Thomas Lazarus Anderson v Gaian Ludoff Thmpson
| Jurisdiction | Jamaica |
| Judge | Morrison JA,Phillips JA,Mcintosh JA |
| Judgment Date | 09 October 2015 |
| Neutral Citation | JM 2015 CA 100 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 37/2012 |
| Court | Court of Appeal (Jamaica) |
| Date | 09 October 2015 |
[2015] JMCA Civ 51
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison JA
The Hon Miss Justice Philllips JA
THE HON MRS Justice Mcintosh JA
SUPREME COURT CIVIL APPEAL NO 37/2012
Miss Emily Crooks for the appellant
Brian Barnes instructed by Brian Barnes & Associates for the respondent
FORFEITURE - Proceeds of crime - Claim for Customer Information Order - Whether the person specified for a CIO Order must be proven to have connection with criminal property before a CIO Order can be made - Proceeds of Crime Act, sections 119-125
I have had the opportunity of reading in draft the reasons of my learned sister Phillips JA. I agree with them and there is nothing that I can usefully add.
On 14, 15 and 16 October 2014, we heard an appeal against the decision of G Brown J, dated 20 December 2011, in which he dismissed the appellant's claim against the respondent for damages and recovery of possession. At the close of submissions, we dismissed the appeal, with costs to the respondent to be agreed or taxed. We promised to put our reasons in writing in due course. These are my reasons in fulfillment of that promise.
The appellant resides overseas and is the registered proprietor of all those parcels of land parts of Wydah or Whydah in the parish of Portland being the figure marked B (Section B) and C (Section C) on the plan annexed to the title comprised in the certificate of title registered in volume 577 folio 3 of the Register Book of Titles, containing by survey nine acres three roods twenty five perches and eight tenths of a perch and two acres two roods and three tenths of a perch respectively of the shape and dimensions and butting as appears by the plan annexed and being parts of the land comprised in the certificate of title registered in volume 472 folio 73 of the Register Book of Titles.
On 4 April 2008, the appellant filed a claim form and particulars of claim in the Supreme Court, seeking from the respondent damages for trespass or mesne profits, or in the alternative, possession in relation to Section C, on the basis that in or about June 2005, on his visit to Jamaica, he discovered that the respondent had taken possession of Section C without his consent and had rented it to a tenant for the purpose of farming.
At paragraph 3 of the appellant's witness statement, dated 17 November 2009, which stood as his examination-in-chief, he stated that he had purchased a parcel of land being part of Wydah in the parish of Portland, in 1980 for $20,000.00 from his predecessor in title, Vernon Harris, who was registered on the certificate of title from 1950 to 1990. However, the appellant was not registered on the certificate of title until 31 August 1990. He further stated at paragraph 4 that before the sale transaction had been completed, Vernon Harris had shown to him and Lloyd Anderson (the appellant's brother) the land contained in the certificate of title and all the boundaries which pertained to it, at which time the property had a wire fence around it.
Throughout paragraphs 5 to 12 of his witness statement, the appellant further stated that sometime in the 1980's, the respondent's brother, Terence Thompson had reared cows on a property adjacent to Section C and had asked Lloyd Anderson for permission to water his cattle on Section C. That permission had been given, and subsequently, in the 1990's, he said that due to the unprofitability of cattle rearing, Terence Thompson had quit the business. The land was left unoccupied and became overgrown with bushes. As a result of the over grown bushes the appellant stated that on his visit to Jamaica in 1990 he had the property cleaned. He observed that the trees which had been planted to mark the boundaries of the property had been cut down and that it was impossible to identify the boundaries. On that basis, a commissioned land surveyor was employed to re-establish the boundaries of the property. The commissioned land surveyor identified the exact boundaries and put in wooden pegs, around the appellant's property, separating it from that of the respondent's.
In 2005 on the appellant's return to Jamaica, he discovered that the respondent had, without his knowledge or permission, entered his land and taken possession of one acre of his property. The respondent had placed his servants or agents on that parcel of land and remained there in possession, having planted bananas. The respondent continued to trespass on his property so he had to file suit against the respondent for recovery of his land, and for damages and mesne profits.
