George v Guye
| Jurisdiction | Dominica |
| Judge | Baptiste, JA,Gertel Thom,Justice of Appeal,Tyrone Chong, QC,Justice of Appeal [Ag.] |
| Judgment Date | 12 June 2017 |
| Neutral Citation | DM 2017 CA 2 |
| Docket Number | DOMHCVAP2012/0013 |
| Court | Court of Appeal (Dominica) |
| Date | 12 June 2017 |
EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
The Hon. Mde. Gertel Thom Justice of Appeal
The Hon. Mr. Tyrone Chong, QC Justice of Appeal [Ag.]
DOMHCVAP2012/0013
Ms. Zena Dyer and Ms. Gina Dyer-Munro for the Appellant
Mr. Michael E. Bruney for the Respondent
Civil appeal — Indefeasibility of title — Real Property Limitation Act, Chap. 54:07 — Title by Registration Act, Chap. 56:50 — Adverse possession — Proper procedure for claiming title to land acquired by prescription — s. 33 of Title by Registration Act — Whether respondent's title to disputed land superseded by appellant's title acquired under Real Property Limitation Act
The appellant, David George, was the occupier of a strip of land (“the disputed strip”) which formed part of a larger piece of land, of which the respondent, Albert Guye, was the registered proprietor. The respondent had purchased his land in 1995 and in 2004, began operating a tyre shop on it. The appellant also operated a tyre shop on the property which he occupied adjacent to the respondent, known as John Tyre Services. This property was registered in the name of his deceased father, John George. The disputed strip was situated between the two tyre businesses.
The respondent's pleaded case was that he was the registered proprietor in possession at
all material times of the disputed strip, and he sought a declaration that the appellant not be entitled to enter or cross his land. Further, he sought to have the appellant remove a wooden shed that he had erected on the disputed strip and vacate the land. The appellant, in his defence, pleaded that he was entitled to have and remain in possession of the disputed strip by virtue of the fact that the respondent is barred from bringing the action against him under the Real Property Limitation Act since he (the appellant) and his predecessors had been in undisturbed long possession of the land for about 30 years. Alternatively, he pleaded that the respondent is estopped by conduct from claiming entitlement to the property. The appellant filed a counterclaim, seeking kindred declarations.
Notwithstanding that the learned judge accepted that the appellant had been in possession of the disputed strip for more than 12 years and that he (the judge) was ‘content to treat the possession of the [appellant] and his predecessors in title as adverse’, he gave judgment in favour of the respondent. The judge stated that treating the appellant's possession as adverse was not conclusive of the claim. The respondent's title to the disputed strip was ‘indefeasible, except, inter alia, “on the ground that his title has been superseded by a title acquired under the Real Properties (sic) Limitation Act’”. The judge rejected the notion that the appellant had acquired title under the Real Property Limitation Act. He reasoned that it would have been open to the appellant to apply to the Registrar for a certificate of title under section 33 of the Title by Registration Act on the basis of long adverse possession, but, not having done so, he did not have a title acquired under the Real Property Limitation Act. In these circumstances, the fullest rights of the registered proprietor, that is, the respondent, must be given effect to.
The judge further declared that the appellant is not entitled to enter or remain on the land comprised in the respondent's certificate of title. The appellant was ordered to remove the structures erected on the disputed strip and the judge granted the respondent a permanent injunction restraining the appellant and his successors in title from entering or crossing his land. The judge also dismissed the appellant's counterclaim.
