FARRINGTON v. BUSH Citation # JM 1974 CA 41 Country Jamaica Court Court of Appeal Judge Edun, J.A. | Graham-Perkins, J.A. | Swaby, J.A. Subject Real Property Date June 27, 1974 Suit No. Cayman Islands Appeal No. 9 of 1972 Subsubject Land Possession.

Full Text H.G. Edwards, Q.C. for the appellant. John Stafford and Arthur Hunter for the respondent. GRAHAM-PERKINS, J.A.: This is an appeal from a judgment of the Grand Court in favour of the respondent in a suit in which he, as the duly appointed Attorney of Sydney Emerson Crowe, sought, inter alia: (1) damages for trespass by the appellant upon his land at Head of Barcus, in this island, on various occasions between 1956-1970; (2) a declaration that he is the fee simple owner of the said land; (3) cancellation and delivery up of a certain document of conveyance recorded at Volume XVI Folio 36 in the Record Office; and (4) cancellation of the registration of the said land. Sydney Emerson Crowe is the eldest son of Gustus Crowe. The latter died in 1925, having predeceased his father Julius Crowe who died, intestate, on November 26, 1926. Sydney Crowe therefore became the heir-at-law of Julius Crowe. Part of the estate of Julius Crowe was a parcel of land at Head of Barcus, butting on the north by fond, on the south by the sea, on the east by lands of the estate of Ishmael Ebanks and on the west by lands formerly belonging to Abram Ebanks but now owned by the appellant. The respondent claimed that he had been in possession of this parcel of land since 1925. He admitted, however, that his possession had been challenged since 1958-1959 by the appellant who claimed to be the owner of (end of pg 1) the land by virtue of a conveyance to him dated March 24, 1952, and recorded on September 7, 1956. The respondent testified that prior to his death in Cuba in 1926, Julius Crowe had returned to Grand Cayman in 1925, when he took him (the respondent) to the land and showed him its boundaries whereupon he entered into possession. He said that in 1927 he cleared the land and planted two coconut trees which were still growing thereon. He alleged, further, that over the years he had cleaned the land

from time to time. There was a shed there in 1927 but it fell down in the nineteen twenties. He stated, too, that Sydney Crowe had lived for most of his life in Cuba and he had been his manager of this land. In 1958 Sydney duly appointed him his Attorney. He alleged that having been off the Island for some time he returned and received from his wife certain information, as a result of which he saw the appellant with whom he had a discussion concerning the land. The appellant told him that he had bought 39 fathoms of this land from Elvera Ebanks, a daughter of Julius Crowe. The appellant, however, did not show him any document of title to this land. He said that he then fenced the land and that the appellant removed the fence. Thereafter he instituted certain proceedings against the appellant as the attorney of William Crowe, younger brother of Sydney Crowe. Those proceedings were determined in 1957 in favour of the appellant on the technical ground that the respondent could not seek to recover this land on William's behalf as it had devolved upon Sydney. In 1958, Sydney appointed him his attorney in respect of the land, and for ten years prior to the trial of this suit he had been on the land twice a week, and living on it. In 1959, the appellant took steps to register the conveyance of March 24, 1952, given to him by Elvera Ebanks but he alleged at the time of the registration that the land had been conveyed to him by the heirs of Julius Crowe. It was conceded at the trial that this conveyance was invalid. The present proceedings were commenced, in October, 1970. The appellant, at the trial, sought to resist the respondent's claims on the ground that he had acquired a title to the land by adverse possession. (End of pg 2) Adverse possession of land is, and always has been, a complex concept. It involves the co-existence of two essential elements, namely, the assumption of actual physical possession by, and the presence of a particular mental element directed towards the true owner in, the adverse possessor. It is, in our view, a mistake to think that mere entry upon, and user of, the land of another can, without more, be equated with an assumption of possession. It must be possession of such a nature as to amount to an ouster of the original over of the land. See, e.g. William Bros. v. Raftery [1958] 1 Q.B. 159. To support a finding of adverse possession there must be positive and affirmative evidence of acts of possession, unequivocal by their very nature and which are demonstrably consistent with an attempt, and an intention, to exclude the possession of the true owner. Where alleged acts of possession are intrinsically equivocal they will almost always be found to be mere acts of trespass. In this context, an equivocal act means an act of such a nature as to provide an equal balance between an intention to exclude a true owner from possession and an intention merely -to derive some enjoyment or benefit from the land wholly consistent with such use as the true owner might wish to make of it. See Ticbild Ltd. v. Chamberlain (1969) 2 P. & C. Report 633. In order to determine the precise nature of an alleged act of possession, the geography and nature of the land are to be regarded as critical considerations. Equally important, from the point of view of the true owner, is the nature of the user of which his land is shown to be capable and his intention in relation thereto. In this case, the appellant sought to assert a possessory title by user over a

continuous period of twelve years prior to October 19, 1970, the date on which the statement of claim herein was filed. The onus of establishing that the respondent no longer had any right or title to the land was clearly on the appellant. For this purpose he called in aid certain acts which he asked the Grand Court to interpret as concluding the issue in his favour. Having examined those alleged possessory acts and the evidence relating thereto, that Court expressed itself as being not (end of pg 3) satisfied, on a balance of probability, that a title by adverse possession had been established. The acts relied on by the appellant were: (i) monthly visits to the land; (ii) getting the land cleared; (iii) registration of the land in 1959 under the invalid conveyance of March 24, 1952; (iv) putting up a notice on the land warning persons not to trespass thereon; and (v) putting down markers on the boundary in 1968. With regard to (iii) of the above, we are constrained to observe that the appellants claim to a possessory title is perhaps a little less than fanciful when looked at on the background of an alleged purchase of the land by him in 1952. He insisted on the validity of this transaction up to April 1971 when he filed and served a notice of a number of special defences, all of which were subsequently withdrawn. The fact that the special defence relating to registration was withdrawn is really nothing to the point. What is clear is that from 1952 to April 1971 the appellant was maintaining that there was vested in him a perfectly good title to the fee simple by virtue of the conveyance to him in 1952. How then could he claim to have acquired a title by adverse possession? These irrevocably inconsistent positions could not possibly have escaped the notice of the learned judge of the Grand Court. He would have noted the absence in the appellant of that mental element so essential to the concept of adverse possession. On the hypothesis that the appellant was found to be in possession the trial judge would have recognised that such possession, far from being adverse, to anyone, would have been enjoyed by the appellant in his own right qua owner. Indeed all the other acts on which the r appellant relied would equally have been done qua owner and not with the intention of excluding the possession of the respondent. In the final analysis, however, the critical question remains: Did the appellant effectively dispossess the respondent of the land? The learned trial judge held, in effect, that there was no such dispossession. We are of the clear view that there was an abundance of evidence on which he could so hold. He held, too, and this follows necessarily from his (end of pg 4) finding just noted, that the evidence on which the appellant relied was incapable, in the particular circumstances of this case, of demonstrating possession in the appellant. We are quite unable to say that he was not right in so concluding. For the foregoing reasons we would dismiss

the appeal with costs to the respondent to be agreed or taxed. (End of pg 5)

FRECKLETON v. FRECKLETON Citation # JM 2006 SC 73 Country Jamaica Court Supreme Court Judge Sykes, J. Subject Real property Date July 25, 2006 Suit No. HCV 01694 OF 2005 Subsubject Joint tenancy - Parties divorcing and owning two properties as joint tenants Claimant occupying or controlling properties exclusively from 1984 to 1996 and forming animus possidendi - Defendant not showing interest in or exercising control over properties - Limitation of Actions Act, s. 14 - Co-owner able to extinguish title of another co-owner - Title of defendant extinguished Declarations granted. Full Text Appearances: Mr. Jermaine Spence instructed by DunnCox for the claimant. Defendant absent and unrepresented. SYKES, J.: 1. This application involves two plots of land. One is located at Maverly Mountain and the other at Beverly Hills. They were bought and registered in the names of Mrs. Valerie Freckleton, and Mr. Winston Freckleton as joint tenants. All this occurred during happier times. They have since separate and divorced. Mr. Freckleton has remarried and now lives in the United States of America. Mrs. Freckleton resides in Jamaica. Mrs. Freckleton now wishes to be registered as the sole proprietor in respect of both parcels of land. 2. She has applied by fixed date claim form for the following: a. a declaration that the respondent by virtue of his non-occupation and nonpossession of the properties comprised in certificates of titles registered at volume 1108 folio 922 and volume 1106 folio 63 of the Register Book of Titles since March of 1981 having discontinued possession of same and the claimant have since that time been in sole, undisputed and uninterrupted possession of the entirety of the said properties, the claimant, by virtue of sections 3, 4 and 14 of the Limitation of Actions Act of Jamaica 1881 has acquired an absolute title against the defendant in respect of the said properties. b. further and/or in the alternative, a declaration that the claimant, having dispossessed the defendant of the said properties, has required an absolute title against the defendant in respect of the said properties. c. an order that the Registrar of Titles endorse the certificates of titles registered at volume 1108 folio 992 and volume 1106 folio 63 of the Register Book of Titles so as to indicate that the claimant is the sole registered proprietor for the properties comprised in the said certificates of titles, having acquired an absolute title against the defendant in respect of the said properties.

