It may first be helpful to consider the statutory provisions to which this appeal invites consideration. These are sections 68, 70, 71, 85–88 and 161 of the ROTA and sections 3 and 30 of the LAA.

ROTA

12 Section 68 provides that a certificate of title issued under the Act shall –

‘…subject to the subsequent operation of any statute of limitations, be conclusive evidence that the person named in such certificate as the proprietor of or having any estate or interest in, or power to appoint or dispose of the land therein described is seised or possessed of such estate or interest or has such power.’

13 Section 70 provides that, except in case of fraud, the proprietor of any, estate or interest under the Act shall –

‘…hold the same as the same may be described or identified in the certificate of title, subject to any qualification that may be specified in the certificate, and to such incumbrances as may be notified on the folium of the Register Book constituted by his certificate of title, but absolutely free from all other incumbrances whatsoever, except the estate or interest of a proprietor claiming the same land under a prior registered certificate of title, and except as regards any portion of land that may by wrong description of parcels or boundaries be included in the certificate of title or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser:

Provided always that the land which shall be included in any certificate of title or registered instrument shall be deemed to be subject to the reservations, exceptions, conditions and powers (if any), contained in the patent thereof, and to any rights acquired over such land since the same was brought under the operation of this Act under any statute of limitations, and to any public rights of way, and to any easement acquired by enjoyment or user, or subsisting over or upon or affecting such land, and to any unpaid rates and assessments, quit rents or taxes, that have accrued due since the land was brought under the operation of this Act, and also to the interests of any tenant of the land for a term not exceeding three years, notwithstanding the same respectively may not be specially notified as incumbrances in such certificate or instrument.’

14 Section 71 provides protection to persons contracting or dealing with the registered proprietor:

‘Except in the case of fraud, no person contracting or dealing with, or taking or proposing to take a transfer, from the proprietor of any registered land, lease, mortgage or charge, shall be required or in any manner concerned to enquire or ascertain the circumstances under, or the consideration for, which such proprietor or any previous proprietor thereof was registered, or to see to the application of any purchase or consideration money, or shall be affected by notice, actual or constructive, of any trust or unregistered interest, any rule of law or equity to the contrary notwithstanding; and the knowledge that any such trust or unregistered interest is in existence shall not of itself be imputed as fraud.’

15 Section 85, which was introduced into the Act by way of amendment in 1967, provides for applications to register title acquired by possession of registered land:

‘Any person who claims that he has acquired a title by possession to land which is under the operation of this Act may apply to the Registrar to be registered as the proprietor of such land in fee simple or for such estate as such person may claim.’

16 Under section 87, if the various steps referred to in section 86 are successfully completed, the registrar will cancel or rectify any existing certificate of title to conform with the registration of title to the applicant and issue such new certificate of title as may have been approved by the Referee of Titles.

17 At the outset of the hearing of the appeal, Mr Wood QC, who appeared for Mr Lazarus, successfully moved an application to adduce fresh evidence, in the form of the Hansard record of the...