Lloyd Anderson in his witness statement, dated 16 November 2009, which also stood as his examination-in-chief, corroborated the appellant's evidence with the exception that he noted that it was in the late 1980's, that Terence Thompson had stopped rearing cattle. At paragraph 5 he stated that in order to get to Section C at the initial inspection with Vernon Harris, they had to go under a bridge because an estuary was formed at the mouth of the stream on Section C. Further, at paragraph 6, Lloyd Anderson stated that the appellant had taken possession of the property in 1980, after the entire purchase price was paid and that he was put in charge of the land, including Section C, and he had continued to be in charge and in possession up to the time the action was brought.
Lloyd Anderson at paragraph 7 of his witness statement further claimed that after the appellant took possession of the land, he went overseas and having left him in charge, he began to rear cattle on the property, including on Section C, while Terence Thompson reared cattle on an adjacent property. In 2005 when it was discovered that Section C was being used by the respondent, a survey was again commissioned, however, as stated at paragraph 12, the respondent had objected to that survey.
The respondent is one of the registered joint proprietors of all that parcel of land part of Burlington Estate in the parish of Portland containing by survey six acres thirty three perches and one tenth of a perch of the shape and dimensions and butting as appears by the plan annexed to the title comprised in the certificate of title registered volume 935 folio 67 of the Register Book of Titles. Terence Thompson, his brother, is the other registered proprietor. That property is known as Burlington Estate and is adjacent to Section C.
In his witness statement dated 15 March 2010, which stood as his examination-in-chief, the respondent denied that the appellant was the owner of, or that he was entitled to, possession of Section C. He asserted in paragraph 3 that on 12 November 1977, he and Terence Thompson had entered into an agreement with Helen May Whittingham and Michael Whittingham (the Whittinghams) to purchase two parcels of land, which had been separately described in the sale agreement, for the consideration of $2,500.00.
The first piece of land (Burlington Estate) had been described as set out above in paragraph [10] and the second piece of land, (referred to herein as Section C) was described as ‘all that parcel of land part of Wydah or Whydah in the parish of Portland comprising 2 roods 1.6 perches and being the land comprised in the Diagram of D. K. Byles, Commissioned Land Surveyor’. The diagram of D K Byles had been commissioned prior to 1977, for the purpose of transferring title in respect of Section C from Vernon Harris to the Whittinghams.
On 7 March 1978, Burlington Estate was transferred to the respondent and Terence Thompson; however Section C was not transferred as the Whittinghams did not have title to that parcel of land, as it was still registered in the name of Vernon Harris. Nonetheless the respondent and Terence Thompson took possession of the two parcels of land.
The respondent further gave evidence that as a result of discovering that the Whittinghams did not have title to Section C, he contacted Vernon Harris who had stated that he had no interest in the land, that the land was in fact owned by the Whittinghams, and that he would cooperate in the completion of the transfer at the appropriate time. It was subsequent to that conversation with Vernon Harris that the respondent and his brother concluded the purchase of the two parcels of land. The survey diagram was then handed over to an attorney-at-law to obtain registered title, in respect of the land marked C on the certificate of title registered at volume 577 folio 3 in the Register Book, then in the name of Vernon Harris. However, the attorney died without obtaining a transfer of Section C to the respondent and his brother, and the diagram since then cannot be located.
The respondent claimed that for about a year prior to the purchase of Burlington Estate and Section C, he and Terence Thompson had occupied those two parcels of land as the tenants of the Whittinghams, for the purpose of rearing animals. The respondent further asserted that since they became the owners of Burlington Estate and Section C, Section C continued to be used for rearing animals and subsequently a portion was rented for the purpose of planting agricultural crops. As a consequence thereof, the respondent claimed that Section C belonged to him, or, in the alternative, he had acquired rights to it by virtue of adverse possession.
In his assessment of the evidence presented at the trial, G Brown J noted that the appellant's sale agreement had never been exhibited although it had been referred to in his witness statement, and he found that the production of the agreement could have corroborated the appellant's account that he had purchased the property in 1980. The...
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