3. In light of the far reaching nature of the declarations I need to examine the evidence of service before dealing with the substantive claim. Now that Mr. Freckleton lives in the United States of America, Master Lindo on October 6th, 2005, granted permission to the applicant to serve her former husband him out jurisdiction. There are affidavits sworn by Mr. Ildelfonso of Broward County in the State of Florida, USA indicating that Mr. Freckleton has been served with the originating document and supporting affidavits. He has not filed an acknowledgement of service and neither has he filed a defence. 4. The fact that the matter is uncontested does not relieve the Court of the obligation to see that the conditions are satisfied before the declarations can be granted. Extinction of title 5. Between 1968 and 2003, the Judicial Committee of the Privy Council, the House of Lords and the Court of Appeal of England and Wales have authoritatively laid down the applicable law in a number of cases. These are Paradise Beach Transportation Company v. Cyril Price Robinson [1968] A.C. 1072 PC ("Paradise"), Wills v. Wills 64 W.I.R. 176 PC ("Wills"), 1.A. Pye (Oxford) Ltd v. Graham [2003] 1 A.C. 419 HL ("Pye") and Buckinghamshire County Council v. Moran [1990] Ch 623 CA ("Moran"). In the midst of these cases is the excellent judgment of Slade J. in Powell v. McFarlane (1979) 38 P & CR 452 ("Powell") in which he stated with precision the intention necessary that must exist in the party who is claiming to have dispossessed the registered owner. 6. The critical cases for the determination of this case are Paradise and Wills because they focus on dispossession of one co-owner by another co-owner. In Paradise, an appeal from the Supreme Court of the Commonwealth of the Bahamas, by a will dated November 22nd, 1912, a testator devised land to his children and grandchildren as tenants in common. Before he died two of his daughters farmed the land on his behalf. This meant that the daughters did not possess in their own right and so could not have begun to have possession for the purposes of extinguishing their father's title. On October 23rd, 1913, the father died and his daughters continued farming until the early 1920's when they erected a house on the land. The daughters farmed the land until they died in 1962 and after their deaths, the land was occupied by one Mr. Cyril PriceRobinson and others, successors in title to the daughters. It is these successors who were the respondents in the appeal to the Board. The appellants claimed to be successors in title to those persons who along with the daughters would have been entitled to the land under the will of November 22nd, 1912. Consequently, the appellants argued, they were entitled to that portion of the land as would have devolved to their predecessors in title. For the appellants to succeed they had to establish that their predecessors in title at some point entered into possession of the land which had that occurred would have prevented the daughters from dispossessing the other tenants in common. The appellants commenced an action in 1963 against the daughters' successors in title, claiming their undivided share. The basis of the claim was that the father's will devised to their predecessors in title and the daughters' predecessors in title as tenants in common. Now comes the crux of the appellants' arguments. They said that the daughters did not acquire title to the appellants' share because all the daughters had done was to continue farming, an activity in which they were engaged before the testator died. This activity, the appellants, submitted was insufficient to dispossess the other tenants in common. In other words, to use

the language that should not now fall from our lips, the daughters had not done anything "adverse" to the possession of the appellants' predecessors in title and therefore time had not begun to run against the appellants' predecessors which meant that the daughters had not extinguished the title of the other title holders. Since the daughters died in 1962 and the action was commenced in 1963, it followed that the respondents (the daughters' successors) could not acquire a better title than the daughters had. 7. The appellants' submissions were founded on the idea that the daughters had to do some "hostile" act to show that they intended to bar and exclude the appellant's predecessors in title and since that had not been done the appellants' title was not extinguished. The appellants argued that despite the abolishing of the doctrine of non-adverse possession the daughters were not wrongfully in possession and title could not be extinguished unless and until there was a wrongful possession which would then have precipitated a right of entry and it was only when this right of entry arose that time began to run in favour of the daughters. That wrongful act never occurred and therefore time did not begin to run in their favour. 8. The finding of the trial judge, which was upheld, was that the daughters had been in possession for their own use and benefit and that they and their successors in title had been in exclusive possession since the father died. This was for more than the twenty years required by the relevant Bahamian legislation and so the paper title of the other co-owners, albeit tenants in common, had been extinguished. 9. Lord Upjohn, speaking for the Board, made a number of important conclusions. First, the relevant Bahamian statutes were the Real Property Limitation Act (No. 1), 1833 and the Real Property Limitation (1874) Act were identical to the Real Property Limitation Acts, 1833 and 1874 (UK). Second, Denman C.J. had definitively interpreted the United Kingdom statutes in two important cases. These were Nepean v. Doe, d. Knight (1837) 2 M & W 894 and Cully v. Doe d. Taylerson (1840) 11 Ad & E 1008. Third, Lord Upjohn held, agreeing with the decisions of Denman C.J. in the two cases just cited, that the purpose of the sections 2 and 3 of the 1833 Act (UK) (sections 3 and 4(a) of the Limitations of Actions Act of 1881 (Jam)) was to rid the law of the doctrine of non-adverse possession. What was this doctrine of non-adverse possession? 10. When the limitation statute of James 1 (21 Jac 1, c 16) was passed the judges found it difficult to accept that a paper owner might lose his land by the simple fact of another person being in possession without any "hostile" act by the dispossessor. The judges engrafted on the statute the requirement that there must be something in the nature of an ouster of the paper owner by the person claiming title to the land by possession. According to the law that developed from this judicial creation the dispossessor must not just occupy the land with the animus possidendi, he must go further to actively bar the paper owner. It was said that the dispossessor had to use the land in such a manner that was clearly and obviously inconsistent with the title of the paper owner. It was this development that became known as "adverse possession". If the dispossessor was in possession with the necessary animus possidendi but did not commit any "hostile" acts inconsistent with the paper owner's title in order to show that he was ousting the paper owner he was said to be in "non-adverse possession". The practical result of this was that the animus possidendi coupled with possession was not enough to extinguish the paper owner's title. The

dispossessor must use the land in such a manner as to make it clear that he was behaving like the owner and that use when examined must show that he ousted the paper owner. Anything less was insufficient to dislodge the paper owner's title. Not surprisingly an intricate body of case law developed and as can be imagined, the distinctions drawn between cases on what amounted to either adverse (read hostile) or non-adverse possession were very fine if not imaginary. The United Kingdom's Real Property Limitation Act of 1833 had as one of its object the abolition of this body of law. The relevant provisions of the United Kingdom legislation were enacted in the Bahamas and Jamaica. In Jamaica the provisions are found in the Limitation of Actions Act of 1881. 11. One of the necessary reforms was abolishing the common law doctrine that the possession of one tenant in common was the possession of all (section 12 of the UK Act; i.e. section 14 of the Jamaican Act 1881). The effect of this reform was that one co-owner, whether joint tenants or tenants in common, could extinguish the title of the other. This explains why Denman C.J. stated, in the cases cited above, that (i) section 12 of the UK Act of 1833 made possession of co-tenants separate possessions from the time they became tenants in common and time ran from the date they became tenants in common; (ii) the effect of section 2 of the UK Act of 1833 (i.e. section 3 of the Jamaican Act) was to do away with the doctrine of non-adverse possession and the question becomes simply whether the requisite number of years has elapsed from the time the right of entry of the paper owner accrued, regardless of the nature of the possession of the person claiming title by extinction of the paper owner's title. In other words for the purposes of extinguishing title the requirements were the same whether the dispossessor was a co-owner or complete stranger. After 1833 English law did not require an act of ouster or disseissin before the title of the paper owner was extinguished. The 1833 did not create a title in the dispossessor. What it did was to prevent the paper owner from asserting his title after the lapse of the requisite period of time (see section 34 of UK legislation and section 30 of the Jamaican legislation). This development in the law explains why we should no longer say that anyone gets title by adverse possession. The dispossessor is not conferred with a title. What he has is the ability to resist any attempt by the paper owner or his successor in title to assert his title after passage of the requisite period of time. The paper owner's title is extinguished. 12. The law as explained by Lord Upjohn in Paradise was approved by the House of Lords in Pye and applied to Jamaica in Wills From the time of Wills we, in Jamaica, ought not to speak any longer of acquiring title by adverse possession. There is no such thing as title by adverse possession. The further importance of the Paradise and Wills cases lies in the reminder to us that where there are co-tenants and one co-tenant is claiming that he has dispossessed the other the evidence has to be examined carefully because there are times when the law implies that a co-tenant is in possession for another co-tenant. However, in the final analysis it is a question of fact whether this is so or not. 15. One would have thought that after these nineteenth century reforms the law would have been settled. Much like their predecessors who encrusted the limitation statute of James 1 with a heavy body of case law designed to frustrate the intention of the legislators, the judges after the passage of these statutory reforms attempted to negate the operation of the reform. They felt that the paper owner was hard done by and sought to temper what they saw as injustice by introducing ideas not required by the law. This led the Courts of Appeal in