The appellant appealed, arguing, among other things, that the judge erred in finding that although the appellant and his predecessors in title had been in possession of the disputed strip for over 12 years, the appellant could not rely on section 2 of the Real Property Act to establish that he was entitled to remain in possession of the land. Section 12 barred the respondent's claim while section 10 extinguished his rights and title to the land. The respondent, in seeking to uphold the judge's decision, contended that section 10 of the Real Property Limitation Act cannot extinguish the rights and title of a registered owner under the Title by Registration Act unless the provisions of section 33 of the Title by Registration Act are complied with and the court directs the Registrar to issue a certificate of title to the appellant.
dismissing the appeal and ordering that the appellant pay the respondent costs of this appeal, being two thirds of the costs of $7,500.00 awarded below, as well as the costs in the court below, that:
Section 33 of the Title by Registration Act provides the procedure by which a claim to a title acquired by prescription in respect of registered land is to be made. The appellant not having invoked section 33, the respondent's title was not superseded by the title acquired by the appellant under the Real Property Limitation Act. In the absence of the court directing the Registrar to issue a certificate of title to the appellant pursuant to section 33, there could be no superseding of the respondent's title. The respondent is protected by his indefeasibility of title and no issue can arise as to his right to recover the land being barred or his title being extinguished. In the circumstances, his right to recover the disputed strip from the appellant was not barred nor was his title to the land extinguished.
This appeal essentially brings to the fore the relationship between the Real Property Limitation Act1 and the Title by Registration Act. 2 At the root of the relationship is the powerful concept of indefeasibility of title guaranteed to the registered owner of land — the holder of the certificate of title — held under the Title by Registration Act. Pitted against this is the position of a person who has acquired or claims to have acquired under the Real Property Limitation Act, ownership of land brought under the Title by Registration Act.
The appeal stems from a dispute over a strip of land (“the disputed strip”) which is occupied by the appellant, David George (the defendant in the court below), but forms part of a larger piece of which the respondent, Albert Guye (the claimant in the court below), is the registered proprietor. The respondent purchased the land in 1995 and in 2004 began operating a tyre repair shop thereon.
The appellant also operates a tyre shop, known as John Tyre Services, on property adjacent to that of the respondent. The property is registered in the name of his deceased father, John George. The disputed strip is between the two business operations.
The respondent pleaded in his statement of claim that he was at all material times the registered proprietor in possession and sought a declaration that the appellant is not entitled to enter or cross his land; as well as injunctive relief in that regard. He also sought an order that the appellant forthwith pull down and remove a wooden shed built thereon and all things belonging to him or brought onto the land by him and that he vacates the land.
The appellant filed a defence and counterclaim. In the defence he pleaded that he is entitled to have and remain in possession of the land by virtue of the fact that the respondent is barred from bringing the action under the Real Property Limitation Act since he and his predecessors in title have been in undisturbed long possession for about 30 years. Alternatively, he pleaded that the respondent is estopped by conduct from claiming entitlement to the property. In the counter-claim he sought kindred declarations.
The matter came up for hearing before Cottle J who held that the respondent is entitled to rely on his certificate of title and to possession of the disputed strip. He declared that the appellant is not entitled to enter or remain on the land comprised in the respondent's certificate of title. He ordered the appellant to remove the structures erected on the respondent's land and granted a permanent injunction restraining the appellant and his successors in title from entering or crossing the respondent's land. Cottle J also dismissed the appellant's counterclaim.
In delivering judgment, Cottle J stated:
“From the evidence it appears clear to me that the defendant has been in possession of the disputed strip for a period of more than 12 years.” 3
Cottle J accepted that the defendant and his predecessors in title had operated the tyre repair business on the disputed strip since at least 1980. Cottle J further
stated:“For the purpose of this case I am content to treat the possession of the defendant and his predecessors in title as adverse but that is not conclusive of this claim. The indisputable fact is that the claimant has a Certificate of Title. That means that his title to the disputed strip is indefeasible, except, inter alia, ‘on the ground that his title has been superseded by a title acquired under the Real Properties (sic) Limitation Act?.’ 4
Cottle J rejected the notion that the appellant had acquired title under the Real Property Limitation Act. He reasoned that it would have been open to the appellant to apply to the Registrar for a certificate of title under section 33 (although section 34 erroneously appears in the judgment) of the Title by Registration Act on the basis of long adverse possession; not having done so, he does not have a title acquired under the Real Property Limitation Act. In these circumstances, the fullest rights of the registered proprietor must be given effect to.
In...
To continue reading
Request your trial