Ocean Estates Ltd v Pinder

JurisdictionUK Non-devolved
Judgment Date1969
CourtPrivy Council

Bahama Islands - Trespass - Land, to - Owners' documentary title and acts of constructive possession - Whether possession abandoned - Owners' right to maintain action for trespass without actual entry and actual possession - Real Property Limitation Act, 1874 (Laws of the Bahama Islands), rev. 1965, cap. 150, s. 1.

The plaintiffs, a development company, were the owners in fee simple of 144 acres of land under a conveyance of March 30, 1950. In 1963, as owners, they sued the defendant for damages for trespass to land and an injunction restraining further trespass. At the trial they duly proved a devolution of title going back through a series of intervening conveyances to a conveyance of May 3, 1937, to C.O. Co. Ltd. The defendant claimed a possessory title to the whole of the land and advanced no alternative claim to any part of the land as distinct from the whole. He relied upon a title acquired under section 1 of the Real Property Limitation Act, 1874, and the consequent extinction of the plaintiffs' title under the Real Property Limitation (No. 1) Act, on the ground of his full free and undisturbed possession of the land by farming thereon continuously for more than twenty years prior to the date of the writ, having cultivated various plots of the land from 1949 to 1967, and having planted fruit trees on part of the land from 1954 until 1956. The plaintiffs relied upon their documentary title to the land; on the use of the land by the director of C.O. Co. Ltd., their predecessors in title, between 1941 and 1946 when he planted and harvested fruit trees on parts of the land and also by the plaintiffs' own exercise of powers of dominion over the land in 1957 and from 1959 to 1960 by having the land inspected and surveyed for future building development. The trial court held that the defendant had failed to prove a possessory title to the whole of the land and gave judgment for the plaintiffs. The Court of Appeal took the view that the plaintiffs' title, being less than 30 years, could not have been forced on an unwilling purchaser and they treated the action as if it were one between competing trespassers each relying upon his own actual occupation of the land, and on that basis allowed the appeal.

On appeal to the Judicial Committee the defendant did not seek to uphold the judgment of the Court of Appeal on those grounds but contended that notwithstanding the plaintiffs' documentary title to the whole land, the particular form of action selected, that of trespass to land, was not available to them because they had failed to show that at the time the action was brought they had sufficient possession of the land to maintain such an action:—

Held, allowing the appeal, that the plaintiffs had, by their use of the land from 1941 to 1946 and in 1957 and from 1959 to 1960, established sufficient possession to bring an action for trespass to land and to negative any intention on their part to abandon possession, having regard to the special purpose of eventual building development by them (post, p. 1364D, E).

Bristow v. Cormican (1878) 3 App.Cas. 641 at 657, H.L.(E.) and Wuta-Ofei v. Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596, P.C. applied.

Per curiam. The question of what documentary title a vendor is entitled to insist on forcing upon a purchaser has no relevance to the present action; as against a defendant whose entry upon the land was made as a trespasser a plaintiff who can prove any documentary title to the land is entitled to recover possession of the land unless debarred under the Real Property Limitation Act by effluxion of the 20-year period of continuous and exclusive possession by the trespasser (post, p. 1363E–G).

Judgment of the Court of Appeal for the Bahama Islands set aside and the judgment of the Supreme Court of the Bahama Islands (Smith J.) affirmed.

The following cases are referred to in the judgment:

Bristow v. Cormican (1878) 3 App.Cas. 641, H.L.(E.).

Wuta-Ofei v. Danquah [1961] 1 W.L.R. 1238; [1961] 3 All E.R. 596, P.C.

The following additional cases were cited in argument:

Chowood Ltd. v. Lyall (No. 2) [1930] 2 Ch. 156, C.A.

Hegan v. Carolan [1916] 2 I.R. 27.

Johnston v. O'Neill [1911] A.C. 552, H.L.(E.).

Jones v. Chapman (1849) 2 Exch. 803.

Leigh v. Jack (1879) 5 Ex.D. 264, C.A.

Malcolmson v. O'Dea (1863) 10 H.L.Cas. 592, H.L.(E.).

Paradise Beach and Transportation Co. Ltd. v. Price-Robinson [1968] A.C. 1072; [1968] 2 W.L.R. 873; [1968] 1 All E.R. 530, P.C.

Perry v. Clissold [1907] A.C. 73, P.C.

Wallis and Grout's Contract Ltd. In re [1906] 2 Ch. 206.

Williams Brothers Direct Supply Ltd. v. Raftery [1958] 1 Q.B. 159; [1957] 3 W.L.R. 931; [1957] 3 All E.R. 593, C.A.

Wood v. Riley (1867) L.R. 3 C.P. 26.

APPEAL No. 30 of 1967 from a majority judgment (June 20, 1967) of the Court of Appeal for the Bahama Islands (Sinclair P. and Hallinan...

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