England and Jamaica to fight a rear guard action against the operation of the nineteenth century statutes. The rear guard action was turning the clock back. This resistance was described in Wills in this way at paragraph 18: 18 However, both in England and in Jamaica the Courts did, in the second half of the last century, display some tendency to give the expression a more technical meaning and to require proof that the squatter used the land in a manner inconsistent with the owner's intentions. In England the beginning of the tendency can be seen in the decision of the Court of Appeal in Williams Brothers Direct Supply Ltd v. Raney [19581] Q.B. 159. But the more important English case is the decision of the Court of Appeal in Wallis's Cayton Bay Holiday Camp Ltd v. Shell Mex & BP Ltd [1975] Q.B. 94, in which the leading judgment was given by Lord Denning M.R., with a strong dissent from Stamp L.J. In Jamaica the most important decision is that of the Court of Appeal in Archer v. Georgian Holdings Ltd (1974) 21 W.I.R. 431. All three decisions relied heavily on the wellknown but now controversial decision of the Court of Appeal in Leigh v. Jack (1879-80) L.R. 5 Ex. D. 264. 13. The effect of Pye, Wills and Moran is that judges cannot re-introduce the technicalities that the nineteenth century statutes sought to extirpate. 14. How then does the dispossessor mount the rostrum to claim his new found status? It is at this point that Slade J.'s elucidation in Powell demonstrates its value. He said at pages 470 - 472: It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law: (1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi'). (3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of a boundary so as to prevent intrusion. "What is a sufficient degree of sole possession and user must be measured according to an objective standard, related no doubt to the nature and situation of the land involved but not subject to variation according to the resources or status of the claimants": West Bank Estates Ltd v. Arthur, per Lord Wilberforce. It is dearly settled that acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree. It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession. On the

particular facts of Cadija Umma v. S. Don Manic Appu the taking of a hay crop was held by the Privy Council to suffice for this purpose; but this was a decision which attached special weight to the opinion of the local Courts in Ceylon owing to their familiarity with the conditions of life and the habits and ideas of the people. Likewise, on the particular facts of the Red House Farms case, mere shooting over the land in question was held by the Court of Appeal to suffice; but that was a case where the Court regarded the only use that anybody could be expected to make of the land as being for shooting: per Cairns, Orr and Waller L.J.J. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so. (4) The animus possidendi, which is also necessary to constitute possession, was defined by Lindley M.R., in Littledale v. Liverpool College (a case involving an alleged adverse possession) as "the intention of excluding the owner as well as other people." This concept is to some extent an artificial one, because in the ordinary, case the squatter on property such as agricultural land will realise that, at least until he acquires a statutory title by long possession and thus can invoke the processes of the law to exclude the owner with the paper title, he will not for practical purposes be in a position to exclude him. What is really meant, in my judgment, is that, the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow. The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is dearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the Courts will, in my judgment, require dear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention dear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the Courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass. 16. The first two paragraphs numbered (1) and (2) respectively were criticised by counsel in Pye's case as being unhelpful because possession was defined in terms of itself. That is a fair point to make and so I accept the correction made by Lord Browne-Wilkinson at paragraph 40 of Pye when he said: To be pedantic the problem could be avoided by saying that there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to

possess). What is crucial is to understand that, without the requisite intention, in law there can be no possession. 17. The Judicial Committee of the Privy Council in Wills at paragraphs 19 and 20 stressed the importance of scrutinising all the facts in any given case when it was said: 19 All those decisions may have been correct on their special facts. All of them rightly stressed the importance, in cases of this sort, of the Court carefully considering the extent and character of the land in question, the use to which it has been put, and other uses to which it might be put. They also rightly stated that the Court should not be ready to infer possession from relatively trivial acts, and that fencing, although almost always significant, is not invariably either necessary or sufficient as evidence of possession. Nevertheless, the decisions must now be read in the light of the important decision of the Court of Appeal in Buckinghamshire County Council v. Moran [1990] Ch. 623 and the even more important decision of the House of Lords in Pye. 20 In Moran each member of the Court approved the following passage from the dissenting judgment of Stamp L.J. in Walliss case [1975] Q.B. 94, 109-110: "Reading the judgments in Leigh v. Jack 5 Ex D 264 and Williams Brothers Direct Supply Limited v. Raftery [1958] 1 Q.B. 159, I conclude that they establish that in order to determine whether the acts of user do or do not amount to dispossession of the owner, the character of the land, the nature of the acts done upon it and the intention of the squatter fall to be considered. Where the land is wasteland and the true owner cannot and does not for the time being use it for the purpose for which he acquired it, one may more readily conclude that the acts done on the waste land do not amount to dispossession of the owner. But I find it impossible to regard those cases as establishing that so long as the true owner cannot use his land for the purpose for which he acquired it, the acts done by the squatter do not amount to possession of the land. One must look at the facts and circumstances and determine whether what has been done in relation to the land constitutes possession." 18. The person who is claiming that the title of the paper owner has been extinguished has to establish that there was (a) occupation or physical control of the land and (b) an intention to possess. Intention to possess here means the statement of mind which says that the dispossessor has it in mind to possess the land in question in his own name or on his own behalf to exclude the world at large including the paper title owner so far as this is possible. An intention to own or even an intention to acquire ownership is not necessary but if present enhances the prospect of success. 19. The legal position now is that a registered owner of land or indeed any other owner may now have his title extinguished by his lack of vigilance. If the registered owner wishes to prevent this happening he simply needs to heed the advice of Slade J. in Powell, that is to say, do some "slight" acts either by himself or on his behalf so that it will negative the burgeoning "right" of the dispossessor. Whether that "slight" act will be sufficient depends on the facts of each case. There can be no catalogue of "slight" acts. 20. It is important to appreciate that whether the paper owner's title has been extinguished depends on factual possession and intention of the dispossessor and not the intention of the paper owner. Has Mr. Freckleton's title been extinguished? 21. Mrs. Freckleton and Mr. Freckleton were married on February 27th, 1965.

On or about 1967 both parties bought land at Sterling Castle, at Maverly Mountain (volume 1108 folio 922). Both of them were registered as joint tenants. Both parties paid the instalments on the purchase price which was eventually paid off in 1972. According to Mrs. Freckleton the payments by both parties continued until October 1971 when they emigrated to the United States of America. At this time she became the sole wage earner because her husband was studying. 22. They lived in the United States until 1978 when they returned to Jamaica. In 1979 they bought a house, as joint tenants, in Beverly Hills (volume 1106 folio 63) with the assistance of a mortgage from Victoria Mutual Building Society. Shortly after the purchase the marriage broke down. Mr. Freckleton left the house at Beverly Hills on April 18th, 1981, and has not returned since. After he left Mrs. Freckleton would collect his housing allowance cheques from the Ministry of the Public Service to pay the mortgage. This continued until March 1982 when she was told that her husband had said that no more cheques were to be given to her. Since that time she has paid the mortgage without any assistance from her husband. The mortgage was eventually paid off in 1994. 23. Mr. Freckleton became the father of a child with a woman other than his wife on February 26th, 1982, with the birth of his son. The parties were divorced in December 1982. In 1984 Mr. Freckleton left for the United States and has not returned to live in Jamaica. 24. The evidence is that since 1984 Mr. Freckleton has not returned to live in Jamaica though he has returned on occasions. When he came to Jamaica he did not visit the former matrimonial home in Beverly Hills. He did not contact his ex-wife. He has not paid any taxes or contributed to the payment of land taxes in relation to any of the properties. After Hurricane Gilbert in 1998 when there was severe property damage to the Beverly Hills home he did not contact Mrs. Freckleton or show any interest in any of the properties. 25. She said that she has renovated the Beverly Hills property and has changed the locks on the doors so that he will not be able to enter the house with keys he had when he left in 1981. She saw him in 1990 in Florida in the United States and he did not express any interest in either property. 26. Indeed when it was reported to her that there was a squatter at the Maverly property she quickly took steps to have the squatter evicted. 27. From this evidence Mrs. Freckleton has been in occupation of the property at Beverly Hills and has exercised control over the Maverly property. It seems to me that at least from 1984 she has had the intention to possess in her own right and in her own name to the exclusion of not only her former husband but the world at large. When she formed this intention from 1984 it continued right up to the date of filing her fixed date claim form. There is no evidence that she wrote to him or did anything to indicate that she was possessing the properties for both of them. She has never asked him for any contribution to pay for repairs to the Beverly Hills property. There is no evidence that she solicited funds to pay an expenses involved in the ownership and management of the properties. During this period Mr. Freckleton did not engage in any conduct in relation to either property that manifested any intention to continue in possession. Mrs. Freckleton's possession became exclusive since 1984 and by 1996, Mr. Freckleton's title was extinguished. There is no evidence before me from which I could infer that from 1984 onwards Mrs. Freckleton's possession was a joint one with her former husband.

28. I have looked at the character of the house at Beverly Hills. It was being used as dwelling by both parties prior to Mr. Freckleton's departure from the home. Other than perhaps renting it to other persons it does not appear that it was suitable for any purpose other than to be used as a place of residence. Other than living there, paying taxes, executing repairs and changing the locks it is difficult to see what else Mrs. Freckleton could do to indicate an intention to possess. She was already on the property when Mr. Freckleton left. I am satisfied that what has been done by Mrs. Freckleton since 1984 constitutes possession. 29. I now turn to the Maverly property. On the evidence this lot appears to be open land. She has paid the taxes and evicted a squatter. It is true that she has not used the land for anything but is there more required of her in the circumstances before it can be said that she has possession? I do not think so. 30. I have relied on Slade J.'s judgment in Powell Slade J's judgment, may seem a hard one on the facts. He was dealing with an out and out trespasser and one can understand his language in that context. One is left with the clear impression that but for the age of the claimant (a fourteen year old) he might well have succeeded. Here I am dealing with adult joint tenants. If one examines the Paradise case it will be observed that the kind of language used by Slade J. in respect of trespasser is absent. The daughters continued farming after the death of their father was sufficient to place them in factual possession. No additional act was required of them to establish factual possession. The only remaining question was whether they had the animus possidendi. The reason seems to be that a joint tenant need not adduce the same type of evidence needed by a trespasser who wishes to extinguish title. Similarly in Wills the conduct relied on by the Board to establish possession in one joint tenant sufficient to extinguish the title of the other consisted of (a) not accounting to other joint tenant for rents received and (b) the joint tenant in possession did not invite the other to the house when she visited Jamaica. The cases of Paradise, Wills, Powell and Moran show that one cannot transpose conduct in one case into another and say, "The person is that case did so and so, therefore the dispossessor in the instant must do the same kind of act." One must look at each case carefully to see what acts were done and whether those acts, in the context of the particular case, are sufficient to establish possession. 31. I should explain why I chose 1984 and not 1981, as mentioned in the claim. In my view when he left Jamaica in 1984 that marked a clear break between the claimant and the properties in Jamaica as well as his wife. Even if Mr. Freckleton intended to possess the properties after 1984, once Mrs. Freckleton formed the animus possidendi coupled with occupation or control time began to run against him. From that time he must manifest his intention by conduct. It is only then will there by some evidence which can be examined to see whether he has negatived any discontinuance of possession. The declarations are granted.

GRANT v. CRYSTAL COAST DEVELOPMENT CO. LTD. & OTHERS Citation # JM 1991 CA 136 Country Jamaica Court Court of Appeal

Judge Carey, P. (Ag.); Downer, J.A.; Bingham, J.A. (Ag.) Subject Real property Date November 28, 1991 Suit No. No. 77 of 1989 Subsubject Registered Land - Adverse possession - Appellant first occupied property in order to nurse the proprietor - Appellant remained on property unmolested since the proprietor's death - Whether time began to run in favor of the appellant so as to extinguish the rights of the true owners - Limitation of Actions Act, ss. 3, 4 - Registration of Titles Act ss. 68, 70. Full Text Appearances: Dr. L.G. Barnett & Clarke Cousins for appellant Dennis Goffe & Miss Minette Palmer for the first respondent. CAREY, P. (AG.): The appellant (the plaintiff in the court below) is now an elderly lady nearing 80 summers. In 1954, an uncle of hers Heuben Shaw became very seriously ill indeed: he suffered from some debilitating skin ailment or disorder which caused his skin to slough away. Shortly before his death on 9th July, 1954, he became bed ridden and malodorous. Save for a son Simeon, his other children neither those who resided in this country or abroad, visited him. He had six children. He resided in Negril, Westmoreland. His condition necessitated frequent baths each day and every day. The appellant, at the request of this son Simeon Shaw, ministered to his needs. She lived there with him alone, altogether for six months prior to his death. She had been living in a common-law relationship with one Joseph Grant but was not permitted to live with him in the house until after Reuben Shaw(s death. Indeed they were not allowed to live together in that house until they had regularised their marital status which took place in 1956. Since the death of Reuben Shaw, she has lived in that house unmolested. [end of page 1] She claimed in a writ dated 16th May 1963 for a declaration that: (The plaintiff claims against the defendants: a. For a declaration that the plaintiff has acquired title as fee simple owners of the land comprised in Certificate of Title registered at volume 1035 folio 293 of the Register Book of Titles.( I would observe parenthetically that the land the subject of this dispute was registered under the Registration of Titles Act on 5th May 1967 for the first time. This important fact was altogether ignored by the parties both in this court and in the court below. By an order dated 14th July 1989 Theobalds J. dismissed the appellant(s claim, holding (inter alia) that the occupancy of the land was in virtue of her status as a (caretaker continuing on the land with the approval of members of the family after Reuben(s death.( This appeal is against that order and judgment of the learned judge. In my view the point at issue on this appeal is whether or not time began to run in favour of the appellant so as to extinguish the rights of the true owners. We have been furnished with the reasons for the learned judge(s decision and these appear at pp.41-42 of the record. He expressed himself thus: (The second head of claim was based on the Limitation Act - the plaintiff claiming to have been in possession and to have lived on the land from 1954 till the present time. But two aspects of her cross examination weakened her claim. Firstly she admitted that after Rueben(s death she accepted Simons as owner of the land and on two occasions she appeared not to be claiming ownership, once was when Constantine Shawn returned from the U.S.A. and the plaintiff never told him a word about his father Rueben having left the land for although he challenged her right to be on his father(s land and secondly was before the resident magistrate in Sav-la-mar when the court case over appears of land [end of page 2] taxes was heard, when she refused to pay taxes on the ground that she was not

the owner of the land. Morely living on the land for the statutory period is not by itself sufficient for adverse possession to run against the true owner(s (sic). It would depend on in what capacity one is in occupation. I accept the evidence adduced by the defence that plaintiff was merely a caretaker, continuing on the land with the approval of members of the family after Rueben(s death. Rueben(s purported promise to give her the land after his death has to be balanced against the proven fact that by his will the land was left to his children. I accept the evidence that the plaintiff was at times paid for her services and I am not concerned with the frequency or adequacy of such payments. The importance of it is that plaintiff was at all times aware of the capacity in which she was in occupation of Rueben Shaw(s land that is as a caretaker to protect the interests of the true owners all of whom resided elsewhere and where therefore in no position to look after the properly on their own behalf. Indeed the concern of Constantine Shaw that the premises should be kept bushed is not without significance. P.4 (Condition of the house was liveable then - I was concerned with how it stayed.( (Wanted the place to look good.( Place belonged to the Shaw(s. This is the attitude of a family member/owner who had long before migrated to the U.S.A. and was gainfully employed there and even became a citizen. Further evidence that plaintiff was at all times aware of her role as caretaker are in fact that during her possession certain parts of the land were sold off to government and by her stance in relation to the claim by the Collector of Taxes before the resident magistrate. In relation to this claim on this issue I accept the evidence of Winston Finnekin, the Senior Revenue Officer, whose records show that on 28/9/02 before the resident magistrate plaintiff stated that (she owned no land and land owned by Shaw(s and on 12/10/82 (I not paying the taxes as land owned by Shaws.( There was further evidence which I accepted that at the hearing before the resident magistrate where this plaintiff was represented by an attorney and (the case thrashed out,( plaintiff then asked (for time to remove( and was allowed to 33/3/83 (sic)(.( [end of page 3] Dr. Barnett skillfully deployed a range of arguments against the judgment. He called attention to Sec 4(b) of the Limitation of Actions Act which provides as follows: ((b) When the person claiming such land or rent shall claim the estate or interest of some deceased person who shall have continued in such possession or receipt in respect of the same estate or interest until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in such possession or receipt,( then such right shall be deemed to have first accrued at the time of such death.( He said that where a relative has been allowed to remain after the death of the owner and it cannot be shown that he was the servant of the owner or beneficiaries or has been paying rent or has acknowledged the title of the owner, the Act commands that time begin to run no matter the understanding of both parties on the question of legal ownership. So far as the evidence of the appellant(s status as caretaker was concerned, it was hearsay which did not fall within any exception to the rule against hearsay. Any visits he submitted which were made to the land by successors, did not amount to entries intended to stop the period of limitation from running. With all respect to these careful crafted arguments of Dr. Barnett this appeal must fail. A possessory title cannot be obtained merely by occupying land for twelve years. The onus is therefore on the person claiming such a title to prove that possession is adverse. Section 4(b) of the Limitation Act which has already been set out speaks to the point at which time begins to run when a claim is being made against a deceased owner. But that does not relieve the person on whom the burden rest from proving that his possession is adverse. Sir Raymond Evershed, M.R. in Moses v. Lovegrove [1952] 1 All E.R. 1279 at p.1281 said obiter:

(Under the Limitation Act, 1939, that for the limitation period to run and extinguish the title of the plaintiff, two conditions must be satisfied:[end of page 4] (i) That a right of action accrued at a date(in this case) not less than twelve years before proceedings, and (ii) That thereafter throughout the intervening period there has been adverse possession by the person in occupation.( In that very case, Romer L.J. accepted as good law the proposition that possession is never adverse if it can be referred to a lawful title. At p. 1205, he said this: "It seems to me that one can, in addition to looking at the position and rights of the owner, legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier 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." Although the learned trial judge did not refer to this case, he must have had this principle in mind. His judgment is based on this principle. Dr. Barnett argued that the evidence as to permission is all hearsay. The fact of the matter, he said was that at the death of Reuben Shaw, the licence came to an end. The appellant was to all intents and purposes a squatter in whose favor time would run, from the death of the owner. That is not entirely true. The appellant herself stated that it was Simeon Shaw who gave her the right to live on the premises in order to care for Reuben. After his death, she said that Simeon told her he would not be selling the land. the plain inference was that her permission to remain on the land was being continued. She recognised and accepted that, that was the position. Proof of this lies in her statement that after Simeon Shaw(s death, i.e. in 1972 she started to cultivate the land. She did not actually build on the land until 1982. On her own evidence therefore time would not begin to run in her favour until 1972 at the earliest. [end of page 5] But in 1967, two sons of Reuben Shaw had brought the land under the Registration of Titles Law. The certificate of title was an exhibit in the case. Neither of the parties hearkened to its significance. But its effect was to destroy any rights which the appellant might have gained by adverse possession. Lord Jenkins who delivered the opinion of the Board in Chisholm v. Hall, 7 J.L.R. 164 at pp. 175-176 stated the effect of a first registration in these words: "The registration of the first proprietor is made to destroy any rights previously acquired against him by limitation in reliance no doubt on the provisions as to the investigation of the title to that property and as to notices and advertisements, which are considered a sufficient protection to anyone claiming any rights of that description. But from and after the first registration the first proprietor and his successors are exposed to the risk of losing the land or any part of it under any relevant statute of limitations to some other person whose rights when acquired rank as if they were registered incumbrances noted in the certificate, and accordingly are not only binding upon the proprietor against whom they are originally acquired but are not displaced by any subsequent transfer or transmission." We were told if I understood Dr. Barnett aright, that this issue not having been raised, we ought not to consider it. I am not attracted by that approach. In Harris v. Johnson & 0rs [1971] 17 W.I.R. 84 at p.88 Edun J.A. delivering the judgment of the court said:

"This point was never taken at the hearing of the action but as the fact of the non-reading of the deed within 90 days from the date of execution was uncontradicted and proved beyond controversy, this court considered it not only competent but expedient and in the interest of justice to consider the submission: See per Lord Watson in Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473 at p.480; 67 L.T. 508; 61 L.J.P.C. 50; 57 J.P. 21; 8 T.L.R. 752, P.C.( [end of page 6] Lord Watson, in the case on which reliance was placed, stated as follows: "When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea." The issue of the certificate of title to the beneficiaries, puts the matter beyond argument. But, it is right, to say that time never begun to run in favour of the appellant because her possession can be referred to a lawful title. In my judgment, she was never in adverse possession. It is perfectly true that hearsay evidence was adduced in the deposition on commission by Constantine Shaw, but is appellant herself, which establishes that her possession was referable to a lawful title. See Hughes v. Griffin [1969] 1 All E.R. 460. There is one other aspect of the matter with which I must not deal. As Hall v. Chisholm (supra) decided, a registered title may be destroyed by adverse possession which begins after the first registration because the appellant was and is in occupation of the land. By paragraph 5 of the amended statement of claim the appellant pleaded that in May 1974 well within the limitation period there was an agreement for sale between the respondent Crystal Coast Development Co. Ltd. on the one put as purchaser and Henry Shaw (a son of the deceased Reuben Shaw) on behalf of himself and the remaining registered proprietors of the vendor. The registered proprietors were therefore exercising their rights as proprietors in the land. Even if the appellant's cultivation of the land in 1972 could constitute dispossession so as to allow time to begin to run from then, the fact is that in 1974 the registered proprietors exercised [end of page 7] their rights as owners to dispose of part of the land in question. The exclusivity of possession over the limitation period would not have been continuous. At all events, the owner(s action would be sufficient to show that there was no intention on the part of the registered owners to discontinue possession - Leigh v. Jack [1879] 5 Ex. D. 264. Accordingly I would dismiss the appeal and affirm the judgment of the court below. The appellant should pay the costs of appeal to be taxed if not agreed. [end of page 8] JUDGMENT OF DOWNER, J.A.: The appellant Aneita Gratt seeks to set aside the order of Theobalds, J., which refused the appellant(s claim for a declaration that she was the owner in fee simple on the basis of adverse possession of the land comprised in Certificate of Title registered at volume 1035 folio 298 of the Register Book of Titles. The learned judge below also refused to direct the Registrar of Titles to register the appellant(s name on the Certificate of Title as the absolute owner. The land is in Negril and is available. Crystal Coast Development Company Limited entered into an initial agreement dated 10th May, 1974 from the Shaw family. The purchasers have secured planning permission to erect apartments for the tourist trade. Aneits Grant is a first cousin of the Shaw(s who are brothers and sisters. Their father was Reuben Shaw who died in 1954. In paragraph 3A of her amended statement of claim, the appellant acknowledged the existence of registered proprietors. This is how the owners were recognised: (The registered proprietors of the said premises are: (i) The third defendant

(ii) Habel Adina Shaw, now deceased (iii) Henry Uriah Shaw, now deceased (iv) Simeon Alexander Shaw, now deceased The fifth defendant has been joined in her capacity as Executrix of the Estate of Henry Uriah Shaw, deceased and the fourth and sixth defendants joined as personal representatives for the purposes of this suit for the estates of Mabel Adina Shaw and Simeon Alexander Shaw respectively.( After these significant recitals, the crucial claim is made in paragraph 6 and it is as follows: (6. The plaintiff states that by virtue of the facts stated at paragraphs 1 to 3 inclusive hereof the plaintiff had acquired a possessory title to the said promises and further or in [end of page 9] alternative by virtue of section 3 of the Limitation of Actions Act the plaintiff(s possession, occupation of and title to the said premises are protected by lapse of time and neither the first neither the first defendant nor any other person may make any entry or bring any action or suit to recover the said premises . Wherefore the plaintiff claims to be entitled to be registered as the fee simple owner absolute of the said premises.( The Law applicable to the pleadings The law governing the registration of titles and the effect of the limitation of actions as to acquire a possessory title is set out in sections 60 and 76 of the Registration of Titles Act (The Act). It ought to be sufficient therefore to examine the Certificate of Title Exhibit 1, and the relevant sections of the Act, to determine the validity of the appellant(s claim. Furthermore, the classic authority on this aspect of the law is the decision of the Privy Council in Chisholm v. Hall [1959] 7 J.L.R. 164 which was applied by Bingham, J.A. (Ag.) recently in the case of Beckford v. Cumper (unreported) B.C.C.A. 38/68 at pp. 41-42 delivered June 12th 1967. What does this Certificate of Title says it reads as follows: JAMAICA (Certificate of Title under the Registration of Titles Law, Chapter 340 SIMEON ALEXANDER SHAW Of Middlesex in the parish of Hanover, School teacher and Henry Urich Shaw of 30 Border Avenue in the parish of Saint Andrew, Registered Medical Practitioner. Are now the proprietors of an estate as joint tenants in fee simple. Subject to the incumbrances notified hereunder in all that parcel of land a part of Long Bay situate at Negril in the parish of Westmoreland containing by survey Three Acres Two Roads and Nineteen Perches of the shape and dimensions and butting as appears by the plan thereof hereunto annexed. Dated the eight day of May One Thousand Nine Hundred and Sixty-Seven. Sdg. Ag. Deputy Registrar of Titles.(

[end of page 10] It is clear that the first registration under the Act was on the 8th May, 1967. So it is appropriate to refer to the Act to ascertain the evidential value of the certificate and how the applicant may acquire this title by adverse possession. Section 60 of the Act formerly section 67 reads: (67. No certificate of title registered and granted under this law shall be impeached or defeasible by reason or on account of any informality or irregularity in the application for he same, or in the proceedings previous to the registration of the certificate and every certificate of title issued under any of the provisions herein contained shall be received in all courts as evidence of the particulars therein set fourth, and of the entry thereof in the register book, and 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. ( (Emphasis supplied) Since the proviso to section 70, formerly section 69, specifies how the Statute of Limitations is applicable, it is obligatory to set out that section. It states: ((Section 70) 69. Notwithstanding the existence in any other person of any estate or interest, whether derived by grant from the crown or otherwise, which but for this law might be held to be paramount or to have priority, the proprietor of land or of any estate or interest in land under the operation of this law shall, except in case of fraud, 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 [end of page 11] 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 law under any statute of limitations, and to any public rights of way, and to any casement acquired by enjoyment or upset, or subsisting over or upon or affecting such land, and to any unpaid rates and assessment, quite tents or taxes, that have accrued due since the land was brought under the operation of this law, 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.( (Emphasis supplied) To interpret properly the effect of section 70, section 60 and 70 must be harmonized. The emphasized words in section 70 resolves the seeming ambiguity in section 60 and so gives the scope of the statues of limitation as regards registered land. The scope has been set out with precision by Lord Jenkins at p.175 in Chisholm v. Hall (supra) and it is necessary to quote it as it explains the effect of the emphasized words in section 70. It also governs this case: (The scheme of section 69 now (70) is reasonably plain. The registration of the first proprietor is made to destroy any rights previously acquired against him by limitation, in reliance no doubt on the provisions as to the investigation of the title to the property and as to notices and advertisements, which are considered a sufficient protection to anyone claiming any rights of that description. But from and after the first registration the first proprietor and his successors are exposed to the risk of losing the land or any part of it under any relevant statute of limitations to some other person whose rights when acquired rank as if they were registered incumbrances noted in the certification, and

accordingly are [end of page 12] not only binding upon the proprietor against whom they are originally acquired but are not displaced by any subsequent transfer or transmission. See as to transfers section 84 which provides that the transferee shall be (subject to and liable for all and every the same requirements and liabilities to which he would have been subject and liable if he had been the former proprietor.( This language indicates an intention to put the transferee in the same position for all purposes as the previous proprietor, and although the words used are not particularly apt to describe rights acquired by limitation, a transfer is in any case one of the instruments to which the (deeming( provision of section 69 now (70) is applicable.( What are the notices and (advertisements( of which Lord Jenkins speaks? Here is how he states the position at p.170: "Section 32 provides (to put it shortly) that when the registration of any title has been provisionally approved by one of the references under the Act notification thereof is to be given by advertisement or advertisements as therein mentioned and also personally to all persons in possession or charge of the adjoining lands so as to give them an opportunity of lodging a caveat against the registration of the title in question.( The question may be posed as to what is the compelling conclusion in law from the Act and section 3 of the Limitation of Action Act. Section 3 of the Limitation Act reads: ((No person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims, or if such right shall have not accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entry or distress or to bring such action or suit, shall have first accrued to the person making or bringing the same.(( [end of page 13] Assuming that the appellant had possessory rights before 8th May 1967, they were destroyed by the registered title of 1967 which the appellant recognises at the outset in paragraph 1 of her amended statement of claim. Here is how she stated her recognition: (1. On or around the 14th day of January 1954, the plaintiff for the purpose of looking after her sick uncle, Reuben Shaw, went to reside upon premises at Negril in the parish of Westmoreland being the premises consisting of land and building registered at volume 1035, folio 298, of the Register Book of Titles.( Be it noted that this Certificate of Title was put in evidence by consent before the appellant closed her case. It is appropriate to cite also paragraphs 2 and 3 of her amended statement of claim to demonstrate the basis of her claim and how the issues were conducted in the court below. They are as follows: (2. During the period of his illness and before his death the said Rueben Shaw, who to the plaintiff appeared to be the owner thereof, promised to give her the said premises. 3. Reuben Shaw died on or around the 9th of July, 1954 and the plaintiff took possession and control of the said premises and has continued in uninterrupted and undisputed possession and control thereof and has openly and continuously exercised all the rights and privileges of an absolute owner and has done so adverse to the rights of all who but for her claim are the true owner or owners.( It is clear that the appellant claims a possessory title on the basis of her occupation and intention to

possess from 9th July, 1954. In this case, however, for any claim to be effective, time must run to 7th May, 1979. This is so, as she would have had to prove adverse possession since the first registration in 8th May, 1967. Against the background when Dr. Barnett commenced his reply in this court, this question was put to him -(What would your response be to the contention that exhibit 1 issued on 8th May, 1967 [end of page 14] destroyed any claim for adverse possession before that date.( It must be stressed that paragraph 5 of the appellant(s amended statement of claim recognises that before 7th May, 1979, on 10th May 1974 the registered owner in exercise of his unchallenged right as owner, exercised a (power to dispose of the land( pursuant to section 68 of the Act and it was the respondent purchaser, Crystal Coast Development Company Limited who entered the caveat mentioned in paragraph 5 of the amended statement of claim. That paragraph reads as follows: (5. Caveat no. 94149 dated the 14th day of September, 1963 was lodged by the first defendant claiming an estate and interest an purchaser of the property under and by virtue of an Agreement of Sale dated the 10th of May, 1974 between the first defendant as purchaser and Henry Shaw on behalf of himself and the remaining registered proprietors of the premises as vendor and forbidding the registration of any person other than the first defendant as transferee or proprietor or of any instrument affecting such estate until after notice of the intended registration or dealing be given to or unless such instrument be expressed to be subject to the claim of the first defendant.( Dr. Barnett(s response was that such a contention was never advanced either in this appeal, in the court below or pronounced on by Theobalds, J. in this judgment. That was correct. What was incorrect was his further statement that it would be unfair for this court to take the point at this stage. The mode by which this court hears an appeal is by way of rehearing: see rule 12 of The Court of Appeals Rules 1962. This court rehears from the pleadings in an instance of a point of law which could be decided at the threshold. In other instances, the evidence adduced before the judge below is also referred to. It could not be otherwise as this was the mode of rehearing Chancery Appeals which was adopted by all appeal courts when writs of errors were abolished and appeals permitted on the common law side.[end of page 15] See Quilter v. Mapleson [1982] 9 Q.B.D. p. 676. Here is how Lord Wright puts the rehearing point in Powell v. Streatham [1935] A.C. at 263: (In effect, therefore, the rehearing is very different from the original hearing: it is a rehearing on documents, also the shorthand notes, whereas the judge who originally heard the case both saw and heard the witnesses, and during an examination and cross-examination, often prolonged and searching, had abundant opportunity of forming an opinion as to their relative trustworthiness or the reverse.( (Emphasis supplied) Lord Wright was dealing with an appeal on facts and earlier observation of Lord Macmillian must be understood in that light. So understood they pinpoint that an appeal by way of rehearing is on fact as well as law. Here is how his Lordship puts it at p.256: (But the case was tried by a judge sitting alone, and on appeal from the decision of a judge the Court of Appeal and this house have duty to exercise their jurisdiction as tribunals of appeal on fact as well as on law, a jurisdiction which your Lordships have never hesitated to exercise when satisfied that the courts below have erred on a question of fact.( Lord Atkin at p.255 was of the same mind. He said: (I wish to express my concurrence in the view that on appeals from the decision of a judge sitting without a jury the jurisdiction of the Court of Appeal is free and unrestricted. The court has to rehear, in other words has the same right to come to decisions on the issue of fact as well as law as the trial judge.( (Emphasis supplied)

So entrenched is this principle in appellate work that it was applied in two of the cases cited by the appellant. In Sanders v. Sanders [1882] XIX. L.R. Ch. 377 Jessel, M.R., said at 379: (The appeal, however is from the judgment not from the reasons given for it, and not infrequently a judgment can be supported on grounds not taken in the court below.( The other instance appears in Trustee in Bankrupty of Bowring Hanbury v. Bowring-Hanbury [1943] 1 All E.R. 48. There at p.50 Lord Clauson delivering the judgment of the Court of Appeal said: [end of page 16] (It remains, however to deal with an entirely different point, which was raised for the first time in this court.( In the light of all this the appellant(s claim ought therefore to be dismissed at the outset of this appeal on the ground that, the proviso to section 70 of the Act defeats her claim. How the case was conducted below Theobalds, J., decided the matter on the pleadings and the evidence which he accepted. Particular note must be made of paragraphs 2 and 3 of the amended statement of claim which was quoted above. Here are his findings of fact: (Merely living on the land for the statutory period is not by itself sufficient for adverse possession to run against the true owners.( This finding was based on the evidence of the appellant where in relation to her commencing occupation she said, (Simon asked me to go and take care of him - his condition was very bad.( It must be borne in mind that Simeon was jointly with Henry the first registered owner. He continued his findings thus: (I accept the evidence that plaintiff was at times paid for her services and am not concerned with the frequency or adequacy of such payments. The importance of it is that plaintiff was all times aware of the capacity in which she was in occupation of Reuben Shaw(s land that is as a caretaker to protect the interests of the true owners all of whom resided elsewhere and were therefore in no position to look after the property on their own behalf. Indeed the concern of Constantine Shaw that the premises should be kept bushed is not without significance. P.4 (Condition of house was liveable then - I was concerned with how it stayed.( Wanted place to look good.( (Place belonged to the Shaw.( This is the attitude of a family member/owner who had long before a migrated to the U.S.A. and was gainfully employed there are even became a citizen.( This approach to the findings was supported by Mr. Goffe for the first respondent and rightly so, as after Reuben(s death the appellant said Simeon brought off Benjamin(s interest and further she said (Simeon tell me all time he is not selling the land( and she admitted that Simeon gave her money. [end of page 17] Once those findings were made, there are cases which the appellant cited which reinforced the judge(s findings. Take Hughes v. Griffin [1969] 1 All E.R. 480. At p. 464 Harman, L.J. cites Moses v. Lovegrove [1952] 1 All E.R. 1279. At 1289 Romer, L.J., said: ((It seems to me that one can, in addition to looking at the position and rights of the owner legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier 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, but if it is not so derived, it is adverse even if the owner is, by legislation, prevented from brining ejectment proceedings.(( Cairns, L.J. in Hughes (supra) was of like mind for at p.466 he said: (If that was the position, then in my view the decision of this court in Cobb v. Lane [1952]1 All E.R. 1199 is conclusive against the running of the statute in favour of the testator whilst he was a licensee. All three of the learned Lord Justices in that case made it the basis of their judgments that, once a person in exclusive possession is found to be there as a licensee, he could not acquire rights under the statute because he was not in adverse possession.( To my mind the learned judge must have taken this aspect of the law into account although he did not expressly mention it. The learned judge also specifically mentioned the Certificate of Title thus: (Several members of the Shaw family are now registered on the Certificate of Title and indeed one Henry Shaw (now deceased) had contracted to sell his interest in the land to the 1st defendant Crystal Coast Development Company Limited.( Generously construed, it could be contended that the judge based his conclusions in part on the effect of the Certificate of Title although regrettably he failed to expound the law in sections 68 and 76 of the Act and Chisholm v. Hall. (supra) [end of page 18] It should be pointed out that, had the appellant in her statement of claim included an averment based on the principle stated in Ramsden v. Dyson Law Rep. 1 H.L. 129 and developed in Plimmer v. Mayor of Wellington [1883-84] 9 Appeal cases at 699, the appellant might have acquired an equitable interest in the property. She told the court that she had built a substantial house on the land which was completed in 1983. She had also cultivated 35 coconut trees as well as bananas, cane breadfruits and that she sold the produce and kept the funds. She also rented out a plot of land on which a house was constructed and built four wooden cabins. On the basis of this evidence and coupled with the relevant pleadings, a court might have found that the appellant had acquired an equitable interest in the property and granted the appropriate relief which may have been compensation. Of course, any such finding would have had to take into account the dates on which coconut groves and permanent structures commenced and the nature of the acquiescence. This was vital as a notice to quit was served on her in 1983. To my mind, it is unnecessary to go into the details of all the cases cited by Dr. Barnett in his elaborate submission. It is sufficient to cite one as it is so appropriate. Archer v. Georgiana Holdings Ltd. [1974] 21 W.I.R. 431 at 436 puts the law thus: (The onus of proving that the true owner has been effectively dispossessed is on the party who alleges it. The question whether this onus has been discharged does not always admit of a ready answer. At the outset it is necessary to appreciate the difference between (dispossession( and (discontinuance( of possession. (The difference, said Fry, J. in Rains v. Buxton [1880] 14 Ch. D. 537, 49 L.J. Ch. 473; 43 L.T. 88; 28 W.R. 954 between (dispossession( and (discontinuance( of possession might be expressed in this way: the one is where a person comes in and drives out the others from possession, the other case is where the person in possession goes out and is followed in by others.( The mere fact that the true owner does not make use of his land does not necessarily mean that he has discontinued [end of page 19] possession of it. Leigh v. Jack (1879) 5 Ex. D. 264; 49 L.J.Q.B. 220; 42 L.T. 463 44 J.P 488; 28 W.R. 452. Non-user is equivocal. To establish discontinuance it must be shown positively that the true owner has gone out of possession of the land, that he has left it vacant with the intention of abandoning it. Evidence of lack of user which is consistent with the nature of the land in issue and the circumstances under which it is held is not sufficient to justify a finding of an intention to abandon and thus of discontinuance. Tecbild Ltd v. Chamberlain (1969) 20 P & C

Reports.( These words are apt, as Theobalds, J., found on good evidence that the appellant was a caretaker for the property and continued thus until she was served with a notice to quit. In these circumstances, she could never have proved that the true owners, the Shaws were dispossessed or had discontinued possession. I therefore agree with the determination made below. It is sufficient to say that I would affirm the order below both on the findings of the learned judge and the alternative basis in law adverted to previously. The taxed or agreed costs of this appeal should go the first respondent. [end of page 20] JUDGMENT OF BINGHAM, J.A. (AG.): This appeal is from a judgment of Theobalds, J., entered on 14th July, 1989 in which he rejected the appellant(s claim for a declaration to be the fee simple owner along with certain other reliefs, in respect of certain lands situated at Long Bay, Negril in Westmoreland and registered at volume 1035 folio 298 of the Register Book of Titles. He also ordered costs in favour of the first, third and fourth respondents, such costs to be agreed or taxed. This judgment followed a hearing covering a period of three days. Before us the hearing of this appeal lasted for two days during which one main ground and several supplementary grounds relating to the findings of fact arrived at by the learned trail judge were exhaustively and critically examined and challenged by learned counsel for the appellant. Curiously enough although the written judgment of the learned trail judge was bereft of any specific reference to the questions of law which arose for his consideration, ground 2 of the grounds of appeal challenged the judgment on the basis that: (2. That the learned trail judge misdirected herself on the facts and the law and applied the wrong principles of law and came to conclusions which were wrong.( Theobalds, J. in a relatively short written judgment made a number of crucial findings of fact which for the purposes of this judgment, it is necessary for me to make reference to two namely: (1. Several members of the Shaw family are now registered on the Certificate of Title and indeed one Henry Shaw (now deceased) had contracted to sell his interest in the land to the 1st defendant Crystal Coast Development Company Limited.( In assessing the plaintiff(s evidence he also found that: [end of page 21] (2. Two aspects of her cross-examination weakened her claim. Firstly, she admitted that after Reuben(s death she accepted Simeon as owner of the land and on two occasions she appeared not to be claiming ownership.( The first finding was relevant to the issue raised on the pleadings as to the effect of the insurance of a registered title to certain of the beneficiaries of Reuben Shaw on any claim of an adversary nature by the plaintiff. I shall return to this question later on. Suffice it to say that regrettably, the learned judge did not examine this matter. Had he done so, it would not only have (weakened( the appellant(s claim, it would have so materially affected the bona fides of her claim to such acts of adverse possession going back to July, 1954. The second finding was, when examined, also a proper basis for his conclusion that: (I accept the evidence adduced by the defence that the plaintiff was merely a caretaker continuing on the land with the approval of members of the family after Reuben(s death.( The appellant(s claim of adverse possession commencing from 1954 in order to succeed meant that the onus of proof was on her to establish a claim that required:

(Some affirmative unequivocal evidence going beyond mere evidence of discontinuance and consistent with an attempt to exclude the true owner(s possession.( Per Swaby, J.A. in Archer v. Georgianna Holdings Limited [1974] 21 W.I.R. 431. The Nature of the Appellant(s Claim The appellant Aneita Grant had been let into possession of the property in dispute by Simeon Shaw when his father Reuben Shaw, who was her uncle took seriously ill in early 1954, and required nursing rare. Reuben Shaw died in July 1954. Before his death, according to Aneita Grant, he is alleged to have told her (anytime I dead you must take the land.( However, no deed of gift or other instrument sufficient to convey the property to the appellant was executed, hence [end of page 22] no property passed to her. Following upon the death of Reuben Shaw the plaintiff, based on her account, carried out certain acts of possession demonstrating her control over the property, e.g. renting a house spot, planting coconut trees and building new house - this last act, however, was carried out after the writ had been filed by her in 1983 and could not therefore advance or assist her claim. When the appellant(s claim is examined, it is in my opinion, unfounded both on the facts, based on her own testimony as well as on the law which is applicable. Under cross-examination, she said (referring to the property): (I accepted it as Simeon(s land. After Simeon died I started to cultivate it. Up to Simeon(s death I repaired the house. Is me plant all the coconut trees on the land.( She also said: "In 1982 I build on the land. Benjamin never repair the house when Connie come to Jamaica. I said, (If you think it is right for me to care uncle Tom and Simeon and don(t get anything.( She later recited that: "I know piece of land cut off. Simeon was then in possession in 1972 before Simeon died he say he is not selling the land so I take charge of it as the land is there and nobody come to claim it so I continued to occupy it and first (sic) I built was in 1983." From the above evidence, it is clear beyond peradventure that during the lifetime of Simeon Shaw, the plaintiff acknowledged his claim as to ownership and control of the property in dispute, and along with it an equal right to grant her permission to stay in the house to nurse his sick father and to remain in occupation following his father(s death. It follows from this that no claim of an adverse nature could arise during the lifetime of Simeon Shaw. [end of page 22] It is in the nature of the appellant's testimony, referred to above, that supports the contention of Mr. Goffe that the licence grant to her in the capacity of nurse to Reuben Shaw, contrary to Dr. Barnett(s submission did not cease with his death. It continued thereafter in a changed situation as a caretaker of the property. This contention in the light of her own admission has merit. Such acts of an adversary nature whereby she sought to advance her claim to ownership did not commence until 1983 and thereafter when the appellant said that she built a house along with four movable houses on the land. It is of some significance that this activity occurred at a time when the present litigation was either commenced or being contemplated. By virtue of her acknowledge of the title of Simeon Shaw time would not commence to run in her

favour until after his death In January 1972. When the nature of her occupation during the lifetime of Simeon Shaw is examined, the highest that such possessory acts would amount to, would be in the capacity of a licensee. As it was Simeon Shaw who, by virtue of his beneficial interest, was the grantor of the permission to the appellant to be on the property, while such a status continued no adverse claim could arise during his lifetime so as to cause time to run in her favour. Romer, L.J. in Moses v. Lovegrove [1952] 1 All E.R. 1279, [1952] 2 Q.B.D. 533 applied in Hughes v. Griffin [1989]1 All E.R.400 at 484 B-F puts the matter this way: (It seems to me that one can in addition to looking at the position and rights of the owner legitimately look also at the position of the occupier for the purpose of seeing whether his occupation is adverse. In my opinion, if one looks to the position of the occupier 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 but if it is not so derived it is adverse even if the owner is by legislation prevented from bringing ejectment proceedings.( (Emphasis supplied) [end of page 24] Apart from the evidential situation, the appeal must fail as a matter of law for the further reason that when examined the appellant(s claim sought not merely a declaration that she was the fee simple owner by virtue of adverse possession from 1954, but she also sought at paragraph 6 of the amended statement of claim page 8 of the record) the following relief: (8. And the plaintiff claims against the defendant:(a) For a declaration that the plaintiff has acquired title as fee simple owner of the land comprised in Certificate of Title registered at volume 1035 folio 298 of the Register Book of Titles; (b) For an order directed to the second defendant that the plaintiff be registered on the Certificate of Title referred to at a. above as fee simple absolute owner; (c) That the caveat lodged by the first defendant be withdrawn; (d) Costs; (e) Such further and other relief as may be just." This claim referred to the acquisition by Simeon and Henry Shaw, of a registered title in respect of the lands the subject of the claim on 8th May, 1967, as joint tenants in fee simple. It was this title which the appellant now sought cancellation of, and to have her name registered thereon as the fee simple owner. This title by virtue of sections 68 and 70 of Registration of Titles Act would have defeated any claim to adverse possession by the plaintiff from 1954. In this regard the dictum of Lord Jenkins in Chisholm v. Hall [1959] 7 J.L.R. 164; [1959] 1 W.I.R. 413 in dealing with this very question is apposite. In delivering the judgment of the board of the Privy Council he said: (pp. 175 and 421 H-I of the respective reports) [end of page 25] "The Scheme of section 69 (now 70) is reasonably plain. The registration of the first proprietor is made to destroy any rights previously acquired against him by limitation, in reliance no doubt on the provisions as to the investigation of the title to the property and as to the notices and advertisements which are considered a sufficient protection to anyone claiming any rights of that description. But from and after the first registration the first proprietor and his successors are exposed to the risk of losing the land or any part of it under any relevant statute of limitations to some other person whose rights when acquired rank as if they were registered incumbrances noted in the certificate, and accordingly are not only binding upon the proprietor against whom they are originally acquired but displaced by any subsequent transfer or transmission.(

The effect of the first registration of the lands in dispute Simeon and Henry Shaw in May 1967, therefore, was to destroy any such claim that the appellant may have had to the said lands prior to that date. Although raised on the pleadings, this point was not advanced by counsel at the hearing below on considered by the learned judge. Learned counsel for the appellant seized upon this fact to contend that it ought not in the circumstances, to form the basis of a matter falling for consideration by this court. I must stoutly resist any such contention. In my opinion, it ought to be considered. It is worthy to mention in pa